DC Circuit Invalidates Obama Recess Appointments

January 25, 2013 -- This morning, a panel of the US Court of Appeals for the District of Columbia Circuit held that President Obama's recess appointment of three members of the National Labor Relations Board (NLRB) violated the Constitution's Recess Appointments Clause.¹ The DC Circuit's decision, which the Government will likely appeal, has significant ramifications for Director Richard Cordray of the Consumer Financial Protection Bureau (CFPB or the Bureau), who was appointed the same day as the NLRB members and whose appointment would also be invalid under the DC Circuit's reasoning. Hence, it will likely have important implications for many recent and pending CFPB rulemaking and supervisory actions. If the decision were to be the last word on the issue, it would dramatically restrict the circumstances under which Presidents could make recess appointments. Thus, it seems highly likely the Government will seek review, either by the full court of appeals or by the