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Republicans said that move upended years of an uneasy agreement between Congress and the White House.

A bottling company, backed by the U.S. Chamber of Commerce, sued to overturn an NLRB ruling made with the questionably constituted board, and Republican senators joined in that lawsuit.

Two appeals courts ruled this year against Mr. Obama, saying Congress has the power to determine scope of its own recesses.

“Allowing the president to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers,” the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said in its opinion.

The Constitution says the Senate is to give its consent to presidential nominations, but anticipating short legislative sessions and at a time when it could take weeks for lawmakers to return to Washington, the founders gave the chief executive the “power to fill up all vacancies that may happen during the recess of the Senate.”

While both appeals courts said “the recess” refers to the period after Congress adjourns for the year, one of the two courts went further, saying it also seems the founders intended for the president to use those powers only for positions that become vacant during that recess, not ongoing vacancies such as the ones on the labor relations and consumer protection boards.