Handing a huge legal victory to Republicans, a federal appeals court in Washington has ruled that a president can make recess appointments only during a congressional recess when the vacancies arise.
The ruling came Friday from a three-judge panel of the US Court of Appeals for the District of Columbia. Business groups challenged last year's recess appointments to the NLRB, the National Labor Relations Board, and the court ruled today in their favor.
"The filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose," the court said.
Last January, President Barack Obama infuriated Senate Republicans by naming Richard Cordray to be director of the newly formed Consumer Financial Protection Bureau, and by putting three new members on the NLRB. (Obama re-nominated Cordray to a full appointment at the same position on Thursday.)
"It's clear the president would rather trample our system of separation of powers than work with Republicans to move the country forward," House Speaker John Boehner said at the time. "I expect the courts will find the appointment to be illegitimate."
The court ruled today on a challenge to the appointments brought by a Pacific Northwest soft drink bottler who lost a union dispute before the NLRB. The company claimed that the president had no power to appoint the new NLRB members, and that the subsequent action by the board therefore lacked legitimacy.
At the core of the dispute is Article II of the Constitution, setting out the president's duties and authorities. They include "the power to fill up all vacancies that may happen during the recess of the Senate."
During the nation's first century, Congress was in session less than half a year. The recess appointment power allowed the president to keep the government functioning by filling important jobs when the Senate was not around to act on nominations.
"There is no reason the Framers would have permitted the President to wait until some future intersession recess to make a recess appointment, for the Senate would have been sitting in session during the intervening period and available to consider nominations," the court said today.
In modern times, presidents of both parties have used the power to make appointments during much shorter congressional recesses in the summer and around holidays.
But during the George H.W. Bush administration, Democrats came up with the idea of pro forma sessions, in which the body was gaveled to order then immediately adjourned for another few days. They claimed that the Senate remained in session and recess appointments could not be made. Senate Republicans have since continued the pro forma practice.
"Such short intra-session breaks are not recesses," the bottling company argued. "Otherwise, every weekend, night, or lunch break would be a 'recess' too."
Senate Republicans joined the lawsuit. They argued that by declaring the Senate incapable of performing its functions during the pro-forma sessions, "the President usurped the Senate's control of its own procedures. And by appointing officers without the Senate's consent, he took away its right to review and reject his nominations."
The Obama Justice Department argued that the pro-forma procedures, each lasting less than a minute, are a sham and do not mean the Senate was actually in session. "It could not provide advice or consent on presidential nominations during that 20-day period," government lawyers argue.
In agreeing to its holiday break, Justice Department lawyers note, the Senate "provided by order that 'no business' would be conducted."
The government lawyers said there's nothing mysterious about the meaning of the word recess -- "a break by the Senate from its usual business, such as periods in which the Framers anticipated that senators would return to their respective states."
"The pro forma sessions were not designed to permit the Senate to do business, but rather to ensure that no business was done," the Justice Department claimed.
President Obama invoked the recess appointment power 32 times during his first term to fill vacancies in full-time government positions, though he has not made any since last January's controversy. President Clinton made 95 recess appointments during his administration. President George W. Bush used the power 99 times.
If, as seems likely, the issue gets to the Supreme Court, the justices could settle a passionate debate over a presidential power used hundreds of times, stirring controversy since the beginning.