Obama Recess Appointments Found Unconstitutional By Second Appellate Court

President_Barack_ObamaI have previously testified and written about President Barack Obama’s use of recess appointments, which I viewed as flagrantly unconstitutional. Recently, the D.C. Circuit agreed with that view and found that the Obama Administration had violated the recess appointment powers. Now a second appellate court has joined that view, the United States Court of Appeals for the Third Circuit. I have two law review articles coming out on these appointments and more broadly the abuse of recess appointment powers in modern presidencies. See Jonathan Turley, Recess Appointments in the Age of Regulation, 93 Boston University Law Review ___ (2013) and Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2103 Wisconsin Law Review ___ (2013)


A year ago, I testified in Congress that the recess appointments of President Barack Obama were unconstitutional. Those four appointments by President Obama included Richard Cordray, who had been denied confirmation to a consumer protection board in a Republican filibuster. While I liked Cordray, I testified that the appointments were in my opinion clearly unconstitutional. The D.C. Circuit has now agreed with that view and the panel unanimously ruled that Obama violated the Constitution with his circumvention of Congress.

In my prior testimony, I discussed how Obama — and by extension the Office of Legal Counsel — violated both the text and the purpose of the recess appointments clause. It was an interesting hearing with other experts testifying that the appointments were constitutional — supported by the January 6, 2012 opinion of Assistant Attorney General Virginia Seitz and the Office of Legal Counsel (OLC). I was very critical of that opinion.

Throughout history, the interpretation of this Recess Appointments Clause has evolved to the increasing benefit of the Executive Branch – allowing the Clause to be used to circumvent congressional opposition. Indeed, the debate today is generally confined to the question of what technically constitutes a “recess” for the purposes of the Clause, treating as settled the question of whether the Clause can be used to fill a position that the Senate has chosen to leave vacant. In my view, the Clause is now routinely used not only for an unintended purpose but a purpose that is inimical to core values in our constitutional system. I have long favored the original interpretation of the Clause: that it applies only to vacancies occurring during a recess. This interpretation is truer to the Constitution and would avoid many of the controversies of modern times. I readily admit that I am in the minority on that view, but I discuss the original and later interpretations to demonstrate how far we have moved from the plain meaning of the Clause. Frankly, I believe that our system would be far better off under the original meaning of the Clause, which would have avoided many of the controversies of modern times.

In a 2-1 panel decision, the Third Circuit is different in some respects from the earlier D.C. Circuit opinion in Noel Canning v. NLRB. It was narrower in rejecting “intrasession” appointments — recesses during a given session of Congress. However, it did not address pre-existing recesses or contain the broader historical analysis of the D.C. Circuit. It also rejects the clarity in the language of the Clause: “In short, the natural meaning of recess does not help us decide between intersession breaks and intrasession breaks of a fixed duration, but the relevant context does undermine the Board‘s current position.”

The opinion was written by Judge D. Brooks Smith and the dissent came from Judge Joseph. A Greenaway Jr. Greenaway objects that “The Majority attempts to displace the absurdity of its holding by showing that my standard also yields absurd results.”

He adds:

An empty office is an empty office. It makes no sense that the Framers would have differentiated between intrasession and intersession recesses in effectuating the purpose of the Recess Appointments Clause. See Evans, 387 F.3d at 1226 (“The purpose of the Clause is no less satisfied during an intrasession recess than during a recess of potentially even shorter duration that comes as an intersession break.”). The atrophy of agencies and other offices caused by the Senate‟s absence did not then, and does not now, depend on whether the Senate is unavailable due to an intersession recess or intrasession recess — all that matters is the length of time that the Senate is away from its usual business, unable to provide advice and consent, while vacancies persist.

Both opinions are worthy of reading and present compelling arguments, though I obviously agree with the majority. My own analysis goes further than both the D.C. Circuit and the Third Circuit.

