Posted by Curt on 25 January, 2013 at 10:35 am. 11 comments already!



A federal appeals court has ruled that the recess appointments made by Obama to the National Labor Relations Board last January violated the Constitution. Why? Because there was no recess:

The [National Labor Relatinons] 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. Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.

The court basically took a much more narrow view of “recess” which undercuts many appointments made by Presidents. It’s a huge change but well reasoned:

A third alternative interpretation of “the Recess” is that it means any adjournment of more than three days pursuant to the Adjournments Clause. See U.S. Const. art. I, AS: 5, cl. 4 (“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .”). This interpretation lacks any constitutional basis. The Framers did not use the word “adjournment” in the Recess Appointments Clause. Instead, they used “the Recess.”

…In short, we hold that “the Recess” is limited to intersession recesses.


Although our holding on the first constitutional argument of the petitioner is sufficient to compel a decision vacating the Board’s order, as we suggested above, we also agree that the petitioner is correct in its understanding of the meaning of the word “happen” in the Recess Appointments Clause. The Clause permits only the filling up of “Vacancies that may happen during the Recess of the Senate.” U.S. Const. art. II, Sec. 2, cl. 3. Our decision on this issue depends on the meaning of the constitutional language “that may happen during the Recess.” The company contends that “happen” means “arise” or “begin” or “come into being.” The Board, on the other hand, contends that the President may fill up any vacancies that “happen to exist” during “the Recess.” It is our firm conviction that the appointments did not occur during “the Recess.” We proceed now to determine whether the appointments are also invalid as the vacancies did not “happen” during “the Recess.” …

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. …

In light of the extensive evidence that the original public meaning of “happen” was “arise,” we hold that the President may only make recess appointments to fill vacancies that arise during the recess.

And now it will go to the Supreme Court:

The Obama administration is likely to appeal Friday’s ruling to the United States Supreme Court.

But if the ruling is upheld, it would invalidate scores of decisions that the labor board has made since last January.

The board would be left with just one validly appointed member — its chairman, Mark Gaston Pearce — who was confirmed by the Senate. Under a 2010 Supreme Court decision, the labor board, which has five seats, is authorized to issue decisions only when it has three or more sitting members.

It gets better. If this ruling is upheld, and it may very well, it not only invalidates all the pro-union decisions made by the board it also scratches Richard Cordray’s appointment to head the Consumer Financial Protection Bureau. Double whammy!

But eh…Obama will ignore this ruling has he has done so many times in the past. Just shut up and pay your taxes dummies…don’t you know the government is broke?


Good question:

Donald Berwick, formerly the head of Medicare, was a recess appointee. (Obama made the appointment to prevent Berwick from having to testify during confirmation hearings about his support for NHS-style health care rationing.) He was key in the Obamacare/Medicare promulgation process during his tenure. If recess appointments generally are invalid constitutionally–except after formal adjournment–might this decision impact rules promulgated under Medicare while Berwick was unconstitutionally in charge? I am asking, not opining, because I don’t know.


Another key part of the decision:

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 the Supreme Court observed in Freytag v. Commissioner of Internal Revenue, “The manipulation of official appointments had long been one of the American revolutionary generation’s greatest grievances against executive power, because the power of appointment to offices was deemed the most insidious and powerful weapon of eighteenth century despotism.” 501 U.S. 868, 883 (1991) (internal quotation marks and citation omitted). In short, the Constitution’s appointments structure — the general method of advice and consent modified only by a limited recess appointments power when the Senate simply cannot provide advice and consent — makes clear that the Framers used “the Recess” to refer only to the recess between sessions.

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