Walter Choroszewski Stock Connection Worldwide/Newscom

Walter Choroszewski Stock Connection Worldwide/Newscom

This week, the U.S. Court of Appeals for the Fourth Circuit invalidated the National Labor Relations Board’s (NLRB) unfair labor practice decisions against two companies based on President Obama’s illegal recess appointments in violation of the Recess Appointments Clause. This is the third appellate court to consider the issue—and President Obama is 0-for-3.

The Recess Appointments Clause provides that the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” This case boils to down what “the Recess” means. The court considered three definitions: intersession recesses (breaks between sessions of Congress), intrasession recesses (breaks within sessions of Congress), and whenever the Senate is “unavailable for business,” as determined by the President.

In a 2–1 decision, the court agreed with the D.C. Circuit and the Third Circuit that “the Recess” refers to intersession recesses. Thus, President Obama’s January 2012 appointments to the NLRB were unconstitutional because the Senate was not in recess but instead had been conducting pro forma sessions.

The Administration argued for an expansive interpretation of “the Recess” that would give the President the power to decide when the Senate is available to provide its advice and consent on nominations. The court was not persuaded and stated that it was “troubled,” because such a definition would “thwart the advice and consent function engrained in the Appointments Clause.”

The court noted that such an interpretation would allow the President to “appoint controversial individuals to high government posts by preventing the Senate from performing its constitutional advice and consent function.” “Obviously,” the court continued, this is “at odds with the original purposes of both the Appointments and Recess Appointments Clauses.”

The court acknowledged that both sides of the aisle have used recess appointments to “sidestep the confirmation process.” Nevertheless, “political gridlock” is no reason to ignore the text of the Constitution in favor of the Administration’s expansive interpretation.

The D.C. Circuit case, NLRB v. Noel Canning, is already pending before the Supreme Court. It agreed to hear the case next term. But now that Senate Republicans have agreed to proceed with votes on nominees to the NLRB, some wonder if that case will be moot before the Supreme Court can make a decision. Others argue that the filibuster deal is unlikely to affect the case.