Here is the decision: Third-Circuit-2013.5.16-Decision-Vacating-NLRB-Decision

31 thoughts on “Obama Recess Appointments Found Unconstitutional By Second Appellate Court”

  1. http://www.motherjones.com/mojo/2012/01/chart-day-presidential-recess-appointments

    Evil alias redduke 01/04/2012 10:26 PM

    What you fail to understand or mention is that since 2010, the senate has limited its recess to 3 days or less. This was under the instruction of the House (who must provide approval for the senate to recess) after the Republicans took control.

    This tactic was first used by the Democratic controlled senate and house in 2007 and 2008 to prevent Bush from making any more recess appointments. That is, Presidents do not make recess appointments unless a recess is over 3 days long.

    That is why the recess appointment for Obama is low. Not because he is a responsible leader. Fact is, he is ready to bypass the congress, constitution and judicial branch.

    1. People want to call people evil not considering themselves evil ? All bodies that die are evil. King James Bible (Cambridge Ed.) 1 John 1:8;
      If we say that we have no sin, we deceive ourselves, and the truth is not in us.

  2. Hooray! Professor Turley finally gets it right in respecting the Constitution! I am glad that he decided– at least in this particular case–to take a political stance contrary to his usual Leftist-leaning ones.

    However, I must warn the Professor that by doing so, he may invite the wrath of the IRS. Anyone who talks positively about such things as the “Constitution,” “patriotism,” “freedom,” and “liberty” is going to come under the scrutiny of the IRS’s database and will risk getting a heavy-duty audit going back years.

  3. I opened the Senate website and looked at their calendar for 2013. They are scheduled to be off for 68 days. What if Obama said he would take off each day that they did? They would impeach him.
    Today there was a Senate Hearing on a judicial confirmation. Some lady had been waiting for confirmation or denial for 400 days. That Leahy guy got up and said that he was the longest running Senator and that he had never seen the confirmation process so lame.

    You cannot vote some candidate up or down after 400 days?

    We need to do something about this lameduck Congress. They are lame all year long. Year after year. Recess after recess. More recess than Kindergarten gets. I say ban alcohol in the District of Columbia until they take care of business. If you want to see them in action go to the Willard Hotel Bar or the Marriott. Watch em drink with the lobbyists and the hookers.

  4. I think the framers of the constitution had this in mind. Congress (senate & house) both have a role to play that they have long ago relinquished to the Pres. We have been in a near constant state of war since Korea, yet no declaration of war (wars?). The Senate not voting on an appointment means the person was not acceptable to at least 60 Senators. So appoint someone that will get the 60 votes. Or change senate rules to allow simple majority. But if you do this, remember what is good for the demo is good for the repo.

  5. Blouise: Please send those numbers onto JT. Obama should be criticized for having TOO FEW recess appointments, not too many.

  6. The problem you have is that JT is right and the Republicans have the Constitutional mandate to do these things. If they choose to withhold their consent they may do so. If this is in opposition to what their constituents want, they can be voted out. But I suspect this is what their constituents want.

    We _are_ reaching a crisis. War, the budget, and now appointments, are all being deferred by the Congress who are unable or unwilling to carry out their duties. But it will be very much the worse if we take a default that the Executive can carry out these duties in their place. That is how the Roman Empire started in an exact parallel.

  7. I agree with BarkinDog & leejcaroll. While JT’s reading of The Constitution is currently accepted, it seems to me that he ignores the real problem: ” — all that matters is the length of time that the Senate is away from its usual business, unable to provide advice and consent, while vacancies persist.” Except that with the present GOP, it’s not that they are “unable” to provide advice & consent, it’s that they deliberately refuse and obstruct having essential vacancies filled as another of their ways of trying to make Pres. Obama fail anyway they can.

  8. Nal, right. Good question.

    Republicans have realized that you don’t have to abolish an agency to effectively get rid of it. Without recess appointments the NLRB is effectively dead in the water because it doesn’t have a quorum.

    As to the deeper problem of having to resort to recess appointments and their legality, well, look at the figures supplied by posters above and the use of the filibusterer in general. What is different among the last 5 presidents? This goes beyond a political shift in the Republican party. And if you apply the ‘effect’ standard which is standard in employment law regarding EEO, what is happening is clear.

