The Legality of President Obama’s ‘Recess’ Appointments

by Peter Kirsanow

President Bush appointed me to the National Labor Relations Board during a Senate recess at the beginning of 2006. Like many, but not all, such appointments, it irritated members of the party not in the White House (Senator Kennedy referred to me as “Attila the Hun,” a demonstrably inaccurate reference as I more resemble Hannibal the Carthaginian). Nonetheless, the appointment was made during a recess.The legality of President Obama’s appointments to the NLRB and the CFPB turns on the definition of that term.

A 1921 Attorney General Opinion regarding whether the president had the power to make an appointment during a 28-day intrasession recess concluded that the “president is necessarily vested with large, although not unlimited, discretion to determine whether there is a genuine recess making it impossible for him to receive the advice and consent of the Senate.”

The administration and its supporters will rely on the puprportedly large discretion the president has in determining whether there’s a “genuine” recess. But others will point to the phrase “making it impossible for him to receive the advice and consent of the Senate.” Those others may include the D.C. Circuit Court, where any challenge to the appointments is likely to be heard. 

In Mackie v. Clinton, the D.C. Circuit Court stated that “the President’s constitutional power to make a recess appointment depends literally and absolutely upon the evidence of a vacancy while the Senate is in recess.” (For the definition of a “vacancy” on a federal commission, agency, or board, see the D.C. Circuit Court case United States ex rel Kirsanow v. Wilson, involving the appointment of the aforementioned Hun to the U.S. Commission on Civil Rights — apparently my appearance is so off-putting that no organization will have me as a member.) The court went on to say:

It is apparent that the purpose of the Recess Appointments Clause was to prevent disruptions in the functioning of government occasioned by periods in which the Senate is unavailable to perform its role of advise and consent.[Emphasis added.]

In the present case of the recess appointments to the NLRB and CFPB, there doesn’t appear to be a recess. As stated in the Attorney General Opinion cited above, the president’s discretion is not unlimited but dependent on a recess “making it impossible to receive the advice and consent of the Senate.” The president was not faced with such impossibility here.

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