The U.S. Court of Appeals for the D.C. Circuit ruled earlier this year that the Senate’s “pro forma,” or cursory, recess was not valid for the purposes of a presidential recess appointment. The appeals court decided that a president could bypass the Senate only during breaks between the legislature’s sessions, known as inter-session recesses.
“The court of appeals erred in holding that the Recess Appointments Clause does not authorize presidential appointments during intra-session recesses,” the administration argued in the court brief. “The plain meaning of the term ‘recess’ — a period of cessation from usual work — applies to both inter- and intrasession recesses .”
The administration added that “nearly all Presidents have demonstrably made at least some, and often many, appointments that the court of appeals would deem unconstitutional.”
Two other federal appeals courts have agreed with the D.C. Circuit’s interpretation about when the president can make recess appointments.
The ruling has serious consequences for the board, which operated for months with just three of its five seats filled. If the Supreme Court upholds the appeals court’s ruling it would nullify much of the NLRB's rulings during that time.
The case before the Supreme Court is NLRB v. Noel Canning.