Ordinarily the President must obtain “the Advice and Consent of the Senate” before appointing an “Office[r] of the United States.” But the Recess Appointments Clause of Article II, § 2 creates an exception. It gives the President alone the power “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” In a purported exercise of his recess-appointment power, President Obama appointed three members of the National Labor Relations Board between pro forma sessions of the Senate held on January 3 and January 6, 2013. The D.C. Circuit invalidated those appointments, holding that the Recess Appointments Clause only permits recess appointments during intersession recesses and only for those vacancies that arose during the intersession recess.
In NLRB v. Noel Canning, the Supreme Court affirmed the judgment of the D.C. Circuit, but on much narrower grounds. Justice Breyer, writing for the majority, agreed with the D.C. Circuit that the President did not have the authority to appoint the three members of the NLRB during a three-day recess between pro forma sessions. But instead of broadly holding that the Constitution only permits recess appointments during intersession recesses and only for those vacancies that arose during the intersession recess, the majority held that the President has the power to make recess appointments during any recess of sufficient duration, whether inter- or intrasession, and for any vacancy then existing. But even with that power, the Court held that the three-day adjournment between pro forma sessions did not constitute a recess of sufficient duration for purposes of the Recess Appointments Clause, thus rendering the appointments invalid. The Court was not persuaded by the administration’s argument that the recess at issue was actually much longer because the Senate was not actually conducting business during its pro forma sessions. According to the Court, the Senate is in recess when it says its in recess, and even pro forma sessions are enough to keep the Senate in session. Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, concurred only in the judgment, arguing that the Recess Appointments Clause only permits recess appointments during intersession recesses and only for those vacancies that arose during the recess.
The effect of this decision subtly shifts the balance of powers between the executive and the legislative branches by allowing the Senate to prevent the president from making any recess appointments by merely holding pro forma sessions during what is effectively a recess. This power would be even greater had the Senate not recently reformed the filibuster (in which case, the Senate would be able to filibuster appointments while in session and deny the president’s ability to make recess appointments while effectively in recess). But it is likely a victory for the Senate’s minority party nonetheless.