A panel of the DC Circuit (Sentelle, Henderson, Griffith) today held that President Obama’s recent recess appointments were invalid.

This is a very important and very broad holding–indeed, much broader than when it appeared that this case would be resolved on the President’s ability to make recess appointments when the Senate was conducting “pro forma” sessions. It is also the most thorough judicial discussion of the recess appointment power.

The main thrust of the court’s opinion is that the recess appointment power extends only to intersession recesses–recesses between sessions of Congress–and not to intrasession recesses. Intrasession recess appointments have been made fairly commonly since WWII, and have been particularly common since the Reagan Administration. UN Ambassador John Bolton and Judge William H. Pryor, Jr. are two of the more high-profile intrasession recess appointments in recent years. The D.C. Circuit’s holding is is in acknowledged conflict with an Eleventh Circuit opinion from 2004. Intrasession appointments may be even more common than intersession appointments these days (because the appointment runs to “the End of [Congress’s] next Session,” they last longer), so this is a very important ruling as a practical matter.

But the court also held (or at least stated) that the recess appointment power may only be used to fill vacancies that arise during the recess of the Senate. The text of the Clause provides:

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.

Although the first Attorney General, Edmund Randolph, read “happen” to limit the power to filling vacancies that arise during the recess of the Senate, by 1823, Attorney General William Wirt had reversed course and said it extended to vacancies that “happened to exist” during the recess. And there it has remained ever since. The D.C. Circuit’s conclusion conflicts with the Eleventh Circuit, the en banc Ninth Circuit, and the Second Circuit on this score.

Both these points were not the main focus of the briefing, so I could see the government seeking rehearing en banc; but if the government feels it must act quickly because of the number of NLRB decisions that are at risk, it could head directly to the Supreme Court–possibly even seeking expedited briefing so the case could be considered this Term.

I do think the panel would have benefited from extensive briefing specifically on these questions. For example, the court heavily emphasized that “[t]he dearth of intrasession appointments in the years and decades following the ratification.” But as noted in the Government’s brief in opposition in Franklin v. United States (which I drafted), arising out of the Pryor recess appointment, “Before 1857, Presidents had virtually no occasion to make such [intrasession] appointments. During that period, Congress scheduled only three brief intra-session recesses, for periods of seven, five, and five days, over the winter holidays of 1800, 1817, and 1828, respectively.”

The D.C. Circuit opinion is an excellent recitation of the arguments against the validity of intrasession recess appointments. For more argumentation along those lines, see this 2005 post by Marty Lederman, and briefs he filed (along with Tom Goldstein and Laurence Tribe) challenging the Pryor appointment, here and here. Arguments for the validity of intrasession recess appointments, also in the context of the Pryor appointment (and drafted by yours truly) can be found here and here.