Saturday, January 26, 2013

will anyone try this argument?

other than the fact that it will fuck up my life, the interesting thing about the D.C. circuit's decision to overturn obama's NLRB recess appointments is the broad scope of the ruling. the opinion severely limited the recess appointment power. for the past century or two, presidents have recess appointed people to fill vacancies that existed during a recess of congress, whether or not the position became vacant when congress was in recess. most of the time, in fact, recess appointees were appointed to fill positions that became vacant long before the recess in which they were appointed, with the president trying, and then failing, to have them confirmed by congress in the meantime. at least that's how it has worked recently. but under this D.C. circuit court opinion (pdf), a recess appointment would only be valid if: (a) it is used to fill a vacancy that occurred during an intersessional recess (i.e. a recess that occurs between annual sessions of congress), not just any recess, and (b) the appointment fills a position that became vacant during that same intersessional recess. which means that most, if not all, recess appointments that have been made in the past century or so were not valid under this decision.

at this point, the NLRB is taking the position that the DC circuit opinion only applies to that specific case, and does not invalidate everything that the recess appointees have done at the board. actually, it's worse than that. if the opinion is applied more broadly, it would invalidate virtually everything ruling the board has issued in the past year, which would be a pretty big mess. which is why the board is trying to limit the DC circuit decision to that one case, even though the logic of the opinion would equally apply to plenty of other cases.

but assuming the board's current position is wrong, and the DC circuit opinion does become the law of the land, couldn't people argue that any decision by anyone who has been recess appointed in the past, but whose appointment didn't comply with the strict new recess appointment rules articulated in the DC circuit opinion, is no longer valid? for example, is an opinion that had william pryor as one of the deciding votes and that was issued between february 20, 2004 and june 9, 2005 still good law? and likewise, is an opinion that had charles pickering as one of the deciding votes and was issued between january 16, 2004 and pickering's retirement in december 2004 still good law? the DC circuit opinion would imply that they are not. how many other decisions regulations, or rulings are there that were issued by a recess appointee whose appointment does not fit the very narrow definition of a valid recess appointment under canning v. NLRB?