Important D.C. Circuit Ruling on Recess Appointments

A D.C. Circuit panel today issued a momentous ruling that reads the president’s constitutional authority to make recess appointments much more narrowly than recent presidential practice has maintained. In particular, the panel opinion, authored by Chief Judge David Sentelle, rules (1) that the recess-appointment authority exists only during an intersession recess of the Senate, not during intrasession adjournments, and (2) that it applies only with respect to vacancies that have arisen during that intersession recess.

Judge Karen Henderson joined the entirety of Chief Judge Sentelle’s opinion. Judge Thomas Griffith joined only the first of the two rulings on recess-appointment authority, as he opined that it was unnecessary to address the second.

The immediate effect of this ruling is to deliver a major defeat for President Obama, both for his three recess appointments to the NLRB that were at issue in the case* and for his separate (and, under the reasoning of the ruling, equally invalid) recess appointment of Richard Cordray to serve as Director of the Consumer Financial Protection Bureau. The broader effect of the ruling is to make it more difficult for any president to evade the Senate’s authority to approve or disapprove nominees.

On a first read, I find the opinion very powerful. (Disclosure: While serving in the Office of Legal Counsel, I may well have signed publicly available opinions that, adhering to OLC precedent, embraced the expansive recess-appointment authority that the panel rejects.) Because the opinion conflicts with a 2004 ruling by the Eleventh Circuit, it is likely to be reviewed by the Supreme Court.

* Jennifer Rubin lists here some of the NLRB decisions that are effectively voided by the D.C. Circuit ruling.

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