Barack Obama made several recess appointments between Senate pro forma sessions, purporting to following Article II, Section 2, Clause 3, the Recess Appointments Clause. A challenge was brought against an action by the National Labor Relations Board (“NLRB”) against an employer who alleged that the NLRB action was invalid due to a lack of quorum because a majority of the Board members had received recess appointments. The U.S. Court of Appeals for the District of Columbia Circuit agreed with the employer, and the NLRB sought review by the U.S. Supreme Court.
CLDEF’s amicus curiae brief to the Supreme Court explained that the Senate’s role of “advice and consent” is a critical component of the Constitution’s system of checks and balances. CLDEF also explained that the recess appointment power was designed to be a very narrow and limited authority, only authorizing the President to make such appointments when there was no convened Senate to consider nominations. The amicus brief put the President’s actions in the context of a larger usurpation and agglomeration of power by the Executive Branch, part of a trend of “gradual concentration of the several powers in the same department.” (Federalist No. 51.)
The Supreme Court ruled that President does have the power to make appointments in inter-session, as well as intra-session, recesses of substantial length. However, the President’s recess appointments during a three-day recess between pro forma sessions, as in this case, are not valid because the sessions are too short to bring such appointments within the scope of the Recess Appointments Clause.