In recent decades, presidents faced with partisan gridlock on Capitol Hill have increasingly used short-term recess appointments to get around stalling by the Senate.
President Reagan made 243 recess appointments during his time in the White House, President Clinton made 140, and President George W. Bush, 171, according to Senate historian Donald Ritchie. Obama made 32 such appointments in his first term.
In Obama's first term, Senate Minority Leader Mitch McConnell (R-Ky.) used the filibuster threat to block votes on many Obama nominees, including those to the NLRB. McConnell joined the lawsuit against Obama's appointments.
The decision came a day after Senate Majority Leader Harry Reid (D-Nev.) announced he had stepped back from proposals to sharply limit the use of the filibuster.
Despite minor changes in the Senate procedures, the GOP minority still will be able to block final votes on Obama's nominees, including to the appeals court that handed down Friday's ruling. Obama has been unable to appoint a single judge to the 11-member appeals court because Republicans have blocked votes on his nominees.
The legal dispute turned on two passages in the Constitution. One says the president "shall nominate and, by and with the advice and consent of the Senate, shall appoint … all other officers of the United States." The other says, "The president shall have the power to fill up all vacancies that may happen during a recess of the Senate."
Since 1921, the Justice Department has said that a recess should be defined in "practical" terms. This allowed the president to make recess appointments when Congress was not in session for a few weeks.
Judge Sentelle focused on the original words and meaning of the Constitution and decided a "recess" referred only to the time when Congress has completed its work for the year and adjourned.
"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.... This cannot be the law," said Sentelle, an appointee of Reagan.
He was joined by Judges Karen Henderson , an appointee of President George H.W. Bush, and Thomas Griffith, an appointee of George W. Bush.
Under the ruling, the NLRB does not have a quorum of three members and cannot decide enforcement actions.
Cordray's appointment is being challenged in U.S. District Court in Washington, D.C., by State National Bank of Big Spring, Texas; the Competitive Enterprise Institute; and the 60 Plus Assn., a free-market and seniors advocacy group.