Ruling on NLRB appointments conflicts with 11th Circuit’s decision on Bill Pryor
4:12 pm, January 28th, 2013
Friday’s court decision blocking President Barack Obama’s January 2012 appointments to the National Labor Relations Board stands in contrast to what the U.S. Court of Appeals for the Eleventh Circuit had to say in 2004 about the recess appointment of Judge William Pryor Jr.
As explained by Slate’s Emily Bazelon, the D.C. Circuit on Friday invalidated three of Obama’s appointments to the NLRB, leaving everything the board has done in the last year up for constitutional challenge. The issue is the timing of the appointments: the Constitution says the president has the power to fill, at least temporarily, “all Vacancies that may happen during the Recess of the Senate.” Obama made the NLRB appointments when the Senate was on a 20-day break, but the Senate claimed it was not in recess, and the D.C. Circuit panel said the appointments were unconstitutional. The Obama administration could ask the full D.C. Circuit to review the matter or bypass that in favor of a petition to the Supreme Court.
The wide-ranging implications of the matter may be enough to get the Supreme Court’s attention, but the high court also is interested in issues that have divided the circuit courts of appeals, and that’s where the Eleventh Circuit comes in. As Bazelon notes, the Eleventh Circuit took a different view of recess appointments when it considered the appointment of Pryor, who had been Alabama’s attorney general. The court’s majority found no constitutional violation in President George W. Bush appointment of Pryor to the Eleventh Circuit during a 10-day break for President’s Day, saying the president could make valid recess appointments during breaks taken in the middle of a session of Congress.
That decision was 10-2, with Judges Rosemary Barkett and Charles Wilson dissenting. Barkett took issue with both the majority’s interpretation of the law of recess appointments and its decision to hear the case of a new colleague on the merits. Wilson made only the latter point, agreeing with Barkett that the issue should have gone directly to the Supreme Court. The high court later declined to take up the case, and in June 2005 the Senate voted 53-45 to make Pryor’s appointment permanent. Pryor, whose nomination had been blocked by Democrats who said they objected to his vocal opposition to the high court’s decision granting abortion rights, among other conservative leanings, remains on the court today.
The D.C. Circuit’s explanation of why it finds the Eleventh Circuit majority’s analysis unconvincing begins on page 26 of the panel opinion. Bazelon notes that the Second and Ninth Circuits also have said recess appointments made in the middle of a Senate session are OK.