President Obama still has one, very quick chance to get Judge Merrick Garland onto the Supreme Court.

In the five-minute break tomorrow when the Senate gavels out of the 114th Congress and then into the 115th Congress the outgoing president could use his recess appointment powers to place Garland onto the bench.

The move would be highly controversial and Garland's tenure would have an expiration date, as recess appointments only last until the conclusion of the congressional session, in this case December 2017.

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President Obama (left) has a five-minute window tomorrow where he could try to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia with his own nominee Judge Merrick Garland (right)

President Obama (left) announced on March 16, 2016 his pick of Judge Merrick Garland (right) to fill the vacancy on the Supreme Court, but Senate Republicans refused to act

Language in the Constitution – found in Article II, section 2 – says 'the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.'

However, the Supreme Court limited that power during Obama's tenure in a 9-0 ruling in 2014 after the president had appointed three people to the National Labor Relations Board in 2012 during a three-day recess in the middle of a congressional session.

The Court ruled Obama's appointments invalid because a longer recess was interrupted by a 'pro forma' session, in which the Senate gaveled in and gaveled out, but didn't conduct any business – a common practice since 2011, to prevent the president from making said appointments.

The Supreme Court said that the president must respect the Senate's determination that it's in session.

Writing for the majority, Justice Stephen Breyer said that for recess appointments to be valid the Senate – whether it's a 'intersession' or 'intrasession' break – must recess for longer than 10 days.

However, legal scholars consider this language to be 'dicta,' as it wasn't relevant to the actual question at the center of case, which was about the legitimacy of the Senate's pro forma sessions.

That means the 10-day rule isn't necessarily legal precedent, giving Obama some cover if he decides to make such a risky move.

Also helping him is the fact that this would be an 'intersession' break, as one congressional session is concluding and the next one is starting.

The New Republic pointed out that even Congress' most conservative members believe the president's recess appointment powers apply during these kinds of breaks.

Obama's own precedent suggests that he won't do it, as the Democratic isn't known to make rash moves for short-term political gain.

The sitting Democratic president named Garland to the court back on March 16, 2016, hoping that a non-controversial pick with lots of experience – Garland is the chief judge of the United States Court of Appeals for the D.C. Circuit – would sway Republicans in the Senate to vote on the nominee.

However, Garland would be replacing the late Justice Antonin Scalia, a giant figure of the judicial right.

Adding him to the court to sit alongside Obama's other liberal picks – Justices Sonia Sotomayor and Elena Kagan – could pull it leftward for decades, which was what conservatives feared.

So in turn, Republicans, hoping to be victorious in the presidential election, pledged to hold off on confirming Garland, never even giving him a hearing at the committee level.