DC Circuit

Obama Recess Appointments Slapped Down by DC Circuit, CFPB At Risk

What can only be described as a blockbuster opinion was just handed down by the DC Circuit in the case of Canning v NLRB, the validity of President Obama’s recess appointments has been slapped down. Here is the full opinion. The three judge panel was Chief Judge David Sentelle, Karen Henderson and Thomas Griffith, all Republican appointees (one from each Bush and one Reagan).

The immediate effect of the court’s decision is, of course, on the National Labor Relations Board (NLRB). Noel Canning was aggrieved by a decision of the NLRB and petitioned for review, the NLRB cross-petitioned to have its decision upheld. Fairly standard stuff – except the quorum on the NLRB Board was met only because of the fact Barack Obama controversially recess appointed three members in January 2012, as well as concurrently recess appointing Richard Cordray to be the Director of the Consumer Finance Protection Bureau. So, three out of the five members of the NLRB Board were, according to Canning’s argument, not validly sitting and therefore their decision was invalid as to him

Canning had merits arguments on the specific facts of his individual case, but the court found those non-compelling and proceeded on the Constitutional arguments surrounding the validity of the recess appointments. And the Court agreed with Canning that Obama’s recess appointments were invalid. The discussion by the court can be gleaned from these passages:

All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.
….
It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions. Cf. Virginia v. Tennessee, 148 U.S. 503, 519 (1893) (interpreting terms “by reference to associated words”). Confirming this reciprocal meaning, the First Congress passed a compensation bill that provided the Senate’s engrossing clerk “two dollars per day during the session, with the like compensation to such clerk while he shall be necessarily employed in the recess.” Act of Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71.

Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board. When the Federalist Papers spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.” The Federalist No. 67, at 408 (Clinton Rossiter ed., 2003). For there to be an “ensuing session,” it seems likely to the point of near certainty that recess appointments were being made at a time when the Senate was not in session — that is, when it was in “the Recess.” Thus, background documents to the Constitution, in addition to the language itself, suggest that “the Recess” refers to the period between sessions that would end with the ensuing session of the Senate.
….
The Constitution’s overall appointments structure provides additional confirmation of the intersession interpretation. The Framers emphasized that the recess appointment power served only as a stopgap for times when the Senate was unable to provide advice and consent. Hamilton wrote in Federalist No. 67 that advice and consent “declares the general mode of appointing officers of the United States,” while the Recess Appointments Clause serves as “nothing more than a supplement to the other for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.” The Federalist No. 67, supra, at 408. The “general mode” of participation of the Senate through advice and consent served an important function: “It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” The Federalist No. 76, supra, at 456.

Then the blow was delivered: Continue reading

Emptywheel Twitterverse
bmaz @Millicentsomer Lili, have another glass of wine, there is no bottom to the hole you just jumped in.
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bmaz @PhoenixWomanMN @armandodkos In fact, I was much more favorable to HRC in primary until I saw how dishonest and petty her team is.
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bmaz @PhoenixWomanMN @armandodkos I do NOT hate Clinton, I admire her in very many ways. Think some of her policies are atrocious+prefer Sanders.
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bmaz @PhoenixWomanMN @armandodkos Perhaps I mistook you for someone else. But you can flat out stick your trite little CDS shit.
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bmaz @PhoenixWomanMN @armandodkos This is the same asinine horseshit you pulled in 2008. well you can fuck right off with that.
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bmaz @richganske That RAF bar is pretty awesome looking
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bmaz @shannynmoore No kidding. Just saw someone compare them to INXS. Not seeing that in the least.
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bmaz @ZoeNoeTek Yep, you too.
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bmaz @PhoenixWomanMN @armandodkos Team Clinton can stick that shit. Why don't you account for the hundreds of thousands dead from her sick wars?
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bmaz @ZoeNoeTek No. Frankly anybody that would want the job of President is probably the wrong person to have it.
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bmaz @PhoenixWomanMN @armandodkos Like I give a flying fuck about Devine? Seriously spare me this two bit Clintonian horseshoe.
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bmaz @ZoeNoeTek Heh, you mean like having Bill Gates clean up the internet?
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