Supreme Court Agrees To Address Scope of Recess Appointments Power

This morning the Supreme Court granted review of the D.C. Circuit's decision holding that President Obama's recess appointment of three members of the National Labor Relations Board (NLRB) violated the Constitution's Recess Appointments Clause. The Supreme Court's resolution of the case will likely have significant ramifications for the Consumer Financial Protection Bureau (CFPB), the Director of which, Richard Cordray, was given a recess appointment on the same day as the NLRB members and whose appointment would also be invalid under the D.C. Circuit's reasoning. Depending on whether the Supreme Court adopts some or all of the D.C. Circuit's reasoning, its decision could also dramatically restrict the circumstances under which Presidents could make recess appointments.1

The Recess Appointments Clause provides that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." U.S. Const., art. II, § 2, cl. 3. In an opinion by Chief Judge Sentelle, joined by Judges Henderson and Griffith, the D.C. Circuit in January held that the Clause empowers the President to make recess appointments only during intersession recesses of the Senate—that is, formal breaks between congressional sessions—and not during intrasession adjournments, breaks that occur during the course of a congressional session. See Noel Canning v. NLRB, No. 12-1115 (D.C. Cir. Jan 25, 2013) (slip opinion), at 16-30.2 Chief Judge Sentelle and Judge Henderson also held that the President may make recess appointments only to fill vacancies that actually arise during an intersession recess of the Senate, rejecting a practice the Executive Branch has followed since the nineteenth century. See id. at 30-39.3 Because President Obama's appointments of the NLRB members occurred during an intrasession break and because the vacancies for those appointments had not arisen during an intersession recess, the court held that the President's appointments were unconstitutional. See id. at 40-44. Judge Griffith filed an opinion concurring in part, saying he would have decided the case solely on the intersession/intrasession ground. See id. at 47.

The D.C. Circuit made only passing reference to a third argument raised by Noel Canningthat the Senate's pro forma sessions held every three days prevented the Senate's 20-day break in January 2013 from constituting a "recess" for...