MBE Rules · Constitutional Law
Recess Appointments
NLRB v. Noel Canning
The rule
The President may fill vacancies during Senate recesses of sufficient length (10+ days presumptively); pro forma sessions count as sessions, defeating intra-session recess appointments.
In plain English
The President has the authority to appoint officials to fill vacancies when the Senate is in recess, typically if the recess lasts 10 days or more. However, if the Senate holds pro forma sessions, those count as active sessions, preventing the President from making such appointments during that time.
Worked example
During a 12-day Senate recess, the President appoints a new ambassador. However, the Senate held pro forma sessions every few days during that recess. The appointment is invalid because the pro forma sessions counted as active Senate sessions.
Memory hook
Recess means recess, but pro forma means no recess!
The trap
Exams often present scenarios where students must determine whether a recess is valid or if pro forma sessions negate it, leading to confusion about the length and nature of the recess.
How examiners test it
Questions typically involve a fact pattern about a President making an appointment during a recess, requiring candidates to analyze the legitimacy of the appointment based on the Senate's session status.
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