U.S. Supreme Court

SCOTUS strikes down Obama's recess appointments made during three-day recess

The U.S. Supreme Court has struck down President Obama’s three recess appointments to the National Labor Relations Board, made during a short break between pro forma sessions of the Senate.

In his opinion (PDF) for the court on Thursday, Justice Stephen G. Breyer said Obama lacked the power to make the recess appointments during a three-day recess in January 2012 because the time period was too short. Looking to historical practice, Breyer added that a recess of more than three days but less than 10 days is “presumptively too short” for a recess appointment.

The decision was unanimous in the judgment. Justice Antonin Scalia concurred in the judgment in an opinion joined by Chief Justice John G. Roberts Jr., Justice Clarence Thomas and Justice Samuel A. Alito Jr.

At issue was the president’s ability to make recess appointments without Senate confirmation under the Constitution’s appointments clause. It gives the president 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.”

At the time of the appointments, the Senate was holding pro forma sessions every Tuesday and Friday in an effort to block recess appointees.

For purposes of the appointments clause, Breyer said, “the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here.”

Though Breyer’s opinion struck down the NLRB appointments, he read the appointments clause more expansively than the federal appeals court that heard the case. Breyer said the clause applies both to recesses between formal sessions of Congress, as well as recesses in the midst of a session. And he said the clause applies to vacancies that occur prior to a recess, but continue to exist during the recess.

But the president was not free to ignore the pro forma sessions of Congress held every Tuesday and Friday during the month-long recess, Breyer said. “Three days is too short a time to bring a recess within the scope of the clause,” he wrote.

Breyer said the court seeks “to interpret the clause as granting the president the power to make appointments during a recess but not offering the president the author­ity routinely to avoid the need for Senate confirmation.”

Scalia’s concurrence said the appointments clause applies only to formal breaks of Congress, and applies only to vacancies that occur during those formal breaks. “The court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future presi­dents against future Senates,” Scalia wrote.

Breyer countered that Scalia’s interpretation “would render illegitimate thousands of recess appointments reaching all the way back to the founding era.”

The decision could invalidate hundreds of decisions by the National Labor Relations Board, CNN reports.

Breyer pointed out in his opinion that three new NLRB appointees have been confirmed to replace Obama’s recess appointees.

The case is National Labor Relations Board v. Canning.

Prior coverage:

ABAJournal.com: “Is appointments clause a ‘historic relic’? SCOTUS appears ready to curb presidential power”

ABA Journal: “SCOTUS ponders whether the president can make appointments while Congress is out”

ABAJournal.com: “SCOTUS to consider when the president may make recess appointments”

Update at 11:45 a.m. added Alito to the justices joining in the concurrence.

We welcome your comments, but please adhere to our comment policy and the ABA Code of Conduct.

Commenting is not available in this channel entry.