Elizabeth A. Wolford, The Daily Record Newswire
Recess appointments have become a ubiquitous tool of U.S. presidents. The Recess Appointments Clause of the U.S. Constitution, Article II, section 2, clause 3, provides as follows:
“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.”
A recent decision by the D.C. Circuit Court of Appeals finds certain aspects of the practice unconstitutional. That decision, issued Jan. 25, runs counter to precedent of other circuits.
In Noel Canning v. NLRB, a three-judge panel of the U.S. Court of Appeals for the District of Columbia held that the National Labor Relations Board could not lawfully act, as it did not have a quorum due to the appointment of three of its five members by President Obama in violation of the Recess Appointments Clause of the Constitution.
The Noel Canning decision directly conflicts with the 11th Circuit Court of Appeals decision in Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005), where an en banc panel held that the recess appointment of a judge to that court by President George W. Bush did not run afoul of the Constitution. As a result, according to many commentators, this issue is likely headed to the U.S. Supreme Court.
This article examines the Noel Canning decision, the Evans decision, and decisions from the Second and Ninth Circuits addressing the constitutionality of recess appointments.
The ‘Noel Canning’ decision
Noel Canning dealt with a company’s refusal to execute a written collective bargaining agreement with a union incorporating terms agreed upon during negotiations, an unfair labor practice under the National Labor Relations Act. The parties disagreed as to whether they had reached an agreement during their negotiations. A hearing was held before an Administrative Law Judge. The ALJ ruled in favor of the union, finding that an agreement had been reached and that the company’s refusal to execute the written agreement constituted an unfair labor practice. The NLRB ultimately affirmed the ALJ’s decision.
Petitions for review of NLRB orders are filed directly in federal appellate court. As a result, the propriety of the NLRB’s decision was heard directly by the D.C. Circuit. In order to act, the NLRB must have a quorum of three. Therefore, the validity of recess appointments of three of the five members was crucial to reaching a determination concerning the validity of the NLRB’s actions.
The three NLRB members at issue in Noel Canning had been appointed by the president on Jan. 4, 2012, purportedly pursuant to the Recess Appointments Clause of the Constitution. One of the three members filled a vacancy that had been in existence since Aug. 27, 2010, another member filled a vacancy that had been in existence since Aug. 27, 2011, and the third member filled a vacancy that had arisen just a day earlier (on Jan. 3, 2012).
At the time of these appointments, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from Dec. 20, 2011, through Jan. 23, 2012. During the Jan. 3 pro forma session, the Senate acted to convene the second session of the 112th Congress and to fulfill its constitutional duty to meet on Jan. 3, see U.S. Const. amend. XX, §2 (“The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.”).
The D.C. Court of Appeals held that the term “the Recess” in the Recess Appointments Clause does not mean just any recess. Rather, it refers to an intersession recess of the Senate (i.e., the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable to receive and act upon nominations from the president).
The court significantly relied upon the difference between the word choice “recess” and “the Recess” — the latter being the text of the Constitution — and concluded that “it makes no sense to adopt the board’s proposition that when the Framers said ‘the Recess,’ what they really meant was ‘a recess.’” Moreover, as noted by the court, the Constitution makes references to the verb “adjourn” and noun “adjournment” in other parts of its text, but did not use that phrase in the Recess Appointments Clause. According to the D.C. Court of Appeals:
“All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.”
The court reasoned that its conclusions were also supported by constitutional history. Among other things, the court relied upon evidence suggesting that no president attempted to make an intrasession recess appointment for 80 years after the Constitution was ratified, and it appeared that only three intrasession recess appointments were made prior to 1947 (by Presidents Andrew Johnson, Calvin Coolidge and Warren Harding).
The court also relied upon the purpose behind the Recess Appointment Clause, as articulated by Alexander Hamilton in Federalist No. 67. The court concluded that the Recess Appointment Clause reflected the Framers’ recognition that they needed some temporary method for appointment to avoid government paralysis when the Senate was in “the Recess” since, at the time of the Constitution, intersession recesses were regularly six to nine months. The court rejected as insignificant the fairly prevalent practice in more recent years of making intrasession recess appointments, concluding that “recent presidents are doing no more than interpreting the Constitution.”
In addition to reaching its conclusion about the unconstitutionality of intrasession recess appointments, the D.C. Court of Appeals also held that the Recess Appointment Clause only permits intersession appointments to vacancies that actually arise during “the Recess” (i.e. they cannot have existed before “the Recess” and simply continue to exist during “the Recess”). This aspect of the decision contradicts not only the 11th Circuit Court of Appeals, but also the Second and Ninth circuit Courts of Appeals. Indeed, one member of the three-judge panel disagreed with this conclusion in Noel Canning. Nonetheless, according to the majority opinion of the court:
“It would have made little sense to make the primary method of appointment the cumbersome advice and consent procedure contemplated by that clause if the secondary method would permit the president to fill up all vacancies regardless of when the vacancy arose. A president at odds with the Senate over nominations would never have to submit his nominees for confirmation. He could simply wait for a ‘recess’ (however defined) and then fill up all vacancies.”
In a concurring opinion, D.C. Circuit Judge Griffith agreed that intrasession recess appointments are unconstitutional, but he concluded that the court’s constitutional analysis should stop there, as the analysis regarding when the recess appointment arose was not necessary to the court’s holding. Moreover, he noted that while “the executive’s view that the president can fill vacancies that ‘happen to exist’ during ‘the Recess’ is suspect” the position dates back to at least the 1820s “making it more venerable than the much more recent practice of intrasession recess appointments.”
