The United States Court of Appeals for the D.C. Circuit ruled Friday, January 25, 2013, President Barack Obama's National Labor Relations Board (NLRB) appointments were unconstitutional when he bypassed Senate confirmation to fill vacancies, also known as recess appointments, as the Senate was not in recess.
Cases are emerging challenging whether President Barack Obama overstepped his constitutional authority when he relied on recess appointment powers to appoint three members to the National Labor Relations Board (NLRB). After the 2011 U.S. Supreme Court holding in New Process Steel v. NLRB that two members are not enough for a NLRB quorum, these recess appointments are necessary in many cases to provide authority for the NLRB to act. Obama appointed three members to the Board on January 4, 2012, bypassing Senate confirmation by claiming lawmakers were in recess and unable to advise and consent on the nominations. Presidents are permitted to make appointments without Senate confirmation only during a recess. The Obama Administration has claimed authority to make such appointments because they have found the Senate was on a 20-day recess, even though it has held periodic pro forma sessions in which no business is conducted.