NLRB v New Vista Nursing and Rehabilitation: The Third Circuit Further Fuels the Constitutional Conflict Over Recess Appointments

Abstract

A new opinion by the Third Circuit that followed the D.C. Circuit in invalidating President Obama’s use of the recess-appointments power may actually strengthen the president’s case. The decision may focus the Supreme Court’s attention on how much legal uncertainty the Court could create by holding intrasession recess appointments invalid. Beyond that, the new decision devastates the D.C. Circuit’s textualist reading of the Recess Appointments Clause. The Third Circuit’s more policy-oriented analysis, if pursued with a more accurate view of the Framers' purposes, actually points toward upholding intrasession recess appointments under current institutional conditions.