Recess Appointment Power? Gone, Says DC Circuit

Big, big news in recess appointments today: if an appeals court gets its way, they no longer exist.

The DC Circuit was asked to decide whether Barack Obama's recess appointments to the NLRB were kosher, given the extraordinary circumstances surrounding them: that the Senate was on a "recess" that was broken up every few days with pro forma sessions. The questions expected to be answered were: how long does a recess have to be? And: who decides?

Well. Forget about all that. Instead, the court, with David Sentelle writing (excerpts from Philip Klein, who covered this really nicely on twitter; full decision) threw out recess appointments altogether, overturning the way they've been practiced for the last century.

First, the court decided that only intersession recesses of the Senate, and not any intrasession recesses, count for the Constitutional option of recess appointments. So it doesn't matter how long the recess Obama used was; no recess within the session counts.

And, second, the court decided that contrary to a century of practice and various judicial decisions, only offices which become vacant during the recess may be filled by recess appointments.

If this stands, it will render the Constitutional clause a nullity, or very close to it, under current conditions. Intersession recesses are often short (sometimes very short, such as the one earlier this month), and under the court's ruling a vacancy would have to occur and be filled in the same (short) recess. In other words, no more recess appointments at all.

Okay, here are the issues.

The Article II Constitutional provision reads: "The President shall have the 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."

The two issues are what "the Recess" means, and what "may happen during" means. Here's an old CRS backgrounder. Basically, up to now it's been settled that both recesses between sessions and recesses within sessions count; and it's been settled that "may happen during" means "exist." The DC Circuit flips both: only intersession recesses, and "may happen during" means "newly arise."

I'm not sure about the "happen" question, but I think they're wrong about recesses. To begin with, if I recall correctly (and I'm certainly no Constitutional scholar) one of the rules of interpreting the Constitution is that you an interpretation that makes a clause a nullity isn't right. If it was the case that all the Senate had to do to prevent recess appointments is to make the period between sessions an intrasession recess (by not adjourning sine die), only ending the session just before the next one started, that would entirely prevent recess appointments under Sentelle's reading, despite Congress being just as unable to act as they would be had they ended the session properly.

Indeed, what's happened historically is that Congress went from having relatively short sessions with very long breaks between sessions to having almost continuous sessions with moderately long breaks within the session.

Now: the fact that Congress is gone from Washington for relatively shorter periods of time should, in my view, work against recess appointments. But that they take their breaks within, rather than between, sessions? I don't see why that should. The Court makes much of the notion that "the Recess" must mean a particular recess, but I'm not at all convinced that it has to be "the" intersession recess (which, after all, was only one of three intersession recesses back when most Congresses had three, not two, session). Nor am I impressed by the court's recitation of evidence that early presidents used only intersession recesses -- as far as I know, there were no other kinds of (prolonged) recesses at that time!

So I think the court is dead wrong about the type of recess.

On the other question, however, I'm not so sure. What is clear (see the CRS report) is that the issue has been settled by the Justice Department and the Courts since the 19th century: any vacancy that happens to exist during a recess may be filled by a recess appointment. But there's no particular reason it has to be read that way that I can see; nor does it do violence to the spirit of the clause to interpret it narrowly.

It's true that if the court's interpretation held, recess appointments would be very different. In modern practice, recess appointments are used after the Senate has failed to act; presidents usually nominate someone, wait to see what happens, and then if the Senate refuses to confirm they go ahead and appoint someone anyway. However, if we accept the court's "happened," then recess appointments would mean that the vacancy happened and was filled during a single Senate recess: the Senate would never have any opportunity to act. Granted, that could happen now, but it usually doesn't.

(An exception, I suppose, would be if the president nominated someone to replace a current office-holder who retained the position until her successor was confirmed. Wouldn't work at the beginning of a presidency, but otherwise it would work, with the office-holder prepared, if the Senate didn't act before recess, to then leave the position and allow the recess appointment).

Anyway, if that's the correct interpretation -- and again, I really have no opinion on it -- then recess appointments would be rare. But they would be rare mainly because the Senate is in session far more often than it was in the 18th century, which strikes me as a perfectly acceptable reason for recess appointments to be rare. That is, if a Constitutional provision winds up becoming a nullity because practices change and make it irrelevant, that's fine; but, going back to the "recess" question, a provision shouldn't become a nullity because the courts constructs it that way.

And once more: if the court interpretation of "recess" holds, all any Senate that wants to deny the president recess appointments will have to do is to end the year, whether it's in December or September, with a long intrasession recess that ends when the next session of Congress begins in January. They won't even have to keep two Senators around for pro forma sessions; all they have to do is to avoid the magic words "sine die."

That has to be wrong, in my view.

Of course, the Supremes will have the final say on this one. And there's also the practical matter of what happens to the NLRB (and, presumably, any other recessed official; under the decision, I'm guessing that almost every recess appointment since the nineteenth century, and perhaps since the eighteenth century, was illegal).