Previous posts have discussed recess appointments. Bloomberg reports:
President Barack Obama’s recess appointments to the U.S. National Labor Relations Board last year were “constitutionally invalid” because the Senate wasn’t in recess at the time, a federal appeals court ruled.
The U.S. Court of Appeals in Washington in a unanimous ruling today sided with Republican lawmakers and a canning company that challenged the appointments. The judges said the definition of “the Recess” in the Constitution’s Recess Appointments Clause is limited to the period between one Congress and the next, and that Congress had begun a new session at the time the president made the appointments.
“Considering the text, history and structure of the Constitution, these appointments were invalid from their inception,” U.S. Circuit Judge David Sentelle wrote.
The ruling today is the first substantive decision by a federal appeals court on several challenges to the president’s naming of the NLRB members on Jan. 4, 2012, while the Senate was holding so-called pro-forma sessions that sometimes involved a single senator appearing in the chamber every third day.
The case is Noel Canning v. National Labor Relations Board, 12-1115, 12-1153, U.S. Court of Appeals for the District of Columbia (Washington).From the opinion of the court:
Noel Canning contends that the term “the Recess” in the Recess Appointments Clause refers to the intersession recess of the Senate, that is to say, the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable to receive and act upon nominations from the President. The Board’s position is much less clear. It argues that the alternative appointment procedure created by that Clause is available during intrasession “recesses,” or breaks in the Senate’s business when it is otherwise in a continuing session. The Board never states how short a break is too short, under its theory, to serve as a “recess” for purposes of the Recess Appointments Clause. This merely reflects the Board’s larger problem: it fails to differentiate between “recesses” and the actual constitutional language, “the Recess.”
Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in “the Recess.” It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions. Cf. Virginia v. Tennessee, 148 U.S. 503, 519 (1893) (interpreting terms “by reference to associated words”). Confirming this reciprocal meaning, the First Congress passed a compensation bill that provided the Senate’s engrossing clerk “two dollars per day during the session, with the like compensation to such clerk while he shall be necessarily employed in the recess.” Act of Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71.
Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board. When the Federalist Papers spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.” The Federalist No. 67, at 408 (Clinton Rossiter ed., 2003). For there to be an “ensuing session,” it seems likely to the point of near certainty that recess appointments were being made at a time when the Senate was not in session — that is, when it was in “the Recess.” Thus, background documents to the Constitution, in addition to the language itself, suggest that “the Recess” refers to the period between sessions that would end with the ensuing session of the Senate.
