Previous challenges
The split among the circuits makes it more probable that the U.S. Supreme Court will take up the case. The government hasn't announced whether it will appeal.
In recent years, Democratic President Bill Clinton made 139 recess appointments, while Republican President George W. Bush made 171 and Obama, a Democrat, has made 32, according to the Congressional Research Service.
Legal challenges to the recess power go back a half- century, when a federal appeals court in Manhattan ruled that U.S. District Judge John Cashin was properly appointed by Eisenhower. The 1955 appointment was questioned by a man convicted on drug charges after a trial and sentenced by Cashin.
The three-judge panel found in 1962 that Eisenhower had the power to appoint Cashin even though the vacancy didn't arise while the Senate was in recess.
A stricter interpretation, like the one adopted last week by the Washington court, "would create executive paralysis and do violence to the orderly functioning of our complex government," U.S. Circuit Judge Irving Kaufman wrote in a decision at the time.
Kaufman's decision didn't discuss whether appointments could be made while the Senate is in session.
In 1985, an expanded, or en banc, panel of judges of the U.S. Court of Appeals in San Francisco reached a similar conclusion when weighing a challenge to Carter's appointment of Judge Walter Heen to the federal court in Hawaii.
Heen was appointed during a Senate recess in December 1980 after hearings were held on the nomination. That challenge was brought by a defendant convicted by Heen after a bench trial in a drug case.
In a 7-4 decision, the court ruled that the president has the power to fill "all vacancies that exist" during a recess of the Senate.
Recent conflict
The previous federal appellate case that conflicts with both elements of the Jan. 25 ruling by the Washington-based court is also the most recent. In 2004, Bush made the recess appointment of Pryor to the Atlanta-based U.S. Court of Appeals after Senate Democrats twice blocked his confirmation. Bush said at the time that he was forced to put Pryor on the bench to overcome "unprecedented obstructionist tactics" by Democrats.
