Another ruling against Obama appointment

On May 16, 2013, the United States Court of Appeals for the Third Circuit ruled that a so-called recess appointment made by President Barack Obama in March 2010 was unconstitutional. The ruling supports a similar finding made by the United States Court of Appeals for the District of Columbia Circuit in January 2013 based on other "recess" appointments made by Obama in January 2012.

The two rulings support the unconstitutionality of yet another appointment made by Obama on that same day in 2012 – that of Richard Cordray to head the newly created Consumer Financial Protection Bureau, which has oversight powers over the prepaid card industry.

The Third Circuit court's three-judge panel rendered a two to one verdict that Obama's appointment of Craig Becker in March 2010 to the National Labor Relations Board was unconstitutional because Congress was not in recess, but on a break while in session. The U.S. Constitution stipulates that the president must get approval from the Senate to appoint government officials when Congress is in session. Only when Congress is officially in recess does the Constitution seem to allow the president to make recess appointments.

By ruling that the NLRB appointment was unconstitutional, the Third Circuit said certain board actions since the appointment was made were also unconstitutional. The Constitution mandates that such government bodies as the NLRB need a majority of its members to be active on the board to make decisions and conduct business. The court's majority opinion was that the board did not have enough active members, since one of them, Becker, was appointed unconstitutionally.

The Third Circuit Court decision was based on a lawsuit brought by a New Jersey nursing and rehabilitation center against its health care workers union. The earlier DC Circuit Court ruling was based on a separate case that pitted a soda pop bottler and distributor against its labor union and involved the constitutionality of the appointments of Sharon Block, Terence F. Flynn and Richard F. Griffin to the NLRB. A separate lawsuit concerning the constitutionality of Cordray's appointment is working its way through the court system.

In April 2013, the U.S. Department of Justice petitioned the U.S. Supreme Court to overturn the DC Circuit Court's ruling. But it is reportedly not likely that the Supreme Court will take up the case when it reconvenes in October 2013.

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