It was quite gratifying to see the D.C. Circuit’s Recess Appointment decision on Friday, which held President Obama’s recent recess appointments to the NLRB to be unconstitutional.
Back
in 2003-2004 when I first started researching the Recess Appointments
Clause, I thought I would write a piece defending the interpretation of
the Clause that I had learned at the Office of Legal Counsel. Under
that view, the President had significant – and I would now say largely
unconstrained – power to recess appointment individuals when the Senate
was not in session.
But as I read the Clause and looked into the
history, I quickly became convinced that the OLC interpretation was
seriously mistaken. I started writing an article
that argued that the modern interpretation of the Clause was wrong in
two significant respects. First, I argued that recess appointments
could be made only when the vacancy arose during the recess when the
President was making the recess appointment. Significantly, if the
vacancy existed when the Senate was in session – as virtually all
vacancies for which the President now makes recess appointments do – the
President could not make the recess appointment.
Second, I argued
that recess appointments could only be made during an intersession
recess – the recess between the sessions of Congress. They could not be
made during an intrasession recess – a so-called recess during a
session of Congress – which is actually not what the Constitution calls a
recess, but instead an adjournment.
Eventually, the article was published as the Original Meaning of the Recess Appointments Clause. I have defended this position in various blog posts, including here and here.
Back when I was writing the article, almost no one adopted either of these interpretations. Two circuits (the 2nd
and Ninth) had rejected challenges to recess appointments and OLC
assumed its position stated the original meaning. Soon thereafter,
however, things began to change. While the 11th Circuit again rejected a challenge to recess appointments, one judge – Rosemary Barkett, following the brief filed by Marty Lederman
for Ted Kennedy – adopted the original meaning of the Clause (on both
grounds I discussed above) in dissent. Still, no courts were on board
and virtually no scholars in print.
But things have changed. On
Friday, the D.C. Circuit unanimously held unconstitutional President
Obama’s recent appointments that were based under the modern
interpretation of the Clause. All three members of the Court embraced
both of the interpretations I mentioned above (although the third judge
did not believe that both interpretations needed to be reached).
(Cross posted at the Liberty Law Blog)
Posted at 7:35 AM