DC Circuit Court Overturns Recess Appointments

(Promoted by Colorado Pols)

In a move that is sure to have repercussions down the road, The D.C. Circuit Court of Appeals has invalidated the appointments of three National Labor Relations Board members – and, essentially, all of the decisions made by the board in the past year.

The ruling, unanimously issued by a panel of three conservative jurists, states that the recess appointment is limited to the period of time after Congress has recessed for the remainder of the session (once every two years before the next session is sworn in) – i.e. almost never in today’s Congressional schedule. It further limits recess appointments to those positions that open up during the recess.

Based on this originalist interpretation of the Constitution, the three NLRB board members were not properly appointed and of their decisions are all invalidated. (The NLRB is a five-member board, and three members must be present for all decisions; at the time of the appointments, Republicans had blocked all NLRB nominations and only two seats were filled, halting all NLRB business. Since then more retirements have taken place; with today’s decision, only one NLRB member is still in office.)

Worse perhaps than the overturning of the NLRB board actions is the fact that this decision opens up every single action of a recess appointee throughout history – all that stands in the way of revoking thousands of decisions is a court challenge for each appointee. This includes Federal judges, Cabinet members and various board members from both Democratic and Republican Presidents throughout modern history; there were almost 300 not-really-recess appointments made by Clinton and Bush 43 alone.

It is almost certain that the Obama Administration will appeal the ruling to either an en banc review from the D.C. Circuit or, more likely, the Supreme Court.В  (The DC Circuit is one of the Republican Party’s greatest success stories when it comes to withholding approval for nominees – it currently has three vacancies, and Judge Santelle, who wrote this opinion, will make it four at the end of the month. On the other hand, Chief Justice Roberts essentially suggested during a case briefing that Obama use the recess power to work around Senate obstruction…)

10 Community Comments, Facebook Comments

  1. The appointment of these three NLRB members was controversial at the time, FWIW. The Senate was holding pro-forma “sessions” every few days, and Obama asked the Office of Legal Counsel for a ruling on whether or not these “sessions” constituted the Senate being in session; the OLC argued that they did not, and that the President was empowered to make the appointments.

    “Why was the Senate in pro-forma session”, you might ask – after all, Harry Reid wouldn’t be blocking the President from making these appointments. The answer is: the House made him do it. Neither house of Congress may adjourn for more than three days without the approval of the other house, and the GOP led House didn’t want Obama making those appointments.

  2. MADCO says:

    I see an injunction and an appeal in the near future.

    Nice catch.

    • This is the talk of the town among both conservative and progressive national blogs right now. The potential ramifications are immense.

      And yes, I see a request for injunction and an appeal happening very soon now. At this point even if Obama were to lose on the NLRB appointments and on Cordray’s recess term, he pretty much has to appeal in order to limit the scope of the damages.

  3. And one more tidbit… Richard Cordray was recess-appointed on the same day to lead the CFPB. His re-nomination is before the Senate as I write this. There is a separate lawsuit before the same court that challenges his actions as head of the CFPB.

  4. roccoprahn says:

    So, was Bolton’s recess appointment to the UN “unconstitutional”?

  5. Oh, hell…

    Someone over at dKos pointed out that Earl Warren was a “recess” appointee of President Eisenhower’s when he heard Brown v. Board of Education.

    • MADCO says:

      But was Warren appointed due to a recess vacancy? :)

      This is one of those dumb rulings that have to get appealed so a court with authority to undo thousands of prior rules can write the decision to do so, if they choose.

  6. marklane1351 says:

    I think Dems should accept this ruling without appeal. After that we can play chicken and retroactively undo any recess appointee from Supreme Court Justice all the way down to dog catcher. Any resulting policies rules court decison and laws would then be undone.

    Recess appointments are legitamate. Both sides do it and both sides whine when the other does it. Life is harsh.

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