Friday, January 10, 2014
Rachel Maddow posits the possibility that the scandal surrounding New Jersey Governor Chris Christie and the traffic jam by the city of Fort Lee at the George Washington Bridge may have less to do with the election than with the New Jersey Supreme Court.
Much of Maddow's conjecture rests on the timing of the now infamous email "Time for some traffic problems in Fort Lee," sent on the morning of August 13, 2013 by a top Christie aide from her private email account to a Port of Authority official who responded "Got it."
But to understand the Maddow theory, one needs to return to 2010. Recall that as we discussed in May 2010, there was a potential "constitutional conflict" brewing over Governor Christie's non-"reappointment" of John Wallace, then the only African-American of the seven state justices on the New Jersey Supreme Court. And recall also that despite objections from retired members of the judicary, Christie reportedly found "laughable" any notion that politics was not part of the judicial appointment process, pointing to the fact that there would be another election in 2013.
But John Wallace was not the only NJ Supreme Court Justice whose reappointment would be at issue during Christie's first term. Another Justice, supported by Christie, was due before the Senate. And the NJ Senate Democrats - - - led by a legislator from Fort Lee - - - may not have been being co-operative. In any case, Christie withdrew his reappointment of that Justice the evening before the GW Bridge lane closures began.
Here's the video from the Rachel Maddow Show:
Worth a read with details is the discussion of MSNBC's Steve Benen.
Friday, December 13, 2013
The Senate yesterday confirmed Nina Pillard (Georgetown) to the D.C. Circuit, after previously filibustering her nomination. (The Senate earlier this week confirmed Patricia Millett, another earlier filibustered nominee.)
Think Progress has a really nice piece comparing Pillard to Ruth Bader Ginsburg on her contribution to women's rights, and predicting that she'll "imediately rocket to the top of the Democratic shortlist of potential nominees to the Supreme Court." From TP:
Pillard was a member of the legal team in United States v. Virginia, which eliminated the Virginia Military Institute's discriminatory policies against women and cemented the rule that no law may engage in gender discrimination unless there is an "exceedingly persuasive justification" for doing so. Seven years later, Pillard argued and won Nevada Department of Human Resources v. Hibbs, an important case helping women (and men) with families have a fair opportunity to participate in the workplace.
Indeed, it is likely that there is only one other judge currently on the bench who accomplished as much as a litigator for women's rights as Judge Pillard did in her career as an attorney--Justice Ruth Bader Ginsburg.
Thursday, November 21, 2013
Senate Majority Leader Harry Reid announced today that he's proposing changes to the Senate rules that would abolish the filibuster for most judicial and executive branch nominees. Reid's proposal would reportedly retain the filibuster for Supreme Court nominees.
Reid is reportedly prepared to go nuclear--that is, to change the rules by a simple majority vote.
Reid's proposal comes on the heels of three successful filibusters in as many weeks by Senate Republicans of President Obama's picks for the D.C. Circuit.
Monday, November 18, 2013
Senate Republicans once again successfully blocked a nominee for the D.C. Circuit. Today's vote, 38 to 53, fell seven short of the 60 needed to overcome the Republican filibuster of Robert Wilkins's nomination to the court. Politico reports here.
Some Senate Democrats are making more noise about using the nuclear option, that is, getting rid of the filibuster (the cloture rule) for judicial nominees. Republicans (still) say that the court isn't busy enough to fill the three vacancies, and that they're just doing the same thing that Democrats did when they blocked President Bush's nominee to the court, Peter Keisler.
Active judges on the court are evenly divided between those appointed by Democrats and those appointed by Republicans. But five of the court's six senior judges--who still sit and decide cases--are appointed by conservatives. Indeed, 15 of the last 19 appointments to the court were by Republican presidents.
Tuesday, November 12, 2013
The Senate failed to break a Republican-led filibuster today on President Obama's nomination of Nina Pillard to the D.C. Circuit. The vote on the cloture motion was 56-41, but 60 votes are needed to close debate.
The move marks the second time in two weeks that Republicans have successfully filibustered President Obama's nominees to the D.C. Circuit. The last failed cloture vote came on October 31, on Patricia Millett's nomination.
