Recess appointments

In my last posting, I said that “as good as our Constitution is in so many ways, it has a few blemishes resulting from the fact that the world has changed in the 200+ years since its adoption, without the necessary amendments.” And one of those outdated provisions refers to the fact that, since it would be hard (given the state of transportation in the 1780s) to reconvene the Senate after it has adjourned and its members gone home, the President was given the power to make appointments which would normally require Senate confirmation, without that confirmation, during a recess of the Senate:

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. (Article II, Section 2, U. S. Constitution)

With the Congress in almost continuous session, it would appear that this clause would be almost defunct in its effect, except that Presidents have construed “recess” in a very generous way, considering relatively short periods when the Senate has closed up shop as recesses within the meaning of this clause — no President more than our incumbent, President Barack Obama. He has made a number of appointments during periods when the Senate had simply closed for the weekend — particularly, ones that might not pass the Senate's muster. He has particularly used this power to stack the National Labor Relations Board with pro-organized-labor appointees, destroying its ability to make impartial decisions.

But now the chickens have come home to roost.

The U.S. Court of Appeals for the D.C. Circuit has just ruled that some appointments made to the NLRB in January of last year were unconstitutional. And in that ruling, (Canning v. NLRB), the court specifically defined a recess:

…we hold that “the Recess” is limited to intersession recesses.

Now this is only a decision of the Circuit Court of Appeals, and the Obama Administration will surely appeal to the Supreme Court. But unless the Supreme Court rules otherwise, it is a powerful tool to rein the Obama Administration's attempt to do an end run around the Constitution's “advise and consent” clause. There were a number of interpretations current on what the “recess appointments” clause actually means, and the Court adopted the most restrictive one possible. It is surely to be hoped that this court's opinion will be sustained if and when appeal is made to the Supreme Court. Let us await their decision, with hope for the best.