National Labor Relations Board v. Canning

"(1) Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate, and (2) whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess."

Petitioner brought suit against Respondent alleging violations of the National Labor Relations Act (“NLRA”). An administrative law judge ruled against the Respondent. Respondent appealed and a three-member panel upheld the ruling. Two of the members were recess appointments. The President appointed the members without Senate confirmation under his recess-appointment power. The Senate had adjourned for several weeks, but met every three days in pro forma sessions to comply with the Adjournments Clause.

Respondent appealed to the D.C. Circuit, which ruled in Respondent’s favor. The D.C. Circuit vacated and held that the President exceeded his recess-appointment power on two grounds. First, the President’s recess-appointment power only applies during inter-session recesses between enumerated sessions of the Senate, and the Senate was not in recess when the President made the appointments. Secondly, the President may only exercise the recess-appointment power for those vacancies that “may happen” during inter-session recesses, and may not be used to fill vacancies which exist when the recess begins. The Supreme Court granted certiorari, and requested the parties to brief and argue the third question as to whether the President may exercise his recess-appointment power when the Senate convenes for three-day pro forma sessions.