Republicans complain that the President is trying to "stack" this court, often called the second most important court in the country. But that's not exactly right: Democratic Presidents still have a ways to make up with their nominees on the court, as we explained here. The American Constitution Society's JudicialNominations.org has more information about judicial vacancies, including the D.C. Circuit, here.
No word whether the Democrats will use the nuclear option (and eliminate the filibuster for judicial nominations), but TPM Livewire reports that Senate Grassley "dared Democrats to 'go ahead,'" warning that such a move would make it easier for future Republicans "to appoint judges like Antonin Scalia."
Thursday, October 31, 2013
Senate Republicans today successfully filibustered Patricia Millett's nomination for the D.C. Circuit. The Senate voted 55-38 to end debate and proceed to a vote on the nomination, but the body needed 60 votes under Senate rules. The Republicans' move blocks the nomination, unless and until the Senate can muster 60 votes, or changes its rules.
Millett would fill one of three vacancies on the court. The Republicans' move means that this exceptionally important court--often called the second most important court in the country--continues to operate three shy of a full bench. The move also means that the court continues to be dominated by judges appointed by Republican presidents (despite Republicans' argues to the contrary). (There's an even split among the active judges, but judges appointed by Republicans are dominant among the semi-retired. Those semi-retired judges still sit and help decide cases.) Finally, the move means that a supremely well qualified nominee who receieved bipartisan praise won't get the nod from the Senate, despite receiving a majority to proceed to a vote.
No word yet whether Democrats will use the nuclear option and try to change the filibuster rule to bypass Republican obstruction, or whether leaders will come up with some other way to proceed.
UPDATE: Here's a link to the roll-call (h/t Glenn Sugameli).
Wednesday, October 30, 2013
Millett's nomination comes before the full Senate tomorrow, and there's indication that Republicans could filibuster. If so, Senator Leahy is quoted in the NYT, "I think that the pressure on changing the [cloture] rules would be almost insurmountable." Democrats will have 55 votes in the Senate tomorrow, after Cory Booker, newly elected Democrat of New Jersey, is seated. That means that they need to pick up five Republicans to close debate.
Meanwhile, the House Judiciary Committee joined the fray, holding a hearing yesterday titled, "Are More Judges Always the Answer?" The thrust of the hearing--and one of the Republicans' argument against Millett's appointment: the D.C. Circuit doesn't do enough work to justify filling the seat. (There are currently three vacancies on the court.)
Republicans also argue that President Obama is trying to "stack" the court with judges who will be friendly to his regulatory agenda. (The court is now evenly split between judges appointed by Republican presidents and judges appointed by Democats.)
Wednesday, October 23, 2013
Judge Colleen Kollar-Kotelly (D.D.C.) dismissed a separation-of-powers challenge to the Consumer Financial Protection Bureau, an independent agency created by Dodd-Frank that's tasked with the responsibility for "ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive." (This case challenges the CFPB on separation-of-powers grounds. We most recently posted on the other challenge to the recess-appointed head of the CFPB here. The recess appointment question is heading to the Supreme Court in Noel Canning.)
But the order dismissing the case in the D.C. District didn't touch the merits, and the plaintiffs in the D.C. case will undoubtedly raise the same constitutional claims in the underlying enforcement action against them in the Central District of California.
The case, Morgan Drexen, Inc. v. CFPB, arose after the CFPB filed an enforcement action against Morgan Drexen in the Central District of California. Morgan Drexen and its "attorney-client" then filed for injunctive and declaratory relief in the D.C. District, seeking to halt the enforcement action in the Central District of California, arguing that the CFPB violates constitutional separation-of-powers principles. The result: two parallel cases in two different courts, one enforcement action and one facial challenge, challenging the CFPB on constitutional grounds.
Update: Morgan Drexen filed in the D.C. court before the CFPB filed its case in California.
But Judge Kollar-Kotelly didn't bite. Instead, the court ruled that injunctive and declaratory relief in the D.C. District would be inappropriate with the case pending in California--and that Morgan Drexen could obtain complete relief on its claim there. (The court said that ruling on the matter would frustrate both the final judgment rule (because Morgan Drexen could immediately appeal a D.C. District ruling on the merits, but not a ruling from the Central District of California denying a motion to dismiss on constitutional grounds) and the principle of constitutional avoidance (because the Central District of California could dodge the constitutional issues and rule on other grounds, but the D.C. District case would force the court to address the constitutional claims). The court also ruled that declaratory relief was inappropriate.
