D.C. Circuit’s Invalidation of President Obama’s Recess Appointments Raises Questions Concerning Actions Taken by the Consumer Financial Protection Board’s Director

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The D.C. Circuit’s Decision in Noel Canning -

On January 25, 2013, the U.S. Court of Appeals for the D.C. Circuit held that President Obama’s recess appointments to the National Labor Relations Board (NLRB) were unconstitutional. Citing his authority under the Constitution’s Recess Appointment Clause, President Obama had appointed three individuals to the NLRB during an intra-session recess of the Senate in January 2012. After the NLRB subsequently found that a company violated the National Labor Relations Act in connection with a collective bargaining agreement, the company challenged the NLRB’s authority to act claiming, among other things, that the NLRB lacked a lawful quorum.

The D.C. Circuit agreed that the President’s appointments were invalid. Relying on a number of historical sources, the court reasoned that the President’s power under the Recess Appointments Clause extends the Recess between sessions of the Senate only and not to any intra-session recess of the Senate that may arise. The court went on to state that the President’s Recess Appointment power may only be used to fill vacancies that first occur during the Recess of the Senate and not to any vacancy that happens to exist during a recess. As a result, the appointments to the NLRB were invalid, and because this meant that the NLRB lacked a valid quorum, the D.C. Circuit concluded the NLRB’s orders were void.

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