From January 4 to January 6, 2012, President Obama made several judicial appointments, including five to the National Labor Relations Board (“NLRB”). The Administration viewed this period as part of twenty-day “intrasession recess” (as opposed to “intersession recess” that occur between Senates, “intrasession recess” are much murkier in definition). The president has the power under the recess appointment clause in the Constitution to temporarily fill government positions when the Senate is in recess to confirm presidential nominees. The question is what constitutes “recess.”
The D.C. Circuit was the first to reach a decision by deciding that “Recess” refers to the period between of the Senate sessions when it is unavailable to receive the President’s nominations altogether. That court’s opinion said that for “the President to decide when the Senate is in recess would … giv[e] the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.” Although the Third Circuit agrees, the Eleventh Circuit in ruled in an unrelated case that the recess appointment clause is not limited to intersession appointments.
As there is disagreement amongst the circuit courts, the Supreme Court will likely hear the matter. If they agree with the D.C. and Third Circuits, then more than 900 rulings by the NLRB could be placed into legal jeopardy.