U.S. Supreme Court
Constitutional Law — Recess Appointments Clause
For purposes of the Recess Appointments Clause, a three-day recess is too short a time to bring the recess within the scope of the clause, rendering presidential appointments during the recess invalid.
Under the standard set forth here, the Senate was in session during the pro forma sessions at issue. It said it was in session, and Senate rules make clear that the Senate retained the power to conduct business. The Senate could have conducted business simply bypassing a unanimous consent agreement. In fact, it did so; it passed a bill by unanimous consent during its pro forma session on December 23, 2011. See 2011 S. J. 924; Pub. L. 112–78. The Court will not, as the Solicitor General urges, engage in an in-depth factual appraisal of what the Senate actually did during its pro forma sessions in order to determine whether it was in recess or in session for purposes of the Recess Appointments Clause.
Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments. 705 F. 3d 490, affirmed.
Breyer, J.; Scalia, J., concurring.