Professor Seth Barrett Tillman takes issue with point 5 (see update below)
Here are the options I can think of for the administration and/or Senate Democrats to respond to the D.C. Circuit’s invalidation of President Obama’s January 2012 recess appointments to the National Labor Relations Board. Three of the options involve seeking to reverse the decision and three involve strategies to get Senate confirmation so as to permanently fill the vacancies. Note that the latter doesn’t necessarily solve the problem of NLRB (and perhaps CFPB) actions being invalidated for the period during which the recess appointees served.
1. Seek rehearing en banc. This would seem like the most obvious first step, except for the fact that there are only 8 active judges on the D.C. Circuit, meaning that all five of the judges not on the panel would have to vote for taking it en banc (assuming that the three judges on the panel vote against it). This is not impossible, and it is also possible that Judge Griffith, who declined to join the majority opinion with respect to the issue of when vacancies “happen,” could vote for rehearing to narrow the scope of the opinion. But if rehearing were granted, the most likely outcome is that the administration would still lose, just on narrower grounds.
2. Seek Supreme Court review. I have to assume that the Department of Justice will eventually do this because it simply cannot permit the D.C. Circuit opinion to stand as written. It perhaps could have lived with a narrow decision that only found that the Senate was in session when it held pro forma sessions, but Judge Sentelle’s opinion would make virtually every recess appointment legally questionable. The only issue is whether DOJ feels that it has to seek Supreme Court review immediately, or whether it tries to get en banc rehearing first.
I think there is a very high likelihood that the Supreme Court will take up this case. Of course I have been wrong before.
3. Use the new Senate rules to get permanent appointees confirmed. The Senate made some changes to its filibuster rules this week that are supposed to streamline the confirmations process. At the end of the day, however, the rules still permit the minority to filibuster a nomination (to my understanding- I haven’t had a chance to study the new rules yet). So this seems like a long shot.
4. Use the nuclear option. The Senate Democratic majority could be so ticked off by the Noel Canning decision that it could decide to use the “nuclear option” to prevent filibusters on nominations. The currently fashionable theory is that the “nuclear option” can only be used at the beginning of a new Congress, and that window would seem to have closed with the Senate’s adoption of rules changes this week. But who is to say that the Senate won’t fall in love with a new theory?
5. Prorouge [Make that Prorogue] Congress. If the Senate wanted to go into “recess” (i.e., the kind of recess the D.C. Circuit would accept for purpose of making recess appointments), it could ask the House for an adjournment and, if it refused (which presumably it would), the President could exercise his power to “adjourn them to such Time as he shall think proper” under art. II, section 3, cl. 2. No president has ever exercised this power before and it is not clear whether the adjournment would actually end the session, but its still possible . . . .
6. Pack the D.C. Circuit. There are three vacancies on the D.C. Circuit. Obama could make recess appointments to fill them and then the new judges could vote for rehearing en banc. That should set off a fine constitutional crisis.
Update -Professor Tillman emails the following comment
I have to disagree with point 5.
First, you misspelled prorogue!
Second, and more substantively, if the House refused to agree to an adjournment with a concomitant termination of the session and the start of a new session, in other words, if the House refused to create a recess, you suggest that the President could use his Article II power to “adjourn the [two Houses] to such Time as [the President] shall think proper.” But, I do not think this will work . . . . Presidential action here is just an adjournment order, not a proper recess. See Jefferson’s Manual Section 50. The President’s action will not terminate extant legislative business. So it does not create a recess per the Recess Appointments Clause. Moreover, even if it did create a recess, you are still stuck (in the case of NLRB and CFPB) with the fact that the vacancies will not have arisen during the newly manufactured recesses.
Still I think you are on to something vis-a-vis proroguing the Senate. There is some reason to believe that even if the Senate is in (legislative or executive) session, the President still has an independent power to convene the Senate. This is a different power from the Article II to which you referred. The Constitution states: The President “may, on extraordinary Occasions, convene both Houses, or either of them.” Jefferson took the position that a session convened by presidential proclamation terminates the old session and starts a new one. See Jefferson’s Manual Section 51. See generally Ashley v. Keith Oil Co., 7 F.R.D. 589, 591–92 (D. Mass. 1947) (Wyzanski, J.). And, of course, you could always read my papers on congressional continuity in different contexts: Seth Barrett Tillman, Noncontemporaneous Lawmaking: Can the 110th Senate Enact a Bill Passed by the 109th House?, 16 Cornell J.L. & Pub. Pol’y 331 (2007), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=505822; Aaron-Andrew P. Bruhl, Response, Against Mix-and-Match Lawmaking, 16 Cornell J.L. & Pub. Pol’y 349 (2007), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=932574; Seth Barrett Tillman, Defending the (Not So) Indefensible: A Reply to Professor Aaron-Andrew P. Bruhl, 16 Cornell J.L. & Pub. Pol’y 363 (2007), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=956155.