Recess Appointments: What's the Big Deal?

By Robyn Hagan Cain on December 06, 2012 | Last updated on March 21, 2019

Back in January, President Obama capitalized on the Senate's generous recess allowance and placed two Democrats and one Republican on the National Labor Relations Board (NLRB).

The NLRB supervises union elections and resolves disputes between private-sector employers and employees, but it can't operate without a quorum. The recess appointments preserved the quorum, The Wall Street Journal reports.

It was also a strategic move. The Journal explains that by making the appointments when he did, "Obama doubled to two years the length of time the appointees can serve. That's because a recess appointment expires at the end of the Senate's next session -- in this case at the end of 2013 -- or when the appointee or someone else is nominated, confirmed or permanently appointed, whichever occurs first."

Though both Democrats and Republicans have been known to use recess appointments, Republicans argue that Obama violated the Constitution to fill vacancies because the Senate was technically in session, The Associated Press reports.

Whether or not the Senate is session seems straightforward. The Senate was on a 20-day break over the Christmas and New Year's holidays when Obama made the appointments, but it was gaveled in and out every few days for pro forma sessions. The purpose of the sessions? Thwarting Obama's recess power.

Now it's up to the D.C. Circuit Court of Appeals to determine whether the President or the Senate decides if the Senate is "in session."

That question arrived at the appellate court courtesy of Noel Canning -- a Washington state bottling company -- which is arguing that an NLRB decision that it must enter into a collective bargaining agreement with a labor union is invalid because the Board didn't have a quorum to rule. Senate Republicans filed an amicus brief in support of Noel Canning's position that the appointments are invalid, according to the AP.

The appellate court heard arguments in the case this week, but it could avoid addressing the ultimate issue by deciding that the matter is a nonjusticiable political question.

Related Resources:

Justice Department Memo in Support of Obama's Recess Appointments (FindLaw's Courtside)
The Ground Rules of the Appointments Game (FindLaw)
Court Requires 'Substantial Evidence' of Break in Impasse (FindLaw's D.C. Circuit Blog)