The court of appeals for the DC circuit ruled today that President Obama’s recess appointments for the National Labor Relations Board were unconstitutional. This ruling essentially nullifies a large number of decisions made by the board since he made these appointments a little over a year ago.
Using original meaning and textualism, the appellate court noted that the founders used the word “the” in front of “Recess” indicating only one. And, in referring to other times when the Congress may not be meeting, the word “adjourn,” in some form, was employed. Therefore, “the Recess” cannot be equivalent to the intrasession adjournments. Additionally, the combination of “the Recess” and “the next Session” in the recess appointments clause provides further justification for holding that adjournments are not recesses. The court then continues to justify the ruling through historical and legal precedent, including INS v. Chadha and Myers v. US. Chadha is cited to note that frequency of an action (including legislative vetoes in bills or making recess appointments during intrasession adjournments) does not make that action constitutional. Myers provides support for examining the language of the constitution closely when dealing with the appointments clause.
These parts of the ruling are certainly fabulous and clear examples of the application of the legal approaches describe in the CLCA textbooks. And the legal analysis is well done, as expected. However, the opinion avoids the approach of pragmatism. And perhaps it is time for a heavy dose of pragmatism at least when interpreting the Appointments clause. As the New York Times reports, this ruling leaves the NLRB with only one member and essentially shuts down part of the executive branch and prevents the President from executing the National Labor Relations Act because the Senate will not confirm his nominees. The same situation is repeated within the judiciary as has been repeated in state of the judiciary reports from Chief Justices Rehnquist and Roberts for years.
The opinion of the court of appeals notes some legislative business that occurred over the courts of these various adjournments. We documented that business only occurs during some of these periods. And certainly the judiciary is managing to complete cases even though it is woefully understaffed. Passing a constitutional amendment to provide greater discretion for recess appointments or forcing the Senate to provide some hearing or vote on presidential nominees is DOA in this polarized political climate. The US is going to appeal this ruling to the US Supreme Court. Based upon precedent and jurisprudential philosophies, we would predict the US would lose. If so, the appointments process is also DOA. Is this a situation that calls for pragmatism and a deviation from more “legal” forms of interpretation?
 http://www.nytimes.com/aponline/2013/01/25/us/politics/ap-us-obama-recess-appointments.html?partner=rss&emc=rss last accessed January 25, 2013.