Obama's "Recess" Appointments and the Constitution

President Obama kicked off the new year by making a handful of recess appointments, including three NLRB appointees. This touched off a firestorm of legal commentary. Volokh Conspiracy has a nice recess appointment round-up, featuring links to commentary ranging from libertarian-leaning Richard Epstein, to conservative John Yoo, to liberal Laurence Tribe.

At the risk of over-simplifying, here's the gist of the back-and-forth:

• Certain appointments by the President require the "advice and consent" of the Senate.
• Per Article II, Sec. 2, Cl. 3 of the U.S. Constitution: "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."
• The Senate went home for the holidays.
• Pro-Recess: A-ha! The Senate is in "recess" and Obama can make recess appointments!
• Anti-Recess: Nope. The Senate is holding "pro forma" sessions!
• Pro-Recess: Those don't count, President Obama can declare that the Senate is in recess.
• Anti-Recess: Who do you think determines if the Senate is in recess... the President... or, I don't know... the Senate!? Talk about a no-brainer!
• Pro-Recess: Yeah, but these "pro forma" sessions are just a bogus ploy to block recess appointments, the Senate isn't actually doing anything, so the President can call it what it is... a recess!
• Anti-Recess: Not doing anything!? How quickly you forget! The Senate just passed the payroll tax extension during one of these pro forma sessions!

Well, I won't make you suffer through any more of my dumbed down version. If you're interested in this subject, the Department of Justice dropped a 23-page pro-recess opinion on January 6th. And, SCOTUSblog has the details on the first legal challenge to Obama's NLRB appointees. Maybe, if we're really lucky, we'll get some actual court opinions on this fascinating subject!

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.