Supreme Court Details Limits on President’s Recess Appointments Power: Court Unanimously Rules that Senate, Not President, Decides When Senate Is In Session; Pro Forma Sessions Preclude Recess Appointments

Sullivan & Cromwell LLP - June 27, 2014

The U.S. Supreme Court has clarified the circumstances under which the Recess Appointments Clause of the Constitution empowers the President to appoint executive branch officials and judges without confirmation by the Senate.  In National Labor Relations Board v. Noel Canning, No. 12-1281 (June 26, 2014), a unanimous Court yesterday affirmed the judgment of the U.S. Court of Appeals for the D.C. Circuit, holding that the Senate itself generally determines when it is in recess, and that short adjournments between pro forma Senate sessions convened every three days are not “recesses” triggering the President’s recess appointments power.  The practical effect of the decision was to invalidate appointments President Obama made in January 2012 to the National Labor Relations Board (NLRB). The Court did not, however, adopt the D.C. Circuit’s narrower interpretation of the President’s recess appointments power, which would have confined the use of that power to vacancies that actually arose during the same inter-session recess in which the appointment was made, contrary to how presidents of both parties have employed that power in modern times.  The decision gives many parties subject to NLRB enforcement actions an opportunity to challenge decisions the NLRB took during the period when it lacked a quorum of properly appointed members and could give rise to other challenges to agency actions as well.