NLRB v. Noel Canning
The Court ruled that the President's power to make recess appointments without Senate approval covers both breaks between the Senate's formal yearly sessions and breaks that happen in the middle of a session, and covers jobs that became empty before the break began, not just during it.
But the Court also held that President Obama's three appointments to the National Labor Relations Board were invalid anyway, because the Senate had kept itself technically in session through brief "pro forma" meetings every few days, meaning the actual gap between sessions was only three days -- too short to count as a real recess.
“the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business”
The Court's core rule for deciding whether pro forma sessions count as the Senate being in session.
How it got here: The D.C. Circuit set aside the NLRB's order, ruling the appointments invalid on broader grounds; the Board asked the Supreme Court to review that ruling.
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. The company challenged the order, arguing the Board couldn't act because three of its five members had been improperly placed there by President Obama using his recess-appointment power while the Senate was holding brief pro forma sessions rather than taking a real extended break.
The question before the Court
Could the President use his power to make "recess appointments" when the Senate was holding brief, twice-a-week pro forma sessions rather than a true extended break?
The Court's answer
Partly — the Court said the President's recess-appointment power does reach both mid-session and between-session breaks of sufficient length, and it can be used to fill jobs that became vacant before the break began, not just during it. On that reading, the power is broader than the lower court had said.
But applying that broader test to these specific appointments, the Court still ruled against the President. Because the Senate held brief pro forma sessions every few days and retained the ability to act during them, the real gap in this case was only three days — too short to count as a recess at all. So the three NLRB appointments were invalid, and the Board's order could not stand.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The ruling curbs presidents' ability to bypass the Senate on appointments by defining how short a break can be and still count as a "recess," while also giving presidents broad power to fill jobs during longer breaks even if the vacancy arose earlier. Practically, it undid the challenged NLRB decision and pushed presidents to work more carefully around Senate scheduling tactics when staffing agencies and courts.
What changes now
The ruling is a final decision on the merits, resolving both the scope of the recess-appointment power and the validity of the specific NLRB appointments at issue. Because the appointments were invalid, the underlying NLRB order against the Pepsi-Cola distributor could not stand. The decision also set standards -- the three-day and ten-day benchmarks, and the "Senate says it is in session" rule -- that continue to govern how future presidents and Senates navigate recess appointments.
What this does not decide
The Court did not decide that presidents can never make recess appointments during short breaks; it left open a "very unusual circumstance," like a national catastrophe, that could justify one during a break shorter than ten days. It also did not resolve how courts should evaluate disputes over whether the Senate genuinely retains the capacity to act during any given session.
Concurrences and dissents
Concurrence — Justice Scalia
Justice Scalia agreed the appointments were invalid but for far broader reasons, and would have held that "the Recess" means only the gap between the Senate's formal annual sessions, never a break in the middle of one, and that the President can only fill vacancies that first arise during that gap. He argued the majority's reliance on historical practice let the presidency accumulate power by a kind of "adverse possession," undermining the Senate's role and the constitutional text's plain meaning.
How the Court got there
The legal reasoning, step by step
- The Court first asked whether "the recess of the Senate" in the Constitution covers only breaks between the Senate's formal annual sessions, or also breaks taken in the middle of a session. Finding the text ambiguous, the Court looked to the purpose of the clause -- keeping the government staffed while the Senate is unavailable -- and to two centuries of presidents making mid-session recess appointments without formal Senate objection, and concluded both kinds of break count.
- The Court then set rough time limits: because the Constitution lets either house block the other from adjourning more than three days, a break of three days or less is too short to trigger the recess-appointment power, and a break of four to nine days is presumptively too short absent an unusual emergency.
- Next the Court asked whether the President can use a recess appointment to fill a job that became vacant before the recess started, not just one that opened up during the recess itself. Again finding the text ambiguous, the Court relied on the clause's underlying goal of keeping offices filled and on a long history of presidents filling pre-existing vacancies, concluding the power reaches both kinds of vacancy.
- Finally, the Court addressed how to treat the Senate's pro forma sessions -- brief meetings held every few days where the Senate said no business would be conducted. The Court held that the Senate is in session whenever it says it is, so long as it retains the power under its own rules to act, such as by unanimous consent, even if it chooses not to.
- Applying that rule, the Court found the Senate had retained the capacity to act during its pro forma sessions, so the actual gap between sessions when the appointments were made was only three days -- a period the Court had already concluded was too brief to allow a recess appointment.