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.