Another federal appeals court has ruled that President Obama’s so-called “recess appointments” to the National Labor Relations Board were unconstitutional because the Senate was not in recess at the time: “We hold that the Recess of the Senate in the Recess Appointments Clause refers to only intersession breaks.” So ruled the majority of a three-judge panel of the Third Circuit Court of Appeals, in its 2-to-1 ruling in NLRB v. New Vista Nursing and Rehabilitation. Generally, our Constitution’s system of checks and balances requires Senate approval of Presidential appointees, but this requirement, found in Article II’s Appointments Clause, contains an exception for temporary recess appointments made during “the recess” of the Senate.
The appeals court noted that other courts such as the Eleventh Circuit have permitted recess appointments not just in “intersession breaks” but also “breaks within a session (i.e., intrasession breaks) that last for a non-negligible time.” But President Obama’s “recess” appointments would not be valid even under that broader reading of his powers (as I previously explained).
Obama’s appointments of the NLRB members would be valid only under a still broader, radically expansive interpretation of the Recess Appointments Clause that would gut the Senate’s power to review Presidential appointments. The NLRB and the Obama administration argue that recess appointments can be made whenever “the Senate is not open to conduct business” — presumably including when the Senate goes home for the evening or even takes a lunch break — and even includes “periods in which the Senate holds pro forma sessions” but is not available to vote on nominations. This argument is of “recent vintage,” noted the appeals court, and is plainly contrary to the Recess Appointments Clause’s “meanings at the time of ratification” of the Constitution.
(The court’s opinion, issued on May 16, is quite lengthy: the majority opinion totals 102 pages, while the dissent runs 55 pages.)
In an earlier ruling in Noel Canning v. NLRB, the D.C. Circuit Court of Appeals reached the same conclusion as the Third Circuit, finding that there was simply no “recess” in existence to authorize the President to make these so-called recess appointments. In its January 25 decision, the D.C. Circuit also noted that Obama’s appointments were invalid for an additional reason: the Recess Appointments Clause only authorizes appointments to fill vacancies that “happen” during a recess, and even the Obama administration admits that the vacancies occurred before, rather than during, any recess.The Obama administration has recently filed a petition with the Supreme Court asking it to review and reverse the D.C. Circuit’s decision. Its petition contradicts prior administration claims by admitting that the D.C. Circuit’s ruling will, if allowed to stand, also invalidate other Obama administration “recess” appointments, such as the appointment of Richard Cordray to head the powerful Consumer Financial Protection Bureau (CFPB). Cordray’s appointment was as invalid as the NLRB appointments, since he was “recess” appointed by Obama during the same non-existent recess.