Recess appointment power is a constitutionally protected clause that allows the President of the United States to appoint officials to important posts if there are vacant seats during a Senate recess. However, after nearly 200 years of practice, the Supreme Court has issued limitations to that power with their decision June 26 in Noel V. Canning.

The issue, raised by the Noel Canning unit of Noel Corp., a Washington-based Pepsi-bottler, contended that a ruling by the National Labor Relations Board was invalid on the grounds that three of the five NLRB members had been invalidly appointed during times that should not have been considered recesses.

The NLRB members were appointed between “pro forma” sessions that took place on Tuesdays and Fridays during the holiday recess of 2012. Despite the fact that the appointments took place during that larger recess, the fact that Senate was active during those sessions raised questions as to whether or not the appointments fell under the presidential appointment power.

The Supreme Court looked at three factors to determine whether the NLRB members had been appointed erroneously: whether or not the words “recess of the Senate” applied to both intersession breaks as well summer and mid-session breaks; whether the words “vacancies that happen” referred to vacancies that came into existence during a break, or also those that exist when the break starts; and, perhaps most importantly, whether or not the three day space between the so called “pro forma” sessions was long enough to constitute a recess.

The Court upheld the first two questions saying that recess applied to both intersession and midsession recesses, and that “vacancies that happen” applied to the both those that existed before a break and those that happened during a break. On the last point, however, the Court ruled that the three-day span between the sessions conducted in 2012 was not long enough to be considered a recess, and therefore nullified the appointment of the three NLRB members.

According to Brian Hayes, former NLRB member and shareholder at labor firm Ogletree Deakins, “the questions that the court considered were really tee’d up by the initial DC circuit decision. The first thing that court said was that constitutionally when you look at the recess power, it was worded as applying to ‘the recess’ the reason that ‘the’ could only apply to the intersession recess that occurs between numbered sessions of a congress…The court rejected that broad constitutional interpretation, saying there have been many instances where presidents have appointed during intra-session recesses and any distinction between inter-session and intra-session recesses.”


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That distinction protects a number of historical appointments made during recesses, and while the appointments in this case were made during the recess that takes places during Christmas, because of the “pro forma” sessions that took place during that year, the recesses were not long enough to warrant the use of recess appointment power.

“What they said is obviously it cannot apply to and never has been applied to recesses, whether intra or inter, that are less than three days. That would mean the President has the ability to bypass the Senate simply because people go home for the weekend. Historically the recess needs to be at least 10 days,” Hayes says.

According to Andy Pincus, partner, Supreme Court and appellate practice, of Mayer Brown LLP, “the practical effect of today’s decision is to return the rules governing recess appointments to what just about everyone believed them to be before President Obama adopted a significantly broader view of that authority in January 2012.  Those rules give Senate the ability to block all recess appointments by convening for pro forma sessions – a practice that began under the Bush Administration and has continued in the Obama Administration.  The recess appointment power has receded into practical irrelevance as a result of this practice and today’s decision likely cements that reality.

While the decision has major implications for the tactics that Presidents employ in order to get their preferred officials into government posts, more critical is the immediate fall out this is likely to have on the decision made by the NLRB.

Hayes, who shared time with the members who were invalidated by the decision, says, “employers employees and the unions waited a long time to get their case decisions, I would hope that whatever happens the NLRB make those cases their first and only priority, they need to get those out because people have already waited long enough.”