I’d criticized Judge Sentelle’s opinion (not Mike’s article, which I’ve read with great profit but, I admit, some time ago) for “hanging too much” on the word “the” preceding “Recess.” The definite article, the judge insists, very strongly suggests that recess appointments are permissible only between Senate sessions, not during intra-session adjournments or “recesses.” I didn’t mean that we should ignore (in)definite articles in the Constitution when trying to understand it—to the contrary: the Constitution’s authors are best read as Lillian Hellman in reverse. (“Every word she writes is a lie, including ‘and’ and ‘the,’” Mary McCarthy famously remarked of Hellman.) It’s good to start (at least) with the presumption that every constitutional word is well-considered and meant to be taken seriously.
In a much-noted decision, a panel of the D.C. Circuit (Judges Sentelle, Henderson and Griffith) has invalidated President Obama’s putative “recess” appointments to the National Labor Relations Board (NLRB). The appointments were made—without the advice and consent of the Senate—on January 4, December 2012, when the Senate was meeting in pro forma sessions (and even conducted official business), precisely for the purpose of blocking recess appointments.
In a post this past February, I reported on the EPA’s regulation of greenhouse gases (GHGs) and the D.C. Circuit’s review thereof in the wake of Massachusetts v. EPA (2007). The appellate court has since upheld the EPA’s regulations in a per curiam opinion, issued by a panel that, amazingly, includes Judge Sentelle (Coalition for Responsible Regulation v. EPA, or “CRR”). The petitioners have asked for rehearing and/or rehearing en banc; the government has submitted a perfunctory reply. The petition will fail: the D.C. Circuit hardly ever convenes en banc, least of all on a per curiam panel opinion. But there is a decent chance that the petitioners may get a dissent from the denial, and therewith a shot at Supreme Court review. That may be the last chance to avert a regulatory train wreck of epic proportions.