Although I once delivered a lecture on the argument that Administrative Patent Judges were improperly appointed under the Constitution, like most lawyers my practice rarely touches on Constitutional issues. But a recent decision of the D.C. Circuit Court of Appeals striking down President Obama's recess appointments because--in the Court's view--the Senate was not in "Recess" has the potential to retroactively invalidate thousands of actions made by U.S. government agencies. A brief background: while certain Presidential appointments must be confirmed by the Senate, the Constitution provides that the President may make temporary appointments to those positions without Senate confirmation when the Senate is in "Recess." The argument in this case focused on whether Senate was or was not in "Recess" when President Obama made recess appointments to the National Relations Labor Board in 2012.
What is even more interesting (as pointed out here by John Elwood at The Volokh Conspiracy) is that the D.C. Circuit went on to state in a 2-1 opinion that the recess appointment power is available to the President only if the vacancies in question actually occurred during a recess of the Senate. This appears to go against almost 200 years of practice as Presidents have made many recess appointments for vacancies that occurred while the Senate was not in recess. All of a sudden, this arcane dispute between the President and the Congress on the meaning of the word "Recess" calls into question years of government decisions including the recent mortgage rules issues by the Consumer Financial Protection Bureau.
The Supreme Court will likely take this case and give us the last word on this. Stay tuned!
What is even more interesting (as pointed out here by John Elwood at The Volokh Conspiracy) is that the D.C. Circuit went on to state in a 2-1 opinion that the recess appointment power is available to the President only if the vacancies in question actually occurred during a recess of the Senate. This appears to go against almost 200 years of practice as Presidents have made many recess appointments for vacancies that occurred while the Senate was not in recess. All of a sudden, this arcane dispute between the President and the Congress on the meaning of the word "Recess" calls into question years of government decisions including the recent mortgage rules issues by the Consumer Financial Protection Bureau.
The Supreme Court will likely take this case and give us the last word on this. Stay tuned!
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