At least three challenges were filed claiming Pryor's rulings were invalid because the U.S. Constitution allows temporary appointments only during the recess between one-year sessions of Congress, not during breaks within a congressional session. Pryor was appointed one business day before the Senate reconvened after a 10-day intra-session holiday adjournment.
When one of the cases came before a panel of 10 members of the appeals court, Senator Kennedy filed a brief making the same arguments and constitutional analysis that the Washington appeals court accepted in last week's ruling.
"If courts approved this virtually unlimited construction of the Constitution, a president could largely avoid Senate advice and consent for important offices," according to the filing, whose signatories included Laurence Tribe, a Harvard University Law School constitutional professor, and Marty Lederman, who for a year beginning in 2009 joined the Justice Department's Office of Legal Counsel. Tribe also became a legal adviser to Obama.
In an 8-2 decision, the Atlanta court ruled the Constitution gives the president discretionary authority to fill a judicial vacancy during "a 10- or 11-day" intra-session recess of the Senate.
"We reject the argument that the plain meaning of the phrase, 'the Recess of the Senate,' limits the opportunity to make recess appointments to one particular recess: the recess at the end of a session," wrote U.S. Circuit Judge James Edmondson, an appointee of President Ronald Reagan, a Republican.
The U.S. Supreme Court upheld the ruling the following year when it turned down three separate petitions challenging Pryor's authority to participate in reviews of their cases.
Collective bargaining
The Washington appeals court ruling came in a case brought by a soda bottling company over an NLRB decision in a collective bargaining agreement. The company argued that a recess only occurs in the period between one session of Congress and the next, not when members are simply absent and the Senate hasn't adjourned.
"Allowing the president to define the scope of his own appointments power would eviscerate the Constitution's separation of powers," U.S. Circuit Judge David Sentelle wrote in a 46-page opinion—one that may be cited in challenges to recess appointments throughout the federal government.
White House press secretary Jay Carney, calling the decision "novel and unprecedented," said it contradicts 150 years of practice by Democratic and Republican administrations.
The government may seek a rehearing by the three-judge panel that ruled, or instead seek a so-called en banc review by a larger panel of circuit judges. It may also move to request the U.S. Supreme Court take up the matter.
