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President’s appointment power curbed (UPDATED)

Strictly curbing the President’s power to temporarily fill government posts to keep an agency in operation, the D.C. Circuit Court ruled Friday that the constitutional authority to fill a vacancy can only be used when one Congress has ended and before a new Congress comes to town, or when there is a formal break at the end of one session, but not during any other mid-session break.  That part of the ruling by the three-judge panel was unanimous.  On a second part, a two-judge majority ruled that the vacancy-filling power only applies to vacancies that actually open up during a formal recess, between sessions or between Congresses.  Because lower courts are split on both issues, this historic controversy over the constitutional separation of powers is likely to go on to the Supreme Court.

In the current atmosphere of partisan gridlock, which often involves thwarting of presidential nominations, the ruling provides a major new opportunity for a minority in the Senate to deny the President the authority even temporarily to put a new government officer to work in a vacant spot.  When a vacancy arises while Congress is in session, and the Senate does not act on it, the President will not be able to fill it during the next time the Senate takes a break.  The ruling came one day after the Senate chose not to make a major change in its filibuster rule, which is the main weapon of a Senate minority seeking to challenge presidential action.

The decision nullified President Obama’s temporary appointments a year ago to three empty seats on the five-member National Labor Relations Board — an agency that has often been the target of conservative opposition, and that frequently has been unable to function because it did not have a sufficient number of members at work.  The President had made those three appointments while the Senate was out of town, except for intermittent, routine sittings, between the two sessions.  Each Congress sits for two sessions over two years.  (The case is Noel Canning v. NLRB, Circuit docket 12-1115.)

The ruling, however, is not confined to the situation at the NLRB.  As an interpretation of the Constitution’s words dealing with temporary government appointments, it would extend to all federal agencies whose officers are nominated by the President and require Senate approval — including federal judges.  In practical effect, the decision basically will confine presidents to making government appointments in the usual way: sending nominees’ names to the Senate, and then letting the Senate proceed — or not — to give its “advice and consent” to such nominations.

The ruling may have an immediate effect on another of the Obama temporary appointments — that of Richard Cordray, to head the Consumer Financial Protection Bureau.  He was put in that post temporarily on the same day that the NLRB members were given their temporary posts.  The Cordray appointment is under constitutional challenge in a separate case in federal district court in Washington (State National Bank of Big Spring v. Geithner, District docket 12-1032).  The President has offered a new nomination of him to the Senate this year.  Senate Republicans blocked his initial nomination because they opposed the very existence of that agency.

The Obama Administration has the options of asking the en banc Circuit Court to rehear the case, or asking the Supreme Court to review it.   Administration lawyers have been vigorously defending the appointment power issue in federal courts around the country.

The main Circuit Court opinion was written by Chief Judge David B. Sentelle, and it was a strong affirmation of the “original meaning” mode of interpreting the Constitution — that is, analyzing a constitutional issue in terms of what the words of the document meant at the time they were first written.   The Sentelle opinion was filled with recollections of early government history, and of what the earliest generations believed they had put into the presidential appointments clause of the document.

The Sentelle opinion’s conclusions on both limitations on the appointment power were joined in full by Circuit Judge Karen LeCraft Henderson.  Circuit Judge Thomas B. Griffith agreed that the temporary appointment power exists only when it is used between each Congress or between each session, but he did not endorse the limitation on when a vacancy must have occurred in order for the President to be able to fill it temporarily.  Griffith said that it was unnecessary to decide that issue, and so the panel should have avoided doing so under the general judicial theory that constitutional decisions should be avoided if they are not necessary.

The decision came in an otherwise routine labor relations dispute, involving a soft-drink bottling company in Yakima, Washington, named Noel Canning, and its dealings with Teamsters Union Local 760.   The Board had ruled, with the three temporary appointments joining two others already sitting, in favor of the union complaint that Noel’s management had refused to implement an agreement they had on contract terms.   Noel Canning appealed the ruling to the D.C. Circuit Court, and in the process raised for the first time the question of the constitutionality of the three members’ temporary appointments.

Because the three temporary appointees were not legally appointed, according to Friday’s decision, the board did not have the legally required quorum of at least three members in order to take any action.  Thus, the ruling against Noel Canning was nullified.

In pursuing its challenge in the Circuit Court, the company had the support of forty-two Republican members of the Senate, House Speaker John Boehner (an Ohio Republican), and conservative legal advocacy groups.

Recommended Citation: Lyle Denniston, President’s appointment power curbed (UPDATED), SCOTUSblog (Jan. 25, 2013, 12:54 PM),