When can the President break the gridlock by making recess appointments?

October 15, 2013

President ObamaThe Constitution gives the President the power to make nominations to various offices, and gives the Senate the power to advise and consent. But the President and the Senate don’t always see eye-to-eye when it comes to confirming the President’s nominees — or perhaps one could say the President isn’t assured of seeing the 60 “ayes” needed to override a filibuster in the Senate.

When the President experiences this kind of non-traffic gridlock, the Recess Appointments Clause may be a vehicle that will speed the process of filling a vacant office, at least temporarily. But what are the rules of the road for this presidential power?

In N.L.R.B. v. Noel Canning, the Supreme Court will review the decision of the Court of Appeals for the District of Columbia Circuit that three of President Barack Obama’s appointments to the five-member National Labor Relations Board (NLRB) violated the Recess Appointments Clause, for two reasons: first, the appointments were not made between Senate sessions (intersession) and instead were made within a session (intrasession), and second, the vacancies filled by the recess appointments did not arise intersession, and instead merely existed intersession after arising intrasession.

In its order granting the NLRB’s certiorari petition — a ticket to review of the lower court’s two rulings, rather than a traffic citation — the Court asked the parties to address a third question, as well: Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

If the Court decides that the President exceeded his constitutional powers, it could call into question whether hundreds of NLRB decisions are invalid, for lack of a quorum.

Oral arguments haven’t been scheduled. And we’ll have to wait to see if two Justices will team-up for “good cop, bad cop” questioning of the attorneys for the parties. Or if Justice Thomas will exercise his right to remain silent.