It was quite gratifying to see the D.C. Circuit’s Recess Appointment decision on Friday, which held President Obama’s recent recess appointments to the NLRB to be unconstitutional.
Back in 2003-2004 when I first started researching the Recess Appointments Clause, I thought I would write a piece defending the interpretation of the Clause that I had learned at the Office of Legal Counsel. Under that view, the President had significant – and I would now say largely unconstrained – power to recess appointment individuals when the Senate was not in session.
But as I read the Clause and looked into the history, I quickly became convinced that the OLC interpretation was seriously mistaken. I started writing an article that argued that the modern interpretation of the Clause was wrong in two significant respects. First, I argued that recess appointments could be made only when the vacancy arose during the recess when the President was making the recess appointment. Significantly, if the vacancy existed when the Senate was in session – as virtually all vacancies for which the President now makes recess appointments do – the President could not make the recess appointment.
Second, I argued that recess appointments could only be made during an intersession recess – the recess between the sessions of Congress. They could not be made during an intrasession recess – a so-called recess during a session of Congress – which is actually not what the Constitution calls a recess, but instead an adjournment.
Eventually, the article was published as the Original Meaning of the Recess Appointments Clause. I have defended this position in various blog posts, including here and here.
Back when I was writing the article, almost no one adopted either of these interpretations. Two circuits (the 2nd and Ninth) had rejected challenges to recess appointments and OLC assumed its position stated the original meaning. Soon thereafter, however, things began to change. While the 11th Circuit again rejected a challenge to recess appointments, one judge – Rosemary Barkett (link no longer available), following the brief filed by Marty Lederman for Ted Kennedy – adopted the original meaning of the Clause (on both grounds I discussed above) in dissent. Still, no courts were on board and virtually no scholars in print.
But things have changed. On Friday, the D.C. Circuit unanimously held unconstitutional President Obama’s recent appointments that were based under the modern interpretation of the Clause. All three members of the Court embraced both of the interpretations I mentioned above (although the third judge did not believe that both interpretations needed to be reached).