In Court's Slap Down of Obama Overreach, 'The' Makes All the Difference

The D.C. Circuit Court of Appeals today invalidated one of President Obama’s most despotic overreaches to date: his attempt to use the Constitution’s recess appointment power to make appointments despite the absence of a recess. Judge David Sentelle’s opinion for the three-judge panel makes a powerful case for an originalist interpretation of the relevant clause (Art. II, Section 2, Clause 2).


The case involves our organized labor-loving president’s effort in January 2012 to stack the National Labor Relations Board with three members he obviously did not believe the Senate would confirm — another iteration of the Constitution-flouting ideology that led Obama to appoint numerous “czars” in an end-run of the Senate confirmation process. (At the same time he “recess-appointed” the three NLRB members, Obama also purported to appoint a left-wing chief of the constitutionally dubious Consumer Financial Protection Bureau — a Dodd-Frank monstrosity to which Republicans object. The CFPB “recess appointment” was not involved in the case decided today, but the court’s rationale surely spells doom for it as well.)

The problem for Obama was that the Senate was not in recess. To be sure, it was not doing much business at the time and was, in the main, only technically in session. Nonetheless, its official session had not come to an end.

As the court observed, the recess appointment power is a relic of our early history, when Congress would break for several months at a time and lawmakers could not hop on a flight back to Washington at the drop of a hat. It was meant as a “stopgap for times when the Senate was unable to provide advice and consent,” the Court reasoned, not as an exception that would swallow the rule of Senate confirmation. That rule, the Supreme Court has noted, was designed as a check against executive abuse of “the power of appointment to offices,” which was “one of the American revolutionary generation’s greatest grievances” against the British crown — “the most insidious and powerful weapon of eighteenth century despotism.”


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.

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