From the NYT: Court Rejects Obama Recess Appointments to Labor Board

Some checking and balancing going on, as well some clarity about the extent of the president's power to make recess appointments. The decision was made by the DC Circuit court though, so its not the final word. That will come from the Supreme Court following the inevitable appeal.

We looked at this story about a year back when the controversy first arose.

From the story:

President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel, a federal appeals court panel ruled Friday.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board.

The unanimous decision is an embarrassing setback for the president, who made the appointments after Senate Republicans spent months blocking his choices for an agency they contended was biased in favor of unions.

The ruling also throws into question Obama's recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau. Cordray's appointment, also made under the recess circumstance, has been challenged in a separate case.

Obama claims he acted properly in the case of the NLRB appointments because the Senate was away for the holidays on a 20-day recess. But the three-judge panel ruled that the Senate technically stayed in session when it was gaveled in and out every few days for so-called "pro forma" sessions.

There's a lot to this case that applies to our class. A major point: Even though we have an agency - the National Labor Relations Board - with statutory authority to do something, the agency can be derailed by Senatorial opponents if they make sure that there aren't enough people on the board to act. So just because a bill is passed and an agency is charged with performing a duty it doesn't necessarily mean that there are not ways to limit it anyway.

Also central to this case is the question "when is the Senate in session?" and who gets to make that call? Is a pro-forma session a legitimate session? I guess it is - for now.