A third federal appeals court ruled Wednesday that President Obama violated the Constitution last year when he made recess appointments to the National Labor Relations Board, adding more weight to the case as it goes before the Supreme Court in the justices’ next session.
The Fourth U.S. Circuit Court of Appeals, in a 2-1 decision, said that the president can only make recess appointments after Congress has adjourned “sine die,” which in modern times has meant when it breaks at the end of each year.
That ruling rejects Mr. Obama’s own interpretation that he can make appointments whenever he deems the Senate to be unable to give him “advice and consent” on his nominees.
After digging through constitutional history and reading up on the framers, the judges said it’s apparent the founding fathers intended for the president only to be able to use his recess appointment powers when the Senate was gone for a long period of time, not the brief breaks Congress regularly takes for holidays or weekends.
“All this points to the inescapable conclusion that the framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings,” Judge Clyde H. Hamilton wrote in his majority opinion.