The court held that Morgan Drexen's "attorney-client" lacked standing, becuase she couldn't point to specific or generalized interference with the attorney-client privilege, or any other harm in the CFPB's investigation or enforcement action against Morgan Drexen.
The case ends this collateral piece of the litigation, but it doesn't end the enforcement action, still pending in the Central District of California. Morgan Drexen raises the same constitutional claims, and other statutory claims, as defenses in that case.
October 23, 2013 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Wednesday, October 16, 2013
Jeffrey Toobin writes in the Daily Comment at The New Yorker that the Noel Canning case on recess appointments, now before the Supreme Court, could lead to an entirely new level of dysfunction in Washington--putting the current crisis to shame. That is, if the Court strikes President Obama's recess appointments to the NLRB. (Our latest post on Noel Canning, with links to earlier posts and lower court rulings, is here.) Toobin explains:
If the ruling by the D.C. Circuit [striking President Obama's recess appointments to the NLRB] is upheld, the result will be a massive shift of power from Presidents to Senate minorities. Forty senators will have the power to stop an agency from functioning. Given the general political inclinations of the contemporary G.O.P., this would be a tremendous victory. They don't want an N.L.R.B. at all, and they don't care for most other regulatory agencies, either. The D.C. Circuit decision is more than a gift of a minority veto on individual members of a commission; it's a minority veto on the very existence of vunerable federal agencies.
The Canning case brings together several themes of recent political life: fierce congressional obstruction of President Obama, aggressive use of the courts by conservative activists, precedent-shattering rulings by conservative judges to undo the work of the democratically elected branches of government. As with so many of these struggles during the Obama era, the outcome is far from certain.
Monday, June 24, 2013
The Supreme Court today agreed to review the President's recess appointment authority. The Court granted cert. to the D.C. Circuit and agreed to hear an appeal in Noel Canning v. NLRB, the case testing the President's authority under the Recess Appointments Clause to appoint members to the NLRB during an intra-session recess in the Senate. Our post on the D.C. Circuit's ruling--holding that the President lacks authority--including links to prior posts, is here.
Recall that the D.C. Circuit ruled President Obama's appointments to the NLRB unconstitutional. The Third Circuit followed suit.
The Supreme Court's move today gives the high court an opportunity to weigh in.
Tuesday, June 4, 2013
President Obama made good today on his earlier plan to simultaneously nominate three people to the D.C. Circuit. The nominations are designed to fill the three vacancies on the court and to force Republicans' hand on judicial nominations. The White House promises an aggressive push to get the three confirmed. The tactic is designed to put a finer public point on Republican foot-dragging on judicial nominations, should the party decide to hold up these three nominees. Roll Call reports here.
The three are: Patricia Ann Millett; Cornelia T.L. Pillard; and Robert Leon Wilkins.
Meanwhile, the Republican line is that the D.C. Circuit is underworked--and that it doesn't need to fill the three vacant seats. Thus Senator Grassley introduced S. 699, which would eliminate the three vacant seats from the D.C. Circuit and reallocate two of them--one to the Second Circuit, and one to the Eleventh Circuit.
Tuesday, May 28, 2013
President Obama plans to simultaneously nominate three judges to the D.C. Circuit, reports the NYT and HuffPo. The nominations would fill the three remaining vacancies on the 11-member court. The reports come the week after the Senate voted 97-0 to approve the President's nomination of Deputy SG Sri Srinivasan--nearly a year after his nomination.
The move is part of a strategy by Senate Democrats to highlight obstruction of judicial nominees by Senate Republicans. Democrats hope that by putting up three nominations at once, Republicans will be less likely to foot-drag (because foot-dragging on three nominations, and not just one, would highlight Republicans' obstruction).
Senate Republicans have reacted, calling the this an effort to "stack the court" (Senator McConnell's words). According to the NYT, Senate Republicans are considering a proposal to eliminate the three empty seats on the court and move two of them to other circuits.
The measure, S. 699, sponsored by Senator Grassley, would eliminate the three seats from the D.C. Circuit, add one seat to the Second Circuit, and add one seat to the Eleventh Circuit. If it could ever get out of the Senate, it would surely meet a veto.
