Recess Appointments

Here is my post for a Symposium about Noel Canning over on SCOTUSBlog.  This post address how the Court should rule on the merits, if those issues are reached.  With the Senate’s deal today that will fill the NLRB vacancies with two people who were not recess appointees, it’s hard to say whether the Court will, in fact, hear the merits.  I think they could if they were so inclined, but they could also dodge the issue.

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1 Response

  1. DS says:

    I followed this until the end. Where did the Senate assert that the reason it was engaging in these pro forma sessions was to avert going to into Recess and allowing recess appointments?

    I know the Senate minority believed this, but as the minority faction they do not speak for the Senate as an institution. Raines v. Byrd, 521 U.S. 811, 824 (1997). And I know members of the House believed this, but they’re members of the House, not the Senate. And I know that when the Senate did this during the Bush administration Harry Reid specifically announced he was doing it to block recess appointments, but I know of no similar announcement by him this time around (indeed, Reid publicly supported Obama’s recess appointments).

    My understanding was that the Senate went into pro forma sessions because the House refused to adjourn and thus the Senate was constitutionally forbidden from adjourning for more than three days. Certainly, it’s clear that the House’s motivation for this gambit was because it believed it would block recess appointees, but that doesn’t demonstrate what the Senate’s understanding was.

    Still, I feel like there’s part of this story that I’m missing, since most folks I’ve read who argue that the Senate’s view should control agree that it means the recess appointments were invalid.