[JURIST] The Obama administration on Thursday petitioned [text, PDF] the US Supreme Court [official website] to uphold the president’s ability to make executive appointments while the Senate is in recess. The recess appointment is a constitutional power that permits the president fill vacancies in the executive branch without the typical consent of the Senate. In its petition, the National Labor Relations Board (NLRB) [official website] presented two questions:

Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recess that occur between enumerated session of the Senate. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.

The petition warned of serious consequences of the lower court decision: “That decision repudiates understandings of the Recess Appointments Clause that have been maintained and relied on by the Executive for most of the Nation’s history.” The petition also warned that future essential government activities may be disrupted, and that “almost any federal officer who received a recess appointment during an intra-session recess, or who was appointed to fill a vacancy that did not first arise during the recess in which the appointment was made, could have his actions challenged in the [Court of Appeals] on the ground that his appointment was unconstitutional and his official actions were ultra vires.”

The US Court of Appeals for the District of Columbia Circuit [official website] ruled [JURIST report] in January that the recess appointment of three members of the NLRB by President Barack Obama was unconstitutional. The case was brought by a bottler and distributor of Pepsi-Cola products in Washington state challenging the NLRB after the Board affirmed a decision that the distributor violated the National Labor Relations Act (NLRA) [text]. In addition, two business advocacy groups filed motions contesting the constitutionality of the president’s recess appointments [JURIST reports] in January 2012. The US Department of Justice (DOJ) [official website] defended the use of recess appointments [CRS backgrounder, PDF] by Obama immediately after his announcement. The DOJ’s memo argues that although the Senate met between January 3 and 23, the sessions were not sufficient to constitute an interruption of a recess under the Recess Appointment Clause because they were only pro forma sessions that lasted less than a minute and there was no intent to conduct any business. Some experts argue that recess appointments have regularly been used by presidents [JURIST op-ed] since George Washington. It is only a relatively recent practice that obstructionists have begun holding perfunctory pro forma sessions every three days while the Senate is on recess in order to block recess appointments.