The D.C. Circuit Court of Appeals recently decided that the recess appointments made by President Obama for openings on the National Labor Relations Board were unconstitutional. The President appointed Sharon Block, Terence F. Flynn, and Richard F. Griffin on January 4, 2012 pursuant to the authority granted to him by the Recess Appointments Clause of the Constitution. This section of the Constitution allows the president to fill “vacancies that may happen during the Recess of the Senate.”
At the time of these appointments, the Senate was meeting in pro forma from December 20, 2011, through January 23, 2012. This term is Latin for “as a matter of form,” which is a brief meeting of the Senate. In some instances sessions are merely minutes long every three business days The plaintiff in this case argued that the Board did not have a quorum to conduct business on February 8, 2012 due to the invalidity of the three appointments—making any decisions on that date to present invalid. The court agreed:
It is this difference between the word choice "recess" and "the Recess" that first draws our attention. […] As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said "the Recess," what they really meant was "a recess." This is not an insignificant distinction. In the end it makes all the difference.
The Court of Appeals also explained that a recess occurs only during the breaks between formal year-long sessions of Congress, not just a short or informal break when lawmakers return to their constituencies. Further, the Clause allows recess appointments if they "happen" during the intersession recess, rather than if they happen to exist during the recess.
[T]he appointments structure would have been turned upside down if the President could make appointments any time the Senate so much as broke for lunch. This interpretation also cannot explain the use of the definite article ‘the,’ the singular ‘Recess’ in the Clause, or why the Framers used ‘adjournment’ differently from ‘Recess.’
Using this reasoning, the Court of Appeals held that the NLRB vacancies did not arise during the intersession recess of the Senate.
Legal commentators have speculated that if the DC Circuit’s decision holds up, numerous actions by the NLRB over the past 12 months including those impacting the U.S. Virgin Islands would be deemed invalid. In addition, this would, in effect close down the board as it would leave it with only one validly appointed member.
Reports are that the Obama Administration anticipates appealling the decision to the United States Supreme Court.