Former Dean and former NYIT and UT Dallas professor Gurumurthy Kalyanaram reports on the recent important US Supreme Court decision on U.S. President’s authority to make appointments without Congressional approval when the Congress is in recess.
Upon appeal, in further reviewing the said lawsuit, the US Supreme Court affirmed that the President’s appointments to NLRB were not valid because the “recess” was “not of sufficient length” (i.e., too short and specifically only three days) and not consistent with the Constitution’s text and healthy practice. Specifically, the Court held that “The Recess Appointments Clause authorizes the president to fill any existing vacancy during any recess – whether occurring during or between sessions of Congress – of sufficient length. However, for purposes of the clause, the Senate is in session whenever it indicates that it is, as long as – under its own rules – it retains the capacity to transact Senate business.”
The Supreme Court, unlike the lower courts, did not invalidate the recess appointment of the President but merely defined the “recess” as one of sufficient length. Relying on historical practice extending over 150 years, the Court held that both inter- and intra-session recess appointments are valid as long as the recess was of "sufficient length." That length, according to the Court, is presumptively at least ten days. Moreover, the vacancy doesn't have to occur during the recess.
The overall the Supreme Court’s decision was predictable, and the decision was unanimous, 9-0. The case is National Labor Relations Board, Petitioner v. Noel Canning, et al.