Last month’s decision by the U.S. Supreme Court rejecting President Obama’s January 2012 recess appointments to the National Labor Relations Board came at a delicate time, with a debate raging between the president and Congress over the limits of the president’s executive authority. Speaker of the House John Boehner has even threatened to sue Obama for exceeding that authority.
During the last two years of the George W. Bush administration, Senate Majority Leader Harry Reid scheduled pro forma sessions of the Senate every three days during a longer break in Senate business, in order to prevent Bush from having an opportunity to make recess appointments, particularly for pending nominations that Reid and his Democratic colleagues opposed. Although Bush did not necessarily agree that the pro forma sessions could prevent a recess appointment, he nevertheless did not attempt to exercise this power as the Senate gaveled in and, minutes later, gaveled out during holidays. When Republicans took over the House of Representatives in 2011, Boehner essentially forced the Democrat-controlled Senate to resume its practice of pro forma sessions by not consenting to the Senate adjourning for longer than three days, as required by the U.S. Constitution, assuming this, too, would prevent recess appointments.
