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Policy: Labor

A short primer on the legal issues regarding recess appointments

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Politics,Beltway Confidential,Sean Higgins,Labor unions,Labor

For those of you following the debate regarding President Obama’s controversial recess appointments, the Washington Post has a good article up getting into the legal issues involved, particularly what the Founding Fathers’ intent was when they created the provision. It is, the Post says, “catnip for legal nerds”:

[T]he issue is hardly academic. Two appeals courts, the U.S. Court of Appeals for the D.C. Circuit and the 3rd Circuit in Philadelphia, have upset decades of understanding about the president’s recess appointment power. The courts ruled that presidents may make recess appointments only between enumerated sessions of the Senate, not when senators take an intrasession break.

Solicitor General Donald B. Verrilli Jr. said in a petition to the Supreme Court that such a reading of the clause would “drastically curtail the scope of the president’s authority.”

“Presidents have apparently made more than 500 recess appointments during intra-session recesses,” Verrilli wrote, “including appointments of three cabinet secretaries, five court of appeals judges, ten district court judges, a Director of Central Intelligence, a Chairman of the Federal Reserve, numerous members of multi-member boards, and holders of a variety of other critical government posts.”

President Obama has used the power fairly modestly compared with recent predecessors. But he went where no other president had gone in January 2012 when he appointed three members of the National Labor Relations Board and appointed Richard Cordray to head the fledgling Consumer Financial Protection Bureau.

Senators had gone home, but the Senate was holding pro forma sessions by convening with one senator every three days. The practice was intended specifically to thwart presidential action on nominees.

The White House justified appointing the NLRB members by reasoning that the Senate actually was in recess because it was not available to fulfill its advice and consent role by conducting business.

A challenge brought by a Pepsi bottler in the state of Washington and backed by the U.S. Chamber of Commerce went to the D.C. Circuit. But the unanimous panel skipped past the question of pro forma sessions for a far broader ruling.

It said the administration’s view of the recess power would give the president “free rein to appoint his desired nominees at any time he pleases.” In saying the appointments can come only between sessions of the Senate, it gave great weight to the Framers’ use of “the recess” rather than, say, “a recess.”

The panel also voted 2 to 1 that the phrase “vacancies that may happen” means only those openings that arise during the recess, not those that already exist when the recess occurs.

Taken together, the rulings “all but strip the president of his constitutional power to make recess appointments,” said Alexander M. Wolf, a law student who recently published a lengthy study of the recess clause in the Fordham Law Review.

The clause was written at a time when it could take weeks for senators to get to the Capitol. But partisan gridlock has made it an important tool for presidents who are trying to get their nominees past a recalcitrant Senate.

The pro forma sessions were pioneered by Senate Majority Leader Harry Reid (D-Nev.) to thwart nominees of President George W. Bush. Now it is Republican senators who have filed a brief with the court saying justices should also consider the question of pro forma sessions that the D.C. Circuit bypassed.

“The president’s claimed authority to name principal federal officers without the Senate’s consent while the chamber has declared itself in session has no basis in the Constitution,” said the brief filed by all Republican senators.

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