The United States Supreme Court has held that President Obama's 2012 recess appointments of three National Labor Relations Board (NLRB) members were invalid because they fell outside the scope of the Constitution's Recess Appointment Clause.  This Clause gives the President power to "fill up all Vacancies that may happen during the Recess of the Senate".  In December of 2011, the nominations of three members of the National Labor Relations Board were pending in the Senate when it passed a resolution providing for a series of "pro forma" sessions with no business transacted every Tuesday and Friday through late January.  The President, relying on the Recess Appointment Clause, appointed the three individuals to the NLRB between the January 3 and January 6 pro forma sessions.  Noel Canning, a Pepsi-Cola distributor, filed suit to have a NLRB order set aside on the grounds that the Board lacked quorum because three members were improperly appointed.  The United States District Court for the District of Columbia held that the appointments were improper because the Recess Clause did not include intra-session recesses and only applies to vacancies that first come into existence during a recess.  The decision was appealed to the United States Supreme Court.

While the Supreme Court affirmed the lower court decision, it applied different reasoning in doing so.  Citing the Clause's purpose of allowing the President to make appointments to ensure continued government functioning while the Senate is away, as well as historical practice of the government with respect to the Recess Appointment Clause, the Court held that the Clause allows the President to fill existing vacancies during both intra- and inter-session recesses, provided that a recess is of sufficient length.  While the Clause does not say how long a recess must be to invoke the President's appointment powers, the Constitution's Adjournment Clause suggests that a three day break is not a sufficient interruption of legislative business because a Senate recess of that length does not require House approval.  As such, the Court held, President Obama's appointments were invalid.  The Supreme Court also held that Recess Appointment Clause applied to both vacancies that first come into existence during a recess and vacancies that occur before a recess begins and continue to exist during the recess.