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Obama Loses in Recess Appointment Case; So Does Scalia

By William Peacock, Esq. on June 26, 2014 | Last updated on March 21, 2019

The question has never been whether the Obama administration would lose in the Noel Canning recess appointments case -- it was how badly they would lose. And lose they did, though the damage was limited by a Justice Stephen Breyer opinion that meandered through history to come up with a recess is a real recess if it's more than three and probably not less than ten unless it's a really scary vacancy rule.

Needless to say, Justice Antonin Scalia wasn't happy. He was so unhappy, in fact, that he not only wrote a classic Scalia rant, but he also read his concurrence from the bench -- an odd and rare move that typically only happens with passionate dissents.

Obama Loses, Presidents Win

In 2012, Senate Republicans wanted to block Obama nominations. So, instead of going into recess, they held "pro forma" sessions (fake gavel-in, gavel-out quickies). Obama, irked by the obstructionism, said "to hell with it" (we're guessing) and made appointments to the National Labor Relations Board during a three-day break between these "pro forma" sessions.

The D.C. Circuit eviscerated the move, holding that the Recess Appointment Clause power only applied to lengthy inter-session recesses, rather than the quickie intra-session recess at issue. Plus, the panel held that the power only applies to vacancies that arise during the recess, not pre-existing vacancies that remained unfilled.

The Supreme Court unanimously agreed that Obama's move was unconstitutional and exceeded the bounds of the Recess Appointments Clause, but split over how far the power should go.

Breyer: 3 Days Isn't a Recess, 10 Days Probably Isn't Either

Finding the clause to be ambiguous, Justice Breyer embarked upon a journey through history, tracking every recess appointment that he could find and attaching them as an appendix.

What were his findings? A three-day recess is definitely too short -- this was the first time the Court could find an appointment during an intra-session recess that was shorter than ten days. And in terms of inter-session recesses, with a few "anomalies," ten days seemed to be the minimum as well.

"We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the clause," Justice Breyer wrote for a five-judge majority. The "presumptive" nugget gives the President leeway for emergencies, which as the Court notes at Justice Scalia's urging, does not include political bickering.

In terms of whether the vacancy has to arise during a break, Justice Breyer, along with Kennedy, Ginsburg, Kagan, and Sotomayor, held that the Recess Appointment Clause power applies to any vacancy, not just the new ones.

Scalia: Read the Freaking Statute and Stop Making Up Date Range Rules

"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

How ambiguous is that? Scalia argues that the text is clear: "Recess of the Senate" refers to inter-session breaks between formal sessions and "happen during the Recess" clearly indicates that the vacancy must arise when Congress is on vacation. In other words, he (along with Alito, Thomas, and Chief Justice Roberts) agrees with the D.C. Circuit.

Here's his quip of the day:

"The majority justifies those atextual results on an adverse-possession theory of executive authority: Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not 'upset the compromises and working arrange­ments that the elected branches of Government them­ selves have reached.'"

Basically, this is a battle of "living Constitution" versus Scalia's originalist and textual approach, and this time, the former won out.

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