The U.S. Court of Appeals for the District of Columbia just ruled that three recess appointments made by President Barack Obama last year are constitutionally invalid.  The Court ruled specifically on appointments made to the National Labor Relations Board (NLRB) during a Congressional recess last January but the ruling has implications for the recess appointment of Richard Cordray to be Director of the Consumer Financial Protection Bureau which was made on the same day.

The Office of White House Counsel has not yet reacted to the decision but it is nearly certain they will appeal it to the Supreme Court.  If allowed to stand the Appeals Court ruling invalidates dozens of decisions made by the NLRB over the last year.  Cordray's appointment is being challenged in a separate court case which could have similar implications for the copious rulemaking done by CFPB under his directorship.

The NLRB appointment and that of Cordray were made by the President during a Senate recess because Senate Republicans had blocked all four appointments with the threat of filibusters.  The three NLRB nominees were blocked because the minority party considered them too pro-union.  Republicans admitted that Cordray was well qualified for his position but they were opposed to the existence of CFPB which was established by the Dodd-Frank Wall Street Reform Act. 

The Court said that recess appointments were intended to fill vacancies that occurred during congressional recesses rather than to circumvent senate confirmations.  "Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception," the judges said.

Senate Republicans had also contended that they were not in actual recess at the time.  Even though most members had dispersed to their home states for the Christmas/New Years holidays they had arranged for members who remained in the Washington area to gavel the otherwise empty chamber to order each day precisely to thwart recess appointments.