Third Circuit Invalidates Recess Appointments

by Deepak Gupta

A divided panel of the Third Circuit today joined the D.C. Circuit in holding that President Obama's recess appointments to the NLRB are unconstitutional.  The case is NLRB v. New Visa Nursing and Rehabilitation.  From the majority opinion by Judge Smith, who is joined by Judge Van Antwerpen:

The central
question in this
is the
meaning of "the Recess of the Senate," which is the only
time in which the president may use his power to recess
appoint officers. Three definitions have
been offered: (1)
breaks between sessions of the Senate
(i.e., "intersession
breaks"); (2)
these intersession breaks as well as breaks
within a session (i.e., "intrasession breaks") that last for a
non-negligible time, or (3) any break in Senate business
that makes
the body
unavailable to provide advice and
consent on the president‘s nominations.
is a difficult
question that has never been addressed by our Court
the Supreme Court.
We hold that "the Recess of the
in the Recess Appointments Clause refers to only
intersession breaks.
As a consequence, we
the National Labor Relations Board panel below lacked
number of members to exercise the Board‘s
authority because one
member was invalidly
appointed during an intrasession break. We will therefore
vacate the Board‘s orders.

From Judge Greenaway's dissent:

The Majority's rationale undoes an appointments process that has successfully operated within our separation of powers regime for over 220 years.

In defining the scope of the Recess Appointments Clause, the critical issue is more straightforward than the Majority suggests: The issue is whether “the Recess” includes only intersession recesses (those between two regular sessions of Congress) or intersession recesses and intrasession recesses (those within a regular session of Congress).
The Majority's three possible definitions of “Recess” can be distilled into one question: Are intrasession recesses included within the ambit of “the Recess”? I would hold that “the Recess” refers to both intrasession and intersession recesses because the Senate can be unavailable to provide advice
and consent during both.
The availability of the Senate to provide advice and consent is the crux of the Recess Appointments Clause because its operation depends on its complementary interplay with the Appointments Clause, which requires that the Senate be available to provide advice and consent.

The majority
opinion is 102 pages long and the dissent is
55 pages long. It seems likely that the Supreme Court will have the last word.

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