Perhaps the most disturbing aspect of the Obama administration’s position, as posited by the NLRB, was its coyness in refusing to be pinned down on how short a break in the senate’s session needed to be before it could be considered a “recess” for constitutional purposes. To take this to its logical extreme, Obama would be able to make “recess appointments” over the lawmakers’ lunch-break in the middle of a busy legislative day. Imagine if someone tried to tell you the Super Bowl was over just because CBS cut to a beer commercial halfway through the first quarter.
The court brushed such nickle-and-diming aside by carefully reading the Constitution, which refers not to “a recess” but to “the recess.” That is, what the Framers were talking about was not any old break in the action but the formal interlude when the Senate is between sessions – session being a term the Constitution uses with recess in a way that makes them mutually exclusive. The court also noted that the Constitution makes a distinction between “the recess” and an adjournment, a term that plainly relates to intra-session breaks in the proceedings. The Obama administration was obviously trying to turn the intentionally sparing power to make recess appointments into a free-wheeling power to make adjournment appointments.
Expect lots of people harmed by NLRB and CFPB determinations and pronouncements to head to court. Also expect the administration to appeal to the Supreme Court. While the D.C. Circuit’s constitutional analysis is compelling, there is an interesting question as to whether it had jurisdiction to reach the constitutional issues given that the petitioner failed to raise them before the NLRB. The panel found that it did, and its reasoning is persuasive, but the judges concede that there is no precedent directly on point. I’d bet on the Supreme Court affirming today’s ruling, but I think we’ll also be hearing a lot of banter from the administration spin machine about judicial overreach — the spin machine doubling as a chutzpah machine.