D.C. Circuit to Wirt and Daugherty: Drop Dead

Your humble blogger is pretty much speechless after the D.C. Circuit’s sweeping decision today in the Noel Canning recess appointments case. In light of the oral argument, it is not all that surprising that the panel held that the Recess Appointments Clause only permits inter-session recess appointments. But I am pretty stunned (although admittedly this was foreshadowed in the oral argument as well) that it also held that the Clause only permits recess appointments for vacancies that actually occur during a recess. Why it chose to reach the latter issue (when, as Judge Griffith points out in his partial concurrence, it did not need to) is a matter of speculation. Here’s mine: to guarantee that the Supreme Court will hear the case.

Further analysis of the decision will have to wait awhile. But for the moment let me point the following passage from Judge Sentelle’s opinion:

The Clause sets a time limit on recess appointments by providing that those commissions shall expire “at the End of their [the Senate’s] next Session.” Again, the Framers have created a dichotomy. The appointment may be made in “the Recess,” but it ends at the end of the next “Session.” The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session, or it is in the recess.

 (emphasis added). For reasons I have previously stated at interminable length, this is clearly correct.