Court of Appeals Holds Obama Exceeded Authority on Recess AppointmentsMelancton Smith • Monday January 28, 2013 5:59 AM PST •
The Constitution allows presidents to fill certain vacancies temporarily when the Senate is out of session–a recess appointment. “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.”
While in office, Obama has made about 32 such appointments. Such appointments have been very common in the last two decades as the two parties have fought hard over judicial nominees. In Canning v. NLRB, the Court of Appeals for the D.C. Circuit considered arguments about whether certain NLRB appointments made by the President actually happened during a Senate recess.
At the time the appointments at issue were made, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The question, at base, was whether the term “the Recess” in the Recess Appointments Clause refers to the intersession recess of the Senate, that is to say, the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable to receive and act upon nominations from the President, or whether the alternative appointment procedure created by that Clause is available during intrasession “recesses,” or breaks in the Senate’s business when it is otherwise in a continuing session. The Court adopted the former interpretation:
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.
The Court further held that the vacancy must happen during the recess. It cannot be a vacancy that the President and Senate have been fighting over for some time and then the President, during a recess, makes an appointment. “Our understanding of the plain meaning of the Recess Appointments Clause as requiring that a qualifying vacancy must have come to pass or arisen ‘during the Recess’ is consistent with the apparent meaning of the Senate Vacancies Clause.”
In the case directly before the Court, an NLRB proceeding, the Court held that the board composed on “recess appointees” lacked a quorum because of the constitutional deficiencies in the appointments. Hence, the board decision had to be vacated for lack of a quorum.
By the logic of the Court of Appeals, it appears that most of the President’s recess appointments have been counter to the Constitution. There is no word on whether the administration will appeal the ruling.