For purposes of the Recess Appointment Clause, the Senate is in session when it says that it is if, under its own rules, it retains the capacity to transact business. D.C. Circuit affirmed. Decided June 26, 2014 (argued January 13, 2014). Opinion of the Court: Stephen Breyer → go there Topic: Separation of powers. National Labor Relations Board v. Noel Canning, 573 U.S. 513 (2014), was a United States Supreme Court case in which the Court unanimously ruled that the president of the United States cannot use their authority under the Recess Appointment Clause of the United States Constitution to appoint public officials unless the United States Senate is in recess and not able to transact Senate business. The Court held that the clause allows the president to make appointments during both intra-session and inter-session recesses but only if the recess is of sufficient length, and if the Senate is actually unavailable for deliberation, thereby limiting future recess appointments. The Court also ruled that any office vacancy can be filled during the recess, regardless of when it arose. The case arose out of President Barack Obama's appointments of Sharon Block, Richard Griffin, and Terence Flynn to the National Labor Relations Board and Richard Cordray as the director of the Consumer Financial Protection Bureau. Wiki link