Someone please explain how a Federal Appeals Court could suddenly decide to strike down Obama's

[onenote]

5. I've studied the recess appointment issue for a long time: my analysis

Last edited Sat Jan 26, 2013, 06:44 PM - Edit history (1)

I first was involved in providing legal guidance on the meaning and application of the recess clause more than 30 years ago and have followed those issues fairly closely thereafter. The short answer to your question is that there haven't been very many cases that challenged recess appointments. The DC circuit decision was not so much "sudden" as "different."

I only know of one bush recess appointment that was challenged in court -- judge pryor's appointment to the 11th circuit. The appointment was challenged in the 11th circuit and was upheld by that court. Which means there is a split in the circuits on interpreting the recess appointments clause, which means that the Supreme Court is nearly certain to review the DC Circuit decision. Plus, there were other challenges to NLRB decisions made by the recess appointees brought in other parts of the country that haven't been decided. Those cases are not bound by the decision in the DC Circuit. They could reach the same conclusion or an opposite conclusion.

This isn't over. However, my best guess as to the outcome in the supremes is that (1) the SCOTUS, by a 6-3 vote reverses the DC court's decision that a recess appointment can only be made to fill a vacancy that was first created after the recess began but (2) by a 5-4 vote upholds the DC circuit's decision that recess appointments can only be made during "intersession" recesses. That would still be a dramatic departure with decades of practice in which it was generally believed that recess appointments made during any adjournment of more than 3 days, whether between sessions or "intrasession," was valid. But upholding the DC Circuit on this issue would allow the SCOTUS to avoid having to decide the status of "pro forma" sessions.

If the SCOTUS doesn't uphold the second half of the DC circuit's decision, it will have to decide what constitutes a "recess" -- is there a minimum length of time that the Senate must not be in session and, if so, does the calling of pro forma sessions "restart" the clock each time? That's a hard one for the SCOTUS to decide since it more directly injects them in to the business of Congress. For example, the reason that the Senate was calling pro forma sessions rather than recess for more than three days is that the Constitution doesn't allow either house to adjourn for more than three days during a session of Congress without the consent of the other and the republican controlled house had made it clear it would not consent to the Senate adjourning for more than three days. In addition, neither party has "clean hands" in this fight: it was our side that started the practice of using pro forma sessions to block bush from making recess appointments (as was openly acknowledged by our side at the time).

Eventually we will know the result. But its hard to predict with certainty the outcome. My guess is that, one way or another, the result of the DC Circuit's ruling -- that the NLRB and Cordray appointments were invalid, is upheld by a 5-4 vote.