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A federal appeals court in Washington today declared unconstitutional a series of recess appointments President Barack Obama made to the National Labor Relations Board, setting up a potential government request that the U.S. Supreme Court weigh the scope of presidential appointment power. The ruling [PDF] in the U.S. Court of Appeals for the D.C. Circuit was a major blow to the U.S. Justice Department, which defended the appointments as a valid exercise of presidential authority. The appeals court in Washington today said the president has power to make appointments only during “the recess” of the Senate—that is, the period between the sessions of the Senate when it is not in session and therefore unavailable to assess and vote on presidential nominations. (The decision today was made in a case in which a bottling company challenged the validity of a NLRB ruling.) Writing for the panel, Chief Judge David Sentelle of the D.C. Circuit said the NLRB appointments of Sharon Block, Terence Flynn and Richard Griffin, made without Senate consideration in January 2012, were “invalid from their inception” because the U.S. Senate had not gone into recess. The Senate, at the time, was meeting in “pro forma” sessions every three business days. The “inescapable conclusion,” Sentelle said, was that “the Framers intended something specific by the term ‘the Recess,’ and that it was something different than a generic break in proceedings.” Sentelle and his colleagues, judges Karen LeCraft Henderson and Thomas Griffith, rejected several interpretations of “the recess,” including whether the phrase refers to “some substantial passage of time, such as a ten- or twenty-day break.” Defining “the recess” as an adjournment of more than three days, the appeals court said, “lacks any constitutional basis.” “We will not do violence to the Constitution by ignoring the Framers’ choice of words,” Sentelle wrote. The D.C. Circuit also rejected the notion that the president has discretion to determine whether the Senate is in recess. That’s a position the DOJ Office of Legal Counsel took in a memorandum published last year in an assessment of the power of the president to make recess appointments. “This will not do,” Sentelle wrote. “Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.” The appeals court didn’t stop its analysis with the defining the meaning of “the recess.” The court went on to assess the meaning of the word “happen” within the recess appointments clause. The president, according to the constitutional language at issue, has the authority to make appointments to “vacancies that may happen during the recess of the Senate.” In the eyes of the D.C. Circuit, the word “happen” means “arise”—rather than, say, “exist.” Sentelle wrote today “that the President may only make recess appointments to fill vacancies that arise during the recess.” The D.C. Circuit panel said the three NLRB vacancies Obama filled “did not arise during the intersession recess of the Senate.” The court said it wasn’t troubled by any “administrative inefficiency” that stems from the decision today. “The power of a written constitution lies in its words,” Sentelle said. “It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.”

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