Disaster in the DC circuit
So the DC circuit decided that recess appointments are only allowed between sessions of congress, not during intersession recesses. Scott Lemieux:
The opinion is an atrocity, classic “hack originalism for dummies,” relying heavily on the fact that recess appointments during nominal sessions of the Senate are a relatively recent phenomenon (although there’s precedent going back to 1867, and “[t]he last five Presidents have all made appointments during intrasession recesses of fourteen days or fewer”), without considering that the Senate systematically refusing to consider presidential nominees is also a contemporary phenomenon. The “pro forma” sessions the D.C. Circuit sees as breaking the constitutional “Recess” are intended solely to prevent the president from exercising the recess appointment power, the very check that the framers included to counteract the possibility that the Senate would obstruct the functioning of government by serially refusing to consider nominees. Separation of powers analysis that refuses to acknowledge how the government actually functions provides a clinic in the limitations of law-office history.
But while they were at it, they also reversed a decision that’s been in effect since 1823. So much for stare decisis. But then I guess David Sentelle probably knows the intent of the founders better than the court of that era, so that makes sense.