Breaking news - DC Circuit decision on recess appointments

The US Court of Appeals for the DC Circuit held this morning that the Constitution permits “recess appointments” only during the Recess between Sessions of Congress and only for positions that become vacant during the Recess. The opinion conflicts with a 2004 decision of the Eleventh Circuit. The DC case arises from a challenge to a decision of the National Labor Relations Board, when three of the Board’s five members were appointed during “a recess.” But it has implications as well for the recess appointment of Richard Cordray, the director of the Consumer Financial Protection Bureau. (See prior posts here and here.)