We all knew this; I meant Fed appeals court...
WASHINGTON (CNN) —President Obama's recess appointments to a federal agency-- made without Senate confirmation-- have been struck down by a federal appeals court as an unconstitutional use of executive power.
The three-judge panel unanimously concluded Friday three people named to the National Labor Relations Board lacked authority, because the presidential appointments were made while the Senate was technically in a "pro forma" session during the winter holiday break.
The case sets up a potential high-stakes Supreme Court fight between the executive and legislative branches.
Republican and Democratic lawmakers in the past have used the "virtual Congress" tactic to block unilateral appointments by the President when the Senate is away.
"We determine the Board issuing the findings and order could not lawfully act, as it did not have a quorum," said the court.
Republicans had claimed the appointments to the NLRB created a panel that was overly pro-union, and this ruling could invalidate hundreds of findings issued over the past year. The administration is expected to file an appeal to the Supreme Court in coming months.
And the court's conclusion also put in jeopardy the recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau, a move also being challenged in a separate lawsuit.
"Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers," said the judges from the U.S. Court of Appeals for the District of Columbia Circuit. "An interpretation of 'the recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law."
The White House said it believes Friday's decision will not affect Cordray's appointment, but did express displeasure with the court's action.
"The decision is novel and unprecedented. It contradicts 150 years of practice by Democratic and Republican administrations," said Jay Carney, White House Press Secretary. "So we respectfully, but strongly disagree with the rulings. There have been-- according to the Congressional Research Service-- something like 280-plus intra-session recess appointments by, Democratic and Republican administrations dating back to 1867. That's a long time and quite a significant precedent."
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