Supreme Court Accepts Appeal In Recess Appointments Case

The Supreme Court accepts what will likely be one of the most important cases of its upcoming term.


With its current term coming to an end, the Supreme Court has been accepting many of the new cases that will be part of the term that will begin in October 2013, including specifically most of the cases likely to be argued during the first part of that term that lasts from October through December. Today, as widely expected, it accepted for argument a case that deals with the Presidential appointment power, a part of the Constitution that it has never dealt with before:

WASHINGTON — The Supreme Court on Monday agreed to decide whether President Obama violated the Constitution last year when he bypassed the Senate in making three recess appointments to the National Labor Relations Board.

The court will review a January decision from a three-judge panel of a federal appeals court in Washington that ruled against the administration on very broad grounds, calling into question the constitutionality of many recess appointments by presidents of both parties.

The three appeals court judges agreed that presidents may avoid the usual Senate confirmation process only during the recesses between formal sessions of Congress, which generally happen once a year. Two of the judges went further and said that presidents may fill only vacancies that arose during that same recess.

If the Supreme Court agrees on both points, it would markedly narrow the president’s recess appointment power.

In asking for Supreme Court review in the case, National Labor Relations Board v. Noel Canning, No. 12-1281, the administration sought an answer to only the broader questions decided by the appeals court. A decision in the administration’s favor on those points would leave open the more focused question of when appointments are proper during other breaks in the year.

But the Supreme Court, acting on the suggestion of the company that had won before the appeals court, agreed to answer a narrower question, too: whether the president may make recess appointments when the Senate is convening every three days in pro forma sessions. Though it had won in lower court rulings, the company, Noel Canning, did not oppose Supreme Court review.

If Mr. Obama’s appointments to the labor board were not valid, it lacked a quorum to make decisions, including one finding that Noel Canning, a soft drinks bottler, had violated the National Labor Relations Act by refusing to sign a labor contract it was said to have agreed to orally.

As I said, it was largely inevitable that the Court would accept the case for argument. For one thing, this is a case that goes to the core of a part of the Constitution that is causing a conflict among the two other branches of the Federal Governor. For another, the D.C. Circuit Court of Appeals decision, which I wrote about in January, was directly opposed to a ruling on essentially the same issue from the 11th Circuit Court of Appeals from the later years of the Bush Administration. Generally, the existence of a conflict among the Circuits is a prime motivator for the Court to accept a case for review, especially when it involves a potentially important Constitutional issue such as this.

There will be more to say about this case later this year when briefing and oral argument are complete, of course, but I don’t think it is an exaggeration to say that this could potentially be one of the most important Separation Of Powers cases that the Court has had to deal with in quite some time. If the Supreme Court accepts the narrow definition of the scope of the Recess Appointments Power that the D.C. Circuit used in its opinion, then it will essentially mean that this particular Presidential power, which was once widely used when there were gaps of many months between one session of Congress and another, would effectively become a dead letter given that the gaps between individual sessions are now typically very brief (in January, the gap between the adjourning of the 112th Congress and the swearing in of the 113th Congress was less than ten minutes, for example). If, on the other hand, the Court agrees with the assertion that pro forma sessions are not sufficient to meet the Constitutional definition of Congress being “in session,” then opposition parties would be robbed of a powerful tool to prevent Presidents from making controversial, albeit temporary, appointments while Congress is on vacation. Given the fact that the Court has never ruled on this issue before, it’s quite honestly anyone

FILED UNDER: Congress, Law and the Courts, US Constitution, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Just Another Ex-Republican says:

    Recess appointments wouldn’t have gotten so popular (under Presidents of both parties) if Congress (under both parties) got around to doing their Constitutional job to provide a timely yea or nay on appointments in the first place. It leaves me torn (like on a lot of things). I hate the increasing predominance of the executive branch, but Congress seems to be getting more uselessly dysfunctional by the minute, and decisions have to be made at some point. I think it’s a problem our Founders never envisioned–what do you do when Congress flat out refuses to attend to it’s duties, but the voters seem incapable (either through inattention or the stranglehold two parties have on redistricting and campaigning) of voting enough of the bums out to make a difference?

  2. HarvardLaw92 says:

    Recess appointments expire if not subsequently confirmed by the Senate, so I’d argue that nobody is robbing Congress of any power here. Congress has specifically acted, in what I consider to be an unconstitutional way, to prevent the president from exercising a power delineated to him by the Constitution.

    I mean, let’s be honest here: Congress is in recess at any time that a quorum of its membership isn’t available to debate or vote on business that comes before it. Gaveling an empty chamber and calling it a session of Congress is beyond ludicrous.

    Short version: Congress has decided that gridlock is the order of the day, and they have decided that they aren’t going to allow the president to ensure the working of government by exercising the power to go around them given to him by the Constitution.

  3. rudderpedals says:

    The DC Circuit’s opinion is remarkable in overreach and lack of judicial restraint. When Heller turns into your hat rack and and the 18th century dictionary comes out there’s little good afoot. I have problems with scribd, here’s the google link to the circuit opinion,10

  4. al-Ameda says:


    Short version: Congress has decided that gridlock is the order of the day, and they have decided that they aren’t going to allow the president to ensure the working of government by exercising the power to go around them given to him by the Constitution.

    Succinct, petty much dead on.

    The goal is to obstruct Obama in as many situations as possible, and right now the internal rules and procedures enable congressional Republicans to do so. (In the unfortunate event of a future Republican presidency we can expect that …. what goes around ….)

  5. legion says:

    @rudderpedals: Indeed. The stated opinion – of two of the three judges, no less! – that recess appointments could only be used to fill vacancies that appeared during that same recess is beyond ridiculous.

  6. William Wilgus says:

    @Just Another Ex-Republican: Our Founders never envisioned that one political party would endeavor to bring the Government to a screaming halt.