Late this afternoon, a divided panel panel of the Fourth Circuit invalidated President Obama’s January 2012 recess appointment of three NLRB members. People who have remarked on the fact that only judges appointed by Republican presidents have so far voted to invalidate these appointments, while judges appointed by Democrats have voted to uphold them, will note that the same was also true here: the majority opinion was written by Senior Judge Clyde Hamilton (appointed by George H.W. Bush) and joined by Judge Allyson K. Duncan (appointed by George W. Bush); the opinion concurring in part and dissenting in (relevant) part was written by Judge Albert Diaz (appointed by Barack Obama). (If you look back at my prior posts on this subject, you will see that I am not one of those people; but there are enough people who have noted it that I feel like I have to address the issue.) I think a more noteworthy pattern is how the opinions on this subject are growing in length: the opinions in Noel Canning v. NLRB totalled a relatively brisk 47 pages; NLRB v. New Vista Nursing totalled 157 pages; NLRB v. Enterprise Leasing Co. Southeast weighs in at an awesome 167 pages. (In fairness to the Fourth Circuit, their discussion of the constitutionality of recess appointments doesn’t even begin until page 56, after they’ve addressed other issues.)
The majority concluded that the President’s power under the Constitution to make recess appointments during “the Recess of the Senate” is limited to “intersession” recesses. While the court said it “may not agree with the level of significance placed on ‘the’ by the court in Noel Canning, we agree that the use of the definite article suggests some ‘specificity.'” Slip op. 92. It agreed with (my recollection of) the Third Circuit’s opinion that “the textual evidence is inconclusive” (in that “recess” didn’t have a specific Founding-era meaning in isolation), but thought there were “compelling reasons for adopting the intersession definition,” id. at 93: namely, (1) “the Constitution uses the more inclusive term ‘adjourn’ or ‘Adjournment’ to refer to to those parliamentary breaks that could occur either after or during a session of Congress,” and (2) that understanding “is supported by the Framers’ understanding of the term,” as revealed by the court’s interpretation of historical practice. Id. at 95. The court declined to address whether the President can only use the recess appointment power to fill vacancies that “happen” to arise during the recess of the Senate. Id. at 124 n.27. Judge Duncan concurred separately to fault the dissent’s proposed standard for being unworkable and, she said, unmoored to the Constitution’s text. Id. at 126-129.
Judge Diaz dissented in relevant part. Slip op. 130-167. He found the text alone “anything but clear,” and thought “[m]ost Americans would understand a ‘recess’ to be . . . a break from Senate proceedings,” id. at 136, whether between sessions or during a session of Congress. He interpreted “recess” functionally, “when [the Senate] is not available to provide advice and consent on nominations.” Id. at 143. He was unimpressed by the lack of Founding-era intrasession appointments, noting that a President made such an appointment “[t]he first time that Congress took an extended intrasession recess” in 1867. Id. at 145. Although the majority did not reach the “happen to arise/happen to exist” argument, Judge Diaz did, id. at 159-165, concluding that the Recess Appointment Clause’s authorization to fill vacanacies that “may happen during the Recess” applies to all that “may exist” at that time. Id. at 165.
Given the importance of originalism among the Justices of the Supreme Court, I am surprised that the dissents in the Third and Fourth Circuits did not devote more of their analysis to originalist arguments. I believe that a persuasive argument can be made that the Framers would have recognized an intrasession recess as “the Recess of the Senate” for purposes of the Clause; just look at the writings of Professor Edward Hartnett. But that has not been the focus of the dissents so far.