The U.S. Justice Department this week offered its first extended, public analysis of the controversial court ruling in Washington that invalidated President Barack Obama's recess appointments to a federal labor board.
Top DOJ officials have until March 8 to decide whether to ask the U.S. Court of Appeals to reconsider its conclusion that Obama overstepped his authority last year when he used his recess appointment power to install three members on the National Labor Relations Board.
On Thursday night, DOJ, in a pending labor dispute in a federal appeals court in Philadelphia, offered a glimpse of legal arguments the government could make in asking the full D.C. Circuit to overturn the three-judge panel decision in Noel Canning v. NLRB.
"The Noel Canning decision conflicts with nearly two centuries of Executive Branch practice and the decisions of three other Courts of Appeals, two of them sitting en banc," Beth Brinkmann, a top DOJ Civil Division appellate lawyer, said in the brief in the U.S. Court of Appeals for the Third Circuit. The ruling's constitutional conclusions, Brinkmann continued, "threaten a serious disruption of the separation of powers."
The D.C. Circuit ruling, written by then Chief Judge David Sentelle, determined that the president can only make an appointment under "the recess" of the Senate.
That interpretation narrows the scope of when a president can use the recess appointment power. In the papers in the Third Circuit, Brinkmann said the word "the" doesn't carry the specificity the D.C. Circuit assigned to it.
"The pen is mightier than the sword," Brinkmann wrote, for example, refers to a class of pens, not a specific pen. The Constitution itself, she said, uses "the" generically in several instances. One example: the Senate can choose a temporary president in "the absence" of the vice president. That directive, Brinkmann said, "applies to all vice presidential absences rather than one in particular."
The Noel Canning decision empowers the Senate "unilaterally to eliminate the president's recess appointment authority even when it is unavailable to advise and consent," Brinkmann wrote in the court papers.
"The real threat to the separation of powers comes from Noel Canning, because it would seemingly allow the Senate to eliminate the President’s recess appointment power" by turning all recesses into intrasession ones, DOJ's legal team said. (The D.C. Circuit ruling limits recess appointment power to intersessions—the time between two sessions of Congress.)
DOJ lawyers said that under Noel Canning every intrasession recess appointment in the country's history—including ten federal trial judges, a CIA director and five appellate judges—would be unconstitutional.
The department also takes issue with the part of the Noel Canning opinion that restricts recess appointment power to vacancies that arise during a recess, not those that existed at the time of a recess.
"By confining the Clause to vacancies that arise during a recess, Noel Canning makes the President’s ability to fill offices turn on the happenstance of when the previous holder left office," Brinkmann wrote. "That approach disserves the purpose of the Clause."
DOJ's word on the scope and affect of the ruling won't be the last. The Third Circuit will get to hear from the other side of the dispute: the lawyers representing New Vista Nursing and Rehabilitation LLC.
New Vista, represented by Louis Capozzi Jr. of Harrisburg, Pa.'s Capozzi Adler, must submit a response to the court by March 7. The appeals court is scheduled to hear the case March 19.