A federal court has ruled that the Senate was not was not technically in recess when Obama made three appointments to the National Labor Relations Board and appointed the head of a new agency, the Consumer Financial Protection Bureau. This potentially brings an end to a practice that has lasted for two hundred years. Presidents have traditionally not been required to send their Cabinet nominees before the Senate if the Senate is in recess.
On Friday the three-judge panel made their statement. “In short, we hold that ‘the Recess’ is limited to intersession recesses,” they wrote in the opinion.
“Considering the text, history and structure of the constitution, these appointments were invalid from their inception.”
“It contradicts 150 years of practice by Democratic and Republican administrations,” White House spokesman Jay Carney said on Friday. “So we respectfully but strongly disagree with the rulings.” The Department of Justice indicated that the administration intends to appeal the ruling.
“If this opinion stands, I think it will fundamentally alter the balance between the Senate and the president by limiting the president’s ability to keep offices filled,” said John P. Elwood, who handled recess appointment issues for the Justice Department during the Bush administration. “This is certainly a red-letter day in presidential appointment power.”
