Supreme Court Associate Justice Stephen Breyer
The 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. Constitution, Art. II, sec 2, cl. 3

In its long-awaited decision this morning in NLRB v. Noel Canning, the Supreme Court of the United States unanimously held that the president's recess appointments to the National Labor Relations Board were unconstitutional because the Senate remained in pro forma session during its 2011-12 winter break, thus preventing the "recess" from ever occurring. The ruling therefore invalidates all the decisions made by the NLRB while recess-appointed members were sitting, because the board effectively lacked a true quorum during that period.

Justice Scalia, writing for himself, Chief Justice Roberts and Justices Thomas and Alito, would have gone further, and denied the recess appointment power except in cases in which the Senate was in full recess between sessions, and for which the vacancy in question was created during that intermission.

The ruling effectively gives a road map to future Senates to blocking a president from the other party from ever employing the recess power, holding that the Senate is in session whenever it claims to be, and retains its basic powers to transact business. Two hundred years after it made practical sense during the horse-and-buggy era, the Recess Appointments Clause today is effectively dead.

More below the fold.

From December 17, 2011, to January 20, 2012, the GOP-controlled Senate House** denied the Senate's request that both chambers adjourn for winter break, thus blocking the Senate's ability to go into recess. Instead, the Senate held pro forma sessions every three days to keep the lights on. And for the court today, that was sufficient:

In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for pur­poses of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here.

The standard we apply is consistent with the Constitu­tion’s broad delegation of authority to the Senate to de­termine how and when to conduct its business. The Constitution explicitly empowers the Senate to “determine the Rules of its Proceedings.” Art. I, §5, cl. 2. And we have held that “all matters of method are open to the determi­nation” of the Senate, as long as there is “a reasonable relation between the mode or method of proceeding estab­lished by the rule and the result which is sought to be attained” and the rule does not “ignore constitutional restraints or violate fundamental rights.”

The Obama Administration had urged the Court to take a more functional view of whether a recess existed, to look at what the Senate actually was doing. Justice Breyer, writing for the Court, rejected this view:
The Solicitor General asks us to engage in a more realis­tic appraisal of what the Senate actually did. He argues that, during the relevant pro forma sessions, business was not in fact conducted; messages from the President could not be received in any meaningful way because they could not be placed before the Senate; the Senate Chamber was, according to C-SPAN coverage, almost empty; and in practice attendance was not required.

We do not believe, however, that engaging in the kind of factual appraisal that the Solicitor General suggests is either legally or practically appropriate. From a legal perspective, this approach would run contrary to prece­dent instructing us to “respect . . . coequal and independent departments” by, for example, taking the Senate’s report of its official action at its word. From a practical perspective, judges cannot easily determine such matters as who is, and who is not, in fact present on the floor during a particular Senate session. Judicial efforts to engage in these kinds of inquiries would risk undue judicial interference with the functioning of the Legislative Branch.

The disagreement between the two opinions today focuses on breadth—the four conservatives would have limited the power even more narrowly to only those vacancies which arose during the recess, and not merely those which existed prior to the recess but remained unfilled—the sort of appointments presidents of both parties had been making almost as long as there has been a presidency. As Justice Scalia summarizes:
The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates. To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority’s insistence on deferring to the Executive’s untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court’s role in controversies involving the separation of powers and the structure of government.
But I just think this is wrong: the court has given the Senate a road map to how to block the president's recess appointment powers, and I have difficulty envisioning when we'll see the power successfully used in the future.  If the president and the Senate are of the same party, the nominations (under the new Senate rules) get approved by a majority; if they aren't, there never will be a true recess again.

** Corrected.

Originally posted to Adam B on Thu Jun 26, 2014 at 07:52 AM PDT.

Also republished by Daily Kos.

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