Court Strikes Down Obama’s NLRB Recess Appointments

Court Strikes Down Obama’s NLRB Recess Appointments
February 2, 2013

Ross Kaminsky

Ross Kaminsky received his Bachelor's degree from Columbia University in 1987 before embarking on... (read full bio)

In the first bit of good news for those opposing the ever more tyrannical Obama administration, a 3-judge panel of the DC Circuit Court of Appeals has overturned a ruling of the National Labor Relations Board on the basis that President Obama’s appointment of three members was unconstitutional. In particular, Obama claimed them as recess appointments when the Senate was not in recess.

It is heartening to read an opinion in which judges actually refer to the text of the Constitution and the intent of the Founders, even quoting the Federalist Papers in their analysis.

The judges note that there were no intrasession “recess” appointments made until 1867 (and maybe not even that one was an intrasession appointment), and a total of only three (including that one) over the ensuing 80 years. From the opinion: “we conclude that the infrequency of intrasession recess appointments during the first 150 years of the Republic suggests an assumed absence of [the] power” to make such appointments.”

The Obama administration argued that they should be able to determine when, in their opinion, the Senate is in recess. The judges would have none of it:

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.

While the court’s ruling that the Senate was not in recess, and therefore that recess appointment is not possible, is enough to overturn the NLRB’s ruling in this and all cases decided by the NLRB with the same Board makeup, the judges went on to a ruling which has potentially much greater implications for future administrations and politics: 

They ruled that the Constitution’s provisions on recess appointments only allow appointments during a (true) recess for vacancies which happen (i.e. come into existence, not just happen to exist from a prior time) during a recess. In other words, the DC Circuit has ruled that if a vacancy occurs while the Senate is not in recess, then that vacancy cannot be filled by a recess appointment.

The NLRB argues (indeed almost any administration of either political party would argue) that this interpretation could lead to inefficiencies caused by extended vacancies in certain offices. The court said that may be true, but that Congress could do something about that if they wanted to. And most importantly, it’s a more than reasonable price to pay for a true system of checks and balances and for the rule of law based on our Constitution:

The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government. In light of the extensive evidence that the original public meaning of “happen” was “arise,” we hold that the President may only make recess appointments to fill vacancies that arise during the recess.

This ruling should mean that no ruling of the (utterly corrupt, and stacked with union hacks) NLRB since those faux-recess appointments is valid, and that the NLRB remains unable to act until at least three of its five members are lawfully confirmed by the Senate.

But more than that, it severely restricts the ability of presidents to fill vacancies during even true recesses. If a vacancy for a position which normally requires “advice and consent” of the Senate did not occur during a Senate recess, it may not be filled as a recess appointment.

But wait, there’s more:

Consistent with the structure of the Appointments Clause and the Recess Appointments Clause exception to it, the filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose. There is no reason the Framers would have permitted the President to wait until some future intersession recess to make a recess appointment, for the Senate would have been sitting in session during the intervening period and available to consider nominations.

Wow. Not only can a president only use a recess appointment to fill a vacancy that first occured while the Senate was in recess, but he must make that recess appointment during thesame recess. Barack Obama’s life (and future presidents’ as well) just got a little harder. And that’s a good thing.

Of course, what we’ll see now is collaboration among members of a political party, especially if that party controls both the Senate and the White House, along with those office holders who are considering stepping down. If the politicians believe the replacement is too controversial or would for any other reason not be approved by the Senate, they will try to get the retiring office holder to step down during a true recess, or try to define as a true recess something which was not the Founders’ intent, so they can then fill the office during the now much narrower window.

I would think it very likely that this ruling will be appealed to the Supreme Court by the Obama Administration, not least because the DC Circuit expressly notes that it disagrees with a ruling on a smilar issue by the 11th Circuit in 2004. I’d bet that enough of the leftist judges will want to hear it that the case will be granted cert unless it is clear to the Justices that the DC Circuit ruling will be upheld. I just hope they get this one right if it gets to the Supremes. Separate from partisan issues, Americans should be very wary of an overpowerful Executive Branch, and very grateful for judges who believe in searching for the true, original intent of the meaning of the Constitution’s words.

For those who enjoy reading such things (as I do), the following section of the opinion is worth quoting extensively as an example of “originalist” judicial reasoning which is all too infrequent, and tremendously welcome:

At the time of the Constitution, intersession recesses were regularly six to nine months, Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA 23 L. Rev. 1487, 1498 (2005), 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. As the Supreme Court observed in Freytag v. Commissioner of Internal Revenue, “The manipulation of official appointments had long been one of the American revolutionary generation’s greatest grievances against executive power, because the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism.” 501 U.S. 868, 883 (1991) (internal quotation marks and citation omitted). In short, the Constitution’s appointments structure — the general method of advice and consent modified only by a limited recess appointments power when the Senate simply cannot provide advice and consent — makes clear that the Framers used “the Recess” to refer only to the recess between sessions.

[First published at the American Spectator.]

Ross Kaminsky

Ross Kaminsky received his Bachelor's degree from Columbia University in 1987 before embarking on... (read full bio)