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Another Nail in the Coffin of the Recess Appointment Power

Last January, the D.C. Circuit Court of Appeals ruled that the president can only make recess appointments when the Senate has adjourned sine die, i.e. without setting a date for returning to session. Once it adjourns this way it is out of session until noon on the following January 3, when the 20th Amendment commands that a new session begin. (The president has the power to summon Congress back into session if necessary.)

This was a great restriction on the recess appointment power of the president, which allows the president to make temporary appointments to posts requiring Senate confirmation “during the Recess of the Senate.” Before that ruling, presidents had often made recess appointments while the Senate was in temporary recess, often of only a few weeks. They did this either because the president thought the post needed to be filled immediately (President Eisenhower gave William Brennan a recess appointment to the Supreme Court in 1956 and he was subsequently confirmed by the Senate) or because of obstruction in the Senate that made an up-or-down vote on an appointment impossible (such as George W. Bush’s recess appointment of John Bolton to the U.N. ambassadorship in 2005).

But in 2012, President Obama made recess appointments to the board of the National Labor Relations Board when the Senate was in pro forma sessions, meeting every few days for a few minutes. The purpose of these pro forma sessions was precisely to prevent recess appointments. But this caused the D.C. Circuit to take a close look at the recess appointment power and to put great weight on what is usually the most inconsequential word in the English language, the. It ruled that because the Constitution says  “the Recess” not “a Recess,” the president’s power is limited to periods after the final adjournment of the Senate for the year, usually in mid-December.

In April, the White House petitioned the Supreme Court to overturn this ruling. The Court has not yet agreed to take the case, or as they say in SCOTUS-speak, to “grant cert.”

Now, the 3rd Circuit Court of Appeals, which sits in Philadelphia, has ruled in another case, agreeing with the D.C. Circuit case on the scope of the recess appointment power and closely following its reasoning.

If the Supreme Court takes the D.C. Circuit case it would probably take this one too and rule definitively. Or it might not grant cert, which would mean these decisions would stand and the recess appointment power would be, except for a few weeks around Christmas time, effectively dead. And all because the Obama administration overreached and tried to gut the Senate’s power to “advise and consent.” In trying to aggrandize power, it has diminished its power. In retrospect at least, that wasn’t too smart.