Appeals court eviscerates recess appointment power

The Constitution gives the president the power to appoint officers unilaterally during “the Recess” of the Senate:

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.

For the first century-and-a-half, this was interpreted to mean that the president could make recess appointments during the period between Senate sessions, of which there were typically two during a two-year Congress. Since 1947, the president has assumed the additional power to make recess during intra-session breaks in the Senate’s business. This power has never been seriously challenged, until now.

For reasons of his own, President Obama decided to arrogate to himself the power to make recess appointments even when the Senate was in session, if he deemed that the Senate wasn’t doing any real work. If this were to hold up, it would give the president the power to bypass the Senate literally whenever he chose.

ASIDE: Obama justified this by an opinion from the Office of Legal Counsel. That opinion was issued just two days before the first such appointment, and overruled a standing opinion to the contrary. That opinion was issued by his own administration, and was authored by Elena Kagan, now a Supreme Court justice.

Obama’s decision to pick this fight now appears to be an unforced error of historic proportion.

The Court of Appeals for the DC Circuit has issued a unanimous, devastating ruling. It correctly brushes aside the administration’s claim to be able to decide for itself whether the Senate is in session:

The fourth and final possible interpretation of “the Recess,” advocated by the Office of Legal Counsel, is a variation of the functional interpretation in which the President has discretion to determine that the Senate is in recess. . . This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.

But it goes further. The ruling finds that the recess appointment power only applies during “the Recess” which is to say the period between Senate sessions. Thus, it excludes the power to make intra-session appointments that the president has enjoyed for the last sixty-odd years.

But it goes further still. The ruling also finds that the wording “that may happen” is significant, and requires that the vacancy come into being during the recess as well! (I believe this is correct, but I had little hope that a modern court would decide thus.)

Thus, President Obama has received his comeuppance in truly historic fashion. By trying to arrogate to himself a virtually unlimited recess appointment power, he has invited a ruling that instead makes that power very limited indeed. Constitution 1, Obama 0.

This isn’t the end. The ruling can and probably will be reviewed by the Supreme Court. The Supreme Court may scale back the ruling, at least in regard to “that may happen”, but I think it is unlikely to overturn the central holding.

POSTSCRIPT: Although it pales in relation to the Constitutional issues at stake, it’s also important what the ruling does, which is invalidate a full year of NLRB rulings.

(Via Hot Air.)

UPDATE: Jennifer Rubin lists some of the NLRB rulings that will go away. A lot of bad stuff is being invalidated, like ambush elections and “micro-unions”.

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