Tuesday, January 14, 2014

Who Says it's Recess?

One thing I know is you don't stand in the doorway of an elementary school where the bells have just rung for recess.

Bells are easy.  (Remember the expression, "You can't unring a bell?")  

But recesses in legislative sessions, well, they're a little more interesting.

Last year the DC Circuit Court of Appeals invalidated a number of so-called "recess appointments" to the National Labor Relations Board by President Obama.  The opinion in Canning v. NLRB is here.

Canning stems from a time when President Obama took advantage of a dysfunctional Senatorial calendar, where the leadership and minority were playing all kinds of calendar games under a "unanimous consent agreement."

Let's see how the D.C. Circuit Court of Appeals described it:

[T]he Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The agreement stated that "no business [would be] conducted" during those sessions. During the December 23 pro forma session, the Senate overrode its prior agreement by unanimous consent and passed a temporary extension to the payroll tax.  During  the January 3 pro forma session, the Senate acted to convene the second session of the 112th Congress and to fulfill its constitutional duty to meet on January 3.
The President's power to make recess appointments is found in the United States Constitution in Article II, Section 2, clause 3, which reads:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The D.C. Circuit held that recess means "at the end of a session," and not "intrasession," and invalidated the President's appointments (thereby resulting in the NLRB not having a quorum with which to make precedential decisions, including the decision from which Canning appealed to the Supreme Court.)

Canning was argued today before the United States Supreme Court. During oral argument, as reported in more detail here and with even better analysis here, the Supreme Court justices expressed almost universal suspicion for the administration's maneuver.

While the decision could ultimately clarify what a recess appointment is, the specific issue is moot because President Obama has subsequently appointed five new NLRB members, all of whom were confirmed by the Senate on July 29, 2013.


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