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.1
For a recess appointment to be possible, several conditions must be met:2
- The Senate must be in recess for more than 3 days.
- Both the Senate and the House must agree to a recess longer than that.
- Even if all that checks out, the appointment only lasts until the end of the Senate’s next session.
In NLRB v Canning, the Court took a closer look at how this works. At the time, former President Barrack Obama had used his recess appointment powers to fill seats on the National Labor Relations Board (NLRB) during what he considered a Senate recess. But here’s the twist: The Senate had been holding pro forma sessions—meeting every few days without doing anything substantive—specifically to block any appointments. The Supreme Court ruled that those pro forma sessions counted, effectively blocking the appointments.3
Justice Breyer’s majority opinion allowed recess appointments for intra-session and inter-session recesses longer than 10 days.* Justice Scalia’s concurrence argued for an even tighter definition, arguing the Constitution only meant formal breaks between sessions. Either way, the message was clear: If the Senate wants to block an appointment, it can get pretty creative about staying “in session.”3
Limits to Flexibility for HHS Leadership
If Kennedy Jr’s confirmation faces significant resistance, a recess appointment could theoretically place him at the helm of HHS. However, the Senate’s ability to block such moves with pro forma sessions, as clarified in NLRB v Canning, underscores the challenges of bypassing the confirmation process. This means Kennedy Jr would need strong Senate support—or an unprecedented set of circumstances—to assume leadership.
Without Senate approval, Kennedy’s ability to pursue substantive policy changes might be limited. Recess appointments often carry a perception of impermanence, which can undermine an agency leader’s authority in dealing with Congress, stakeholders, and career staff.
The Post-Chevron Era : Stricter Boundaries for HHS
The recent overturning of the Chevron doctrine significantly impacts how agencies like HHS operate. The doctrine previously allowed courts to defer to federal agencies when interpreting ambiguous laws. Now, agencies must have clearer statutory authority for their actions, reducing the flexibility to shape policy through regulatory interpretation.4
For Kennedy Jr, this means any major policy shifts at HHS would require explicit legislative backing. His stated goals—such as addressing chronic disease, reducing regulatory conflicts of interest, and prioritizing evidence-based medicine—would depend on navigating tighter statutory boundaries. Regulatory initiatives that push beyond existing statutes risk immediate legal challenges and heightened judicial scrutiny.
Without Chevron deference, Kennedy Jr would need to work closely with Congress to enact legislative changes or clarify statutory authority, a potentially tall order in a polarized environment. This constraint could hinder his ability to achieve swift progress on ambitious goals within HHS.
The NLRB v Canning decision illustrates the intricate checks and balances embedded in the Constitution. While it reaffirms the President’s ability to make temporary appointments in limited circumstances, it also solidifies the Senate’s power to prevent overreach. This dynamic ensures that leadership in critical agencies like HHS reflects a balance of executive action and legislative oversight.
A Test of Governance
As Kennedy Jr’s nomination proceeds, the interplay between executive ambition and legislative control takes center stage. Whether through traditional confirmation or procedural maneuvering, the process will test the durability of constitutional principles in modern governance. And as the post-Chevron landscape shapes agency action, the stakes for leadership at HHS—and the future of health care policy—have never been higher.
*An intra-session recess occurs within a single session of Congress, when they temporarily pause work but plan to resume during the same session. Comparatively, an inter-session recess occurs between 2 formal sessions of Congress. Congress adjourns at the end of one session and does not meet again until the next session begins.
Join me on Wednesdays as I highlight key court decisions, review notable health policies, and analyze what’s behind the bill in health care. Behind the Bill will be taking a brief hiatus next week for Thanksgiving, but join me again on December 4th!
References
1. Miller MC. Could Trump install Gaetz without Senate approval? A recess appointment primer. The New York Times. November 19, 2024. Accessed November 20, 2024. https://www.nytimes.com/2024/11/19/us/politics/recess-appointment-trump-matt-gaetz.html
2. Rubenfeld J. Would Trump’s justices approve his recess appointments? WSJ. November 18, 2024. Accessed November 20, 2024. https://www.wsj.com/opinion/would-trumps-justices-approve-his-recess-appointments-supreme-court-scalia-d164cc53?st=vnDKCp&reflink=desktopwebshare_permalink
3. NLRB v Canning, 573 US 513 (2014).
4. Chevron Inc v NRDC Inc, 467 US 837 (1984).
