The Recess: Appeals Court Dings Obama Appointments

In a much-noted decision, a panel of the D.C. Circuit (Judges Sentelle, Henderson and Griffith) has invalidated President Obama’s putative “recess” appointments to the National Labor Relations Board (NLRB). The appointments were made—without the advice and consent of the Senate—on January 4, December 2012, when the Senate was meeting in pro forma sessions (and even conducted official business), precisely for the purpose of blocking recess appointments.

Judge Sentelle’s opinion for the court meticulously parses the text of Article II, Section 2, Clause 3: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The recess, the judge writes, must mean the recess between sessions, as distinct from temporary adjournments. Moreover, the court said in a part of the opinion that wasn’t necessary in the context of this case, the vacancy must happen—that is, become available—during the recess; there can’t be any recess appointments for offices that became open during the session. In a concurring opinion, Judge Griffith argued that the court should have declined to reach that issue. In case it matters, I’m with him.

I’m not a great fan of hanging too much on definite or indefinite article (“the,” “a”), for statutory or even constitutional purposes. The court’s opinion looks a tad doctrinaire, and it upsets recess appointment arrangements that have been common for many, many decades (although not, Judge Sentelle trenchantly notes, the first several decades of constitutional practice). All things considered, though, the administration got what it richly deserved. The appointments at issue were apparently unprecedented and, in any event, made in an ostentatiously spiteful manner. And in briefing and oral argument, the government’s lawyers could not, would not give the court any line except: “A recess is when the President says it is.” The court’s predictable response was, “That cannot be the law.”

Now what? For one thing, the ruling casts a long shadow over the Consumer Financial Protection Bureau (CFPB) and its Director Richard Cordray, whose recess appointment took place at the same time, under the same circumstances. A case on that question, among others, is pending. Meanwhile, President Obama has nominated Mr. Cordray for a regular appointment, which Republicans say they won’t let happen without major changes to the CFPB’s authority (more on that here and here. )

For another thing, the court’s decision creates a direct conflict with a prior decision by the Eleventh Circuit. Cert looks like it’s for the asking. Perhaps, the administration can come up with a plausible theory before it decides to go ahead.

Finally, a more general question: of course, a private party challenging the authority of a government body in a timely fashion gets relief from that body’s adverse decision. So here: without the unconstitutionally appointed officers, the NLRB lacked a statutory quorum, and so its “unfair labor practice” decision against the plaintiff  is set aside. But what happens to all the other, earlier decisions made by government bodies or individual officials who turn out to have lacked the authority to make those decisions?

There’s something called the “de facto officer doctrine,” which (as I understand it) says that while the individual plaintiff(s) who successfully challenge an officer’s or body’s authority of course get relief, all other decisions by that officer or body remain binding. See, e.g., Nguyen v. U.S. (2003); Ryder v. U.S. (1995). However, the contours of the doctrine are rather murky. For example, the great majority of the cases have to do with improperly appointed judges (rather than executive officials), and the opinions suggest that the doctrine may be reserved for the purpose of preventing the risk that merely technical violations might upset a ton of substantively fair and sensible decisions on which private parties have come to rely. So cabined, the doctrine makes practical sense to me. The quasi-constitutional  hook, I think, is that parties should be required to challenge official conduct in a timely fashion, as opposed to first acknowledging the decisionmaker’s authority and then contesting it long after the fact, in the wake of someone else’s successful challenge.

Should that general principle extent to Mr. Cordray’s flurry of regulations, up to now and going forward? I’m not so sure.

Reader Discussion

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on January 27, 2013 at 15:19:05 pm

I disagree with your ambivalence regarding the use of definite and indefinite articles. Language is the vehicle that conveys the underlying principle, and legal interpretation is never going to get very far if we do not assume that those who draft it mean what they say. There is a discernible difference between "a" and "the" and sometimes that difference is important.

I am not troubled with the apparent dicta, that vacancies must arise during a recess in order to legitimize recess appointments. The legal esoterica is swamped by teleological rationale. If Congress is in session when some post is created, or an officer is undone by scandal, political strategy should not frustrate the concept of legislative oversight.

Lastly, the law, or more precisely equity, efficiently deals with concerns raised when an official's authority is found to be tainted. The legal doctrines of laches, adverse possession, statutes of limitation, and "sleeping on your rights" are merely deference to reality. There is no compelling distinction between a claim that arises from the negligence of a private citizen and the misconduct of an inept or hyper-politicized political process. The law provides a remedy (as evidenced by the successful challenge of another), but if one does not pursue it, so expires the right to complain.

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on January 28, 2013 at 19:45:13 pm

[...] Lawyer (implications for NLRB), @markcalabria (implications for Richard Cordray CFPB appointment), Michael Greve, Mike [...]

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on January 29, 2013 at 02:25:28 am

I think if these appointments are held unconstitutional by the supreme court (as I government will appeal), then the proper course would be for the supreme court to vacate all their decisions after that appointment for that officer. Its even possible that they could look at the CFPB as the same question (or take that the case about that and merge it) and vacate all their decisions or wait till that case comes up. I wouldn’t say the court should go back and look at say Judge Pryor’s decisions after he was recess appointed but before he was confirmed and vacate all of them at the same time. Let people file a different challenge to those ruling and let the lower courts handle that (maybe a new judge would need to look at them again).

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Devin Watkins

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