May 31, 2013
By Larry Cary, Esq.

The United States Court of Appeals for the Third Circuit recently joined the District of Columbia Circuit Court of Appeals in finding that President Obama did not have the authority to make recess appointments to the National Labor Relations Board.  While the D.C. Circuit Court held in January that the Labor Board could not decide cases so long as it did not have enough properly appointed members to constitute a quorum (three of the five members of the Board), the Third Circuit’s decision dealt with the ability of the Labor Board to judge cases, as it is supposed to do, by delegating the decision making process to a three member panel. 

The Third Circuit ruled in New Vista Nursing and Rehabilitation, LLC, that when one member of a three judge panel is not properly appointed under the Recess Appointments Cause of the U.S. Constitution, the other two members do not have the authority to decide a case even though decisions are made by a majority of the three judge panel, i.e., by the two remaining and properly appointed members of the Board.

In both the D.C. Circuit’s decision in Noel Channing and the Third Circuit’s decision in New Vista Nursing Home, judges appointed by Republican Presidents have held that under the Recess Appointments Clause a U.S. President may only make high level appointments if the Senate is on intersession recess, that is to say, a recess called an “adjournment sine die,” which is Latin for “adjourning without a date to reconvene”.  There are two potentially year-long sessions of the Senate during each Congress.  An adjournment sine die takes place when one session is ended without a date to reconvene and the next session begins in January of the following year as required by the Constitution.  For over a hundred years U.S. Presidents have also made recess appointments during lengthy intrasession recesses taken by the Senate (that is to say, recesses taken within a session to allow all the Senators to take a vacation or to return to their home states and campaign for reelection).   Both courts decided that recess appointments cannot be made during lengthy intrasession recesses despite the U.S. Constitution not limiting recess appointments to only intersession recesses.

Remarkably, the decisions in both cases were written or endorsed by judges on the panels who are members or associates of the Federalist Society, a tiny, but powerful, organization of judges, attorneys and law students which describes itself as “conservative and libertarian” and “dedicated to reforming the current legal order.”  While the Federalist Society claims to be committed to the principal that “separation of governmental powers is central to our Constitution, and that it is empathically the province and duty of the judiciary to say what the law is, not what it should be,” the two decisions rewrite the Constitutional balance of power between the President and the Senate over the appointment of high level federal officials.

Among the six judges to decide the two cases, the only judge to disagree with this result is the Honorable Joseph A. Greenaway, Jr.  Judge Greenaway is a graduate of the Bronx High School of Science, Columbia University and Harvard Law School.  He served as an assistant federal prosecutor, and then a District Court Judge for many years before being elevated by President Obama to the Court of Appeals.  Judge Greenaway’s father is a carpenter and his mother a nurse.

Judge Greenaway’s dissent describes the potential harm to our Nation caused by these two decisions, which presumably will be reviewed by the Supreme Court next year.  According to Judge Greenaway, “The Majority’s rationale undoes an appointments process that has successfully operated with our separation powers regime for over 220 years.” Contrary to the other judges, Judge Greenaway writes that the Constitution allows recess appointments to be made during both intersession and intrasession recesses because “[t]he plain meaning and structure of the text of the Constitution, the intent of the Framers, the purpose of the Recess Appointments Clause, and the tradition and practice of the branches of our government all demand this result.” 

According to Judge Greenaway, the purpose of the Constitution’s Recess Appointments Clause is to permit a President to make high level government appointments when the Senate is on recess, i.e., not in session, and thus unable to give its advice and consent to the nomination.  Also, as explained by Judge Greenaway, “[t]he Recess Appointments Clause does not distinguish between intersession and intrasession recesses.  Accordingly, we should not read such a limitation onto the executive power where one has not been directly conferred by the Framers.”

Judge Greenaway believes “courts must proceed carefully in construing the executive power narrowly.”  He believes that “[t]he stakes are too high and consequences too dire if the executive power is unduly constricted.”  Because “the President needs the power to keep offices occupied in order to keep his branch and the government, as a whole, running,” Judge Greenaway would find that President Obama had the power to make the appointments he made to the Labor Board.

Judge Greenaway believes that these two decisions, if allowed to stand, may permit the Senate to “engage in machinations, as some would argue is the case with pro forma sessions, to avoid voting on nominees in order to strong-arm the President into capitulating to its demands, forcing the president to nominate the Senate’s preferred candidates or else leave offices vacant, as Hamilton expressly feared.”  Judge Greenaway refers to pro forma sessions because President Obama’s appointments to the Labor Board were made during a month long recess when the Senate voted to go into a “pro forma” session rather than adjourn sine diePro forma is Latin and means “purely for the sake of form”.  During this month long pro forma session, no business could be conducted as all that happened is a lone Senator would make his way every three business days into the Senate chamber, and gavel-in and, less than a minute later, gavel-out that day’s “session” of the Senate.  With the entire procedure taking less than a minute and no Senators available to consider or vote on nominations, Judge Greenaway views this maneuver as something designed to prevent the President from exercising his appointment power under the Constitution.

The Senate went into pro forma session because the House of Representatives would not agree to a date on which the Senate could adjourn sine die.  Because the Constitution requires that the Senate and the House mutually agree on the date of adjourning sine die, the Senate came up with the pro forma session as a technicality to get around the issue.  As Judge Greenaway noted in his dissent, the refusal of the House to agree on an adjournment sine die was intended to prevent the President from making recess appointments even though the House has no role under the Constitution with regard to approving or denying such appointments.  The House, which is dominated by Republicans and right wing Tea Party activists, deliberately intended to create the constitutional crisis now unfolding.  

As Judge Greenaway explains in his dissent there was no opportunity for the Senate to give its advice and consent to nominations during this pro forma session and the Recess Appointments Clause should be enforced because, to paraphrase Judge Greenaway, the president’s power to keep the government running should not turn on the use of “the magic words … “adjourned sine die”.”

While trade unionists and workers are rightfully distressed by the impact of these decisions which call into question the ability of the Labor Board to protect workers’ rights under the law, the issue is much bigger than that.  Right wing forces have blocked a budget deal in order to force Sequestration and a partial shutdown of the government.  If these two Court of Appeals decisions are upheld by the Supreme Court, the President would also lose the ability to keep the government running even if a budget was passed.  The right wing seems intent on wrecking our government.  Let’s hope the Supreme Court will stop them.  Let’s also hope that in the next Congressional election the Democrats take back the House.

Larry Cary is a partner in the New York law firm of Cary Kane LLP and has represented unions for 30 years.

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