Below are links to judicial decisions on recess appointments and to ongoing litigation.
In re District Attorney of the United States, 7 F. Cas. 733 (E.D. Pa. 1868) (rejecting argument that vacancies can be filled under the RAC if they arise while the Senate is in session).
Gould v. United States, 19 Ct. Cl. 593 (1884) The court states that a vacancy occurring during the Senate’s temporary adjournment from July 20 to November 21, 1967 could be filled under the RAC and indicates that the recess appointee could continue in office until the Senate rejected his nomination during its “next session,” which began on December 2, 1867.
United States v. Alloco, 305 F.2d 704 (2d Cir. 1962) (rejecting the arguments that the RAC is inapplicable to Article III judges and that the vacancy must arise during a recess for the RAC to apply)
United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) (en banc) (same)
Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (en banc) (holding that (1) recess appointments to Article III courts are allowed, (2) recess appointments may be made during “intrasession” recesses and (3) a vacancy need not arise during a Senate recess in order to be filled under the RAC).
See also Justice Stevens’s concurrence in the denial of certiorari (“it would be a mistake to assume that our disposition of this petition constitutes a decision on the merits of whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intrasession ‘recesses.’”)
For discussion of the Noel Canning and State National Bank cases, see here.
Noel Canning v NLRB, No. 12-1115, 12-1153 (D.C. Circuit, oral argument scheduled for December 5, 2012)
D.C. Circuit opinion (Jan. 25, 2013)– In opinion by Judge Sentelle, court holds that NLRB recess appointments violated the Recess Appointments Clause because (1) they were made during an intra-session, rather than an inter-session, adjournment and therefore not within “the recess” referred to by the RAC and (b) even if the appointments were made during the recess, the vacancies in question did not “happen” (i.e., occur) during that recess. Judge Griffith concurs as to the first ground only, finding it unnecessary to reach the second.
Brief for NLRB– This brief puts a good deal of emphasis on the argument that the Senate could not act during pro forma sessions absent unanimous consent. See p. 32 (“the Senate could have conducted business during its January 2012 break only if it reached subsequent agreement to do so by unanimous consent. Moreover, even if a majority of Senators had wanted to conduct business during the January break, a single Senator could have prevented the Senate from doing so by objecting.”) Because “a single objecting Senator could have prevented the Senate from conducting any business during the January break,” the NLRB argues that the pro forma sessions were “entirely different in kind from regular Senate working sessions.” See p. 41.
Interestingly, the brief also states that “[w]e assume for purposes of argument that there were two adjacent intrasession recesses,”(p. 31, n. 11), rather than a single intersession recess. Of course, the NLRB will need to decide, rather than just assume, the answer to this question by the end of the 112th Congress, at which time the terms of the NLRB recess appointees will expire if there was a single intersession recess.
The brief also argues that the President could make recess appointments during the three days between pro forma sessions. At the same time, it denies that the President could make recess appointments during “routine” Senate breaks, such as an evening adjournment or a long weekend. See p. 38 n. 20; p. 65.
Amicus Brief of Republican Senators– this brief is notable for raising, although not relying on, two fundamental objections to executive branch practice under the Recess Appointments Clause. First, it describes Attorney General Randolph’s opinion that the RAC applies only to “vacancies that occur while the Senate is in recess” as “well-reasoned.” (p. 6, emphasis in original). Second, it says that “there is much to be said” for the view that recess appointments can be made only during intersession, not intrasession, recesses. (pp. 11-12).
Other Briefs in the case may be found here.
State National Bank of Big Spring v. Geithner, 1:12cv01032 (D.D.C. Judge Huevelle) (response to the complaint due November 20, 2012)
Other Cases (as listed in the NLRB’s Statement of Related Cases):
Center for Social Change v. NLRB, Nos. 12-1161, 12-1214 (D.C. Cir.) (settlement reached)
Sands Bethworks Gaming, LLC v. NLRB, No. 12-1240 (D.C. Cir.)
Milum Textile Services Co. v. NLRB, Nos. 12-1235, 12-1275 (D.C. Cir.)
Independence Residences, Inc v. NLRB, No 12-1239 (D.C. Cir.)
Aerotek, Inc. v. NLRB, No. 12-1271 (D.C. Cir.)
Kimberly Stewart v. NLRB, No. 12-1338 (D.C. Cir.)
Meredith Corp. v. NLRB, No. 12-1287 (D.C. Cir.)
Keck Hosp. of USC v. NLRB, No. 121413, consolidated with Sodexo of Am., LLC v. NLRB, No. 12-1426 (D.C. Cir.)
NLRB v New Vista Nursing, Nos. 11-3440, 12-1027, 12-1936 (3d Cir.)
NLRB v. Enterprise Leasing Co., SE, LLC, No. 12-1514 (4th Cir.)
NLRB v. Nestle Dreyer’s Ice Cream Co. v NLRB, No. 12-1684 (4th Cir.)
Huntington Ingalls, Inc. v. NLRB, No. 12-2000 (4th Cir.)
Richards, et al, v. NLRB, John Lugo, et al, v. NLRB, Nos. 12-1973, 12-1984 (7th Cir.)