Of note, the constitutionality of the NLRB recess appointment in Noel Canning was not raised at the agency level. Section 10(e) of the NLRA provides that a court may only consider objections raised before the NLRB “unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances,” 29 U.S.C. §160(e).
Although acknowledging that there was no governing precedent directly addressing the question of whether the situation involved an exception for “extraordinary circumstances” under the NLRA, the D.C. Circuit held that the case presented such a circumstance. If an appeal of Noel Canning is considered by the Supreme Court, the court may not resolve the ultimate constitutional issue if it disagrees with the D.C. Court of Appeals’ conclusion that the case involved an exception under 29 U.S.C. §160(e).
The ‘Evans v. Stephens’ decision
In Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), an en banc panel of the 11th Circuit Court of Appeals held that the appointment of a judge to that court by President George W. Bush during the Presidents’ Day recess of the Senate was constitutional pursuant to the Recess Appointments Clause. In many respects, the Evans decision reads as the polar opposite of the conclusions reached by the D.C. Circuit Court of Appeals in Noel Canning. This may be attributable to the deferential approach to the executive’s actions that the 11th Circuit adopted when considering the issue.
At the outset, the 11th Circuit noted that “when the president is acting under the color of express authority of the United States Constitution, we start with a presumption that his acts are constitutional.” The court reasoned that while the presumption is rebuttable, the burden is on the challengers, noting: “Just to show that plausible interpretations of the pertinent constitutional clause exist other than that advanced by the President is not enough.”
The D.C. Circuit Court of Appeals did not adopt a similar deferential approach in its analysis of the issue, and in fact, nowhere in the Noel Canning decision is there any discussion about which party bears the burden of proving unconstitutionality.
The Evans Court concluded that the challengers’ arguments as to why a “recess” under the Recess Appointments Clause does not include an intrasession recess, “are not so strong as to persuade us that the president’s interpretation is incorrect.” This conclusion demonstrates the significant impact the burden of proof analysis adopted by the court had on the ultimate outcome in Evans.
The Evans Court reasoned that reference to “the recess” “could just as properly refer generically to any one — intrasession or intersession — of the Senate’s acts of recessing, that is, taking a break.” Moreover, so long as the vacancy happened to exist during a recess, it may be filled on a temporary basis by the president. The court concluded that the reference to “happen” in the Recess Appointments Clause was open to more than one interpretation, and the president’s interpretation did not contradict the plain meaning rule.
The opposite approaches of the Evans and Noel Canning courts are further illustrated by the historical analysis employed. According to the Evans Court, beginning with President Washington, over 300 recess appointments to the federal judiciary (including 15 to the Supreme Court) have been made.
The court cited to appointments of prior presidents during intrasession breaks, including by Presidents Truman, Reagan and Clinton: “Twelve Presidents have made more than 285 intrasession recess appointments of persons to offices that ordinarily require consent of the Senate.”
In contrast, the Noel Canning Court concluded that some of the Evans Court’s historical references have since been called into question, and it also dismissed the relevance of more recent history when considering constitutional considerations.
Other related decisions
It appears that Evans and Noel Canning are the only two decisions directly addressing the constitutional validity of intrasession recess appointments. However, other courts of appeals have considered the issue of when the “happening” of the recess must occur. Consistent with Evans, those courts have agreed that as long as the vacancy exists during the recess, then it may be filled by a recess appointment.
United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985), addressed the appointment by President Carter, on Dec. 31, 1980, of a district judge (Walter Heen) in Hawaii. Although hearings had been completed on his nomination, the Senate adjourned without approving the nomination. President Reagan then withdrew the nomination when he took office in January 1981, but Judge Heen continued to serve until Dec. 16, 1981, when the 97th Congress ended its first session. During the time that Judge Heen served as a district judge, he presided over the criminal bench trial of Janet Woodley, finding her guilty.
On appeal, a panel of the Ninth Circuit sua sponte held that Judge Heen could not constitutionally preside over the trial. The court convened en banc and reversed, holding that the Recess Appointment Clause extends to judicial officers and that a recess appointee to the federal bench can exercise the judicial power of the United States. According to the court, Presidents Eisenhower and Kennedy alone made 53 recess appointments during their administrations.
The court rejected the argument that the vacancy had to occur during a recess, reasoning that this interpretation “would lead to the absurd result that all offices vacant on the day the Senate recesses would have to remain vacant at least until the Senate reconvenes.”
Similarly, in United States v. Allocco, 305 F.2d 704 (2d Cir. 1962), cert. denied, 371 U.S. 964 (1963), the Second Circuit Court of Appeals held that the recess power may be used to fill vacancies that arise when the Senate is in session. The court refused to set aside a criminal conviction of a case tried before a district judge who was appointed by President Eisenhower during a Senate recess to fill a vacancy that arose while the Senate was in session.
Conclusion
Only time will tell whether the Supreme Court will consider the constitutional issues associated with recess appointments, and whether it will do so in a substantive review of the Noel Canning case. In the meantime, separate and apart from the constitutional issues, there are practical considerations as to the enforceability and effectiveness of the hundreds of decisions issued by the NLRB since President Obama’s recess appointments in January 2012.
According to a statement issued by the NLRB chairman after the Noel Canning decision, the NLRB views the decision as limited to the specific case at issue. Undoubtedly, litigants dissatisfied with a ruling by the NLRB will disagree.
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Elizabeth A. Wolford is a partner with The Wolford Law Firm LLP, a litigation firm that handles both civil and criminal matters. She concentrates her practice in the areas of commercial litigation, employment defense and personal injury.