The NYT reports that some Democrats think that Republican overreaching on these nominations could bring enough public pressure to change Senate rules to prohibit filibusters on judicial nominations.
Monday, May 20, 2013
A divided three-judge panel of the Third Circuit last week invalidated President Obama's recess appointment of Craig Becker as a member of the National Labor Relations Board. The ruling, National Labor Relations Board v. New Vista Nursing and Rehabilitation, marks the second time a federal appeals court invalidated President Obama's "intrasession" recess appointments. The first came earlier this year from the D.C. Circuit, in the Noel Canning case. We posted on that case when it came down, and more recently when the government filed for cert. review at the Supreme Court.
The Third Circuit, like the D.C. Circuit before it, ruled that "the Recess of the Senate" in the Recess Appointments Clause refers only to the period between sessions of the Senate, or intersession breaks, and not breaks while the Senate is in session, or intrasession breaks. Because President Obama appointed Becker while the Senate was holding pro forma sessions every three or four days--during intrasession breaks--the court said that Becker's appointment was invalid. And because Becker's appointment was invalid, the NLRB lacked a quorum to issue a bargaining order to a New Jersey nursing facility that was at the center of the dispute.
Judge Greenaway, Jr., wrote a lengthy dissent, stating that "[t]he Majority's rationale undoes an appointments process that has successfully operated within our separation of powers regime for over 220 years."
As we said, the government has already filed its cert. petition in the Noel Canning case. Now with this ruling, the Court is all but certain to take the question up and issue a final ruling on "intrasession" recess appointments.
Wednesday, May 8, 2013
A three-judge panel of the D.C. Circuit struck the enforcement mechanisms for the NLRB rule requiring employers to post a notice of employee rights. The ruling yesterday in National Association of Manufacturers v. NLRB means that the NLRB rule is invalid.
The case strikes a blow at the NLRB effort to educate employees on their workplace rights, in an era where union membership is way down (7.3% of the private workforce) and where more and more workers enter the workplace without knowledge of their rights.
The case arose after the NLRB promulgated a rule that required employers to post a notice of employee rights in the workplace. Violation of the rule came with an unfair labor practice under Section 8(a)(1) of the NLRA. (It also came with a suspension of the running of the six-month period for filing any unfair labor practice charge, and it constituted evidence of unlawful motive in a case in which motive is an issue.)
The rule says,
[a]ll employers subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures . . . .
29 C.F.R. Sec. 104.202(a). (Here's the single-page version of the notice poster.) But the plaintiffs argued that this violated the NLRA and free speech. The court agreed, concluding that the rule violated Section 8(a), which says:
The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.
The court said that "[a]lthough Section 8(a) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board's rule does both."
The court rejected the NLRB's argument that the required post is the Board's speech, not the employer's speech. Comparing Section 8(a) to First Amendment law, the court said that it didn't matter: dissemination of messages gets the same free speech treatment as creation of messages.
The court also rejected the NLRB's argument based on UAW-Labor Employment & Training Corp. v. Chao, (D.C. Cir. 2003), which upheld President Bush's executive order requiring government contractors to post notice at their workplaces informing employees of their rights not to be forced to join a union or to pay union dues for nonrepresentational activities. (The plaintiffs in that case argued only that President Bush's EO was preempted by the NLRA; they lodged no First Amendment claim.) The difference, according to the court: there was no prospect in UAW of a contractor's being charged with an unfair labor practice for failing to post the required notice.
(Two members of the panel, Judges Henderson and Brown, would have gone farther and ruled that the NLRB lacked authority to pomulgate the posting rule.)
The court addressed the preliminary issue whether the NLRB had a quorum when it promulgated the rule, in light of its recent ruling in Noel Canning v. NLRB that President Obama's recess appointments were invalid. But the court held that the NLRB had a quorum when the rule was filed with the Office of the Federal Register (the relevant time), even if it didn't have a quorum when the rule was published.
Friday, April 26, 2013
The Obama Administration filed its Petition for Writ of Certiorari yesterday in NLRB v. Noel Canning, the case testing whether President Obama's recess appointments of three NLRB members satisfied the Recess Appointments Clause.
