The President declared the Senate to be “in recess” and made the appointments. His detractors condemned the tactic saying that the Senate’s status at the time did not meet the Constitutional definition of “recess.”
A three judge Appellate Court for the DC area unanimously agreed. Judge Thomas Griffith and Judge Karen LeCraft Henderson joined Chief Judge David Sentelle who wrote:
Allowing the president to define the scope of his own appointment power would eviscerate the Constitution’s separation of powers
The consequences of the ruling are enormous. Regarding the work of the NLRB itself, the AP reports:
If the ruling stands, it means that hundreds of decisions issued by the board over more than a year would be 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.
In the long run, it seems unlikely that the President will not get his desired members on the board. At a minimum, all he needs to do is wait for a real Senate recess and then re-appoint the members.
The real value here is found in the damage to the notion that the President can simply declare a matter Constitutional and proceed with his agenda accordingly. From appointments of czars to his use of Executive Orders to his need to act unilaterally given his inability to pass legislation in Congress, many paths the President has been inclined to pursue are now in jeopardy.
The confusion, fiscal costs and chaos that are likely to result from the President’s actions need to be laid squarely at his feet and be hung around his neck like a millstone. This is not a situation he inherited from a previous administration. This is a fiasco of his own making which sprang from his own hubris and arrogance.
One can only hope this is the first puff of air to assault his house of cards. The sooner his ambitions are made subject to the law of the land, the better.