Appeals Court Vacates Obama Recess Appointment

By Mehmet Munur

The U.S. Court of Appeals for the D.C. Circuit ruled today that President Obama’s appointments to the National Labor Relations Board were unconstitutional and the Board’s actions were unenforceable.  The court ruled that the Senate was in session during the appointment and that vacancies had not arisen during the recess of Senate—as those terms are used in the Constitution. This ruling is important because it may invalidate all Board decisions in the last year and also because the Consumer Financial Protection Bureau and Richard Cordray are subject to a similar lawsuit in State Nat. Bank of Big Spring v. Geithner, No: 1:12-cv-01032-ESH (D.C. Cir. June, 21 2012).

An administrative court judge found that the petitioner Noel Canning had violated the National Labor Relations Act. Canning filed exceptions to the findings with the NLRB, which affirmed the administrative court’s findings. At the time, two of the Board’s members had been properly confirmed by the Senate, but the remaining three Board members were recess appointments by President Obama. Canning argued that these three Board members had not been appointed in conformance with the Constitution and therefore there was no quorum for the Board to conduct business. The court agreed and vacated the NLRB’s order.

Article 2 Section 2 of the Constitution states that the “President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”  The Circuit court ruled that Recess referred to “the Recess” of the Senate as opposed to “a Recess” of the Senate—making this recess distinct from any adjournment of Congress. The Circuit Court stated, “[a]s 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 opinion neatly summarizes the pitfalls in avoiding the checks and balances built into the Constitution, stating:

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.

After all, the Framers must have had distinct meanings in mind when they used “adjournment” and “adjourn” (without the) compared to their use of the Recess.

Going a step further, the court held that the vacancies also had not happened during the Recess. The Board argued that “happen” merely meant that the vacancy had to exist during the Recess whereas Canning argued that “happen” meant arise. The court agreed with Canning that the dictionary and contemporary meanings of the word happen governed over the broader meaning the Board advocated.  The Circuit Court stated that “[t]he term “happen” connotes an event taking place — an action — and it would be plainly incorrect to say that an event happened during some period of time when in fact it happened before that time.” As a result, the court held that vacancies had not happened during the Recess of the Senate.

If upheld by the Supreme Court, the decision could invalidate all of the Board’s orders in the last year. Richard Cordray, who was appointed during the same time, may also be subject to a similar decision when the State Nat. Bank of Big Spring v. Geithner, No: 1:12-cv-01032-ESH (D.C. Cir. June, 21 2012) comes to conclusion.