A panel of the DC Circuit has ruled, in Noel Canning v. NLRB, that President Obama's appointment of three new members to the NLRB under the recess appointment power was invalid. The appointments were made while the Senate was in session but operating under a unanimous consent agreement that provided the Senate would meet pro forma every three days during a month in which the Senate was not otherwise conducting business (a so-called "intrasession" recess). The recess appointments clause of the Constitution provides that "[t]he 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."Art. II, s.2, cl.3.
The court, in an opinion by Judge David Sentelle, placed stress on the fact that the Constitution refers to "the Recess," which implies that there is but one recess, that which occurs between sessions of Congress. To construe "the Recess" to mean "any recess" is not only inconsistent with the singular nature of the Constitution's text on this point, but would open the door to presidential evasion of the advice and consent requirement. Said the court: “Some undefined but substantial number of days-break is not a plausible interpretation of ‘the Recess.’”
As an alternative holding, the court noted that the recess appointments clause also limits the power to those vacancies "that may happen" during "the Recess." Thus, the recess appointment power only applies to those vacancies that actually first occur during "the Recess" -- the intersession recess. Because the NLRB vacancies occurred prior to the intrasession "recess" they did not happen during that alleged recess, and so could not be filled by the recess appointments power. Said the court: “The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government. In light of the extensive evidence that the original public meaning of ‘happen’ was ‘arise,’ we hold that the President may only make recess appointments to fill vacancies that arise during the recess.”
The court rejected the functional reasoning of the Eleventh Circuit, in Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cet. denied, 544 u.s. 942 (2005), thus increasing the likelihood that the issue will ultimately be decided the the Supreme Court.
The opinion is an impressive blend of textual, historical, and structural analysis. The vague functional approach promises to permit presidents to evade the Senate's advice and consent function, which by itself should be enough to reject the functional reading.