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.
