Noel Canning Recess Analysis

In NLRB v. Noel Canning the Recess Appointments Clause of the US Constitution, was in question due to President Obama’s appointments on January 4, 2012, while the Senate was in recess with pro forma sessions every Tuesday and Thursday. Justice Breyer in his opinion broke it down to 3 basic questions, the first being what was meant by “recess of the Senate,” the second being what was meant by “vacancies that may happen,” and the last being how long a recess really has to be for the Appointments Clause to take effect. In regards to the first question, the majority felt that it applied to both inter-session breaks as well as shorter intra-session recesses. When they look at history Breyer points out that at the time of the founding it applied to intra-session recesses and he plays with the word “the.” He makes the argument that the president must be able to do his job while the Senate is in recess and there have been thousands of appointments done within these intra-session breaks while Congress has stood back and not attempted to stop this somewhat like a gloss. …show more content…
However, I do believe that Justice Breyer shot himself in the foot when he wrote that “We believe that the Clause’s language, read literally, permits, though it does not naturally favor, our broader interpretation.” If the language does not favor your opinion why would you not only decide that way but also write that in your opinion? In the last question, he believes that the pro forma sessions count as the Senate is in session because they decided that as well as their ability to perform actions if they passed an

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