Two and a half years ago, President Obama flagrantly bypassed the Senate and appointed three members to the National Labor Relations Board, claiming the Senate was in recess. Today, a unanimous Supreme Court held that the president’s actions were unconstitutional. The court reaffirmed that it is the Senate that controls the procedure and manner of carrying out its constitutionally assigned advice and consent role on executive appointments, not the president.
In invalidating these NLRB appointments, the court noted that the president’s recess power is a “subsidiary, not a primary, method for appointing officers,” and that the Founding Fathers meant for Senate consent to be “the norm.” In concluding that the president exceeded his authority under constitution in this instance, the court determined “three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.” The president cannot use this subsidiary method for appointments to “overcome serious institutional friction.”
The court also concluded that it is up to the Senate to determine when it is, and when it is not, in session. Under the court’s standard, the Senate was in session during the pro forma sessions at issue.
“[T]he pro forma sessions count as sessions, not as periods of recess. We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is.” – NLRB v. Noel Canning
The court also held that the president can fill any existing vacancy during any intra- or inter-session recess. This was a point upon which Justices Scalia, Thomas, Alito, and Chief Justice Roberts disagreed with the majority opinion. According to these four justices, the president’s power under the recess appointment clause should only be available during inter-session recess periods of the Senate. But a majority of the court concluded otherwise.
In light of today’s opinion, the president appears to have great latitude to make recess appointments. Congress, however, also has great authority to check the president’s recess appointment power by holding pro forma sessions. This, in practice, would give substantial power to a Congress willing to protect its constitutional authority. As only 45 Senators – and not the entire body – signed the amicus brief to the court asserting that authority, it seems that the Senate may not always be willing do so.