    Worrying about the finer points of ‘inter’ and ‘intra’ is well and good and one should be happy that there are those that still care but- always a ‘but’- it strikes me as worrying that you didn’t you didn’t put your dildo back in the drawer and the firefighters will see it as they try to put out the fire consuming your home. I cease to care regarding the finer points anymore since racism, bad law, no accountability and Congressional process have effectively stolen my democratic process and my (national) vote the last two times. Bah, humbug.

    This rant is Nal’s fault. 🙂

    I need more coffee.

  9. The record shows that I agreed with JT even though that is not a consensus in some legal circles and squares.

  10. Constitution is merciless teaching people nothing about the character of Jesus. Why then adherer to it. Why then rely on it?

    1. Artiewhitefox writes” Constitution is merciless teaching people nothing about the character of Jesus. Why then adherer to it. Why then rely on it?”

      Uh, Because this is not a Christian country? Because the constitution is not a Christian/religious document? Because this is not a theocracy?

      1. Would Jesus use stun guns and batons real and rubber bullets to shoot at people and pets? Would Jesus have jails to keep people in? Would Jesus encourage people to make more and more destructive weapons to make people cower in fear of losing the body? Would Jesus lie about what is in scripture to make people attack people who were naked or of a different sexual liking? Would Jesus lie about Hell when it is the light of God to darkness? I can prove that in scripture. People lie about circumcision too. I can show you 9 verses saying otherwise. Had this be a Christian nation do you think I would be giving you this litany of things Jesus would not teach or indorse? I give them to you showing you that the constitution did not correct anyone of those errors and in fact encouraged them teaching people nothing of the character of God having no problem teaching about the character of Satan. That in turn taught the world.

      2. Have you noticed how the wording of, The – Right – Of – The – People – To – Keep – And – Bear – Arms, and – Thou – shalt – not – surly – DIE. Sound like they come from the same mouth? All of the words sound so good right up untill the last word. Satan knows we die. Having people be militaristicly minded like a religious person who schemed to have Jesus dead loves it when people bear arms rationalizing why it is good to use them like a fearful swinger of a sword. The devil lies when he says a person who wars is brave.

  11. Pres has no choice when congress refuses to act preferring to obstruct. I don’t recall hearing any concern when other presidents did this and in numbers far outweighing those of Pres. Obama.
    “According to the Congressional Research Service, President Ronald Reagan made 240 recess appointments, President George H. W. Bush made 77 recess appointments, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of January 5, 2012, President Barack Obama had made 32 recess appointments.[9]” http://en.wikipedia.org/wiki/Recess_appointment

    It seems it is only this president who those who do not like come after for the same things that other presidents have had no problem doing.

  12. How many vacancies are there in the Federal Courts of Appeals, in all circuits? Someone chimne in if ya know.

  13. When Congress intentionally fails to vote up or down on a nomination and the judicial bench has this vacancy in times when the public needs a judge on the bench then the President should fill the vacancy at the first recess. If Congress pulls the stunt of not calling it recess when in fact all of the boys are on the playground in Florida then the President should fill the vacancy during this REAL recess. For JT and others to go off on this President for doing his Constitutional duty is sort of odd.

    This should apply to other vacancies in the Executive Department even more furvently. We need the positions filled. This year, in light of the ruling of the DC Circuit and now this one, the President ought to call a Special Session of Congress beginning on Xmas Eve. Put Santa into the Fray.

  14. If I understand this correctly … Both decisions limit the president’s recess appointment power to breaks between sessions of Congress, rather than breaks during sessions. ..?

    If the Supreme Court accepts both Noel Canning and New Vista (which the Administration will likely treat in the same manner as Canning), it should make for an interesting session, especially if the Treaty hubbub is also heard.

  15. “Forget it Jake..it’s Chicago..err DC.” I’m sure Obama and all his supporters are hoping May ends soon. However, it may be a long, hot summer.

  16. I wonder if requiring 60 Senate votes for confirmations violates the Constitution.

  17. magginkat,

    If you want to comment, you’ll have to change the b-word in your URL.

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