The D.C. Circuit nevertheless found that Obama’s appointment of the three N.L.R.B. members was invalid. According to the court’s tortured reasoning, the Senate was not really “in recess” when the three were named. Indeed, the opinion essentially said that the Senate need almost never be in recess; a handful of senators could create “pro-forma” sessions that would trump any President’s ability to make appointments. Even beyond that, the opinion more or less removed the President’s ability to use recess appointments in all but a small handful of cases, suggesting that the vacancies would have to occur, not just remain unfilled, during recesses. The appointments of not only the N.L.R.B. commissioners but also of Cordray, and all of the actions of his new organization, are now in clear jeopardy.I agree; what's wrong with the decision on an analytic level is manifold--the panel admits that the questions on which it decides the case were not properly raised below, that it may not even have jurisdiction over the constitutional issue--and then goes on to exercise it most vigorously. (Although why a business has standing to assert that the Senate's prerogative was violated, a political question if ever I've run across one is also opaque, hand-waved away with a few completely non-apposite citations.)
Its jurisdiction in doubt, the panel nonetheless finds that the only time at which the President can exercise the recess appointment power is not when the Senate is "adjourned" but when it is in capital-R recess--that is, between sessions, in part because the history does not support an exercise of the power during a Senate session--and then lists examples of exactly that exercise of the recess appointment power from 1857 well into the Twentieth Century. The panel just didn't find that these examples were enough numerically, a wholly made-up metric. Moreover, as Toobin notes,
As the Times reported (but the D.C. Circuit, once again, did not see fit to mention), President Bill Clinton made a hundred and thirty-nine recess appointments, while George W. Bush made a hundred and seventy-one, including those of John R. Bolton as Ambassador to the United Nations and two appeals-court judges, William H. Pryor, Jr., and Charles W. Pickering, Sr., Obama has made only thirty-two such appointments, including that of Richard Cordray as director of the Consumer Financial Protection Bureau.If this decision is upheld, the Senate gets to abuse its "advise and consent" power to blanketly refuse to consider any nominee to the CFPB absent dilution of the agency's power, while the President's power to counter this abuse, used since 1857, and used sparingly by the present incumbent, will wither, creating the ability of a minority in the Senate to cripple federal agencies at will, with no real counterweight on the Executive side. This isn't checks and balances, it's a mugging.