Will the Legality of Recess Appointments Be Decided by the U.S. Supreme Court?
The U.S. Supreme Court may likely decide the legality of the long-standing practice of recess appointments. The U.S. Court of Appeals for the District of Columbia Circuit recently made headlines when it invalidated President Obama’s nominations to the National Labor Review Board.
Under the U.S. Constitution, the President and the Senate both play a role in filling important federal government positions. Generally, the President nominates individuals, who must then be confirmed by the Senate. However, the Framers, likely anticipating that the process might not always proceed smoothly, also created an exception for recess appointments.
When the Senate is in recess, the President may make a temporary appointment without Senate approval. The specific Constitutional language authorizing recess appointment states: “[t]he 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”
Although the power has been available since the country’s founding, recess appointments are more commonly used today. President William J. Clinton made 139 recess appointments, while President George W. Bush made 171 recess appointments. As of January 5, 2012, President Barack Obama had made 32 recess appointments.
The NLRB appointments in question came during a three-day recess between two pro forma sessions of the Senate. Pro forma sessions are short meetings of the Senate or the House held for the purpose of avoiding a recess of more than three days, which requires the consent of the other House of Congress. Pro forma sessions have more recently been used during the Bush and Obama administrations to block recess appointments.
In the current case, the primary issue before the court was what constitutes a “recess” under the U.S. Constitution. “Either the Senate is in session, or it is in recess,” Chief Judge David Sentelle wrote on behalf of the three-member panel. “If it has broken for three days within an ongoing session, it is not in ‘the Recess’ described in the Constitution.”
The justices, all Republicans, also questioned the Obama Administration’s interpretation of the Constitution, arguing that its construction would give the President “free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.” The panel concluded, “This cannot be the law.”