The US Court of Appeals for the District of Columbia Circuit [official website] on Friday ruled [opinion, PDF] that the recess appointment of three members of the National Labor Relations Board (NLRB) [official website] by President Barack Obama [official website] was unconstitutional. The Obama administration argued that the president's appointment was constitutional because the Senate was on a 20-day recess when the appointments were made. However, the court, after discussing the background underlying the constitutional language "Recess," reasoned that logic, language and constitutional history supports the interpretation of "Recess" referring to "the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable to receive and act upon nominations from the President." Thus, it concluded that the Recess Appointment Clause [Art. II, § 5, cl. 4 text] was inapplicable in this case because the Senate was not in recess at the time of the putative appointments and the vacancies did not occur during the recess of the Senate. Consequently, under Article II, § 2, Clause 2 [text] of the Constitution, the president was required to obtain the advice and consent of the Senate before the appointment. The White House may appeal the decision.
The case was brought by a bottler and distributor of Pepsi-Cola products in Washington state challenging the NLRB after the Board affirmed a decision that the distributor violated the National Labor Relations Act (NLRA) [text]. In addition, two business advocacy groups filed motions contesting the constitutionality of the president's recess appointments [JURIST reports] in January 2012. The motions were filed in relation to the groups' ongoing suit challenging the NLRB mandate that rights to unionize [JURIST report] be posted in all workplaces. The US Department of Justice (DOJ) [official website] defended the use of recess appointments [CRS backgrounder, PDF] by Obama immediately after his announcement. The DOJ's memo argues that although the Senate met between January 3 and 23, the sessions were not sufficient to constitute an interruption of a recess under the Recess Appointment Clause because they were only pro forma sessions that lasted less than a minute and there was no intent to conduct any business. Some experts argue that recess appointments have regularly been used by presidents [JURIST op-ed] since George Washington. It is only a relatively recent practice that obstructionists have begun holding perfunctory pro forma sessions every three days while the Senate is on recess in order to block recess appointments.