Does the Decision That Struck Down Obama’s Recess Appointments Strike Down Every Recess Appointment, Ever?

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Because it was released on Friday — a Friday at the end of a long week, one that started with a vigor-sapping inaugural address — interpretations of the D.C. circuit’s NRLB ruling (PDF) have been slow to come in. It took me a little while to compare my layman reading with the reading of actual lawyers. After a while, though, we started to agree. Read very narrowly, this decision basically knocks down the basis for hundreds of recess appointments, over the past century.

The key bit:

The January 3, 2012, vacancy thus did not arise during the recess, depriving the President of power to make an appointment under the Recess Appointments Clause… Even  if  the  “End”  of  the  session  were  “during the Recess,” meaning that the January 3, 2012, vacancy arose during some imaginary recess, we hold that the appointment to that seat is  invalid because  the  President  must  make  the  recess appointment  during the  same  intersession  recess  when  the vacancy for that office arose. 

Here, the court argues that a recess appointment is only valid if the job became open during that recess. Let’s say your Undersecretary of Partying Hard (not an actual job) resigns in January, during a recess or before it. You nominate a new undersecretary, and feel out the Senate to see whether he can get confirmed. In April, realizing that the filibuster has you stuck, you use the recess — and we’re assuming the House has actually adjourned, allowing recess to occur — to make an appointment. The D.C. circuit now says you can’t.

Seriously, it does.

The Clause provides that a recess appointee’s commission expires at “the End of [the Senate’s] next Session,” which the Framers understood as “the end of the ensuing session.”  (The  Federalist  No.  67,  supra,  at  408) 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.

This is hardcore originalist language that applies the circumstances of 1787 — horses, buggies, people on the buggy dying of dysentary — to our circumstances. The early presidency began in March. The early Congress began in November. Also, there was no filibuster the way that we know it, meaning there was no legislative bottleneck comparable to the one faced by George W. Bush or Barack Obama.

It’s such a reach that the White House doesn’t expect it to survive when this goes to the Supreme Court. Before the case gets there, other companies who claim to have been adversely affected by the NLRB since January 2012 can sue and try to get the decision reversed. But if it gets there, and this precedent is upheld, you’ve got to worry about a whole dead brigade of recess appointees’ decisions getting challenged.

Tim Noah has more.