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United States Court of Appeals, District of Columbia Circuit
U.S. Constitution, Article II, Sec. 2, Cl. 3:
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
There are three major ramifications to the D.C. Circuit's decision to deem void the president's appointments to the NLRB, which is sure to be appealed to the Supreme Court:
  • It means that all orders entered by the NLRB during the past year are void. They are down to one valid member and can’t do anything. We will see if yesterday's fiddling with the Senate rules has any effect on the president's ability to get permanent appointees confirmed.
  • It also means that Richard Cordray's simultaneous recess appointment to head the Consumer Financial Products Bureau is also likely invalid, and it has been challenged as well.
  • It greatly circumscribes the recess appointments power, as a general matter.

As background, the appointments took place during what was effectively a 20-day recess around the New Year, with the Senate holding pro forma sessions which the Office of Legal Counsel deemed to be of no constitutional significance in defining a "recess." The D.C. Circuit's ruling, from Judges Sentelle (Reagan nominee), Henderson (GHWB), and Griffith (GWB) holds otherwise. It is full of nerdy constitutional history as to what's a "recess" and what's an "adjournment," whether a "recess" is only that time between sessions of Congress (i.e., end of December session in even-numbered years, through January 2 of the following year), and what does it mean for a recess to "happen." Meet me past the orange gnocchi:

The Constitution’s overall appointments structure provides additional confirmation of the intersession interpretation. The Framers emphasized that the recess appointment power served only as a stopgap for times when the Senate was unable to provide advice and consent. Hamilton wrote in Federalist No. 67 that advice and consent “declares the general mode of appointing officers of the United States,” while the Recess Appointments Clause serves as “nothing more than a supplement to the other for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.” The “general mode” of participation of the Senate through advice and consent served an important function: “It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” The Federalist No. 76.

Nonetheless, the Framers recognized that they needed some temporary method for appointment when the Senate was in the recess. At the time of the Constitution, intersession recesses were regularly six to nine months, and senators did not have the luxury of catching the next flight to Washington. To avoid government paralysis in those long periods when senators were unable to provide advice and consent, the Framers established the “auxiliary” method of recess appointments. But they put strict limits on this method, requiring that the relevant vacancies happen during “the Recess.” It would have made little sense to extend this “auxiliary” method to any intrasession break, for the “auxiliary” ability to make recess appointments could easily swallow the “general” route of advice and consent. The President could simply wait until the Senate took an intrasession break to make appointments, and thus “advice and consent” would hardly restrain his appointment choices at all.

To adopt the Board’s proffered intrasession interpretation of “the Recess” would wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the Appointments Clause.

Part of the D.C. Circuit's problem with the NLRB's appointments, wrote Judge Sentelle, is that if the recess isn't only intrasession recesses, then there's no firm definition as to what it is. It's not just when Congress is closed while everyone's out eating lunch, and the Court was unwilling to declare an arbitrary length like 10 or 20 days to be a "recess," nor would it count an adjournment as a recess:
A third alternative interpretation of “the Recess” is that it means any adjournment of more than three days pursuant to the Adjournments Clause. See U.S. Const. art. I, § 5, cl. 4 (“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .”). This interpretation lacks any constitutional basis. The Framers did not use the word “adjournment” in the Recess Appointments Clause. Instead, they used “the Recess.” The Adjournments Clause and the Recess Appointments Clause exist in different contexts and contain no hint that they should be read together. Nothing in the text of either Clause, the Constitution’s structure, or its history suggests a link between the Clauses. Without any evidence indicating that the two Clauses are related, we cannot read one as governing the other. We will not do violence to the Constitution by ignoring the Framers’ choice of words.
Importantly, they did not accept DOJ's argument that the recess is whenever the president says it is, with the political process able to police excess uses of the power:
The fourth and final possible interpretation of “the Recess,” advocated by the Office of Legal Counsel, is a variation of the functional interpretation in which the President has discretion to determine that the Senate is in recess. See 2012 OLC Memo, supra, at 23 (“[T]he President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.”). This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers. The checks and balances that the Constitution places on each branch of government serve as “self-executing safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other.” 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, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law. The intersession interpretation of “the Recess” is the only one faithful to the Constitution’s text, structure, and history.
And, finally, the lack of presidential precedent weighs against this "new" power here:
The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments. Recent Presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.

As Chief Justice Marshall made clear in Marbury v. Madison, “[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” In Marbury, the Supreme Court established that if the legislative branch has acted in contravention of the Constitution, it is the courts that make that determination. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court made clear that the courts must make the same determination if the executive has acted contrary to the Constitution. That is the case here, and we must strike down the unconstitutional act.

The panel further held that a vacancy does not "happen" during a recess unless it's created then, and not merely because it existed prior to the recess:
It would have made little sense to make the primary method of appointment the cumbersome advice and consent procedure contemplated by that Clause if the secondary method would permit the President to fill up all vacancies regardless of when the vacancy arose. A President at odds with the Senate over nominations would never have to submit his nominees for confirmation. He could simply wait for a “recess” (however defined) and then fill up all vacancies.
Finally, the Court doesn't much care about an agency that can't act without a quorum: blame Congress and let them fix it, they write:
Our sister circuits and the Board contend that the “arise” interpretation fosters inefficiencies and leaves open the possibility of just what is occurring here — that is, a Board that cannot act for want for a quorum. The Board also suggests more dire consequences, arguing that failure to accept the “exist”  interpretation will leave the President unable to fulfill his chief constitutional obligation to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, and even suggests that the interpretation we adopt today could pose national security risks. But if Congress wished to alleviate such problems, it could certainly create Board members whose service extended until the qualification of a successor, or provide for action by less than the current quorum, or deal with any inefficiencies in some other fashion. And our suggestion that Congress can address this issue is no mere hypothesis. The two branches have repeatedly, and thoroughly, addressed the problems of vacancies in the executive branch. Congress has provided for the temporary filling of a vacancy in a particular executive office by an “acting” officer authorized to perform all of the duties and exercise all of the powers of that office....

Admittedly, Congress has chosen not to provide for acting NLRB members. But that choice cannot support the Board’s interpretation of the Clause. We cannot accept an interpretation of the Constitution completely divorced from its original meaning in order to resolve exigencies created by — and equally remediable by — the executive and legislative branches. And as the Supreme Court expressly noted in New Process Steel, in the context of the Board, “[i]f Congress wishes to allow the Board to decide cases with only two members, it can easily do so.”

This is a bad, bad day for the president, especially given the Senate's unwillingness to make major reform on getting such nominees confirmed.

As a general question of presidential power ... your mileage may vary. Do read that 2012 OLC Memo, and see how you feel about such powers being used when the parties are reversed.

Originally posted to Adam B on Fri Jan 25, 2013 at 09:28 AM PST.

Also republished by Daily Kos.

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