In their rush to frame a federal appellate court opinion as a personal rebuke of President Obama, Fox News host Megyn Kelly and frequent guest Jay Sekulow misrepresented the truly radical and unprecedented nature of a decision of the U.S. Court of Appeals for the District of Columbia on presidential recess appointments. Although Kelly and Sekulow erroneously reported that the opinion only affects Obama's recess appointment of members to the National Labor Relations Board, it actually casts doubt on hundreds of presidential appointments and subsequent actions since the 1940s.
On the January 25 edition of America Live, Kelly repeatedly reported that the DC Circuit “clipped President Obama's wings” by holding the Republican-controlled Senate was actually in session when Obama made recess appointments to the National Labor Relations Board, pursuant to long-standing presidential powers. The NLRB is, of course, a frequent bogeyman for both right-wing media and corporate interests because of its perceived favorability to unions. Kelly and Sekulow, who filed an amicus brief in the case as Chief Counsel for the American Center for Law and Justice, claimed the decision's holding depended on the fact that the Senate was technically in session because of a new parliamentary trick that gavels the Senate into "pro forma session" even though no business is conducted. This is inaccurate.
The DC Circuit opinion was the result of a company's challenge to an adverse decision of the National Labor Relations Board. Backed by the U.S. Chamber of Commerce and Sekulow, the company argued that the NLRB's decision that it had failed to abide by a collective bargaining agreement was in fact void, because three members of the Board allegedly had not been appointed pursuant to the president's recess appointments power. That is, although the Constitution allows the president to make appointments to executive bodies while the Senate is in intrasession recess, because the Senate was in “pro forma session,” the NLRB appointments were improper. The DC Circuit did not accept this argument.
Instead, the DC Circuit took the radical and unprecedented step of declaring that the real problem wasn't that Obama made the appointments while a Senate was pretending to be in session, but that the appointments happened during an intrasession recess as opposed to an intersession recess. Not only was this not what Kelly and Sekulow reported, but the ramifications of this decision go far beyond Obama's appointments to the NLRB. Presidential appointments during intrasession recesses have occurred frequently since at least the 1940s. For example, former President George W. Bush made 141 intrasession appointments during his presidency. According to the DC Circuit, however, those are as invalid as are Obama's three appointments to the NLRB.
As the DC Circuit admitted, this decision is in direct conflict with the 11th Circuit. Due to this circuit split and clear deviation from established government practice and law concerning presidential powers, the Supreme Court is certain to review the case.
However, the fact that it invalidates executive action taken by intrasession appointees is far more unsettling. Despite Kelly and Sekulow's satisfaction that the DC Circuit has temporarily called into question NLRB decisions made during Obama's presidency, they completely miss the bigger picture. This decision calls into question executive decisions taken by not only all 141 intrasession appointees of the past president, but agency actions taken by such appointees stretching back to World War II. The real story was once again a grim reminder of how important the DC Circuit is and that its current conservative makeup has far-reaching consequences.
Unlike Fox News, other conservative media actually read the opinion closely and correctly reported it. On the popular conservative libertarian blog, The Volokh Conspiracy, former Justice Department Office of Legal Counsel and assistant to the Solicitor General John P. Elwood analyzed the opinion:
A panel of the DC Circuit (Sentelle, Henderson, Griffith) today held that President Obama's recent recess appointments were invalid.
This is a very important and very broad holding-indeed, much broader than when it appeared that this case would be resolved on the President's ability to make recess appointments when the Senate was conducting “pro forma” sessions.
The main thrust of the court's opinion is that the recess appointment power extends only to intersession recesses-recesses between sessions of Congress-and not to intrasession recesses. Intrasession recess appointments have been made fairly commonly since WWII, and have been particularly common since the Reagan Administration. UN Ambassador John Bolton and Judge William H. Pryor, Jr. are two of the more high-profile intrasession recess appointments in recent years. The D.C. Circuit's holding is in acknowledged conflict with an Eleventh Circuit opinion from 2004. Intrasession appointments may be even more common than intersession appointments, so this is an important ruling as a practical matter.