D.C. Circuit Strikes Down Illegal Non-Recess Appointments

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The D.C. Circuit Court of Appeals ruling in Noel Canning v. NLRB today correctly held that the president cannot declare the Senate to be in recess as his own convenience.  Chief Judge Judge David B. Sentelle wrote:

An interpretation of “the Recess” that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law. The intersession interpretation of “the Recess” is the only one faithful to the Constitution’s text, structure, and history.

The court further restricted legitimate recess appointments to vacancies that arise during an intersession recess:

A vacancy happens, or “come[s] to pass,” only when it first arises, demonstrating that the Recess Appointments Clause requires that the relevant vacancy arise during the recess. The term “happen” connotes an event taking place — an action — and it would be plainly incorrect to say that an event happened during some period of time when in fact it happened before that time.

It would have made little sense to make the primary method of appointment the cumbersome advice and consent procedure contemplated by that Clause if the secondary method would permit the President to fill up all vacancies regardless of when the vacancy arose. A President at odds with the Senate over nominations would never have to submit his nominees for confirmation. He could simply wait for a “recess” (however defined) and then fill up all vacancies

AC President Phil Kerpen issued the following statement:

The D.C. Circuit is clearly correct that Obama’s illegal appointments to the NLRB – and by implication his appointment the same day of Richard Cordray to the CFPB – were attempted on a day the Senate was not in session.  In fact, the Senate gaveled into session just the day before.  If these illegal appointments were allowed to stand, the president would have created for himself a new unchecked power to arbitrarily circumvent the requirement of Senate advice and consent.

In his brilliantly reasoned opinion – joined unanimously by his colleagues – Judge Sentelle went further and defined the Recess Appointments clause in its appropriate legal and historical context, limited to vacancies that arise when the Senate has adjourned sine die at the end of a session.  If the Supreme Court takes the case, we hope they will remain faithful to the text and structure of the Constitution and uphold the D.C. Circuit’s ruling.