Recess appointments may be over

In a breathtakingly broad decision, a federal appeals court has ruled that President Obama violated the Constitution when he unilaterally appointed three members of the National Labor Relations Board during a “pro forma” session of the Senate. If upheld by the Supreme Court, the decision would all but end so-called recess appointments, by which presidents of both parties have bypassed the Senate — often because of unjustified obstruction by a determined minority.

The Constitution says that important appointments by the president require the “advice and consent” of the Senate. But in recognition of the difficulty of travel in the 18th century, it also gives the president the power to “fill up all vacancies that may happen during the recess of the Senate.” By the middle of the 20th century, the practical justification for recess appointments had been eclipsed by advances in transportation and the emergence of a virtually year-round Congress. But presidents continued to make them, even during relatively brief periods of Senate inactivity. In 2005, for example, President George W. Bush outraged Democrats when he took advantage of a recess to appoint John R. Bolton as ambassador to the United Nations.

Republicans were similarly exercised in January 2012 when Obama invoked his recess appointment authority to install the three NLRB members, two of whom had been only recently nominated. (Obama acted when he did to ensure that the NLRB had a quota necessary to conduct agency business.) The legality of the appointments was challenged by a Washington state business that received an adverse ruling from the labor board.

In ruling on that lawsuit, the U.S. Court of Appeals for the District of Columbia Circuit was expected to focus on the fact that Obama made the appointments at a time when the Senate was holding pro forma sessions at which no business was transacted. Instead, the court reached beyond that issue to lay down a sweeping rule that presidents may make recess appointments only in the break between formal sessions of Congress, a hiatus that now occurs only once a year (and sometimes not at all).

Reining in the president’s ability to make recess appointments wouldn’t be a problem if the confirmation process worked the way the framers intended. But in Washington’s current partisan gridlock, a minority of senators can — and too often do — deny a president a timely up-or-down vote on his nominations, a distortion of the advice-and-consent process. However solidly grounded in the Constitution, the appeals court’s decision addresses overreaching at only one end of Pennsylvania Avenue.