Litigation over President Obama’s “recess appointments” to the National Labor Relations Board is going to the Supreme Court. A similar battle is being waged among lawyers about whether the President’s appointments to that Board, and to the Consumer Financial Protection Board, are constitutional.
At stake is the legal validity of hundreds of administrative decisions and regulations.
There are two constitutional issues involved. President Obama, like earlier Presidents, maintains that when the Constitution allows him to appoint officials without Senate approval so as to fill vacancies during “the Recess,” the latter term includes breaks within a session of the Senate, not just formal breaks between sessions. In addition, he claims (like many others before him) that for the vacancy to “happen,” as that word is used in the Constitution, it is enough that the vacancy continue into a recess. It doesn’t have to be created then.Details