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What role does the House of Representatives have in the president's recess-appointment power? Article II, Section 2 of the U.S. Constitution includes two appointments clauses. The first prescribes the general procedure for the appointment of "[o]fficers of the United States":

[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law[.]

Clearly, the Senate has a role in the president's exercise of his appointment power under this clause, but the House doesn't. The second is the Recess Appointments Clause, which empowers the president, acting alone, to:

fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Once again, the Senate is mentioned in this clause--although its only role here would be going into recess--but there's still no mention of the House of Representatives. So, at first glance, the answer to the question that introduced this post would seem to be that the House has no role in the president's recess-appointment power.

But it's not that simple.

NLRB v. Noel Canning

In June 2014, the U.S. Supreme Court decided the case of NLRB v. Noel Canning (PDF). In that case, the National Labor Relations Board (NLRB) had found Noel Canning, a Pepsi distributor, in violation of the National Labor Relations Act for failing to execute a collective-bargaining agreement that the NLRB claimed the company had verbally agreed to. As a consequence, Noel Canning was ordered to execute the written version of that agreement and compensate its employees for the wages and benefits it would have provided them under it. The company appealed, arguing that the NLRB lacked authority to issue the order because three of its five members had been invalidly appointed, and the law required a quorum of three for the Board to act.

Those three members had been appointed by President Barack Obama on Wednesday, January 4, 2012, ostensibly as an exercise of his recess-appointment power. At the time of the recess appointments, the Senate was, in fact, in the midst of a three-day recess. In a resolution adopted on December 17, 2011, the Senate had agreed to take a series of such recesses broken up by pro forma sessions until January 23, 2012. Pro forma sessions are sessions that last a matter of seconds, where no business is transacted, and only one senator is present. At the time of President Obama's recess appointments to the NLRB, the Senate had last held a pro forma session the day before, on Tuesday, January 3, and would not meet again until two days later, in a pro forma session on Friday, January 6. The government tried to argue that these pro forma sessions didn't count as real sessions, and that the Senate was actually in the midst of a recess lasting nearly three weeks when the president made the NLRB appointments.

The Supreme Court rejected the government's arguments. It held that the Senate was in session when it said it was in session, and it said it was in session during its pro forma meetings. The Court also held that a three-day recess did not trigger the president's recess-appointment power. In fact, any recess of less than 10 days would be presumptively too short to trigger that power. Consequently, the three recess appointments to the NLRB were invalid, meaning the Board had been without a quorum when it acted against Noel Canning. Its order was overturned.

What's This Got to Do With the House of Representatives?

The tactic of using pro forma sessions to block recess appointments is a recent innovation. Senate Majority Leader Harry Reid (D-NV) came up with the idea in late 2007. After being told that President George W. Bush, a Republican, planned to make several recess appointments during the Thanksgiving break, Senator Reid decided to prevent the president from doing so by scheduling pro forma sessions while most senators were away. Reid's tactic worked, and the Senate continued to hold pro forma sessions during lengthy breaks throughout the remainder of 2007 and 2008. President Bush made no recess appointments during that time (PDF).

But think back to December 2011 and January 2012. The president, Barack Obama, was a Democrat. Democrats also held a majority in the Senate. The Democrats didn't eliminate the filibuster for most nominations until late 2013, so Republicans were able to prevent confirmation for many of President Obama's nominees. His recess-appointment power was one way for him to fill vacant positions without having to deal with Senate Republicans. So why was the Democrat-controlled Senate holding pro forma sessions that seemed designed to block his ability to do so?

The answer is that the House of Representatives forced them to. Since early 2011, the Republicans had held a majority in the House. Under Article I, Section 5 of the Constitution, neither house of Congress can adjourn for more than three days without the consent of the other house. Because the Republican-controlled House refused to consent to an adjournment by the Democrat-controlled Senate of more than three days, the Senate was forced to hold pro forma sessions throughout late 2011 and early 2012. This proved to be the undoing of President Obama's three appointees to the NLRB in Noel Canning, and we'll probably continue to see pro forma sessions used to prevent recess appointments whenever the majority in either house of Congress and the president belong to different parties.