Town Hall –
The U.S. Supreme Court heard oral arguments Monday regarding the constitutionality of President Obama’s recess appointments to the National Labor Relations Board.
Obama selected Richard Griffin Jr., Sharon Block and Terence F. Flynn to the NLRB without congressional approval January 4, 2012. The appointments provided the NLRB with the quorum needed to vote.
Article II Section II of the Constitution stipulates:
“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.”
However, at issues is whether or not the Senate actually was in recess. SCOTUSrecounts:
The day before the appointments – January 3, 2012 – Congress had technically begun the second session of the 112th Congress, but the Senate had quickly adjourned, and most senators left town.
However, the Senate did hold several very brief sessions. These are known as “pro forma” sessions, because little or no work was accomplished. Instead, usually one senator would come into the Capitol and convene the Senate for a short time before then adjourning it again. The whole point of these brief periods of business is an attempt to limit the length of time that the Senate is deemed to be in “recess.”
The U.S. Court of Appeals for the District of Columbia already ruled the appointments “constitutionally infirm” because they were not made during the “the Recess of the Senate.”
The president cannot, it explained, make them during intra-session breaks like the one that occurred in January 2012, when the second session of the 112th Congress had already begun.
The court also ruled that even during an inter-session recess, the president cannot use his recess appointment power to fill a vacancy that already existed before the recess. Instead, he can only make recess appointments to fill vacancies that were created during the recess.