Opinion

The far-ranging implications of Friday’s recess-appointments ruling

Photo of Elizabeth Slattery & Todd Gaziano
Elizabeth Slattery & Todd Gaziano
The Heritage Foundation
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      Elizabeth Slattery & Todd Gaziano

      Elizabeth Slattery is a Legal Policy Analyst with and Todd Gaziano is the Director of the Center for Legal and Judicial Studies of The Heritage Foundation.

On Friday morning, a three-judge panel of the D.C. Circuit Court of Appeals unanimously struck down President Obama’s alleged “recess” appointments to the National Labor Relations Board (NLRB). The appointments were made over a year ago, so the ruling invalidates a number of actions taken by the NLRB since then. The five-member NLRB cannot act on issues before it absent a quorum. And the participation of illegally appointed members does not a quorum make.

Art. II, sec. 2, cl. 2 of the Constitution provides that the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” The court held that the president’s power to make recess appointments is limited to intersession recesses, which are “some substantial passage of time, such as a ten- or twenty-day break” that occurs between the two to three sessions per Congress, not similar recesses in the middle of a session of the Senate, referred to as intra-session recesses.

The court noted that the Constitution’s appointments scheme demonstrates that the recess appointment power “served as a stopgap for times when the Senate was unable to provide advice and consent.” The Framers of our Constitution likely did not imagine a day when senators could communicate their consent to bills by electronic means or fly to Washington in a few hours. As a result, they provided a mechanism for the president to make appointments during necessarily long recesses. President Obama is not the first to use or arguably abuse this power. But for nearly a century, the general consensus of all branches of government was that long intra-session Senate recesses (of between 10 and 30 days) were acceptable periods during which a president could make recess appointments. According to the court’s ruling, no intra-session recess will do.

The court also went beyond deciding when “the Recess” occurs. Two of the three judges on the panel ruled that the president may make recess appointments only for vacancies that arise during the recess, not those that may happen to exist or continue to exist during a long recess. Thus, the president cannot simply store up nominations until the Senate is in a long intersession recess and then make recess appointments, circumventing the Senate’s advice and consent role.

Friday’s ruling significantly narrows the president’s recess appointment power, unless it is overturned by the full D.C. Circuit or the Supreme Court. Given the fact that the federal circuit courts disagree on when a “recess” occurs, it is likely the administration will seek one or both avenues of review. Yet those paths may prove even more difficult for the administration, because there are additional grounds to sustain Friday’s ruling and hold that the particular recess appointments at issue were unconstitutional. These additional grounds are noted in this piece, which one of us co-authored with Ed Meese a few days after the illegal recess appointments.

The ruling also calls into question the claimed “recess” appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB). Cordray’s supposed recess appointment came on the same day and in the same manner as the invalid NLRB appointments. His appointment was not an issue before the D.C. Circuit, but its validity — and, consequently, all actions taken by the CFPB under his leadership — are even more questionable than those involving the NLRB appointees. That’s because Cordray would have been the first head of that agency. If his appointment is illegal, then neither he nor anyone acting under his authority could have made lawful delegations of authority.

Elizabeth Slattery is a Legal Policy Analyst with and Todd Gaziano is the Director of the Center for Legal and Judicial Studies of The Heritage Foundation.