Last week, the Third Circuit Court of Appeals held in NLRB v. New Vista that the President violated the Constitution’s Separation of Powers when he made a recess-appointment to the NLRB in March 2010.
The Third Circuit examined the meaning of the phrase “recess of the senate,” the only time in which the President may recess-appoint officers. A 2-1 majority found “recess of the senate” to refer only to breaks between sessions of the Senate. The NLRB had argued that “recess” could refer to any time when the Senate is not open to conduct business. As a consequence, the Court concluded that the NLRB panel at issue lacked the required number of members to exercise the its authority “because one panel member was invalidly appointed during an intrasession break.” And intrasession break is any recess taken during a session of the Senate. The Third Circuit considered the Recess Appointments Clause’s textual context, and found that the Recess Appointments Clause was secondary to the Appointments Clause; thus, the President’s power to make appointments without the consent of the Senate was limited only to situations where the Senate was truly unavailable.
This decision follows an earlier ruling by the D.C. Circuit Court of Appeals in Noel Canning v. NLRB, that also invalidated an appointment to the NLRB made during an intersession break. www.cadc.uscourts.gov/
There remains a split, however, among the Circuit Courts of Appeals on this issue. In 2004, the Eleventh Circuit held in Evans v. Stephens that recess appointments were valid. Taking the opposite view of the Third Circuit, the Eleventh Circuit held “recess” referred not just to breaks between sessions of the Senate, but also to any break taken during a session.
The impact of a second Court of Appeals’ decision to invalidate the President’s recess appointments should be significant. At this point, the NLRB already has sought certiorari to the Supreme Court of the Noel Canning decision, and likely will seek an en banc hearing before the entire Third Circuit given the fifty-five page dissent to the majority’s opinion in New Vista. Given the fact that there were recess appointments in 2011 and 2012, and that the “quickie election” rule is one of the decisions to come out of the NLRB during the time where no quorum existed if the recess appointments are invalid, we can expect the Supreme Court will give serious consideration to weighing in on the subject.
To read the Third Circuit’s opinion, go to http://www.ca3.uscourts.gov/opinarch/113440p.pdf