Why the Meaning of The Is Putting Obama Into a Constitutional Mess

The law, lawyers, and the court.
Jan. 25 2013 4:57 PM

The Meaning of The

How that one little word has gotten Obama into a heap of constitutional trouble.

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An appeals court has blocked President Obama's recess appointments to the NLRB from last January.

Photo by Alex Wong/Getty Images

Would you believe me if I told you that President Obama is in constitutional trouble—with hundreds of decisions of the National Labor Relations Board from the last year now potentially invalid—over the meaning of the word the?

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

That’s what three judges of the U.S. Court of Appeals for the District of Columbia said Friday. The president has constitutional egg on his face because the judges have blocked his appointments of three NRLB members on Jan. 4, 2012. The president said that on that day, the Senate was in recess, which meant he could exercise his authority to make a recess appointment. But the Senate claimed that it was not in recess at all. Never mind that its members were off on a 20-day holiday. The Republican minority took care during that time to gavel the Senate in and out, every few days, for what Obama called “pro forma” sessions. And that, staunch conservative Judge David B. Sentelle says for himself, and two other judges who also happen to be Republican appointees, is enough to beat the president at the game of declaring recess.

Or perhaps I should say only the recess. What we’re looking at here is this clause from Article II of the Constitution:

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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.

As Sentelle framed it, “the Recess” cannot ever mean anything like “a recess.” “This is not an insignificant distinction,” he writes. “In the end it makes all the difference.” The Framers were not talking about “a generic break in the proceedings,” Sentelle continues, “Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in ‘the Recess.’ ” The upshot is that if the opposing party minority says the Senate is in session, then it does not matter where the flock has fled, or even for how long. The Senate Republicans did this by using their majority power in the House.* Minority Leader Mitch McConnell, essentially, gets to decide when the Senate is open or shut, with whatever fiction he wants. The president is at his mercy.

Wow, imagine how happy that must make Mitch McConnell. Maybe he will even crack the smile in my favorite picture in the Daily Caller’s slideshow of McConnell-turtle companion photos.

OK, enough irreverence. What exactly was Obama doing, declaring the power to make a recess appointment in the middle of a session, even a fake one? Well, for one thing, Senate Republicans had blocked his NLRB choices for months (via the filibuster with which Harry Reid has saddled us for another long winter). For another, Obama had some history on his side. On Volokh Conspiracy, John Elwood writes that what he calls “intrasession recess appointments” (as in, Obama’s at the NLRB) “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.”

Yes, Bolton and Pryor were George W. Bush appointees. Elwood also points out a 2004 ruling by the U.S. Court of Appeals for the 11th Circuit that’s on the president’s side here, and in conflict with the D.C. Circuit’s decision today. The 11th Circuit weighed in about the validity of Pryor’s appointment, which took place during a nice 10-day break for President’s Day in February 2004. In an opinion by Chief Judge Larry Edmondson, the court did not get stern about the meaning of the word “the.” Instead, Edmondson wrote, “We do not agree that the Framers' use of the term ‘the’ unambiguously points to the single recess that comes at the end of a Session. Instead, we accept that ‘the Recess,’ originally and through today, could just as properly refer generically to any one—intrasession or intersession —of the Senate's acts of recessing, that is, taking a break.” Edmondson (a Reagan nominee) also pointed out that at the time, 12 presidents had “made more than 285 intrasession recess appointments of persons to offices that ordinarily require consent of the Senate.”

That should at least assure you that President Obama did not run amok. Two other federal appeals courts decisions, by the 9th Circuit and the 2nd Circuit, also blessed judicial appointments made in the middle of a Senate session. It’s true that this practice didn’t get going until 1857, but according to Elwood, that’s because Congress took only three short midsession breaks up until that point (seven days in 1800, five days in 1817, and five days in 1828).

If you’re still bothered by the idea of the president rather than the Senate deciding on the Senate’s own rules—after all, concerns about separation of powers and a power-hungry executive come into play—consider this argument defending the Jan. 4 appointments from Akhil Amar and Timothy Noah. They point out that McConnell did not speak last January for a majority of senators. If anyone did, it was Majority Leader Harry Reid. “Neither David Sentelle nor Mitch McConnell should decide when the Senate is or is not in session,” Akhil said when I talked to him today. “Fifty-one Senators should decide. It's awkward when three Republican-appointed judges substitute their decision for that of a Democratic controlled Senate.” Akhil also called one part of the D.C. Circuit’s ruling (not joined by a third judge, Thomas Griffith) “radical.” This part of the opinion found that the only vacancies a president can fill during The Recess are those that open up during that particular recess.*

What happens next? Well, the NLRB is in a fix, because everything it’s done in the last year is now up for constitutional challenge. Also if the D.C. Circuit is right, it only has one member with a valid appointment, which means no quorum. And the appointment of Richard Cordray, head the Consumer Financial Protection Bureau, is also in limbo, since he too got his job on Jan. 4, 2012. The Obama administration can appeal to the whole D.C. Circuit for what’s called en banc review—a do-over with eight of the court’s 13 judges.** Or it can go straight to the Supreme Court. The Obama lawyers must be making their own turtle faces right about now.

Updates, Jan. 26, 2013: This paragraph was expanded to clarify how Republicans prevented the recess. (Return to the updated paragraph.) This paragraph was expanded to provide more detail about the court's ruling. (Return to the updated paragraph.)

Correction, Jan. 25, 2013: This article originally stated that the D.C. Circuit has 13 judges. That's true, but five of the 13 have senior status and do not hear en banc cases. (Return to the corrected sentence.)

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