In the first bit of good news for those opposing the ever more
tyrannical Obama administration, a 3-judge panel of the DC Circuit
Court of Appeals has
overturned a ruling of the National Labor Relations Board on
the basis that President Obama’s appointment of three members was
unconstitutional. In particular, Obama claimed them as recess
appointments when the Senate was not in recess.
It is heartening to read an opinion in which judges actually
refer to the text of the Constitution and the intent of the
Founders, even quoting the Federalist Papers in their
analysis.
The judges note that there were no intrasession “recess”
appointments made until 1867 (and maybe not even that one was an
intrasession appointment), and a total of only three (including
that one) over the ensuing 80 years. From the opinion: “we conclude
that the infrequency of intrasession recess appointments during the
first 150 years of the Republic suggests an assumed absence of
[the] power” to make such appointments.”
The Obama administration argued that they should be able to
determine when, in their opinion, the Senate is in recess. The
judges would have none of it:
An interpretation of “the Recess” that permits the President to
decide when the Senate is in recess would demolish the checks and
balances inherent in the advice-and-consent requirement, giving the
President free rein to appoint his desired nominees at any time he
pleases, whether that time be a weekend, lunch, or even when the
Senate is in session and he is merely displeased with its inaction.
This cannot be the law. The intersession interpretation of “the
Recess” is the only one faithful to the Constitution’s text,
structure, and history.
While the court’s ruling that the Senate was not in recess, and
therefore that recess appointment is not possible, is enough to
overturn the NLRB’s ruling in this and all cases decided by the
NLRB with the same Board makeup, the judges went on to a ruling
which has potentially much greater implications for future
administrations and politics:
They ruled that the Constitution’s provisions on recess
appointments only allow appointments during a (true) recess for
vacancies which happen (i.e. come into existence, not just happen
to exist from a prior time) during a recess. In other words, the DC
Circuit has ruled that if a vacancy occurs while the Senate is not
in recess, then that vacancy cannot be filled by a recess
appointment.
The NLRB argues (indeed almost any administration of either
political party would argue) that this interpretation could lead to
inefficiencies caused by extended vacancies in certain offices. The
court said that may be true, but that Congress could do something
about that if they wanted to. And most importantly, it’s a more
than reasonable price to pay for a true system of checks and
balances and for the rule of law based on our Constitution:
The power of a written constitution lies in its words. It is
those words that were adopted by the people. When those words speak
clearly, it is not up to us to depart from their meaning in favor
of our own concept of efficiency, convenience, or facilitation of
the functions of government. In light of the extensive evidence
that the original public meaning of “happen” was “arise,” we hold
that the President may only make recess appointments to fill
vacancies that arise during the recess.
This ruling should mean that no ruling of the (utterly corrupt,
and stacked with union hacks) NLRB since those faux-recess
appointments is valid, and that the NLRB remains unable to act
until at least three of its five members are lawfully confirmed by
the Senate.
But more than that, it severely restricts the ability of
presidents to fill vacancies during even true recesses. If a
vacancy for a position which normally requires “advice and consent”
of the Senate did not occur during a Senate recess, it may not be
filled as a recess appointment.
But wait, there’s more:
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.
Wow. Not only can a president only use a recess appointment to
fill a vacancy that first occured while the Senate was in recess,
but he must make that recess appointment during the same
recess. Barack Obama’s life (and future presidents’ as well) just
got a little harder. And that’s a good thing.
Of course, what we’ll see now is collaboration among members of
a political party, especially if that party controls both the
Senate and the White House, along with those office holders who are
considering stepping down. If the politicians believe the
replacement is too controversial or would for any other reason not
be approved by the Senate, they will try to get the retiring office
holder to step down during a true recess, or try to define as a
true recess something which was not the Founders’ intent, so they
can then fill the office during the now much narrower window.
I would think it very likely that this ruling will be appealed
to the Supreme Court by the Obama Administration, not least because
the DC Circuit expressly notes that it disagrees with a ruling on a
smilar issue by the 11th Circuit in 2004. I’d bet that enough of
the leftist judges will want to hear it that the case will be
granted cert unless it is clear to the Justices that the DC Circuit
ruling will be upheld. I just hope they get this one right if it
gets to the Supremes. Separate from partisan issues, Americans
should be very wary of an overpowerful Executive Branch, and very
grateful for judges who believe in searching for the true, original
intent of the meaning of the Constitution’s words.
For those who enjoy reading such things (as I do), the following
section of the
opinion is worth quoting extensively as an example of
“originalist” judicial reasoning which is all too infrequent, and
tremendously welcome:
At the time of the Constitution, intersession recesses
were regularly six to nine months, Michael B. Rappaport,
The
Original Meaning of the Recess Appointments Clause, 52
UCLA 23
L. Rev. 1487, 1498 (2005), and senators did not have the
luxury
of catching the next flight to Washington. To avoid
government
paralysis in those long periods when senators were unable to
provide advice and consent, the Framers established the
“auxiliary” method of recess appointments. But they put
strict
limits on this method, requiring that the relevant vacancies
happen during “the Recess.” It would have made little sense
to
extend this “auxiliary” method to any intrasession break, for
the
“auxiliary” ability to make recess appointments could easily
swallow the “general” route of advice and consent. The
President could simply wait until the Senate took an
intrasession
break to make appointments, and thus “advice and consent”
would hardly restrain his appointment choices at all.
To adopt the Board’s proffered intrasession interpretation
of “the Recess” would wholly defeat the purpose of the
Framers
in the careful separation of powers structure reflected in
the
Appointments Clause. As the Supreme Court observed in
Freytag v. Commissioner of Internal Revenue, “The
manipulation of official appointments had long been one of
the
American revolutionary generation’s greatest grievances
against
executive power, because the power of appointment to offices
was deemed the most insidious and powerful weapon of
eighteenth century despotism.” 501 U.S. 868, 883 (1991)
(internal quotation marks and citation omitted). In short,
the
Constitution’s appointments structure — the general method of
advice and consent modified only by a limited recess
appointments power when the Senate simply cannot provide
advice and consent — makes clear that the Framers used “the
Recess” to refer only to the recess between sessions.
