United States Court of Appeals, District of Columbia Circuit U.S. Constitution, Article II, Sec. 2, Cl. 3: 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.There are three major ramifications to the D.C. Circuit's decision to deem void the president's appointments to the NLRB, which is sure to be appealed to the Supreme Court:
- It means that all orders entered by the NLRB during the past year are void. They are down to one valid member and can't do anything. We will see if yesterday's fiddling with the Senate rules has any effect on the president's ability to get permanent appointees confirmed.
- It also means that Richard Cordray's simultaneous recess appointment to head the Consumer Financial Products Bureau is also likely invalid, and it has been challenged as well.
- It greatly circumscribes the recess appointments power, as a general matter.
As background, the appointments took place during what was effectively a 20-day recess around the New Year, with the Senate holding pro forma sessions which the Office of Legal Counsel deemed to be of no constitutional significance in defining a "recess." The D.C. Circuit's ruling, from Judges Sentelle (Reagan nominee), Henderson (GHWB), and Griffith (GWB) holds otherwise. It is full of nerdy constitutional history as to what's a "recess" and what's an "adjournment," whether a "recess" is only that time between sessions of Congress (i.e., end of December session in even-numbered years, through January 2 of the following year), and what does it mean for a recess to "happen." Meet me past the orange gnocchi:
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