A panel of Republican-appointed judges struck down President Obama’s appointment of three members to the National Labor Relations Board during the winter 2012 congressional recess in an expansive ruling that invalidates more than a century of presidential practice. The ruling by the U.S. Court of Appeals for the D.C. Circuit will now likely be appealed to the U.S. Supreme Court, but has the potential to also affect Obama’s concurrent appointment of Richard Cordray to lead the Consumer Financial Protection Bureau. It could also invalidate every ruling by the NLRB during the period between January 4, 2012 and today, as well as many actions by the CFPB during that period. The opinion is the latest demonstration of the radical views of Judge David Sentelle, who authored this opinion and has previously suggested that all business, labor and Wall Street regulation is constitutionally suspect.
The Constitution gives the president the power to make executive appointments when Congress is out of session, but some Republican members of Congress attempted to claim the January 4, 2012 appointments did not actually occur during a recess. Obama resorted to the appointments following record obstruction of his nominees that left the NLRB without the quorum required to legally operate and the newly formed CFPB indefinitely without a leader, with Republicans claiming they would confirm no one to lead the organization unless its structure was fundamentally altered. The lack of a director also prevented the CFPB from performing several core functions, including regulating nonbank entities such as mortgage and payday lenders.
At the time of Obama’s appointments, Republican pushback had focused on a tactic to prevent Congress from ever really going into “recess” by holding “pro forma” sessions every several days. In response, Obama’s Office of Legal Counsel issued a cogent legal memo rejecting the ability of Republicans to change a recess into something less by holding sessions in name only.
This technicality argument, however, turned out to be irrelevant to the court’s ruling. The D.C. Circuit’s opinion instead came to a far more radical conclusion that invalidates more than a century of accepted recess appointments procedure. Acknowledging that then-Republican Attorney General Harry M. Daugherty had advised in 1921 that a recess was any break in a congressional session of a “substantial length,” Sentelle rejects “that practice of more recent vintage” and holds that only breaks between congressional sessions, and not during sessions can be considered a “recess”:
In short, we hold that “the Recess” is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception.
According to White House Press Secretary Jay Carney, presidents from both political parties have made 285 “intrasession” recess appointments between 1867 and 2004.
Sentelle’s opinion also rejects the ruling of another federal appeals court that such “intrasession” appointments are entirely valid. In fact, his originalist analysis focuses only on the text of the clause, and overtly rejects any recent precedent, history, or context that would elucidate modern understanding of the words.
This opinion is the latest reminder of the influence of federal judges, particularly on the powerful U.S. Court of Appeals for the D.C. Circuit. President Obama’s attempts to get a single nominee confirmed to that court have been met with extreme resistance and obstruction — of the same sort that moved Obama to fill several urgent executive branch vacancies through recess appointments.
[This breaking news post has been updated to include additional analysis.]