Will Conservative Judges Help Republicans Nullify The Recess Appointment Power?

January 25, 2013 1:34 p.m.

An expansive Friday decision by a three-judge D.C. Circuit Court of Appeals panel threatens to cripple two government agencies and significantly limit the president’s power to bypass the Senate confirmation process by making recess appointments.

If ultimately upheld by the Supreme Court, the opinion in a case involving the National Labor Relations Board will also strengthen the Senate minority’s incentive to block top-level presidential appointments — and empower a controversial GOP strategy of nullifying certain executive branch agencies by refusing to allow their designated leaders to be confirmed.Three judges — David Sentelle, a Reagan appointee; Karen Henderson, another Reagan appointee elevated to the circuit court by George H.W. Bush; and Thomas Griffith, a George W. Bush appointee — ruled that President Obama’s three recess appointments to the National Labor Relations Board in January 2012 exceeded his constitutional recess appointment power.

Prior to those three recess appointees, the five-member NLRB lacked the three member quorum required by law to act. If the Supreme Court upholds the appeals court’s opinion, which is in stated conflict with a 2004 11th Circuit opinion, it could void a year’s worth of NLRB decisions issued by an illegitimate quorum. It would also effectively render the board powerless until the Senate confirms a sufficient number of new members.

Friday’s decision will have no immediate effect on operations at the NLRB, according to NLRB chairman Mark Gaston Pearce.

“It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been been raised in more than a dozen cases pending in other courts of appeals,” Pearce said in a statement. “In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

More broadly, the decision would severely curtail the use of the recess appointment, which has been used frequently and with only modest controversy for nearly a century.

The decision also has implications for the Consumer Financial Protection Bureau. In early 2012, Obama used his recess appointment power to make Richard Cordray director of the CFPB, after Senate Republicans rejected his nomination. Cordray was renominated by Obama this week, but remains in his post by virtue of the recess appointment. The CFPB can’t execute many of its powers without a director.

Thus, Senate Republicans, hostile to both the NLRB and the CFPB, had made clear that they would use their filibuster powers to keep all nominees from being confirmed in perpetuity. Additionally, they employed tactics that Democrats had used to effectively strip President George W. Bush of his recess appointment power at the end of his presidency, forcing the Senate to conduct pro forma sessions every three days during traditional intra-session recesses; and preventing the Senate from entering an intersession recess between the first and second halves of the 112th Congress, all to prevent Obama from resuscitating these agencies.

If Obama’s recess appointments were controversial, it was because he executed them despite the fact that the Senate had taken steps to prevent itself from technically entering what’s commonly identified as recess. The administration ignored the pro forma sessions and effectively concluded that it was within president’s ambit to define whether or not the Senate is in recess, technicalities be damned.

But Friday’s opinion does much more than settle the question of whether recess appointments made under those unique circumstances are valid. The judges ruled that the founders only intended recess appointments to occur during the period between the end of one session of a Congress and the beginning of another — an “intersession recess” that typically occurs between the end of one calendar year and the beginning of the next. Furthermore, the judges ruled that Presidents may only make recess appointments to fill vacancies that arise during the same intersession recess.

Applying this standard retroactively would render invalid scores and scores of recess appointments going back decades, and effectively eliminate the practice in the future.

In an exhaustive study of the issue in a 2006 law review article (.pdf), Seton Hall University law professor Edward Hartnett, which the judges cite in their opinion for narrow historical purposes, reached essentially the opposite conclusion.

On the timing of the vacancy: “[T]he Recess Appointments Clause should be interpreted to permit the filling of vacancies that first arose before the recess of the Senate but continued to “happen” in the recess,” Hartnett wrote. “We should not now abandon the interpretation that has governed since at least the early 19th century simply because some had a contrary view in the 1790’s, any more than we should resurrect a federal common law of crimes despite their rejection in the early 19th century simply because some had a contrary view in the 1790’s.”

And on the legitimacy of intercession recesses, Hartnett concludes, “[T]he recess appointment power is best understood as available during both intersession and intrasession Senate recesses of more than three days. … [A]ny attempt to distinguish between intersession and intrasession recesses and limit recess appointments to the former invites ultimately futile manipulation-or worse, escalation of battles between the President and the Senate. If recess appointments can be made only during intersession recesses, and not during intrasession recesses, Congress might attempt to eliminate intersession recesses-and the recess appointment power-by declining to adjourn a session until immediately before the start of a new session, while taking as long an intrasession recess as it pleases.”

In other words, if the DC panel’s opinion is upheld, it would empower the Senate minority to nullify the president’s constitutional recess appointment power, using technical peculiarities of the Senate’s own rules. That’s immensely frustrating to some Democrats, whose efforts to limit the Senate minority’s filibuster power were quashed by party leaders just a day before the opinion was released.

Per one Democrat, “It’s so ironic that a day after they miss that [filibuster reform] opportunity, that they come down with this decision that eviscerates recess appointments completely.”

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