Also known as: Recess Appointment Clause · recess appointment power
Written by attorneys — see sources below.
A constitutional provision authorizing the President to fill vacancies by granting commissions that expire at the end of the Senate's next session. The provision applies only when the Senate is in recess of sufficient duration. The Senate remains in session, and no recess occurs, when it holds pro forma sessions without formally declaring itself in recess.
The President appointed Dr. Rivera acting director of a federal agency while the Senate convened brief pro forma sessions every three days and never declared a recess. A regulated company challenged an order issued by Dr. Rivera on the ground that the appointment lacked constitutional authority. The court held the appointment invalid because the Senate had remained in session.
The President named three members to the National Labor Relations Board between two pro forma sessions that the Senate had scheduled every Tuesday and Friday. An employer subject to a Board order argued that the appointees could not count toward a quorum. The court set aside the order because the Senate had not entered 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 caseYes. The Senate controls its own status and is deemed in session when it convenes pro forma sessions without formally declaring a recess. Brief sessions that open and close the Senate on the record satisfy the constitutional requirement even if no substantive business occurs.
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Actions taken by an officer whose appointment exceeded the Recess Appointments Clause lack legal force. A court reviewing those actions may invalidate them on the ground that the officer lacked authority to act.
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No. The constitutional test turns on whether the Senate has formally declared itself in recess, not on how many members are physically present. Pro forma sessions preserve session status regardless of attendance or legislative output.
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Only if the Senate has formally declared a recess of sufficient duration. The clause covers both inter-session and intra-session recesses, but the Senate's formal declaration controls whether any break qualifies.
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…"no business... transacted," every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923. Invoking the Recess Appointments Clause—which gives the President the power "to fill up all Vacancies that may happen during the Recess of the Senate," Art. II, § 2, cl. 3—the President appointed the three members in question…