NLRB v. Noel Canning (2014)

The Recess Appointments Clause lets the President fill vacancies that may happen during the recess of the Senate with commissions that expire at the end of the next session. To block such appointments, the Senate began holding brief pro forma sessions every three days during breaks. On January 4, 2012, during one of those breaks, President Barack Obama made three recess appointments to the National Labor Relations Board, saying the pro forma sessions were a sham. Noel Canning, a Washington State bottling company that lost a labor case before the board, argued the appointments were invalid and the board lacked a quorum.

On June 26, 2014, the Supreme Court unanimously held the appointments invalid. Justice Stephen Breyer, writing for five justices, held that the clause covers both breaks between sessions and recesses within a session, and vacancies that arise before a recess, but that a break of fewer than ten days is presumptively too short to qualify. Crucially, the Senate is in session when it says it is, provided it retains the ability to conduct business under its own rules, so pro forma sessions count.

Justice Antonin Scalia, joined by three others, concurred only in the judgment, arguing that the clause applies only to breaks between sessions and only to vacancies that first arise during them. The decision gave the Senate a reliable way to prevent recess appointments, and they have been rare since. In late 2024 and 2025 some proposed that the President use his constitutional power to adjourn Congress when the chambers disagree, which would test the decision, though that power has never been used. Hundreds of board decisions made with the invalid quorum had to be reconsidered.