D. C. Circuit's Astounding Decision on Recess Appointments

      Senators in both parties had strong doubts when President George W. Bush chose the bombastic conservative John Bolton in 2005 to be the United States ambassador to the United Nations. After the Senate’s Republican majority failed to muster the 60 votes needed to overcome a Democratic filibuster, Bush resorted to the established practice of appointing Bolton to the post anyway while the Senate was taking a summertime recess.
      The recess appointment allowed Bolton to serve, seemingly as provided in the Constitution, until the end of the Senate’s next session — through 2006. But after Bolton again failed to win Senate confirmation, he gave up the post.
      Now, it turns out, Bolton never should have served at all, according to an astounding decision by the federal appeals court for the District of Columbia. In a decision released on Friday [Jan. 25], a three-judge panel headed by the D.C. Circuit’s chief judge, David Sentelle, all but eliminated the president’s prerogative to bypass the Senate to install nominees who cannot win confirmation.
      For extra measure, the ruling also would appear to nullify some 300 orders issued by the National Labor Relations Board (NLRB) during the past year. It also would negate Obama’s appointment of Richard Cordray to head the newly created Consumer Financial Protection Bureau after the Senate refused to act on the nomination.
      The 47-page ruling in Noel Canning v. National Labor Relations Board deals with Obama’s recess appointments to the NLRB, the federal agency charged with enforcing laws that protect union rights and collective bargaining. But the broad holding by a panel of three, Republican-appointed judicial conservatives rejects the legal interpretation that presidents of both parties have invoked hundreds of times in recent decades to keep federal positions filled in the face of Senate inaction.
      The new case arose after Obama put three choices for the NLRB into office by recess appointments on Jan. 4, 2012. Senate Republicans had blocked votes on two nominations that had been pending since August 2010 and August 2011 respectively. When a new vacancy arose on Jan. 3, leaving the five-member board without a quorum of three, Obama said he to act to allow the board to continue to function.
      Obama acted under the authority of a constitutional provision that the Framers inserted as an exception to the normal requirement that presidential nominees to judgeships and high-level executive branch offices be confirmed by the Senate. The next clause provides that 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” (Art. II, § 2, cl. 3).
      As Sentelle explains — and a report by the Congressional Research Service confirms — this clause has been interpreted at least since the 1940s to allow the president to make a recess appointment when the Senate takes a break of at least a few days. That interpretation, Sentelle says, is all wrong. The Constitution refers only to ”the” recess of the Senate, which he and his colleagues construe to mean the intersession recess between the Senate’s end-of-year adjournment and the start of the new session in the next year.
      Sentelle, joined by Judge Karen Henderson, goes a step further to say that this time-constricted power can be used to fill a position only if the vacancy arises (“shall happen”) during this foreshortened period. Judge Thomas Griffith demurred from that part of Sentelle’s opinion, saying it was unnecessary to decide the current case.
      None of the three judges paused over the more evident departure from judicial restraint in their decision. Formally, the Senate was not in recess when Obama made the appointments but was conducting so-called pro forma sessions every three days. Senate Democrats created this legal fiction during the Bush years to block him from making recess appointments. Under Obama, the Justice Department argued that the Senate was in recess anyway because it stipulated that no business was to be conducted during the pro forma sessions.
      A narrow ruling on that issue would have left the recess appointment power in limbo, as it has been for decades: one of many disputes between the president and Congress that courts have steered clear of trying to resolve. Sentelle and his colleagues, however, were on a tear. They viewed the practice that has evolved as fundamentally undermining the constitutional scheme — and their duty, they believed, was to stop it.
      White House press secretary Jay Carney aptly termed the ruling “novel and unprecedented.” He noted that it contradicted “150 years of practice by Democratic and Republican administrations.” Carney did not note the irony that none of the 41 Republican senators who joined in challenging Obama’s appointments had raised any objection to the 171 recess appointments that Bush made during his presidency. President Bill Clinton made 139; Obama has made only 32.
      The D.C. Circuit’s decision conflicts with a ruling in a similar challenge by the Eleventh Circuit in 2004 (Evans v. Stephens). The Supreme Court left that decision alone, but the justices seemingly have no choice but to take up this new ruling if the government appeals — as surely it must. With more deliberation, the justices may not be willing to upend settled practice on the basis of a grammatical distinction that may or may not have been intended by the Framers two centuries ago.