National Labor Relations Board v. Noel Canning et al.

When there is a vacancy, the Recess Appointment Clause enables the President to appoint an officer to the vacancy if the Senate is in recess, but not when the Senate is not officially adjourned.

Before the President can appoint an officer of the United States, he must obtain the “advice and consent of the Senate.” On occasion, when the Senate is in recess and vacancies occur, the President has the power to fill vacancies through the Recess Appointments Clause. The purpose of the Recess Appointments Clause is twofold: (1) It is a method for appointing officers of the U.S. by granting the President power to make appointments during a Senate recess, but not offering the President the authority to avoid Senate confirmation, and (2) It is a historical practice, which the Senate and President has recognized is necessary and appropriate in certain circumstances. In 2011, the Senate passed a resolution of pro forma sessions, which held that while there is no business conducted by the Senate, the Senate is not formally adjourned.

Based on the resolution, Respondent filed the suit in Circuit court, arguing that the appointment of three Board members to the National Labor Relations Board was appointed when the Senate was in pro forma sessions, not when it was on official recess. The Circuit court ruled the appointments fell outside the scope of the Clause, arguing it does not include intra-session recesses, and the phrase “vacancies may happened during recess” only applies to vacancies that result during a recess. The Court affirmed the judgment of the Court of Appeals, but rejected the reasoning of the Court of Appeals. The Court clarified that the Recess Appointments Clause empowers the President to fulfill any existing vacancy during any recess, whether intra-session or intersession as long as the recess consisted of sufficient length. However, the Clause does not include appointments made during pro forma sessions when the Senate is not officially adjourned.