Updated: 3 p.m. | Congress will officially be on recess starting Tuesday — but President Barack Obama won't use the opportunity to make recess appointments.
After the House adopted an adjournment resolution that runs through Sept. 8, a senior Senate GOP aide said an agreement had been reached with the White House that there will be no recess appointments during the recess period. That means Republicans won't force pro forma sessions. Last week, Sen. Michael B. Enzi, R-Wyo., blocked a unanimous consent request from Foreign Relations Chairman Robert Menendez, D-N.J., to confirm a slew of ambassadorial nominations . The blockade, which eased enough last week to belatedly allow confirmation of John F. Tefft as ambassador to Russia after protests from the White House, is part of the ongoing GOP response to last fall's use of the "nuclear option" by Senate Majority Leader Harry Reid, D-Nev.
The Supreme Court affirmed the efficacy of the use of brief, pro forma sessions to satisfy constitutional requirements, agreeing with Minority Leader Mitch McConnell of Kentucky and other Senate Republicans in the Noel Canning v. NLRB case that it was the Senate itself that defined when the chamber was in session.
"For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business," the court held.
Because a majority of the court stopped short of the view that "the Recess" applied only to the breaks between sessions of Congress, the August break would be a period eligible for Obama to make use of the appointment power.
The NLRB announced Monday that it retroactively backed decisions made during the period that it's legitimacy had been thrown into doubt in the aftermath of the Supreme Court ruling that found the recess appointees to the board were constitutionally invalid.
"The Board regained a quorum on August 5, 2013. From January 4, 2012 to August 5, 2013, the Board acted on various matters including the appointment of various Regional Directors, Administrative Law Judges, and restructurings of regional and headquarters offices," the NLRB said in a statement. "The Board has now ratified these actions to remove any question concerning the validity of actions undertaken during that period."
Tuesday's session of the Senate, where the chamber is likely to join with the House in adopting the adjournment resolution, was not scheduled as a pro forma session where business wouldn't be conducted. Rather, Reid set the schedule for Tuesday to provide for a routine period of morning business. The next roll call vote is expected on Sept. 8, which is the Monday a week after Labor Day. That will start a mad rush of Senate activity, for which Reid has already made familiar warnings about the possibility of weekend work .
Tuesday's Senate session may also include an effort by Sen. Barbara Boxer, D-Calif., to advance legislation designed to enhance the strategic partnership between the United States and Israel, a Senate aide said last week.
Sarah Chacko contributed to this report.
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