If it's Thursday, another circuit court has struck down an Obama recess appointee's decision by declaring his appointment invalid. The latest instance comes from the Third Circuit (Delaware/New Jersey/Pennsylvania), which has ruled against Obama's National Labor Relations Board on the grounds that "Member [Craig] Becker was invalidly recess appointed to the Board during the March 2010 intrasession break. This means that the delegee group had fewer than three members when it issued the August 26 Order." Two Republican appointees went that way; an Obama appointee wrote the dissent.
Here's how the majority dealt with the issue that started the recess appointment micro-crisis. Obama wasn't getting votes on nominees; the GOP House was refusing to actually recess.
The Board's more open-ended definition of recess might very well be unmanageable because it does not rely on any particular Senate procedure and would require judicial "explor[ation] [of] communications between the Senate Minority and the president" in addition to review of the "scheduling schemes of the Senate Minority and House Majority." ... But this only cautions against selecting the Board's standard rather than showing that there are no judicially manageable standards available.
Of course, if the question is framed—as the amicus has—as a need to derive a judicially manageable standard to resolve "the underlying cycles of partisanconfirmation obstruction payback which caused the NLRB vacancies," (Amicus Br. at 25), then there is likely no judicially manageable standard. See also Evans, 387 F.3d at 1227 (rejecting as nonjusticiable an argument that the president unconstitutionally used the recess appointment power because the appointee had been previously rejected by the Senate and thus constituted a circumvention of the Senate‘s advice and consent role). But that is not the question we face. Instead, we must define the phrase "the Recess of the Senate," which is a question distinct from resolving the "cycles of partisan confirmation obstruction payback."
Obama argues that the new level of obstruction is unprecedented; the court isn't moved.