In a monumental decision by the D.C. Circuit Court of Appeals the “recess appointments” as Obama called them were rejected as invalid. This will now probably go to the Supreme Court because of how important this is as well as there is a difference of opinion between the circuits. If these appointments are invalid that means EVERTYHING the National Labor Relations Board and the Consumer Financial Protection Bureau have done over the last year will be invalidated.
Even more interesting then the fact that the recess appointments were invalidated was WHY they were invalidated. Most people believed it would come down to the senate’s own interpretation of when it is in recess (which would have invalidated the appointments) as the senate can decide its own rules. But the D.C. circuit when further then that, and said that any appointment while a session of the senate is going on is invalid. This is known as a “intrasession” recess appointment that was invalidated.
This is very important because that means hundreds of high profile people who were appointed intrasession (including john Bolton and Judge William H. Pryor, Jr) could have their appointment invalidated, and any decisions they made (or regulations they issued) would come into question as well.
Let me give you a little history on the recess appointment power. Between March 4, 1789 when the United States Constitutional government began, until 1921 over 132 years, all but one “recess appointment” occurred between sessions of the senate. The senate would frequently adjourn every night, and every weekend, but almost never more than 3 days at a time, but at least 60 times they adjourned for more than 3 days a time, but still no “recess appointments” were made, unless it was between sessions of the senate. The single exception is President Johnson which made a series of appointments during a 2 and a half month senate adjournment in 1867, and an army paymaster during a 4 month senate adjournment. This was immediately following the civil war which ended in 1865, and no one at the time even considered if these appointments were unconstitutional until 1901 in which the United States Attorney General Philander Knox at the time said that in retrospect that “the public circumstances surrounding this  state of affairs were unusual and involved results which should not be viewed as precedents” and that the appointments were contrary to “the uniform practice of the Executive and the various opinions of my predecessors”. The United States Attorney General also said that “The conclusion is irresistible to me that the President is not authorized to appoint an appraiser at the port of New York during the current [intra-session] adjournment of the Senate”. Knox explained that in contrast to the Constitution’s use of the broader term “adjourn[ment],” the term “the Recess” refers to “the period after the final adjournment of Congress for the session, and before the next session begins.” An “intermediate temporary adjournment” during the session, “although it may be a recess in the general and ordinary use of that term,” is not “the recess during which the President has power to fill vacancies by granting commissions which shall expire at the end of the next session.“ For 20 more years after this Attorney Generals opinion no President had recessed appointed except between sessions of the senate.
Now in 1921, Attorney General Harry Daugherty came to the conclusion that in his
opinion that the adjournment of the senate from August 24th to Sept 21st (28
days) was long enough to permit a recess appointment by the president. He did
not rely on the language of the constitution, or the structure of the
constitution, or the history of the constitution. He only that it was his
belief that it didn’t matter if the senate was in recess or had adjourned it
only mattered if the senate could give its advice and consent in a practical
sense. One in which it could not receive communications from the president or
participate as a body in making appointments if it did receive one. HOWEVER he
was very clear that “Looking at the matter from a practical standpoint, no one…
would for a moment contend that the Senate is not in session when an adjournment
[of two or three days] is taken,” and even an adjournment “for 5 or even 10
days” could not satisfy his “practical” test. For the next 72 years presidents
seemed to follow Daugherty’s test, where at least a month of adjournment was
almost always required before it became a “recess” in which the president could
appoint someone. The office of legal counsel advised Nixon against recess
appointments in a week long recess, and “cautioned” Reagan against an 18 day
Obama’s so called “recess appointments” occurred the day after the Senate had gaveled into a new session of congress, far less then the month or so that had been used in the past. But in this case the D.C. circuit went further and said any appointment intrasesssion (when the senate is not adjourned sin die) is invalid, because it is not “THE recess” that the constitution talks about (singular in the constitution).