NCPA - National Center for Policy Analysis

Court Strikes Down Recess Appointments

June 27, 2014

The Supreme Court ruled on Thursday that President Obama's appointments to the National Labor Relations Board (NLRB) without Senate confirmation were illegal, reports the Associated Press.

President Obama appointed the NLRB judges in 2012, claiming that the Constitution gave him the power to make temporary appointments while the Senate was in recess. Unfortunately for the president, the Senate was not in formal recess when he made the appointments, as the legislative body was holding sessions every three days (known as "pro forma" sessions).

Noel Canning, a soft drink bottling company, challenged an NLRB decision against his company on the grounds that the board members had not been properly appointed.

Justice Breyer, who authored the majority opinion, wrote that a Constitutional recess would have to be at least 10 days to be considered a recess, triggering the recess appointments provision.

While the judgment was unanimous, the justices were split on the limits of the recess power. Concurring in the judgment, Justice Scalia -- joined by Justices Thomas, Alito and Roberts -- wrote that the majority had abolished the Constitution's limits on the recess power by allowing the power to be exercised during congressional breaks. According to Scalia, the Constitution only recognizes one recess period: the yearly break between the two sessions of Congress. Only vacancies that arise during that time, he wrote, are constitutionally eligible for recess appointments.

While President Obama is not the first president to make recess appointments, he is the first to have made them when Congress specified that it was not, in fact, in recess.

Source: Mark Sherman, "High court rebukes Obama on recess appointments," Associated Press, June 26, 2014. 


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