Recall that the D.C. Circuit ruled that they didn't. (Here's our coverage of the lower court ruling, with links to resources.) That court held that the Recess Appointments Clause permits a recess appointment only during an inter-session recess of Congress (i.e., a recess that occurs between one enumerated session of Congress and the beginning of the next), not an intra-session recess (i.e., a recess that occurs during the course of a session), and that it permits a recess appointment only for vacancies that arise during an inter-session recess. The court said that because President Obama made the appointments during an intra-session recess of Congress, and because the vacancies did not arise during an inter-session recess of Congress, the appointments were invalid.
The government seeks review of both issues--whether the President can exercise the recess-appointment power during an intra-session recess, and whether the President can fill a vacancy that existed (even if not arose) during a recess.
It's a good bet the Court will take this. There's a circuit split, and the stakes are high. As the government explains:
[The decision below] would deem invalid hundreds of recess appointments made by Presidents since early in the Nation's history. It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.
Petition at 11-12.
Friday, April 12, 2013
Garrett Epps writes in the Atlantic that if originalism's aim was to keep judges from writing their personal views into the law, it has been "an abject failure." His evidence? Chief Judge David Sentelle's ruling in Noel Canning v. NLRB, the D.C. Circuit's January ruling striking President Obama's recess appointments to the NLRB.
Epps criticizes Judge Sentelle's ruling as putting a 1755 definition over the consistent executive practice based on a practical concern, getting the government's business done, and judicial precedent:
For at least a century, presidents--with congressional acquiescence--have interpreted [the Appointments Clause] as giving them the ability to make appointments any time when the Senate is not in session. But Chief Judge David Sentelle looked up the six-word entry for "the" in Samuel Johnson's Dictionary of the English Language, published in 1755, and found that its "original public meaning" was "noting a particular thing," meaning that there can be one and only one "recess" of the Senate.
Epps notes that the Noel Canning rule would have voided 232 appointments under President Reagan, 78 under President G.H.W. Bush, 139 under President Clinton, and 171 under G.W. Bush. Appointees include Alan Greenspan and Lawrence Eagleburger.
Epps points to a recent Congressional Research Service report, The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications. The CRS issued a companion report, Practical Implications of Noel Canning on the NLRB and CFPB.
Wednesday, April 10, 2013
The Senate Judiciary Committee begins hearings today (2:30 EDT) on President Obama's nomination of Principal Deputy Solicitor General Sri Srinivasan to the D.C. Circuit. The Committee web-cast is here.
Tuesday, April 9, 2013
President Obama today sent three nominations for full terms at the NLRB to the Senate--a renomination of Board chair Mark Pearce, a Democrat, and nominations of two Republicans. The President nominated two Democrats to full terms in February.
The nominations come just months after the D.C. Circuit ruled in Canning v. NLRB that the President's recess appointments to the Board were invalid. According to TPM, the administration plans to appeal that decision, but in the meantime it "has prompted more than 100 businesses to claim the board lacks authority to take action against them becuase two of its members are not there legitimately."
Thursday, February 14, 2013
The Senate this week reauthorized the Violence Against Women Act and added a provision authorizing Native American Indian tribal courts to try non-Indians for acts of violence against Native American tribal members. The provision, Section 904 of the Senate-passed VAWA, caught the attention of some on the right, who claim it's unconstitutional.
The Heritage Foundation outlined the argument in a post today. According to the post, congressional extension of tribal jurisdiction to non-Indians violates the Appointments Clause and the life-tenure provision in Article III. The reason, according to the post, is simple: tribal judges aren't appointed pursuant to the Appointments Clause, and they don't meet the requirements of Article III. They therefore can't mete out punishment against non-Indians.
To unpack this, it helps to understand the debate between congressionally delegated power to tribes versus inherent power of tribes. Advocates of the congressionally-delegated view say that tribes operate pursuant to congressional delegation, and therefore the full force of the Constitution applies. Advocates of the inherent power view say that tribes have inherent sovereignty and authority on their lands, and that they operate pursuant to their own rules and any overriding congressional requirements.
The Supreme Court has weighed in, but barely. It ruled in Oliphant v. Suquamish Indian Tribe that tribal courts lacked inherent authority over non-Indians, but it suggested that Congress could extend their authority to reach non-Indians. In United States v. Lara, the Court ruled that Congress has authority to relax the restrictions on a tribe's inherent sovereignty to allow it to exercise inherent authority to try non-member Indians.
