[author: Mark Theodore]

In a standing-room only courtroom in Washington, D.C., the U.S. Court of Appeals for the D.C. Circuit became the second appeals court in the last week to hear oral arguments on the validity and constitutionality of the President’s January 4, 2012 appointment of three members to the NLRB during an extended Senate adjournment. The case is Noel Canning, a division of the Noel Corporation v. National Labor Relations Board et al., Case Nos. 12-1115 and 12-1153. (The Seventh Circuit heard a consolidated oral argument on November 30 in Richards v. National Labor Relations Board, Case No. 12-1973 and Lugo v. National Labor Relations Board, Case No. 12-1984). Although the Noel Canning appeal technically included other issues, the heart of the case centered on the President’s recess appointment power and whether his recess appointments to the NLRB on January 4, 2012, were lawful.

The overriding issue is whether the President has the authority under the Constitution to make temporary appointments to vacant positions when the Senate is in an intrasession recess (i.e., periods of time during a Senate session when the Senate is in recess), or whether the recess appointment power is limited to intersession recesses (which occur once a year between Senate sessions).

If the court determines that the President has the power to recess appoint during either type of Senate recess, then the question is whether the Senate was in fact in an intrasession recess on January 4, 2012. The Senate had previously adopted an order that it would not engage in any business, but instead hold pro forma sessions every three days in which typically a single Senator appeared for a few seconds to gavel in and out. The President maintains that in such circumstances the Senate is not in session, and that he was empowered to make an intrasession recess appointment at that time. Although Presidents have for many years utilized intrasession recesses to make recess appointments, the disputed NLRB appointments mark the first time that a President had used such power when the Senate continued to hold pro forma sessions every three days in an attempt to otherwise avoid being in recess. This lack of precedent is not surprising since the Senate only began using such a strategy in 2007, in order to prevent President Bush from making recess appointments.

The three-judge panel, led by Chief Judge David B. Sentelle (appointed by President Reagan), and including Judge Karen Lecraft Henderson (appointed by President George H.W. Bush) and Judge Thomas B. Griffith (appointed by President George W. Bush), raised a number of interesting and significant questions and issues throughout the hour-long argument. These included:

• Whether the D.C. Circuit should get involved in what appears to be a purely political dispute between the Legislative and Executive branches, particularly given the Court’s historical reluctance to wade into separation of power and recess appointment issues. In particular, assuming the Court finds that intrasession recess appointments are constitutional (or concludes that this issue is not properly before it), whether the Court has any right to define or set the parameters for what “recess” means within the context of the Recess Appointment Clause. As Judge Griffith commented, this is something that the Senate can and should define or delineate on its own, and the fact that it has failed to do so does not mean that the Court should wade into a political debate or overturn the President’s (and Department of Justice’s) interpretation.
• Whether the text of the Constitution supports the President’s authority to make intrasession recess appointments. The Recess Appointment Clause (Article II, Section 2) states that “The President shall have the 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.” Chief Judge Sentelle expressed skepticism that the phrase “the Recess” could be interpreted as meaning anything other than the single Recess that occurs between formal sessions (as opposed to using the phrase “a Recess” which would presumably have referred to all types of recesses). On the other hand, the DOJ argued that the text itself is at worst ambiguous (and at best, contemplates intrasession recess appointments), and moreover, that the frequent use of intrasession recess appointments dates back to 1921 and has never been challenged or questioned by the Senate.
• Whether the original purpose of the Recess Appointment Clause supports the use of intrasession recess appointments. Judge Griffith pointed out that the original purpose was to provide an accommation to senators not to have to stay in session 365 days per year (they had to travel home by horse and carriage at the time) and to ensure that emergency appointments could still be fulfilled by the President without calling back the Senate. That purpose has changed, over time, to provide greater and greater power to the President to override or avoid attempts by the Senate to frustrate his nominations, in other words, to give the President a “second chance” at an appointment that had otherwise stalled in the Senate.
• Whether the text of the Constitution supports the President’s authority to make a recess appointment where the vacancy occurred prior to the recess, as opposed to limiting that authority only to vacancies that arise during the Recess. Chief Judge Sentelle questioned whether the text could reasonably be read to include all vacancies, regardless of when they arise, given the limiting – and otherwise unnecessary – language of “may happen.” The DOJ pointed out that intrasession recess appointments have been commonly used and relied upon by the Executive Branch (and implicitly accepted and never challenged by Congress) for close to 100 years, and upheld by all three courts of appeals to address the issue.
• Whether the Senate’s very recent use – beginning in November 2007 – of holding pro forma sessions to try and avoid intrasession recess (and thereby prevent the President from making recess appointments), was simply a sham device with no “functional” meaning, or whether the pro forma sessions were sufficient, as a technical matter, to prevent a recess. Put another way, whether a recess can be avoided if the Senate has the capability to perform work, even if it expressly disavows any intent to perform work, does not perform any work, and otherwise acts and looks like a traditional “recess.”
• Whether removing any distinction between intersession and intrasession recesses would create a slippery slope, with no bases or principles to set a threshhold for defining the limits of what is a recess. In other words, if the President can make recess appointments in this situation, will a future President attempt to make recess appointments during a weekend break or lunch break of the Senate.

A finding that intrasession recess appointments are unconstitutional would place the D.C. Circuit in conflict with the Eleventh Circuit and invalidate close to 100 years of historic practice (including hundreds of intrasession recess appointments). It would also potentially provide the Senate with the ability to hold off all nominations indefinitely (by increasing the use of pro forma sessions leading up to and after each annual session), and would render null and void every decision made by the NLRB since January 4, 2012. It would, however, allow the Court to avoid entering the political minefield of defining when a “recess” occurs, while relying entirely on textual and original intent interpretations of the Constitution.

Similarly, a finding that there was no “recess” in this particular case would have the same practical effect – invalidating President Obama’s January 4, 2012 appointments and allowing the Senate to effectively never go into “recess” in the future – but would require the Court to define the limits and meaning of a Senate “recess” and validate the Senate’s use of pro forma sessions to avoid recess.

On the other hand, a ruling upholding the President’s intrasession recess power (or declining to reach that threshhold issue), and holding that there is a recess even when the Senate continues to attempt to stay in session via pro forma sessions, could allow for the continued expansion of the President’s recess appointment power.

Given the importance of the issue involved, this issue appears likely to be headed to the U.S. Supreme Court regardless of the outcome at the court of appeals.

Joshua F. Alloy, Special Labor & Employment Counsel, contributed to this post.