The recent federal appeals court decision that invalidated President Obama’s recess appointment of three National Labor Relations Board members – and perhaps any decisions in which they took part – would’ve wreaked havoc upon hundreds of appointments made mostly by Republican presidents since 1981, a new study has found.
A recess appointment is an appointment by the president of a federal official while the U.S. Senate is in recess. Recent presidents have made such appointments both intersession (between sessions or Congresses) and intrasession (during a recess within a session). But the U.S. Court of Appeals for the D.C. Circuit ruled last month that intrasession recess appointments are unconstitutional, and that intersession recess appointments can only be made for vacanies that happen to occur during that intersession break – not for any vacancies that existed before the recess.
In a memo issued yesterday, the independent Congressional Research Service found 329 intrasession recess appointments made since 1981 – 72 by Ronald Reagan, 37 by George H.W. Bush, 53 by Bill Clinton, 141 by George W. Bush and 26 by Barack Obama. It also tracked 323 intersession recess appointments by those presidents, but noted the lack of specific vacancy dates for many of those make it unclear how many would’ve been precluded by the recent court ruling.
This goes to what Rep. George Miller, D-Calif., and many others said after last month’s court ruling.
“Today’s decision flies in the face of precedent and past practice. It radically undermines the ability of any president – Democratic or Republican – to staff critical government positions when another party engages in political obstructionism,” Miller had said. “We disagree with these judges’ distorted view of the Constitution and their attempt to reshape the recess appointment power in a way that, if accepted, would render invalid hundreds of past appointments by previous administrations. We expect that this decision will not stand.”