The Heritage Foundation piece takes the congressionally-delegated-power view. This means, as the piece argues, that the Constitution applies with full force over the tribal courts, and that if they exercise jurisdiction over non-Indians, they, like regular Article III courts, have to meet constitutional requirements. (You might ask why the piece didn't argue that they similarly have to meet due process requirements. The reason: Congress extended due process protections in the earlier Indian Civil Rights Act and in the VAWA itself.)
The Senate took the inherent-authority view. Thus Section 904 of the VAWA says, "the powers of self-government of a participating tribe include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons." (Emphasis added.)
Which view is right? Well, the Court has suggested in both Oliphant and Lara that the inherent-authority view is correct. But that view might not get five Justices on the current Court. So we're not sure how the Court would rule.
The Congressional Research Service has a terrific report on the issue here.
Friday, January 25, 2013
The D.C. Circuit ruled today in Noel Canning v. NLRB that President Obama's three recess appointments to the NLRB last year, on January 4, 2012, were invalid under the Recess Appointments Clause, and that the NLRB therefore lacked a quorum to issue its decision finding that the petitioner violated the NLRA. The ruling tees the issue up for likely Supreme Court review.
We've previously posted on President Obama's recess appointments and court challenges here, here, and here. Here's our post on the OLC memo concluding that President Obama had authority to make the appointments.
The case arose after President Obama appointed three people to the NLRB on January 4, 2012, when the Senate was operating under a unanimous consent agreement that provided that it would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The pro forma sessions are designed to keep the body in business so that it's not "in recess" for Recess Appointment Clause purposes, thus thwarting the President's ability to make unilateral recess appointments. (During these sessions, the Senate actually engaged in some business, including passing a temporary extension to the payroll tax and convening the second session of the 112th Congress.) The Senate did not adjourn sine die before the end of the first session of the 112th Congress, and thus according to the court the Senate did not have an intersession recess between the first and second sessions of the 112th Congress. Instead, "the First Session of the 112th Congress expired simultaneously with the beginning of the Second Session." Op. at 42.
The petitioner challenged the appointments after the NLRB, with President Obama's appointees, issued a decision concluding that he violated the NLRA. The petitioner claimed that the appointments were invalid under the Recess Appointments Clause, that the NLRB wouldn't have had a quorum without those appointees, and without a quorum it didn't have any authority to issue its decision against him.
The D.C. Circuit agreed. It ruled that the Recess Appointments Clause only authorizes intersession appointments, not intrasession appointments, and that it only authorizes appointments for vacancies that happened during the intersession recess (and not that merely existed during the intersession recess).
As to the intersession requirement, the Court relied principally on the plain text of the Clause:
[t]he 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.
The court explained that the phrase "the Recess" must refer to the intersession recess, because of the use of the definite article "the." If the Clause were to cover intrasession recesses, in contrast, the text would have used the phrase "a recess" or "recesses." The word "the" here identifies "recess" only as the intersession recess. The court also looked to history, structure, other text, state constitutionalism, and other sources to buttress its textual analysis. It said that the OLC's position would allow the executive to define the scope of his or her own recess appointment power and to make a recess appointment anytime the Senate broke for lunch. "This cannot be the law." Op. at 26.
This part of the ruling puts the D.C. Circuit at odds with the Eleventh Circuit and its ruling in Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).
As to when the vacancy happens, the D.C. Circuit also relied principally on text, but looked to other sources, too. The court said that "happen" must mean that the vacancy arises during the recess, not that it merely exists during the recess.
This part of the ruling puts the D.C. Circuit at odds with the Second, Ninth, and Eleventh Circuits. It was also unnecessary: as Judge Griffith points out in concurrence, the court's ruling on the intrasession appointment was sufficient to vacate the NLRB's decision, without considering when the vacancies happened.
Because of the importance of the issues and the circuit splits, look for this case to go to the Supreme Court.
There's just one potential hiccup: It's not obvious that the courts have jurisdiction to hear the constitutional claims. The NLRA says that courts can consider appeals from NLRB judgments only when parties raised the issues at the NLRB, unless there are "extraordinary circumstances." The parties didn't raise the appointments challenges at the NLRB, but the court said that there were "extraordinary circumstances": the appointments objections "go to the very power of the Board to act and implicate fundamental separation of powers concerns." Op. at 11.