D.C. Circuit Sets Trend for Obama Recess Appointment Cases

The D.C. Circuit Court takes the lead, and the rest shall follow. Back in January of this year, the court found President Obama's recess appointments unconstitutional. Now the Third Circuit is following in its footsteps with a similar decision.

The circumstances of Obama's recess appointments involve a fight over technicalities much like an old Friends episode where Ross would continue to declare to Rachel, "We were on a break!"

President Obama is Ross in this situation. It all began with three of President Obama's recess appointments on the NLRB during an intrasession break of Senate. It is argued that the Senate was still technically in session. They were merely on a break during the holidays, but returned every few days for pro forma sessions.

The technicalities for Obama's recess appointments involve whether or not the Senate was on a recess when they were taking breaks in the middle of a session. The language of the Recess Appointments Clause does not explicitly describe if intrasessions or intersessions are included in the meaning of a Senate recess.

The D.C. Circuit is usually considered the most important of appellate circuit courts for its far- reaching decisions that often involve federal agencies. It is also quite influential on other circuits and its decisions are often adopted by the Supreme Court.

More recently, it is the Third Circuit who followed. The Third Circuit analyzed the recess appointments in a way similar to the D.C. Circuit.

The Third Circuit looked at the purpose behind recess appointments. These appointments are to be made when Senate is no longer in session to handle the process and give the President the authority to fill in the need. They also found that, historically, appointments have been only made during intersessions.

The court also analyzed the length of recess appointment terms. The language of the Recess Appointments Clause mentions the terms end at the next session. The court found that it could not be possible for recess to include intrasessions considering the term length. It reasoned that for them to make sense, intersessions are only included. Otherwise, term lengths would end at the end of the current session when Senate returns from their intrasession recess to continue the process of making appointments.

The Third Circuit, has now followed the influential D.C. Circuit in its decision to find Obama's recess appointments during intrasessions unconstitutional. It agrees that recess appointments are to be only made during intersession breaks.

As for Ross, he didn't have the D.C. Circuit to decide his argument with Rachel. She was the ultimate deciding power over their technicality and she didn't care either way if they were on a break or not. He was toast.

Related Resources:

• D.C. Circuit: Obama's NLRB Recess Appointments Unconstitutional (FindLaw's D.C. Circuit Blog)
• Recess Appointments: What's the Big Deal? (FindLaw's D.C. Circuit Blog)
• D.C. Court Spanks NLRB a Second Time; Kills Notice Rule (FindLaw's D.C. Circuit Blog)