Federal Appeals Court Likely to Invalidate Obama’s Recess Appointments

President Barack Obama made headlines months ago when he installed controversial nominees to key government positions, bypassing the U.S. Senate by declaring the Senate in recess so that Senate confirmation was not needed. Today a federal appeals court signaled that it might rule Obama’s move unconstitutional, and remove those officials from power.

The U.S. Constitution says that Congress can by statute allow minor government players—“inferior officers”—to be appointed by the president, by Cabinet officers, or by the courts. But high-level administrative officials—called “principal officers”—must be nominated by the president, then confirmed by the U.S. Senate.

But the Senate isn’t always around; for part of each year, senators are back in their home states. So the Framers of the Constitution included the Recess Appointments Clause, allowing presidents to make temporary appointments during Senate recesses. Such appointments last until the end of the following calendar year, meaning appointments made in January 2012 last through December 2013.

Starting in December 2011, the U.S. Senate officially adjourned for only three days at a time—which the Constitution allows the Senate to do without going into recess—and did so specifically to prevent Obama from using his recess power. Democratic senators did this a few years ago to block George W. Bush from making recess appointments. Although it’s frustrating when the branches block each other, the reality is the Constitution allows it. And besides, this is just the political pushback to presidents using their recess power to get around the Senate in recent years.

But on Jan. 4, 2012, this president did something no president in American history ever attempted. Obama declared that the Senate was actually in recess because there were not enough senators physically present to do regular business, and thus that he had the constitutional power to make appointments unilaterally. He then appointed three members—a controlling majority—of the five-member National Labor Relations Board (NLRB), as well as the first director of the new Consumer Financial Protection Bureau.

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