D.C. Circuit Recess Rule and Previous Appointments When the trio of conservative judges on the D.C. Circuit ruled last month that President Obama's three recess appointments to the National Labor Relations Board were unconstitutional, the decision had immediate and wide repercussions for the administration. The ruling casts a shadow over scores of decisions by the N.L.R.B. and, if the ruling holds up, would invalidate them. It threatens the work of the Consumer Financial Protection Bureau, since its director was also appointed during a Senate recess. It provides legal cover for the Republican's sore-loser strategy, whereby they refuse to confirm nominees to whichever agencies they consider ideologically anathema. Thanks to a report by the Congressional Research Service, we also know that if the decision had the force of law during the last generation it would have precluded every president beginning with Ronald Reagan from making literally hundreds of appointments. The D.C. Circuit ruled that presidents can make recess appointments only during gaps between sessions of the Senate, not during breaks in Senate proceedings. Two of the three judges further declared that the only vacancies the president can fill are those that occur between sessions. By the C.R.S. count, 652 appointments by Presidents Reagan through Obama would have been blocked by those rules, because they came during breaks in Senate sessions or, even though they came during gaps between sessions, the actual vacancies did not occur in the gaps. In the Reagan years alone, the United States would have lacked ambassadors to Denmark, India, Israel, Morocco, Oman, Portugal and Saudi Arabia, a board of directors for Amtrak, representation at the U.N. General Assembly and hundreds of other appointees. In the first Bush administration, to name just two, Alan Greenspan's recess appointment as chair of the Federal Reserve Board would have been unconstitutional, along with Lawrence Eagleburger's as secretary of state. Remember John Bolton, the ambassador to the United Nations who didn't particularly like or appreciate the United Nations? Liberals protested when George W. Bush took advantage of a Senate recess to appoint him, but no one suggested that the appointment itself was illegal. Using the D.C. Circuit's criteria, though, it was. When the D.C. Circuit handed down its ruling, it was widely noted that the court had abandoned a century and a half of presidential practice, by enunciating radical new rules under which the president can make recess appointments. The C.R.S. report underscores how unrealistic, unworkable and basically crazy the ruling and its rules truly are.