The D.C. Circuit Court's Chaos Theory

On Friday, a three-judge panel on the D.C. Circuit Court of Appeals ruled that President Obama's recess appointments to the National Labor Relations Board—the U.S. agency charged with remedying unfair labor practices—were unconstitutional. The opinion—written by highly partisan Reagan appointee David Sentelle—would effectively remove the president's power to make any recess appointments at a time when counterbalances to an obstructionist Senate are more necessary than ever.

The key legal question addressed by the court concerns the president's power to make appointments without the "consent" of the Senate while it is in recess. There is no question that the Senate is in "recess" after a session of Congress has formally adjourned. In a longstanding practice going back to the administration of Andrew Johnson, however, presidents have considered the Senate in "recess" during any substantial break. As the Obama administration noted in its legal memo defending its recess appointments, the last five presidents have all made "intrasession" appointments, and nearly 300 people have been appointed in such a way since Johnson initiated the practice. Admittedly, the Obama administration's appointments to the NLRB pushed the envelope somewhat; since 2007, the Senate has attempted to nullify the president's power to appoint government officials during a recess by holding pro forma sessions that do not conduct any business but are solely started and ended to obstruct the president's constitutional powers. The Obama administration argues convincingly that these fake sessions do not constitute a meaningful end to a recess.

The question of whether the Senate can use pro forma sessions to evade the president's authority to make recess appointments, however, turns out to be beside the point. Sentelle's stunningly radical opinion holds that all intrasession appointments violate the Constitution. In addition, he argues that recess appointments can only be made in cases where the vacancy occurred during the recess. Combined with the filibuster, this means that a minority party in the Senate can severely damage the functioning of the executive and judicial branches by refusing to consider nominees.

How does Sentelle justify this remarkable result? His first argument is textual, arguing that the use of the phrase "the recess" in Article II, Section II means that the framers could not have meant a temporary recess. This is a plausible reading of the text, but as a parade of opinions from Attorneys General from both parties makes clear, hardly the only plausible one. When choosing between plausible readings of the text, the appropriate judicial practice is to choose the one that conforms to decades of settled practice and does not produce a manifestly absurd result. Judge Sentelle chose the opposite course.

In addition to his textual argument, Sentelle makes an originalist one. "The available evidence shows that no President attempted to make an intrasession recess appointment for 80 years after the Constitution was ratified," Sentelle argues. And because these years are closer in time to the ratification of Article II than the significantly longer period of time in which presidents have made intrasession recess appointments, the earlier practice should prevail. Sentelle's argument is an excellent illustration of why law-office originalism has so little value as a constitutional theory. There's simply no good reason to try to apply practices from a historical period in which the Senate generally took very long breaks between sessions, did not try to systematically obstruct presidential appointments, and presidents had fewer executive and judicial vacancies to fill to modern norms. The fact that presidents began to make intrasession recess appointments as soon as there was any need to is far more relevant.

Even worse, however, is that as applied in this case, Sentelle's "originalism" is a one-way ratchet that constrains one branch but not the other. President Obama is required to conform to the norms that prevailed during the Adams administration, while Congress is permitted to use a very 21st-century understanding of its "advise and consent" power. This formalism-for-thee-but-not-for-me approach is transparently wrong. Institutional checks and balances are a dynamic process, and the courts should be deferential to institutional evolutions unless they plainly contradict the text of the Constitution. The courts have (properly, in my view) not ruled that the filibuster or the increasing obstruction of executive branch appointments violates the Constitution, although these practices are inconsistent with the original purpose of the advise and consent clause. But this has to work both ways; if congressional powers are to be construed broadly, the check on these powers the framers put in place must be construed broadly as well.

It's not a coincidence that three reactionary Republican appointees on the D.C. Circuit reached this strained and illogical result. As Adam Serwer of Mother Jones and Brad Plumer of The Washington Post explain in detail, the implications of this decision are potentially far-reaching, starting with retroactively invalidating years of NLRB decisions and effectively destroying the new Consumer Financial Protection Bureau. For Republicans like Sentelle, of course, this is a feature not a bug—an utterly dysfunctional government that is unable to protect workers or consumers suits the contemporary Republican Party just fine. If they wish to realize this vision, however, they should at least do it by winning elections, not through judicial opinions that casually sweep away more than a century of established practice with arguments that read like a cruel parody of originalism.

"The Constitution," notes the legal scholar Akhil Amar, "is a practical document, it’s designed to work." The Constitution of contemporary Republicans like Sentelle, conversely, is designed not to work. Far from addressing the increasing cycles of dysfunction that increasingly prevents administrations of both parties from being properly staffed, the D.C. Circuit's decision Friday actually gives the minority faction of one house of Congress greater power to mindlessly throw monkey wrenches into the proper functioning of government, while taking from the president the tool the framers had the foresight to give him in response. This appalling opinion ought to be overruled by either the D.C. Circuit en banc or the Supreme Court. And it should also make clear to President Obama the necessity of nominating judges to the D.C. Circuit who actually want the federal government to function.

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