The new DC Circuit opinion invalidating President Obama's recess appointments to the National Labor Relations Board (NLRB) is what we in the trade like to call "a big deal." Indeed, this promises to be the most significant separation-of-powers case in years, and the Justices may well be forced to take this up on an expedited basis. If the panel opinion stands, then everything that the NLRB has done in the past year would be invalid (because the required quorum was absent).
The first thing to say about the panel opinion is that it is broad--way too broad. I agree with Judge Griffith that the panel should not have addressed the issue of whether a vacancy must "arise" during the intersession recess in order for the President to exercise his Article II power. The panel also could have issued a narrower holding (e.g., that the pro forma sessions held by the Senate during its adjournments meant that the NLRB recess appointments were invalid.)
Having said that, I am convinced that the opinion is correct as a textual and as an original matter when it says that "recess" means only the time between congressional sessions, not an "adjournment" in the middle of a session. Nevertheless, there are some other considerations that the panel did not credit, but that might matter when the case is appealed.
1. Since 1947, the Senate and the Executive Branch have operated on the understanding that most intrasession recess appointments are fine. One person's gloss on the text is someone's else setting aside of the text, but practice must count for something. Nevertheless, there are precedents (most notably INS v. Chadha) that reject a functional interpretation of checks-and-balances.
2. This is the type of issue where judicial intervention is unnecessary. The Senate and the White House are more than capable of defending their turf, and whatever balance they strike is good enough. But that argument cannot be squared with many of the Court's precedents on executive-congressional disputes.
3. The panel opinion could unsettle a lot of law. This poses a pragmatic problem, but one that could be finessed in a variety of ways if necessary. (UPDATE: The opinion also calls many of the rules issued by the Consumer Financial Protection Board into question, as its Director was recess appointed in the same way and the statute creating the agency says that a Director must be in place for certain purposes.)
4. If the holding stands, future presidents will be driven to give more power to staff members who are unaccountable and do not need Senate confirmation. Thus, the panel's claim that its decision will limit the Executive Branch is dubious. Get ready for more labor "czars" if the NLRB cannot function.
In the end, though, my view is that this decision will be affirmed, though maybe on narrower grounds.