But Judge Joseph A. Greenaway Jr., in his dissent, said the other extreme also is possible — that the Senate can gum up all nominations by refusing to act, and staying in pro forma sessions where they can’t conduct business but can deny the president his powers.
“By basing the recess appointment power on the Senate’s procedure, the majority has committed the Recess Appointments Clause to the Senate’s discretion and procedural manipulations,” Judge Greenaway wrote.
Both of the judges who overturned Mr. Obama’s appointment were nominated by President George W. Bush, while Judge Greenaway was nominated by Mr. Obama.
Senate Minority Leader Mitch McConnell, who has led the fight against the recess appointments, cheered the ruling and said the officers who were appointed through the questionable recess powers should take a hint from the judges’ decision.
“It’s time for the unlawfully appointed nominees to step down,” the Kentucky Republican said.
The Obama administration already has appealed the D.C. ruling to the Supreme Court.
In that case, the administration spent most of its appeal brief attacking the court’s ruling that the president can’t even make an appointment unless the vacancy itself happened while the Senate was in “the recess.”
That will be more difficult to do in the 3rd Circuit case, which doesn’t address when vacancies arise and instead focuses on the appointment power itself.