Recently the Department of Justice filed a letter brief in a case pending in the U.S. Court of Appeals for the Third Circuit in the hopes of dissuading that court from following the D.C. Circuit’s recent Recess Appointments Clause (“RAC”) decision in Noel Canning v. NLRB.   The pending Third Circuit case, NLRB v. New Vista Nursing & Rehabilitation, involves yet another challenge to President Obama’s recess appointments of National Labor Relations Board members.  Were other circuit courts to follow the D.C. Circuit’s lead in Canning and the Supreme Court were unwilling to grant review, the NLRB would be operating without a quorum and all current and future decisions, including as well as those dating back to January 4, 2012 (the date of the recess appointments), would be invalid. 

We continue to follow these developments with interest because of their obvious relevance to the validity of CFPB actions since the recess appointment of Richard Cordray as its Director.  

DOJ’s letter brief argues principally that the Canning court’s analysis failed, when interpreting the key terms “the Recess” and “happen” in the RAC, to take into account the historical interpretations of the Executive Branch, particularly those in the 20th century and beyond but also some early interpretations of those same words – outside the context of the RAC – by the first five Presidents (George Washington through James Monroe).  DOJ argues that these Administrations, and more recent ones as well, made no distinction between “recess” and “adjournment,” so that “the Recess” is not limited to an intersession recess of Congress, nor did they view the word “happen” as prohibiting recess appointments from filling positions that became vacant prior to an intersession recess (whereas the Canning opinion limits permissible appointments to those vacancies that come into existence during an intersession recess).  

DOJ did not in this particular brief address the question of the Senate’s pro forma sessions throughout the second half of December 2011 and most of January 2012 and their impact on whether any sort of recess – whether intersession or intrasession – was in existence when the “recess appointments” in question were made.  Instead, though asserting that the petitioners in New Vista had not raised the Canning issues and were not entitled to argue them, DOJ’s letter brief focused on the merits of the Canning decision.  It is anticipated that New Vista will be argued later this month. 

DOJ’s textual arguments under the RAC are well made but may not be entirely convincing.  For instance, their position would conflate the concepts of “recess” and “adjournment” without an adequate explanation for the Founders’ use of the different terms in the Constitution.  Furthermore, as a matter of policy, DOJ’s position, while making the argument that Canning gives the Senate discretion to structure its recesses to undermine (if not eliminate) the President’s recess  appointment power, ignores the flip side of the coin: DOJ’s argument would enable the President, by the simple expedient of sequential “recess” appointments of Executive Branch officers, essentially to circumvent the Constitution’s default requirement of appointment with the advice and consent of the Senate.  

Finally, as we have previously observed with respect to the Cordray appointment in particular, DOJ would have to contend with yet another argument not available in the case of the NLRB appointments – namely whether the word “Vacancy” as used in the RAC can include a position that never previously existed or was never previously occupied.