One of the frequently explanations for why the Supreme Court prefers to let circuit splits develop is that the Justices benefit from having the views of many court of appeals judges before addressing a subject themselves. Today’s Third Circuit opinion in NLRB v. New Vista Nursing & Rehabilitation serves that role admirably, adding two new perspectives to the existing circuit split on the breadth of the President’s recess appointment power.
The majority opinion took a different tack than the D.C. Circuit in Noel Canning v. NLRB. To begin with, it limited the scope of its decision to concluding that the Recess Appointments Clause applies only to recesses between Senate sessions (“intersession recesses”) and not recesses during those sessions (“intrasession recesses”), and did not take the additional step the D.C. Circuit did of addressing whether the vacancies so filled must arise during the recess of the Senate or whether the recess appointment power extends to vacancies that existed before the recess.
The majority’s reasoning also differed in significant respects. The majority found Founding era dictionaries inconclusive, saying that “[t]he word ‘recess’ lacks a natural meaning that clearly identifies whether it includes only intersession breaks or also includes intrasession breaks.” Slip op. 40. The majority concluded that state constitutions during the Founding era suggested the term “recess” was limited to intersession recesses (I’m not sure I was persuaded, but I can be dim), id. at 46-48, but that executive practice during the same period (which it noted “should be viewed with some skepticism” because of institutional self-interest in applying powers expansively) was consistent with the term also applying to “long intrasession breaks.” Id. at 50-52. The majority therefore concluded that “[s]tanding alone, ‘Recess of the Senate’ is thus ambiguous.” Id. at 54.
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