A little more than a year ago, President Obama made a series of appointments to positions that had been lingering in the Senate for quite some time utilizing his power under Article II, Section 2 Clause 3 of the Constitution to make appointments while Congress was in recess that would last until the end of the then-current term of Congress. On the same day, Obama used this power to appoint Richard Corday as head of the newly-formed Consumer Financial Protection Bureau and then to make three appointments to the National Labor Relations Board. Almost immediately, interested parties began filing lawsuits alleging that the recess appointments were unconstitutional because Congress was not really in recess during the time that the appointments took place. Instead, utilizing a tactic that Democrats first engaged in during the Bush Administration, the House refused to consent to a joint adjournment as required by the Constitution, meaning that the Senate was required to hold “pro forma” sessions, which basically consisted of gavelling the body in and out of session in an event that typically lasted less than five minutes. At the time, I was skeptical of the arguments that were being made in these lawsuits largely because the Recess Appointment clause doesn’t specify how long Congress must be out of session for a such an appointment be effective. Today, though, a panel of the Court of Appeals for the D.C. Circuit ruled that the recess appointments were unconstitutional:
A federal appeals court ruled on Friday that President Obama violated the Constitution when he made three recess appointments to the National Labor Relations Board last January.
The three-judge panel of the United States Court of Appeals for the District of Columbia Circuit held that Mr. Obama did not have the power to bypass the Senate and make the appointments.
The Obama administration has repeatedly asserted that the appointments to the N.L.R.B. were legitimate because he made them when the Senate was away during a 20-day holiday recess a year ago. The appeals court strongly disagreed, ruling that the Senate was technically in session because it was gaveled in and out every few days as part of a tactic that created “pro forma” sessions.
Both Republican and Democratic lawmakers have used the tactic of “pro forma” session to block presidents from making recess appointments.
The court’s decision also raises doubts about the legitimacy of Mr. Obama’s recess appointment of Richard Cordray to head the Consumer Finance Protection Bureau.
Mr. Cordray’s appointment, which is being challenged in a separate lawsuit, was also made last January under the same recess circumstances. On Thursday, Mr. Obama announced he was again nominating Mr. Cordray to that position, voicing hope that Senate Republicans would not block confirmation this time, as they did with the previous nomination of Mr. Cordray.
Many Republicans and business associations have derided the labor board under Mr. Obama, saying it has become a tool of organized labor. But many Democrats and labor unions have responded that Mr. Obama’s appointments had merely restored ideological balance to the board after it had favored business interests under President George W. Bush.
The Obama administration is likely to appeal Friday’s ruling to the United States Supreme Court.
But if the ruling is upheld, it would invalidate scores of decisions that the labor board has made since last January.
The board would be left with just one validly appointed member — its chairman, Mark Gaston Pearce — who was confirmed by the Senate. Under a 2010 Supreme Court decision, the labor board, which has five seats, is authorized to issue decisions only when it has three or more sitting members.
In its opinion, the Court goes through a rather extensive analysis of the Constitutional clauses in question, as well as the history of the use of Recess Appointments in the years after adoption of the Constitution and concludes that the Recess Appointment power is limited to only those times during which there is a gap between one Session of Congress and another:
The Clause sets a time limit on recess appointments by providing that those commissions shall expire “at the End of their [the Senate’s] next Session.” Again, the Framers have created a dichotomy. The appointment may be made in “the Recess,” but it ends at the end of the next “Session.” The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in “the Recess.”
It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions. Cf. Virginia v. Tennessee, 148 U.S. 503, 519 (1893) (interpreting terms “by reference to associated words”). Confirming this reciprocal meaning, the First Congress passed a compensation bill that provided the Senate’s engrossing clerk “two dollars per day during the session, with the like compensation to such clerk while he shall be necessarily employed in the recess.” Act of Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71.
Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board. When the Federalist Papers spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.” The Federalist No. 67, at 408 (Clinton Rossiter ed., 2003). For there to be an ”ensuing session,” it seems likely to the point of near certainty that recess appointments were being made at a time when the Senate was not in session — that is, when it was in “the Recess.” Thus, background documents to the Constitution, in addition to the language itself, suggest that “the Recess” refers to the period between sessions that would end with the ensuing session of the Senate.
The implications of this ruling if it stands is really quite extraordinary. When the Constitution was drafted, it was understood that there would be long gaps between the end of one session of Congress and the beginning of another. Indeed, for most of the early years of the Republic, the gap between the end of one Session of Congress, typically in December, and the beginning of the other on March 4th was months at a time. Partly, this was due to the state of transportation at the time, of course, but there was also the fact that there simply wasn’t nearly as much to do in the 18th and 19th Century as there is today. This isn’t the situation for the modern Congress, of course. While recesses are frequent during the year, it’s not uncommon for a Congressional session to last for almost all of a calendar year. In fact, under the law, a Session of Congress does not end until just before Noon on January 3rd of the calendar year following a Presidential or mid-term election. The “recess” between the 112th and 113th Congresses, for example, was a matter of mere minutes. If this holding stands, then it would effectively mean that a President really wouldn’t have a Recess Appointment power any more because there isn’t really much of a recess between one Congress and another.
Of course, the ultimate fate of this ruling remains unclear. The 11th Circuit Court of Appeals rejected a challenge to a Recess Appointment by President George W. Bush, arguing that the Constitution does not set a minimum amount of time for a “recess” that would trigger the appointment power. The D.C. Circuit addresses that ruling in its opinion and disputes it fairly well I must say, but it’s unclear how the Supreme Court is going to view a case like this. When it does come before them, and I suspect it will, it will a case of first impression dealing with a Constitutionally significant dispute between the two political branches of government. If the D.C. Circuit’s ruling is upheld, then it essentially means that everything that the NLRB did after January 4, 2012 was invalid. The same would apply to the actions taken by Richard Corday’s actions at the CRPB. The impact of such a decision is not something that even the Court’s most conservative Justices will take likely. It’s possible that the D.C. Circuit is correct about this, their opinion is certainly very persuasive, but this issue isn’t resolved by any means and I wouldn’t believe any legal analyst who said they knew for sure how it was going to turn out in the end.
Here’s the opinion:
Canning v. National Labor Relations Board et al by dmataconis
