Are Hundreds of Presidential Recess Appointments Unconstitutional?

A little known case arising out of a dispute between a soda bottling company in Yakima, Washington company and a local union has become a constitutional challenge.  On Monday, the Supreme Court will hear oral arguments in National Labor Relations Board v. Noel Canning, a case that has garnered little attention. The resulting decision could forever alter an important presidential power and put into question hundreds, if not thousands, of initiatives and executive decisions made in the past decade.

Article II, Section 2 of the Constitution outlines the powers and responsibilities of the President. One such responsibility is the appointment of certain federal officers with the advice and consent of the Senate, such as judges or ambassadors. During the late 1700s travel to the nation’s capitol was often difficult and the Senate might not be able to act for several months at a time. In anticipation of this, the drafters included Clause 3, which allows the President to fill vacancies that may occur without the Senate’s approval in order to keep the government functioning. These recess appointments are valid until the end of the next session of the Senate, unless the appointment was confirmed in the interim.

Today, Senate recesses are much shorter and travel is easier, with the longest breaks during the annual August break (which has extended to up to six weeks) and the break between the end of the congressional session to the start of the next. However, actual work days for Congress have also been fewer. Last year, the House spent 118 days working on legislative business, the Senate worked 99 days – the lowest amount since 1991. This excludes “pro-forma” sessions in which the Senate has someone bang the gavel in and out, but no one is there do any actual business.

It’s kind of like having your co-worker clock you in and out at work while you’re taking a day – or several days – off.

This has led to confusion for many as to when Senate is actually on a recess and when appointments can occur. The confusion is the difference between intersession appointments (i.e. the Senate’s annual break before the next session) and intrasession appointments (i.e. when the Senate has pro-forma sessions every three days, sometimes taking an entire month off).

Recess appointments have been made since the days of George Washington. A few hundred years later, the frequency has increased and the need for their use has been less about the availability of the Senate and more about political fights. In recent history, President Ronald Reagan made recess appointments 240 times during his term, President Bill Clinton 140, and President George W. Bush, 171. By comparison, President Barack Obama has used this authority 32 times thus far.

According to recent court rulings, they’ve been doing it wrong.

On January 25, 2013, the U.S. District Court of Appeals for the District of Columbia ruled that appointments to the National Labor Relations Board by President Obama the previous year were unconstitutional because they were made during a recess between pro-forma sessions and not during an annual recess. The three judge panel further ruled that they were invalid because the actual vacancies did not happen during a recess (the vacancies had been in place for well over a year). Three months later, the U.S. Court of Appeals in the Third Circuit in Philadelphia agreed, ruling that the appointment of Craig Becker in 2010 to the NLRB was not valid because he wasn’t appointed during an intersession recess.

In both rulings, it came down to the meaning of the word “the.”

Clause 3 specifically reads “The President shall have 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” (emphasis added). Both courts interpreted “the Recess” as the annual break between sessions. Consequently all decisions made by the NLRB since are considered invalid because it did not have the required quorum, including the one which initiated the constitutional challenge.

There is little doubt that the Senate has used pro-forma sessions as a form of obstruction. In the last few months of President George W. Bush’s term, Senator Harry Reid used this tactic to prevent any recess appointments occurring during the Thanksgiving and winter breaks. Since the beginning of President Obama’s term, partisan obstruction has reached new levels, to the point that even Chief Justice Roberts has declared that the number of judicial vacancies has caused a state of emergency in our nation’s courts. In 2011, House Tea-Party Republicans in collusion with Senate Republicans purposely manipulated the Congressional calendar in an effort to prevent any and all recess appointments.

The government’s position is that the appointments have supporting precedence from previous administrations. Others have argued that the Senate’s use of appointment obstruction in the form of pro-forma sessions is essentially nullification of the president’s constitutional powers. In short, the government’s position is that the recess appointment power is valid anytime the Senate is not available, regardless of the length of time.

If the Supreme Court upholds the lower courts’ rulings, an unknown number of decisions by various agencies could be put into disarray, possibly going back decades. Even if the court narrowly construes its decision to the case at hand, it will limit the power of the office of the presidency – present and future. This could be especially challenging in the face of increased partisanship and the inability of Congress in recent years to work effectively with the White House.

The SCOTUS decision is expected in June.


Erick Ehrhorn
Erick Ehrhorn4 months ago

thanks for the article.

Jim Ven
Jim Ven4 months ago

thanks for the article.

Sarah Hill
Sarah Hill2 years ago

He can only use recess appointments IF the Senate is in recess, they weren't. Since Reid has been in charge, nothing has gotten done in the Senate.

Jonathan Y.
Jonathan Y.2 years ago

Interesting to see what SCOTUS will do with this can of worms.

Robert Hamm
Robert Hamm2 years ago

A good amount of that debt was created by the 8 years of wars that were unfunded. They werent even on the books David. So finally PUTTING the cost of the war public and on the books OF COURSE made the report debt go up massively.

Robert Hamm
Robert Hamm2 years ago

Yawns we all know there is debt David. What to do about it is whats debatable. Obama isnt creating the debt….he is trying to keep the eocnomy from tanking any waorse. Taxes and rtrgulations are not whats creating the problem even though that is always what is blamed first.

WE need stability not ideology. Washington is locked into stonrly polarized ideology right now. There is no compromise. Untill there is we will coninue to slide down. Globalization is the worst thing to hit our country, On top of that we fought a 8 year war no one paid for until Obama out it in the budget. On top of the the CPI had all kinds of shit take out of it which shoeed the cost of living was going up which kept wages low and SS low. There are a Myriad of reasons we are in the shape we are in. There is no one thing and it certainly wasnt casued by Obama. It was caused Washington. It was caused by the people who have bought Washington.
Recognizing that does not make me a Marxist. ALL Monetary systems need to to controlled from the radical elements who will use said system completely for their own advantage and at our expense. Understanding that trickle down isntt working as it should also does not make me a Matxist. Trickle down didnt even exist as a policy untill the Reagan Years. Well, it did before the depression. But the world is a completely different place than it was then. Greed created the last depression too. Controlled Greed is good Uncontrolled greed destroys ge

David F.
David F.2 years ago

Robert, It’s difficult to overlook some common statements that infect this sight. Our debt goes from 8.4 Trillion when the Dims, Poleis Reid Obama took power 7 years ago, to a projected 20 trillion by the time BO leaves. Now here comes a another state media victim Quote Joe L: “Thanks to him (Obama) the deficit is going down”.

Jaime A.
Jaime Alves2 years ago


Robert Hamm
Robert Hamm2 years ago

And calling everyone who disagrees with you a Marxist shows your complete lack of critical thinking..

Robert Hamm
Robert Hamm2 years ago

David I have seen NO facts. I have seen rhetoric and made up facts. Propaganda is all you EVER bring here. Facts that are made up to prove a forgone agenda are NOT true facts.