Also known as: pro forma session · proforma session · proforma sessions · pro forma session of Congress
Written by attorneys — see sources below.
A brief formal meeting of the Senate held at regular intervals during an adjournment. The Senate uses such meetings to retain the capacity to transact business and to prevent itself from entering a recess of sufficient duration.
The President appointed Dr. Lopez acting director of the National Drug Review Center during a month-long Senate break. The Senate had scheduled brief pro forma sessions every three days and announced it would not enter a formal recess. A pharmaceutical company challenged the appointment. The court held the appointment invalid because the pro forma sessions kept the Senate in session.
The President appointed three members to the National Labor Relations Board between January 3 and January 6. The Senate had passed a resolution providing for pro forma sessions every Tuesday and Friday with no business transacted. Noel Canning challenged the appointments. The Court ruled the three-day gap between pro forma sessions too short to qualify as a recess.
The National Labor Relations Board found that Noel Canning, a Pepsi-Cola distributor, had unlawfully refused to reduce to writing and execute a collective-bargaining agreement with a labor union. The Board ordered the distributor to execute the agreement and to make employees whole for any losses. Noel Canning asked the Court of Appeals for the District of Columbia Circuit to set the Board's order aside, claiming that three of the five Board members had been invalidly appointed, leaving the Board without the three lawfully appointed members necessary for it to act. The three members in question were Sharon Block, Richard Griffin, and Terence Flynn. In 2011 the President had nominated each of them to the Board. As of January 2012, Flynn's nomination had been pending in the Senate awaiting confirmation for approximately a year, while the nominations of the other two had been pending for a few weeks. On December 17, 2011, the Senate by unanimous consent adopted a resolution providing that it would take a series of brief recesses beginning the following day, holding pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23, 2012. On January 4, 2012, the President, invoking the Recess Appointments Clause, appointed all three to the Board between the January 3 and January 6 pro forma sessions. Noel Canning argued that the appointments were invalid because each pro forma session terminated the immediately preceding recess, leaving only a 3-day adjournment. The D.C. Circuit agreed that the appointments fell outside the scope of the Clause on different grounds and set aside the order because the Board lacked a quorum of validly appointed members. The Supreme Court granted the Solicitor General's petition for certiorari and asked the parties to address whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions. The fact that the Board now has a quorum does not moot the controversy about the validity of the previously entered Board order.
View caseNo. The Senate remains in session when it holds pro forma sessions at regular intervals and does not formally declare a recess. Courts therefore treat the period as a session rather than a recess even if the break spans many days.
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Yes. When the Senate convenes pro forma sessions every three days and states that it remains in session, it retains the capacity to transact business. That formal action blocks the President from using the recess appointment power.
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The sessions still count as sessions. The constitutional test focuses on whether the Senate has formally declared a recess and retains the capacity to act, not on whether actual legislative work occurs during the meetings.
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…of the Senate," Art. II, § 2, cl. 3—the President appointed the three members in question between the January 3 and January 6 pro forma sessions. Noel Canning argued primarily that the appointments were invalid because the 3-day adjournment between those two sessions was not long enough to trigger the Recess Appointments Clause. The…