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Last year, during a recess while Congress was still in session, President Obama appointed three members to the National Labor Relations Board (NLRB). While it is Constitutional for a President to make recess appointments during a inter-cession recess, these appointments were made during a intra-session recess. It may sound like a minor detail, but it's not. These appointments to the NRLB, which enforce employee and employer rights, don’t fall under that category. Whoops. We all know that President Obama and the Democrats are having a rough week and, today, it got a little worse when a second court of appeals overturned these appointments.In January, U.S. Court of Appeals for the District of Columbia ruled that those appointments were unconstitutional. In late April, Obama appealed the decision to the U.S. Court of Appeals. Today, that court has also declared the appointments invalid. The decision agreed with that of the D.C. Circuit Court in that the president may only make recess appointments between sessions, not in a recess within a session.
This could have far-reaching implications. While this was being fought in court, the NLRB was working and making decisions, even after the appointments were invalidated by the lower court- a total of 206 decisions since January. These decisions which are now in jeopardy or invalid. The NLRB wasn’t the only beneficiary of recess appointments, either. The director of the Consumer Financial Protection Bureau was appointed during a recess, causing one to wonder if he should get too comfortable in his position.
Obama tried to circumvent the confirmation process by recess appointment, but it backfired. As ranking member Lamar Alexander (R-TN) said
“President Obama … made recess appointments while the Senate was not in recess; this was unprecedented. There is a troubling lack of respect for the constitutional balance of powers and respect for the Senate’s role of advise and consent.”
Perhaps this is a nice reminder for our federal government that this is not a monarchy, and that they are answerable to the people as well as to the Constitution they are sworn to protect.