The D.C. Circuit Recess Appointments Decision

It was quite gratifying to see the D.C. Circuit’s Recess Appointment decision on Friday, which held President Obama’s recent recess appointments to the NLRB to be unconstitutional.

Back in 2003-2004 when I first started researching the Recess Appointments Clause, I thought I would write a piece defending the interpretation of the Clause that I had learned at the Office of Legal Counsel.  Under that view, the President had significant – and I would now say largely unconstrained – power to recess appointment individuals when the Senate was not in session.

But as I read the Clause and looked into the history, I quickly became convinced that the OLC interpretation was seriously mistaken.  I started writing an article that argued that the modern interpretation of the Clause was wrong in two significant respects.  First, I argued that recess appointments could be made only when the vacancy arose during the recess when the President was making the recess appointment.  Significantly, if the vacancy existed when the Senate was in session – as virtually all vacancies for which the President now makes recess appointments do – the President could not make the recess appointment.

Second, I argued that recess appointments could only be made during an intersession recess – the recess between the sessions of Congress.  They could not be made during an intrasession recess – a so-called recess during a session of Congress – which is actually not what the Constitution calls a recess, but instead an adjournment.

Eventually, the article was published as the Original Meaning of the Recess Appointments Clause.  I have defended this position in various blog posts, including here and here.

Back when I was writing the article, almost no one adopted either of these interpretations.  Two circuits (the 2nd and Ninth) had rejected challenges to recess appointments and OLC assumed its position stated the original meaning.  Soon thereafter, however, things began to change.  While the 11th Circuit again rejected a challenge to recess appointments, one judge – Rosemary Barkett, following the brief filed by Marty Lederman for Ted Kennedy – adopted the original meaning of the Clause (on both grounds I discussed above) in dissent.  Still, no courts were on board and virtually no scholars in print.

But things have changed.  On Friday, the D.C. Circuit unanimously held unconstitutional President Obama’s recent appointments that were based under the modern interpretation of the Clause.  All three members of the Court embraced both of the interpretations I mentioned above (although the third judge did not believe that both interpretations needed to be reached).

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. Rudy Hernandez says

    Should the DC Court have offered an interpretation of the Recess Appointments Clause when they could have simply said that the Senate was in session?

  2. Devin Watkins says

    I may not have been as early as you were in declaring Intrasession appointments and vacancies not occurring during the recess to be unconstitutional. But I am happy to say I posted two days after Obama’s so called “recess appointments” on January 4th basically the exact reasoning and history and outcome used by the D.C circuit. Not bad for 0L just entering George Mason Law School this fall :). You can see what I wrote here:

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