Today, in a blow to the Obama administration, the U.S. Supreme Court ruled 9-0 that President Obama’s “recess appointments” to the National Labor Relations Board violated the Constitution in NLRB v. Noel Canning.
Art. II, section 2, clause 3 of the Constitution allows the president to “fill up all Vacancies that may happen during the Recess of the Senate.” On Jan. 4, 2012, President Obama made several recess appointments even though the Senate had been convening “pro forma” sessions every three days. These appointments were challenged in a labor dispute before the NLRB, and the U.S. Court of Appeals for the D.C. Circuit struck them down as unconstitutional.
Today, the Court, in an opinion by Justice Stephen Breyer, held the president may make recess appointments to existing vacancies during intrasession (breaks during a session of Congress) and intersession (breaks between sessions of Congress) recesses of a “sufficient length.” The Court determined the vacancy need not occur during the recess, which upholds the broad practice dating back to the presidency of James Madison.
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