Zzzzzz.

I signed off from the initial post because I was falling asleep. Then I didn't have a chance to get back to it yesterday. My apologies. I'll go read all the comments on this thread after I finish the initial post here.

Recess appointments were only made between sessions of Congress until 1867, when President Andrew Johnson (a Democrat with a Radical Republican Congress) made such an appointment during an intrasession break. Of course, Johnson was impeached, and no president did it again until Harding (once) and Coolidge (once). Even Roosevelt never did it.

However, Truman, starting in 1947, began to make regular intrasession appointments, and, through 2004, Truman and his successors had made almost 300 intrasession appointments. As a result, the question as to whether intrasession appointments are permissible has been litigated a couple of times since then.

Until this ruling, the most recent and most authoritative ruling was in Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (en band), in a case involving the recess appointment of judge William Pryor to the . . . 11th Circuit. Although Judges Pryor and Carnes excused themselves from the en banc panel (which, for every circuit except the 9th, involves all of the circuit's sitting judges ruling on the case), the court ruled 8-1 that his intrasession appointment during an 11-day break in the Senate term constituted a valid appointment. (I should add that Pryor was later confirmed by the Senate and still sits on the 11th Circuit.)

The dissenting vote, a liberal Democrat named Rosemary Barkett, made two arguments against permitting the recess appointment: (1) the term "the Recess" applied only to the break between sessions, not to intrasession breaks; and (2) the only openings that could be filled during a recess appointment were those that happened during the recess. In this case, though, the majority (made up of both Democrats and Republicans) ruled that, based on the language of the Constitution, the term "the Adjournment" appeared to refer to the intersession breaks, not "the Recess" (citing a 1938 case on the Pocket Veto clause), and that the fact that Presidents Washington and Jefferson had both used recess appointments to fill vacancies that existed when Congress adjourned argued against this interpretation of when the vacancies had to occur.

With that as background, the way I expected that this case would go is that the DC Circuit would start with Evans v. Stephens and then note that, unlike that case, the Congress here was, by its own resolutions, not in recess during the period of the so-called "recess appointments" -- instead, it was holding sessions every third day and had taken two actions during this period, so it could have acted on Obama's nominees had it so chosen. Thus, since the Congress by its own terms wasn't in recess, the courts weren't about to override its determinations about its own sessions (which Congress is given the Constitutional authority to set in Article I, Section 5). End of case. Appointments unconstitutional.

Makes sense. But no.

Instead, the DC Circuit sided with Judge Barkett and ruled that recess appointments can only be made in the breaks between sessions (unanimously) and that the vacancies to be filled had to occur during the break.

Argument ! is defensible, because the first 16 presidents (through Lincoln) followed that procedure and the next 16 presidents (through FDR) only violated that procedure 3 times, none of which appear to have been litigated. It's at least a defensible position. Is it correct? I guess the Supreme Court will get to decide that, but -- if I were voting -- I'd side with the 11th Circuit majority against this position. Nevertheless, the longstanding prevalence of this position does argue in favor of its validity, and I don't care to delve into it deeply enough to answer the question definitely.

But the second argument, that the vacancy must have occurred during the recess, just seems specious. The majority in the DC Circuit argues that the Washington and Jefferson examples don't really count because "these appointments were 'in fact examples of the practice of appointing an individual without his concent and then, if he turns down the appointment during the recess, making a recess appointment at that time.'" That may have some weight in academic circles, but to me it just looks like a distinction without a real difference. Appointing someone who never serves in the job is no different than leaving the job open.

IN short, I expect that the Supreme Court will reverse at least part of this ruling's logic, and maybe all of it, without changing the outcome of the case.

If the appointment nullifications were upheld, then do you think the decisions made by the Labor Board while these people were serving would automatically be nullified? Or would the court have to rule on that question also?

>If the appointment nullifications were upheld,
>then do you think the decisions made by the Labor
>Board while these people were
>serving would automatically be nullified?

In some cases (such as that of Judge Pryor, discussed above), the courts have considered the actions of the body to which the appointments were made to see their effect (one reason that the Supreme Court didn't take the appeal of the Pror decision was because the lower court held that, even if his appointment were unconstitutional, his actions didn't make any difference).

But that wouldn't be the case here. Without the three recess appointments, the NLRB would not have had a quorum. The law is very clear that, if the NLRB does not have a quorum, it cannot act. Thus, all of its decisions from the time of the recess appointments will have to be nullified.