UPDATE (06/27/2014): On Thursday, the U.S. Supreme Court issued its opinion in NLRB v. Noel Canning, unanimously affirming the D.C. Circuit’s invalidation of three recess appointments to the National Labor Relations Board (NLRB) made by President Obama on Jan. 4, 2012. However, the Court split 5-4 on its rationale for the decision. The majority held that “the Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.” This interpretation is much broader than that of the four justices concurring in the judgment (Scalia, Roberts, Thomas, and Alito), who supported the D.C. Circuit ruling that the president has the power to fill vacancies that occur only during a recess between two formal sessions of Congress.

The Court first addressed whether the president’s recess appointment power applies only to a recess between two formal sessions of the Senate (an inter-session recess) or if it also applies to informal recesses that occur during one session (an intra-session recess). The Court concluded that the purpose of the Recess Appointments Clause of the Constitution and historical practice support an interpretation that the president’s power applies during both types of recesses. However, to avoid the possibility that a president could choose “to make unilateral appointments every time the Senate takes a half-hour lunch break,” the Court reasoned, “If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause . . . . And a recess lasting less than 10 days is presumptively too short as well.”

On the question of whether the president may fill vacancies that existed prior to the recess, the Court found that “the broader construction, encompassing vacancies that initially occur before the beginning of a recess, is the ‘only construction of the constitution which is compatible with its spirit, reason, and purposes; while, at the same time, it offers no violence to its language.’” As with the Court’s interpretation of “the Recess,” the Court found over 200 years of historical practice favoring its interpretation.

Finally, the Court addressed the three recess appointments to the National Labor Relations Board (NLRB) at issue in this case. The Court held that “for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.” Applying this standard here, the Court found that the Senate’s pro forma sessions between Dec. 20, 2011 and Jan. 20, 2012 were in fact sessions, not a recess. As a result, when the Senate recessed for three days from Jan. 3 to Jan. 6, the period was too short to trigger the president’s power to make recess appointments.

The Court’s opinion in this case is significant in that it is the first time the Court has interpreted the Recess Appointments Clause. The decision will not immediately affect the makeup of the NLRB because the three members whose appointments were at issue have been replaced by Senate-confirmed appointees. However, hundreds of NLRB decisions issued while the invalid recess appointees were members may be invalidated. Also, since the Senate has confirmed the appointment of Richard Cordray to the Consumer Financial Protection Bureau, his position is not threatened by the ruling. But decisions Cordray issued during his tenure as a recess appointee are likely to be challenged in future litigation.

The decision will also affect the outcome of similar cases still pending before the Supreme Court or other courts. Even more significant is that the Court’s presumption that recesses shorter than 10 days do not trigger the president’s power could open the door for the Senate to effectively block any administration’s recess appointments by choosing never to recess for longer than 10 days.

UPDATE (1/13/2014): The U.S. Supreme Court heard oral arguments today on the constitutionality of President Obama’s recess appointments to the NLRB, at issue in NLRB v. Noel Canning.  In June 2013, the Supreme Court granted a petition for review of the D.C. Circuit’s January 2013 decision but limited its review to the following three questions: 

• Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate;
• Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess; and
• Whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

Additional information: http://www.scotusblog.com/case-files/cases/national-labor-relations-board-v-noel-canning/

. . . 

On Jan. 25, the D.C. Circuit Court of Appeals invalidated three recess appointments to the National Labor Relations Board (NLRB). President Obama made these appointments on Jan. 4, 2012, the same day he appointed Richard Cordray as Director of the Consumer Financial Protection Bureau (CFPB), a crucial agency designed to protect Americans from abuses by credit card companies and others in the financial industry.

The day before the president made the appointments, the Senate convened the second session of the 112th Congress, although few senators attended the so-called “pro forma” session, and the only order of business was to adjourn until Jan. 6. The Obama administration viewed the Senate as being in recess between Jan. 3 and Jan. 6, 2012, since members were not present or conducting any business. When appointing Cordray and the NLRB members, President Obama relied on the Recess Appointments Clause in Article II of the U.S. Constitution, which states, “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.”

However, critics of the NLRB's decisions challenged President Obama’s ability to make appointments during short recesses after a new session of Congress has started, despite the fact that presidents have been making recess appointments during such congressional breaks for more than 100 years. Instead, critics of the board argued that a president may make a recess appointment only during “the Recess” between the first and second years (sessions) of each Congress.

The D.C. Circuit agreed with this interpretation of the Recess Appointments Clause. The court said that because the NLRB vacancies at issue did not arise during “the Recess,” the three members were not lawfully appointed.

Although an appeal to the U.S. Supreme Court is expected, the D.C. Circuit’s decision threatens to invalidate hundreds of NLRB decisions issued over the past year. It also means that the board no longer has a quorum and cannot hear appeals. Without a quorum, contested union elections and unfair labor practices cannot be resolved until the Senate confirms new members of the board.

Unless the Supreme Court overturns the case, Obama’s high-profile appointment of Cordray to head the Consumer Financial Protection Bureau could also be challenged. The Dodd-Frank Act required that a director be lawfully appointed before the agency could issue certain rules or pursue enforcement actions. Thus, if Cordray's appointment is invalidated, any related activity that occurred during his time at CFPB could be struck down by the courts. Sen. Mike Johanns (R-NE) has also proposed a bill that would halt all funding to the CFPB for any actions that require a director.

For more than a century, many presidents have exercised the power to make recess appointments during “the Recess” between sessions of Congress and less formal recesses. Dozens of agencies have relied on recess appointments to keep the business of government moving forward over the years. Even the judges on the D.C. Circuit recognized that their interpretation of the Constitution is incompatible with history.

Given the gridlock facing nominees for boards and commissions, the limits placed on recess appointments by the court will mean more agencies will have more vacant positions for longer periods of time. Those agencies will only be able to conduct some of the business Congress has assigned to them, or acting administrators will make key policy decisions. While some sources have framed the court’s decision as a huge blow to President Obama, the ruling actually represents a significant limitation on the power of any president to run the government effectively.

Editor’s Note (06/27/2014): This article was originally published on Feb. 7, 2013 with the title “Court Invalidates National Labor Relations Board Recess Appointments, Future of Consumer Financial Protection Bureau Director Now Uncertain.”