CAC Urges High Court to Reverse D.C. Circuit’s Wobbly Opinion on Recess Appointments

May 29, 2013

by Jeremy Leaming

The Senate’s obstructionists, meaning the Republican caucus, are urging the U.S. Supreme Court to review and uphold a federal appeals court decision that greatly narrowed or rewrote the president’s power to make recess appointments.

And that’s not terribly surprising. The case involves vacant seats on the National Labor Relations Board, an agency that Senate Republicans have fought to keep business friendly or inoperative. Republicans have convinced themselves that the NLRB, which was created to protect both rights of workers and employers, is all about making life tough on corporate America. The Senate Republicans are of course deluded, but consistent in their support of the powerful. (The Supreme Court could decide this summer to take the case for review.)

In January, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. NLRB held that President Obama ran afoul the Constitution when he appointed Sharon Block and Richard Griffin to vacant seats on the five-member agency during a 20-day recess of Congress. Obama made the appointments after Republicans continued to stall on considering the nominations. Article II, Section 2 of the Constitution grants the president authority to make recess appointments. The D.C. Circuit’s opinion was crafted by three-Republican appointees and was widely panned by legal scholars, noting that presidents have for a century used recess appointments to fill executive and judicial vacancies to help keep the government functioning. Also, as Ohio State University law school professor Peter Shane has pointed out, three other federal courts of appeals have ruled the other way, upholding the presidents’ recess appointment powers. (Another federal appeals court, however, has followed the wobbly D.C. Circuit’s opinion, so there is a split among the circuits, which heightens the chance the U.S. Supreme Court will jump into the mix and take Canning for review.)

In a brief urging the high court to take Canning, 45 Republican senators argued that the D.C. Circuit’s opinion should be upheld. Such appointments, the brief states “have become a means to sidestep Senate confirmation.” They added, “In any case, the President himself has made clear that he will resort to recess appointments, and indeed has done so, precisely to circumvent perceived Senate opposition.” See Sahil Kapur’s reporting on the GOP brief.

But there is nothing perceived about the opposition Republicans have mounted to hamstring the NLRB and for that matter greatly slow the efforts of the president to fill vacancies on the federal bench, which has resulted in a crisis on the bench with vacancies hovering around 80.

Today, the Constitutional Accountability Center weighed in on the side of the Obama administration, which has asked the high court to take the case and reverse the D.C. Circuit.

The D.C. Circuit’s opinion, CAC says curbed the president’s ability to make recess appointments, “limiting this power in two significant ways. First, the court held that the President’s recess appointment power may only be exercised during recesses that occur between enumerated sessions of Congress, and not during any intra-session break.” The D.C. Circuit also held that the president “could make appointments only to vacancies that arise during the recess, as opposed to vacancies that already existed at the start of the recess.”

“As our brief explains, the Framers of the Constitution adopted the Recess Appointments Clause to ensure that the President could make temporary appointments to the Executive and Judicial Branches when the Senate was unable to provide its advice and consent.” (See CAC’s brief here.)

All too often this Senate has not only been unable to provide advice and consent, it’s found many ways to avoid doing so. The Republican senators are bent on obstruction not merely for obstruction’s sake. They have an agenda that includdes coddlling the super wealthy and protecting corporate interests. Nurturing gridlock is an effective way to help maintain major parts of the Party's agenda.