Admittedly, an unusually conservative panel of the conservative United States Court of Appeals for the District of Columbia Circuit held earlier this year that the president’s recess power does not exist unless it is invoked during a very brief period that occurs once ever two years, among other things. This widely criticized opinion, however, is unlikely to be upheld by the Supreme Court because it would require the justices to retroactively invalidate literally hundreds of recess appointments in just the last several presidencies.
Significantly, while the Supreme Court agreed to review the D.C. Circuit’s decision, it asked the parties to brief an additional question that the lower court did not decide in its sweeping opinion — “[w]hether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.” This is a strong indication that the justices may be willing to uphold the power of pro forma sessions to nix the recess appointments power, but they are not willing to cast the past actions of hundreds of former government officials in doubt.
Significantly, President George W. Bush recess appointed Judge William Pryor to the United States Court of Appeals for the Eleventh Circuit during a ten day recess similar to the one the Senate just begun. The United States Court of Appeals for the Eleventh Circuit — the highest legal authority to consider how long a recess must be to permit a recess appointment before the Obama presidency –upheld this recess appointment. Indeed, the Eleventh Circuit’s opinion would also permit recess appointments during pro forma sessions. As this opinion explained, “[t]he Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.”
Currently, several of President Obama’s recess appointments are in limbo. These include several members of the National Labor Relations Board, and Richard Cordray, Director of Consumer Financial Protection Bureau. Both of these agencies presently cannot operate without these appointees in place, so if the Supreme Court ultimately declares these appointments invalid, it could retroactively invalidate everything they have done in office. Worse, because the NLRB has exclusive authority over much of federal labor law, a Court decision striking Obama’s recess appointments to this agency could effectively eliminate most of the legal protections for workers’ right to organize. As we previously explained, without Obama’s appointees to the NLRB,
[T]here will be no one to enforce workers’ rights to join a union without intimidation from their employer. No one to enforce workers’ rights to join together to oppose abusive work conditions. And no one to make an employer actually bargain with a union. Without an NLRB to enforce the law, it may be possible for an employer to round up all of their pro-union workers, fire them, and then replace them with anti-union scabs who will immediately call a vote to decertify the union.
President Obama can stop this, right now. He can cut off the strongest legal argument against his current recess appointees by reappointing them during this present recess. And he can make other crucial appointments such as Secretary of Labor-nominee Tom Perez and Environmental Protection Agency head Gina McCarthy.
If the Supreme Court ultimately invalidates Obama’s appointments, cuts off two crucial agencies and shuts down American labor law, then it will likely be the White House’s own fault. Unless Obama acts. Right now.
The Huffington Post’s Jennifer Bendery tweets that the White House is already indicating that they will let this opportunity slip by:
For anyone curious about it: "I wouldn’t expect any recess appointments during this upcoming recess," says WH official.
— jennifer bendery (@jbendery) June 28, 2013