So, NRLB v. Canning is on the docket, and it raises an interesting question. If the President has the power of recess appointments, but the Senate never adjourns, it effectively kills that power.

The Economist describes it this way:

... National Labour Relations Board (NLRB) v Canning, which concerns the scope of the president’s power to make “recess appointments”. Ordinarily, presidential appointees must be confirmed by the Senate, but the constitution grants the president “power to fill up all vacancies that may happen during the recess of the Senate.”

For much of January 2012, the Senate conducted no business; instead, every so often, one lonely Republican member would stroll into the empty chamber to bang a gavel twice: once to call the Senate to order and once to adjourn it. This was done to prevent Mr Obama from making any recess appointments (Democrats did the same thing when George W. Bush was president). Mr Obama decided that the Senate was, in fact, in recess, and appointed three members to the NLRB, which adjudicates American labour disputes and requires a quorum of at least three members to do its work.

In January a three-judge panel ruled the appointments invalid. It held that it is up to the Senate to make its own rules, such as deciding whether or not it is in session; the president may not simply over-rule it. The Supreme Court will revisit the issue. Should it rule in the president’s favour, it might give him (and any future president) a simple way to side-step Senate confirmation of his more controversial appointees. Should it rule against him, it would make it easier for a recalcitrant Senate to prevent a president from filling ambassadorships, judgeships and executive positions at multiple agencies. Given how dysfunctional America’s government already is, that doesn’t sound terribly appealing.

Assuming then that SCOTUS rules for the Senate, what incentive would they ever have to adjourn?

This is a genuine question about the balance of power - are there reasons that would compel or otherwise incentivize the Senate to recess if SCOTUS rules in their favor? Alternatively, is there another means by which the President could could still make appointments that the Senate might not otherwise approve if this ruling stands.

  • 1
    Is this a rhetorical question? – Sam I am says Reinstate Monica Oct 15 '13 at 20:40
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    I'd imagine that they'd have the exact same incentive to adjourn that they would have if the SCOTUS ruled the other way. whatever that is. – Sam I am says Reinstate Monica Oct 15 '13 at 20:42
  • No, this is a real question. It has significant reprecussions for the balance of powers, and it seems as though either decision would significantly alter the scales. So, I'm trying to see if I am neglecting something in my analysis. The ramifications of this seem to be huge in any event – Affable Geek Oct 15 '13 at 20:44
  • Premise of your question is faulty. The power to make resource appointments was granted by the constitution because there was a time where the Congress did not meet regularly. It isn't a granted power to the President that is being checked by the Senate; rather, it is a Check provided to the President on forcing Congress to work. – Drunk Cynic Jan 10 '17 at 3:29

adjourn - A motion to adjourn in the Senate (or a committee) ends that day's session.

The senate adjourns so that individual senators can go home and spend time with their family or sleep and be confidant that they haven't missed any important votes or other senate business.

recess - A temporary interruption of the Senate's proceedings, sometimes within the same day. The Senate may also recess overnight rather than adjourn at the end of the day. Recess also refers to longer breaks, such as the breaks taken during holiday periods, pursuant to concurrent resolution.

The when the senate adjourns into an extended recess so that individual senators can go home and spend time with their family or sleep and be confidant that they haven't missed any important votes or other senate business.

They have that exact same incentive regardless of how the SCOTUS rules. Of course, if the SCOTUS finds in their favor, than they might have an additional incentive to not adjourn, but the exact same incentive to adjourn will still be there.

The whole purpose or recess appointments is so that the senate is not obligated to be in session all the time when the president has to appoint a necessary vacancy. It's not supposed to be a loophole for the the president to get around senate confirmation.

So if the senate wants to be in session all the time so that they can refuse to confirm an appointment that they want to confirm, that's their right.

http://en.wikipedia.org/wiki/Recess_appointment http://www.senate.gov/pagelayout/reference/b_three_sections_with_teasers/glossary.htm

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