He can do it in the next five days. And he should. Because he’ll never again have the opportunity he has right now.

Twelve times in the past, a president has made an appointment to the Supreme Court during a period when congress was in recess. But the viability of a recess appointment is now less clear because of the June 26, 2014 Supreme Court decision in  NLRB v. Canning, a case which grew out of four recess appointments President Obama made on January 4, 2012. 

Recess appointments were widely used prior to President Obama:

  • Ronald Reagan: 232 recess appointments
  • George W. Bush: 171 recess appointments
  • Bill Clinton: 139 recess appointments
  • President Obama: 32 recess appointments by the end of 2013, his sixth year in office, with 4 invalidated in NLRB v. Canning.

Pro forma shams and shenanigans 

One chamber of congress may not recess for more than three days without the consent of the other chamber. To get around having to obtain specific permission, congress uses pro forma sessions which are nothing more than one member of a chamber walking in every three days and pounding the gavel to bring the empty chamber to order, then re-pounding seconds later to adjourn the session, to make sure they are technically never in recess for more than three days at a time. Of course, this is unnecessary if both chambers have agreed to the adjournment, which they usually do for extended breaks.

The main requirement of a valid recess-appointment is the appointment has to be made during a recess that is of sufficient length. Otherwise, appointments could be made while the Senate is on a lunch break. And, traditionally, it had always been understood that an appointment could not be made during a recess which was shorter than three days.

After Bush had made 171 recess appointments and was in his eighth year in office, Democrat Majority Leader Harry Reid came up with the idea of using “pro forma sessions” to prevent Bush from making more appointments during a recess.

So for the final year of the Bush error, even when the Democrat-controlled House agreed to a Senate recess (thus obviating the need for pro forma sessions), Reid would still hold pro forma sessions every three days to make sure the Senate was never in recess for a sufficient length of time to allow Bush to make a recess appointment.

The CFPA and NLRB appointments

On the night of President Obama’s inauguration, the Republican leadership met and strategized on how they could thwart everything President Obama attempted to do, whether they agreed with it or not. And idealistic purist politically-naive liberals gave them a huge assist by not showing up to vote in 2010 because President Obama had not yet punched their overnight express ticket to Utopia. Before the 2010 election, there were 57 Democrats in the Senate with two supportive independents, so Democrats only needed one Republican to attain 60 votes to break a Republican filibuster. After the 2010 election, Democrats needed an impossible-to-get seven Republicans, because Democrats lost six seats.

Republicans are philosophically opposed to the National Labor Relations Board and the Obama-created Consumer Financial Protection Agency. So they began filibustering his appointments to these agencies in an effort to weaken the agencies, even though they had no quarrel with the named-appointees. Due to the vacancies, the NLRB didn’t even have a quorum to function.

The Senate announced a recess that would run from December 20, 2011 until January 23, 2012. But the House — now controlled by Republicans because petulant Democrats failed to vote in 2010 — would not agree to the recess, specifically to force the Senate to hold pro forma sessions every three days, knowing this would prevent President Obama from making his appointments to the NLRB and CFPA during the recess.

On January 4, 2012, President Obama went ahead and made his four appointments, in between two pro forma sessions, arguing that the Recess Appointments Clause of the United States Constitution specifically granted him the authority and the pro forma sham could not take away his Constitutional authority because regardless of claiming they were still in session, they were really on the ski slopes in Jackson Hole.

NLRB v. Canning

Noel Canning Corporation, backed by the US Chamber of Commerce and Republicans, filed a lawsuit challenging President Obama’s NLRB appointments on the grounds that the Senate was in session when the appointments were made and thus Senate approval was necessary. On June 26, 2014, the US Supreme Court issued its 108-page NLRB v. Canning decision which boils down to this: if the Senate says it’s in session, it’s in session, even if it’s physically in Jackson Hole,  provided that, it is still able to conduct business. And then they made the “provided that” meaningless, by saying the recess resolution doesn’t necessarily control — just because the resolution specifically says the Senate will not conduct business, doesn’t mean that it couldn’t.

So what does that ruling mean for the present situation?

The Senate went into recess on Friday, February 12, 2016 before Justice Scalia died on Saturday. By unanimous-consent, the Senate adopted a recess resolution saying it would stand adjourned until February 22, 2016, with pro forma sessions scheduled for February 15th & 18th, unless the House consented to the recess, in which case the pro forma sessions would not be held. And the House did just that. The House agreed to the recess at 1:05 p.m. Friday by adopting Senate Continuing Resolution 31, which means pro forma sessions will not be held during this ten-day break.

And the break is of sufficient length. The court said three days was absolutely too short and anything less than ten days was presumptively too short. But this is ten days, not less than ten days.

Now that they know about Justice Scalia’s passing, Republicans will not take another ten-day break without holding pro forma sessions every three days. This may be the best opportunity President Obama will have to make a recess appointment.


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