You will recall that in January 2012, President Obama named Richard Cordray to head the Consumer Financial Protection Bureau and three new members to the National Labor Relations Board, all by recess appointment. The catch was that the Senate was not in recess—or at least said it wasn’t. Since 2007, originally in response to George W. Bush’s aggressive use of recess appointments (he made 170+ ) and then via Republican pressure after Obama took office, the Senate has held brief pro forma sessions even during periods of legislative inactivity, purportedly preventing Senate recesses of sufficient duration to allow for recess appointments.

The Obama administration argued that since the Senate did not – perhaps even could not (there is some dispute here) – conduct regular business during these sorts of sessions, it was not available to perform its advise and consent function. Thus it was de facto in recess and such appointments could in fact be made.  Sarah Binder’s post from the time detailing this is here; Nolan McCarty’s take is here. Much useful background may also be found in this CRS report on the subject.

Other than a predictable slate of kudos and denunciations, correlated rather heavily with partisan preference, the Senate made no formal response back in January 2012. But those regulated by the CFPB and NLRB did. A series of court cases ensued challenging the legality of the actions taken by the appointees appointed in this manner. So, pro forma meets de facto meets the D.C. Circuit Court of Appeals—which late last week ruled against the NLRB appointments.The full opinion is here (those wishing to cut to the recess appointment chase may jump to the bottom of p. 15.)

Actually the court went much farther than merely holding that the Obama appointments override the Senate’s prerogative to decide for itself when it is in recess. Indeed, the opinion turns on an allegedly emphatic difference between the Senate being in recess, and “the Recess of the Senate” envisioned in Article II, Section 2:3. After reviewing the grammatical distinction between “a” and “the,” the court comes to the (or at least an) “inescapable conclusion that the Framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings.” This, the opinion goes on, “is not an insignificant distinction. In the end it makes all the difference.”

Indeed it does, at least to the court’s logic, and potentially to the recess appointment power. According to the ruling, “The Recess” must be the period between Senate sessions—thus, during the interim between (say) the 110th Congress, 1st session, and the 110th Congress, 2nd session, provided that the Senate has adjourned, sine die, in between.  Despite the fact that intrasession appointments have occurred since 1867, and with some regularity in the postwar era, the court’s decision declares that practice off limits.

Further, the court goes on, only vacancies that actually come into being during a Senate recess (sorry, during “The Recess”) can be filled in this way. A vacancy that has existed since before said Recess doesn’t count. This, too, has some grammatical support within Article II—which holds that the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate”—but goes against what had seemed to be well-settled practice. To quote another CRS report: “Although this question was a source of controversy in the early 19th century, Attorneys General and courts have now long supported the first, broader interpretation of the phrase.” That is, they have held that ‘may happen’ should be read ‘may happen to exist.’

I tend to agree that the Obama administration overstepped. In its memo a year ago, the DOJ’s Office of Legal Counsel concluded that “the President… has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.”  As the court responded, “This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.” Was the president acting rationally, in the face of opposition obstructionism? Certainly. That doesn’t mean his actions were legal, or should be applauded.

On the other hand, to retroactively impose a definition of “recess” that goes against 145 years of practice is itself overreach. While the DC Circuit’s opinion is drenched in the judiciary’s favorite self-congratulatory perfume – Eau de Marbury v Madison – its logic is perhaps not self-evident. Note that there is an 11th Circuit Court of Appeals ruling from 2004 (when Democrats in the Senate challenged a judicial recess appointment made by President Bush) that upheld the appointment (in quite different circumstances, when the Senate was indubitably in recess, albeit not between sessions.)  That decision held explicitly that “the text of the Constitution does not differentiate expressly between inter- and intrasession recesses for the Recess Appointments Clause” (p. 8).  CRS notes more broadly that while there is more controversy over intrasession recesses than those between sessions, “through interpretation and practice, a ‘Recess’ for purposes of the Recess Appointments Clause encompasses both the inter- and intrasession recesses of the Congress.”  (The DC Circuit dismisses out of hand the 11th Circuit’s reasoning, even as it professes “respect for our sister circuit” (see pp. 26ff).)  One practical objection to the present holding would be to wipe out not just administrative decisions made by recess appointees over time (since 1867?) but, presumably, to vacate decisions made by judges appointed this manner.

In any case, even things that are self-evident are not always self-executing (to borrow a phrase)—and it is worth remembering that constitutional ambiguities between the branches are normally worked out in practice. Even when the Supreme Court declared that legislative vetoes were unconstitutional, in the 1983 Chadha case, Congress and the president continued to put them into law—because they were too useful a powersharing device to set aside.  Likewise one imagines that the last word – and the last recess appointment – is some ways off.

[Cross-posted at The Monkey Cage]

Andrew Rudalevige

Andrew Rudalevige is a professor of government at Bowdoin College.