In December, Senate Republicans forced a courtroom showdown with the president after they said he didn’t have the power to make three appointments to the National Labor Relations Board.
Attorneys for the Obama administration argued that he had the authority because the Senate was in recess. The case is a test of the White House’s authority to bypass Congress’ power to block nominations. Recess appointments have a shelf-life of two years.
“Considering the text, history and structure of the Constitution, these appointments were invalid from their inception,” a panel said.
The ruling is an embarrassing blow to the Obama administration and could call into question his recess appointment of Richard Cordray as head of the Consumer Financial Protection Bureau.
White House attorneys are expected to appeal the decision to the U.S. Supreme Court, but if it stands, it means hundreds of decisions issued by the board over more than a year are invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.
On Jan. 4, 2012, Obama appointed Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn to fill vacancies on the NLRB, giving it a full contingent for the first time in more than a year. Block and Griffin are Democrats, while Flynn is a Republican. Flynn stepped down from the board last year.
Obama also appointed Cordray on the same day.
The court's decision is a victory for Republicans and business groups that have been attacking the labor board for issuing a series of decisions and rules that make it easier for the nation's labor unions to organize new members.