The phrase “the recess” in the Recess Appointments Clause, U.S. Const. art. II, § 2, cl. 3, applies to both an inter-session recess, and a intra-session recess of substantial length. 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. U.S. Const. art. I, § 5, cl. 4. A recess lasting less than 10 days is presumptively too short.
Respondent Noel Canning, asked the D.C. Circuit to set aside an order of the National Labor Relations Board ("NLRB"), claiming that three of the five Board members had been invalidly appointed. The nominations of the three members in question were pending in the Senate when it passed a resolution providing for a series of “pro forma session[s],” with “no business . . . transacted,” every Tuesday and Friday through January 20, 2012. Invoking the Recess Appointments Clause, U.S. Const. art. II, § 2, cl. 3, which gives the President the power “to fill up all Vacancies that may happen during the Recess of the Senate,” the President appointed the three members in question between pro forma sessions. Canning argued primarily that the appointments were invalid because the 3-day adjournment between those two sessions was not long enough to trigger the Recess Appointments Clause. The D.C. Circuit agreed that the appointments fell outside the scope of the Clause, but on different grounds. It held that the phrase “the recess,” as used in the Clause, does not include intra-session recesses, and that the phrase “vacancies that may happen during the recess” applies only to vacancies that first come into existence during a recess.
Can the President of the United States invoke the Recess Appointments Clause to fill a vacancy that exists during any Senate recess of substantial length?
The Supreme Court held that the phrase “the recess” applied to both intra-session and inter-session recesses. The Court also held that a recess lasting less than 10 days was presumptively too short and that the phrase “all vacancies” included vacancies that came into existence while the Senate was in session. The Court concluded that the recess at issue was only three days, and therefore, too short to trigger the President’s recess-appointment power because the pro forma sessions counted as sessions, not as periods of recess.