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The ruling by the 3rd Circuit U.S. Court of Appeals in Philadelphia came on the same day that a Senate panel considered a slate of five nominees for full terms on the labor board. Senate Republicans said Thursday they would oppose two of the nominees Sharon Block and Richard Griffin because they currently sit on the board as recess appointments. In its 2-1 decision ruling, the appeals court said that under the Constitution recess appointments can be made only between sessions of the Senate, not any time the Senate is away on a break.
The court's action mirrors a far-reaching ruling by the U.S. Court of Appeals in Washington, D.C., earlier this year. The Obama administration has appealed that ruling to the Supreme Court, arguing that such an interpretation would invalidate hundreds of recess appointments made by presidents over more than 100 years. The latest ruling says Obama had no constitutional authority to install attorney Craig Becker to the labor board in 2010 while the Senate was adjourned for two weeks. Becker is no longer on the board. The White House declined to comment Thursday.
Both rulings have threatened to throw the labor board, the Consumer Financial Protection Board and other federal agencies with recess appointees into chaos. If they stand, hundreds of decisions by these agencies could be thrown out, reaching back several years. The narrow interpretation of a president's recess appointment power would also effectively make it impossible for the president to ever use that power, giving the Senate's ability to block administration nominees indefinitely.
Obama has made 32 recess appointments during his presidency, nearly all of which would be considered invalid under the interpretation of these courts. The rulings could also threaten the recess appointments of previous presidents. President George W. Bush made 141 such appointments in eight years. On Capitol Hill, Tennessee Sen. Lamar Alexander, senior Republican on the Senate Health, Education, Labor and Pensions Committee, said he would not consider Block and Griffin because they refused to step down from the board after the District of Columbia Circuit ruled that they were unconstitutionally appointed. Block and Griffin said they wanted to abide by their oath to serve their country and argued that appeals courts have reached different conclusions about recess powers.
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