The Fight Over Recess Appointments When the Senate is not available to confirm presidential nominees, the Constitution gives the president the power to temporarily fill government positions. Senate Republicans have gone out of their way to make themselves effectively unavailable, refusing to confirm nominees to agencies whose missions they oppose. That is why President Obama has had to make many recess appointments, including five to the National Labor Relations Board. On Wednesday, the Senate Labor Committee approved five nominees to the board, which sounds like good news. But some Republicans did not support the full slate, and because of the Republicans" antagonism to unions, it is likely that Senate Republicans will keep the board inoperable by preventing a majority from being confirmed. The Republican maneuvers have been reinforced by a ruling from the United States Court of Appeals for the District of Columbia Circuit. In January, three conservative judges on the court ruled that three of the president's recess appointments to the N.L.R.B. were unconstitutional. The court held that the president has the power to make temporary appointments only when the Senate is in recess at the end of an annual session, and only to positions that come open during such a recess. In April, Solicitor General Donald Verrilli Jr. asked the Supreme Court to review the ruling, arguing: "That decision repudiates understandings of the Recess Appointments Clause that have been maintained and relied on by the Executive for most of the Nation's history. The limitations imposed by the court of appeals would render many of the recess appointments since the Second World War unconstitutional. Earlier this month, a panel of the Court of Appeals for the Third Circuit, by a 2-to-1 vote, also struck down as invalid one of the president's recess appointments to the labor board. If allowed to stand, the two court decisions, both of which hinge on the definition of "recess," could jeopardize more than 900 rulings by the board. As the dissenting opinion in the Third Circuit case said, the point of recess appointment is to allow "vacant offices to be filled in order to keep the machinery of government running." The Supreme Court should agree to hear argument on this crucial question and overturn these rulings.