Nat'l Labor Relations Bd. v. Canning
The Supreme Court ruled that President Obama's 2012 appointments of three members to the National Labor Relations Board were invalid, because the Senate was not truly in recess — it was meeting in brief, twice-weekly pro forma sessions, leaving only a three-day gap between two of them.
At the same time, the Court broadly upheld presidents' longstanding power to make recess appointments during breaks that happen in the middle of a Senate session, not just between formal sessions, and to fill vacancies that first opened up before a recess began — settling constitutional questions about this presidential power for the first time in over two centuries.
“the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business”
The Court's core standard for deciding when the Senate counts as in session rather than in recess.
How it got here: The D.C. Circuit ruled the Board's order invalid because its recess-appointed members lacked authority, and the Board asked the Supreme Court to review that decision.
The Case in Depth
What happened
A Pepsi-Cola distributor, Noel Canning, was ordered by the National Labor Relations Board to sign a labor agreement with a union representing its employees. The company challenged the order, arguing the Board could not lawfully act because three of its five members had been placed there by President Obama through recess appointments made while the Senate was meeting in brief, twice-weekly pro forma sessions rather than taking an extended break.
The question before the Court
Could President Obama fill three seats on the National Labor Relations Board using his recess-appointment power, when the Senate was holding brief "pro forma" sessions every few days instead of taking a real break?
Why it matters
The ruling voided the labor order the improperly staffed Board had issued against the Pepsi distributor and cast doubt on other Board actions made during that period. It also gave the Senate a durable tool: by holding brief pro forma sessions every few days, the Senate can prevent any recess from lasting long enough to trigger the president's unilateral appointment power, reshaping how future confirmation standoffs play out.
What changes now
Because the Board lacked a validly appointed quorum when it ordered Noel Canning to sign the labor agreement, that order was void, and the underlying labor dispute had to be revisited by a properly constituted Board. The decision also affected other pending challenges to Board actions taken during the same period. Going forward, the ruling gives the Senate a clear way to block recess appointments simply by holding frequent pro forma sessions, and it establishes a rough framework — a three-day floor and a ten-day presumptive floor — for how long a recess must be before a president can use the power.
What this does not decide
The Court did not draw a precise line for recesses between four and nine days, calling them only "presumptively" too short and leaving room for an unusual emergency, such as a national catastrophe, to justify an appointment during a shorter break. It also did not decide how courts should evaluate such emergency claims if one arose.
Concurrences and dissents
Concurrence — Justice Scalia
Justice Scalia agreed the appointments were invalid but for far broader reasons. He argued 'the recess' means only the gap between formal Senate sessions, not mid-session breaks, and that 'vacancies that may happen during the recess' covers only vacancies that first arise during that recess, not pre-existing ones. He accused the majority of inventing atextual, unadministrable time limits and of letting presidents acquire power through unchallenged practice, calling this an 'adverse-possession theory of executive power.'
How the Court got there
The legal reasoning, step by step
- The Court treated the Recess Appointments Clause as a backup method for filling federal offices, meant to supplement — not replace — the normal process of Senate confirmation, and said it would give substantial weight to how presidents and the Senate had actually used the power throughout history when the constitutional text was unclear.
- The Court found the phrase 'the recess of the Senate' ambiguous and concluded it covers both breaks between formal sessions and breaks that occur in the middle of a session, reasoning that the Senate is equally unavailable to act on nominations either way, and pointing to a long history of presidents making such appointments during mid-session breaks without formal Senate objection.
- The Court also found the phrase 'vacancies that may happen during the recess' ambiguous and held it covers vacancies that arose before the recess began but still existed during it, reasoning that the narrower reading could leave important offices empty for long stretches and that presidents have filled such vacancies since the early 1800s.
- Because the Constitution does not say how long a break must be to count as a recess, the Court looked to the Constitution's separate rule that neither chamber can adjourn for more than three days without the other's consent, and concluded that a break of three days or less is too short, while breaks of four to nine days are presumptively too short absent an unusual emergency.
- Turning to the Senate's own rules, the Court held that the Senate is in session whenever it says it is and retains the power under its own procedures to conduct business, even if it plans to conduct none — because the Senate could pass legislation by unanimous consent at any of its pro forma sessions, and in fact did so during this very period, the Court treated those sessions as real sessions rather than recesses.
- Applying that standard, the Court concluded the Senate was never in an unbroken month-long recess but only in a series of three-day gaps between sessions, a length too short to trigger the recess-appointment power, so the President lacked authority to make the three Board appointments.
Doctrinal impact
Cases affected by this decision
Reaffirms The Pocket Veto Case (279 U. S. 655)
The Court leaned on this case's rule that long-settled government practice deserves great weight in interpreting ambiguous constitutional provisions.