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On June 26, 2014, the Supreme Court issued its decision in National Labor Relations Board v. Noel Canning. This case presented three questions arising from President Obama’s attempt to make three recess appointments to the National Labor Relations Board or NLRB. First, it asked whether the President can exercise the recess appointment power during a temporary recess that occurs while the Senate is still in session, or is instead limited to recesses between enumerated sessions. Second, the case asked whether the President may exercise the recess appointment power to fill any vacancy that exists during a recess--including vacancies that arose before the recess occurred--or whether that power is limited to vacancies that arise during the recess.  Finally, the case asked whether the Senate is in continuous recess if, though effectively out of town, it continues to convene every three days in brief pro forma sessions.

In a 9-0 decision, the Court found President Obama’s attempted recess appointments to the National Labor Relations Board invalid.  In his opinion for the Court, Justice Breyer ruled that the Recess Appointments Clause empowers the President to fill any existing vacancy during any recess, whether it be intra-session or intersession, of sufficient length. He also held that the phrase 'vacancies that may happen during the recess of the Senate,' applies both to vacancies that first arise during a recess and to vacancies that arise before a recess but continue to exist during the recess. Finally, he concluded that because the Senate was in session during its pro forma sessions, the recess during which the President made the appointments was only 3 days, and therefore too short to trigger the President’s recess appointment authority.  The appointments were therefore invalid. Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined the opinion of the Court. Justice Scalia filed an opinion concurring in the judgment, which the Chief Justice and Justices Thomas and Alito joined. The opinion of the D.C. Circuit, which held that the recess appointments fell outside the scope of the Clause, was affirmed.

To discuss the case, we have Noel J. Francisco, Partner, Jones Day; Prof. Kristin E. Hickman, Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute, University of Minnesota Law School; and Prof. Michael B. Rappaport, Hugh and Hazel Darling Foundation Professor of Law, and Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law.

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