When Recess Isn’t a Break: What NLRB v Canning Means for HHS

As Robert F. Kennedy Jr’s nomination for Secretary of Health and Human Services (HHS) moves through the Senate, there’s growing discussion about whether a recess appointment could be used to bypass confirmation challenges. The Supreme Court’s 2014 decision in NLRB v Noel Canning plays a key role in this debate (or precedent), as it clarified the limits on a President’s ability to make temporary appointments without Senate approval.

The Mechanics of Recess Appointments

A recess appointment allows the President to temporarily fill a federal vacancy when the Senate isn’t around to confirm or deny. Historically, presidents have used this power frequently—former President Bill Clinton made 139 recess appointments, while former President George W. Bush made 171 appointments. However, neither used this authority to fill cabinet-level positions.

For a recess appointment to be possible, several conditions must be met:

1. The Senate must be in recess for more than 3 days.
2. Both the Senate and the House must agree to a recess longer than that.
3. Even if all that checks out, the appointment only lasts until the end of the Senate’s next session.

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