Barack Obama's 'recess' appointments violate constitution: US appeals court

The decision, with which the White House strongly disagreed, focuses on the validity of three appointments to the National Labor Relations Board that were made on Jan. 4, 2012.

But it could have broader implications for presidential power in the appointments process.

It also raises questions about the validity of the appointment of Richard Cordray as head of a consumer watchdog agency which was done on the same day, over intense Republican objections. Cordray's appointment was not part of the legal case decided Friday.

A new congressional session had begun the day before the 2012 appointments but, adhering to tradition, the senators left town for the holidays, although they were available to potentially act on appointments if need be.

Obama had argued that his appointments were appropriate because the Senate was in a holiday recess.

But the U.S. Court of Appeals for the District of Columbia declared that the Senate had technically remained open in pro forma session, in which a lone member can gavel in and then immediately gavel out.

The White House had consistently claimed such sessions were aimed at retaining the ability to block presidential appointments without Senate approval, but the court said the pro forma sessions were valid.

“An interpretation of 'the Recess' that permits the president to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement,” the judges said in their opinion.

Recess, the judges said, “is limited to intersession recesses,” and not pro forma sessions when no business occurs.

“Considering the text, history, and structure of the constitution, these appointments were invalid from their inception.”

The case has been seen as a test of the president's ability to bypass the confirmation process in the Senate, whose members have the constitutionally enshrined power to block nominees.

The White House denounced the ruling as “novel and unprecedented.”

“It contradicts 150 years of practice by Democratic and Republican administrations,” press secretary Jay Carney told reporters.

Congressional research shows more than 280 intrasession recess appointments by Democratic and Republican administrations dating back to 1867, Carney said.

“That's a long time, and quite a significant precedent.”

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