When is a recess really a recess?

 by T.E. | NEW YORK 

IN JANUARY of last year the Senate appeared to go on break. Nearly all of its members went home and no real work was done. But a single senator arrived in the chamber every so often to bang the gavel and declare "pro forma" sessions. This time it was Republicans doing the dirty work of obstruction, but before them it was Democrats. Barack Obama had seen it happen when he was in the Senate and George Bush in the White House. But with an elevated perspective President Obama decided it was a sham, claimed the Senate had adjourned, and installed three members of the National Labor Relations Board (NLRB) via recess appointments.

Today a three-judge panel of a federal appeals court handed the president a powerful rebuke, saying he overstepped his authority. On its narrowest point, the ruling was straightforward and logical. Allowing the president to decide when the Senate was in recess would give him "free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction,” wrote Judge David Sentelle.

But the judges went further, defining a recess as only the period in between formal sessions of Congress, which generally occurs once a year. The president could not use holiday breaks or seasonal vacations as opportunities to appoint nominees who faced intractable opposition, they said. Two of the three judges added that only positions which come open during the newly-defined recess could be filled during that time.

"Novel and unprecedented” is how Jay Carney, the White House spokesman, described the decision. The judges might agree. They acknowledged that parts of their opinion conflicted with previous rulings on recess appointments. This particular case dealt with a bottling company that claimed an unfavourable NLRB ruling was invalid. Similar cases working their way through the courts will be watched closely by the administration as it decides whether to appeal the decision. The issue may ultimately end up before the Supreme Court.

It is staggering to consider that some 200 years of recess appointments have been called into question. And it is unclear what that might mean for all of the decisions taken by officials and judges appointed in that manner. For now the focus is on Mr Obama's contentious NLRB appointees, as well as on Richard Cordray, who was given a recess appointment to head the newly established Consumer Financial Protection Bureau (CFPB). Without the president's nominees, the NLRB would not have had a quorum over the past year, meaning all of its decisions could be declared invalid (as one decision was in this case). Similarly, much of the CFPB's authority could only vest once a director had been appointed. Its activity to this point may now be challenged. 

Mr Cordray, in particular, finds himself in a difficult spot. On January 24th Mr Obama formally nominated him to his current post, which means he is at the centre of two battles—a political one over what he might do in the future, and a legal one over the things he did in the past. /economist