A unanimous decision handed down Friday by the District of Columbia Circuit Appeals Court invalidates President Obama's recess appointments to the National Labor Relations Board, and put the recess appointment of CFPB Director Richard Cordray into jeopardy.
The three-judge panel said the appointments, made while the Senate was in a pro forma session in early January 2012, were unconstitutional. The Obama Administration is expected to file an appeal to the Supreme Court.
"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, giving the president free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law,” the judges wrote in the decision.
John Eastman, professor at Chapman University School of Law in Orange, Calif., said the decisions handed down by the NLRB over the past year are now illegal. Eastman and attorney Noel Francisco, who represented the plaintiff in the NLRB suit, spoke to the press during a call sponsored by The Federalist Society, a conservative legal think tank.
Francisco said as a result of the court decision, CFPB regulations could be challenged under the argument that Cordray’s appointment was illegal.
Cordray was appointed on the same day as the NLRB officials and is the subject of a separate lawsuit challenging his appointment and the constitutionality of the Dodd-Frank Act.