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Opinion
Noah Feldman

Court to Obama: Recess Is Over

Executive power lost the battle but won its war with the Senate over recess appointments in the case NLRB v. Noel Canning decided today by the U.S. Supreme Court.
This is a legal playground.
This is a legal playground.

Executive power lost the battle but won its war with the Senate over recess appointments in an important case decided today by the U.S. Supreme Court. The court held that the president may make recess appointments during both breaks within sessions and breaks between sections, for offices that come open either before or during these recesses. This part was the win for executive power. It also said that breaks within sessions of between three and 10 days are presumptively not recesses -- and therefore canceled the National Labor Relations Board appointments that Barack Obama had made and that were challenged in this case. This was the battle at hand, and the administration lost it.

The margin of victory was paper thin. Five justices, the liberals plus Justice Anthony Kennedy, constitute the majority. The four conservatives, led by Justice Antonin Scalia, would have restricted recess appointments to breaks between sessions and to offices that come open only during those breaks. This would have represented a much stricter interpretation of the Constitution, giving much less latitude to the executive. Because both sides agreed that the three-day breaks during which Obama made the NLRB appointments were too short, the conservatives’ opinion counted as a concurrence. In substance, however, it was very much a dissent. Scalia read a fair bit of it from the bench, signaling his displeasure with the result.