OIP Derangement Syndrome Comes Out of Recess

Today a panel of judges on the US Circuit Court for the District of Columbia ruled that President Barack Obama overstepped his authority in some recess appointments he made a year ago. Ordinarily the Senate would have been in recess at that time, but constitutional maneuvering by the House of Representatives had forced it to remain in pro forma session.

The Senate’s Democratic leaders had in fact come up with that pro forma gambit in the last years of the Bush-Cheney administration as a way to prevent recess appointments. It had never been challenged in court before, so the judges’ decision against President Obama involved a new question without clear guiding precedents.

On the other hand, the judges didn’t just rule against recess appointments while the Senate was in pro forma session. They went beyond that question and also ruled that a President can make such appointments only during a formal recess by the Senate (long ago legally dubbed the “intersession”) and not during any of its shorter breaks during the year (so-called “intrasession” recesses).

That contradicted precedents from the 11th Circuit Court in 2004, the 9th Circuit Court in 1985, and the 2nd Circuit Court in 1962. It also contradicted actual practice by Presidents, supported by Justice Department rulings, going back to the early 1900s.

The DC Circuit judges also stated that President Obama could use his recess appointment power only to fill vacancies that arose during that recess, not those occurring because the Senate (or, in this case, a minority of the Senate using the filibuster) hadn’t acted on nominations. That part of the new decision contradicts practice and rulings going back to 1823.

Personally I think that the recess appointment clause did get stretched, particularly with a ruling in 1884 that officials appointed that way can remain in position even after the Senate formally considers and rejects them. I also think the Senate filibuster, which is inextricably bound up in Obama’s recess appointments, has been increasingly abused and is outside the spirit of the Constitution. But I don’t get to impose my preferences arbitrarily.

The US Fourth Circuit panel can try to do just that. In this case, they decided that President Obama could not operate by the same rules as every other President for the past century. And that looks like OIP Derangement Syndrome.