An activist court

It isn’t very often that a court changes 50 plus years of the interpretation of a rule, but it did yesterday (the ruling is here):

Obama has made about 32 such appointments, including that of Richard Cordray, as director of the Consumer Financial Protection Bureau. President Bill Clinton made 139, and George W. Bush made 171, including those of John R. Bolton as ambassador to the United Nations and two appeals court judges, William H. Pryor Jr. and Charles W. Pickering Sr.

Nearly all of those appointments would be unconstitutional under the rationale of the US Court of Appeals for the District of Columbia Circuit. It ruled that presidents may bypass the confirmation process only during the sort of recess that occurs between formal sessions of Congress, a gap that generally arises just once a year and sometimes is skipped, rather than other breaks throughout the year. Two of the three judges on the panel also ruled that presidents may fill only vacancies that arise during that same recess.

Presidents have used recess appointments to fill vacancies that opened before a recess since the 1820s, and have made recess appointments during Senate breaks in the midst of sessions going back to 1867. But the three judges, all appointed by Republicans, said the original meaning of the words used in the Constitution clashed with subsequent historical practices.

The basic argument is that the original meaning of the rule was that there should only be appointments between sessions and they back it up by noting that the first intrasession appointment didn’t come until at least 1867. There are a couple problems with this (via here):

Although the first Attorney General, Edmund Randolph, read “happen” to limit the power to filling vacancies that arise during the recess of the Senate, by 1823, Attorney General William Wirt had reversed course and said it extended to vacancies that “happened to exist” during the recess.  And there it has remained ever since.  The D.C. Circuit’s conclusion conflicts with the Eleventh Circuit, the en banc Ninth Circuit, and the Second Circuit on this score.

For example, the court heavily emphasized that  ”[t]he dearth of intrasession appointments in the years and decades following the ratification.”  But as noted in the Government’s brief in opposition in Franklin v. United States  (which I drafted), arising out of the Pryor recess appointment, “Before 1857, Presidents had virtually no occasion to make such [intrasession] appointments.  During that period, Congress scheduled only three brief intra-session recesses, for periods of seven, five, and five days, over the winter holidays of 1800, 1817, and 1828, respectively.”

It also should be noted that the filibuster wasn’t first used until 1841 (or 1837), also long after the Constitution was written.

The papers are playing up the ruling in terms of the problem for President Obama (in terms of the NLRB and the Consumer Financial Protection Bureau), but if this ruling holds won’t the government have to go back to the first such appointment and get rid of any rules that came about as a result of these appointments? What a mess that would be.

Go here and here for a discussion of the head judge and his conservative history.

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