Partisans intent on obstructing President Barack Obama’s governance won a double victory during inauguration week. One day after Senate filibuster reform fizzled, a federal appellate panel issued a ruling, in Noel Canning v. National Labor Relations Board, that attempts to eviscerate the president’s recess-appointment authority. The U.S. Court of Appeals for the D.C. Circuit went far beyond the arguments offered by petitioner Noel Canning or amici Minority Leader Mitch McConnell (R-Ky.) and 41 other Republican senators.
The panel ruled that presidential recess-appointment authority exists only during the formal recess between sessions of Congress (traditionally once or twice a year) and is valid only to fill vacancies that have "arisen" during that particular "intercession" recess period. Mocking both textualism and originalism as interpretive models, the ruling destroys the framers’ dual appointment design carefully crafted to insure a fully staffed government.
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