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Key excerpts from DC circuit's NLRB recess appointments ruling

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Politics,Beltway Confidential,Philip Klein

A Federal Appeals court today invalidated three of President Obama’s  “recess appointments” to the National Labor Relations Board that were made while the Senate was in session. The key takeaway is that the Court determined that under the Constitution, the President’s recess authority is very limited to making appointments to positions that become vacant while the Senate is in the recess between sessions of Congress.

Each Congress lasts two years, divided up into a “session” each year. If the Supreme Court adopts this view it would severely restrict the President’s authority to make recess appointments. I’ll have more to say about the broader importance of this ruling, but I first thought it would be useful to post some key excerpts. And for background, the relevant clause of the U.S. Constitution is: “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.” (You can read the full DC circuit ruling here.)

Excerpts:

Six times the Constitution uses some form of the verb “adjourn” or the noun “adjournment” to refer to breaks in the proceedings of one or both Houses of Congress. Twice, it uses the term “the Recess”: once in the Recess Appointments Clause and once in the Senate Vacancies Clause, U.S. Const. art. I, § 3, cl. 2. Not only did the Framers use a different word, but none of the “adjournment” usages is preceded by the definite article. All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings…

Thus, background documents to the Constitution, in addition to the language itself, suggest that “the Recess” refers to the period between sessions that would end with the ensuing session of the Senate…

At the time of the Constitution, intersession recesses were regularly six to nine months, Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1498 (2005), and senators did not have the luxury of catching the next flight to Washington. To avoid government paralysis in those long periods when senators were unable to provide advice and consent, the Framers established the “auxiliary” method of recess appointments. But they put strict limits on this method, requiring that the relevant vacancies happen during “the Recess.” It would have made little sense to extend this “auxiliary” method to any intrasession break, for the “auxiliary” ability to make recess appointments could easily swallow the “general” route of advice and consent. The President could simply wait until the Senate took an intrasession break to make appointments, and thus “advice and consent” would hardly restrain his appointment choices at all…

To adopt the Board’s proffered intrasession interpretation of “the Recess” would wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the Appointments Clause…

As discussed above, the appointments structure would have been turned upside down if the President could make appointments any time the Senate so much as broke for lunch…

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. See 2012 OLC Memo, supra, at 23 (“[T]he President therefore has discretion to conclude that the Senate is unavailable to perform its advise- and-consent function and to exercise his power to make recess appointments.”). This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.”…

The intersession interpretation of “the Recess” is the only one faithful to the Constitution’s text, structure, and history….

The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments. Recent Presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law…

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. 158 Cong. Rec. S1 (daily ed. Jan. 3, 2012). Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception…

Our understanding of the plain meaning of the Recess Appointments Clause as requiring that a qualifying vacancy must have come to pass or arisen “during the Recess” is consistent with the apparent meaning of the Senate Vacancies Clause. The interpretation proffered by the Board is not…

Consistent with the structure of the Appointments Clause and the Recess Appointments Clause exception to it, the filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose. There is no reason the Framers would have permitted the President to wait until some future intersession recess to make a recess appointment, for the Senate would have been sitting in session during the intervening period and available to consider nominations.

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