The Senate really has to be in recess for the President to make recess appointments to the National Labor Relations Board (NLRB). That's what the U.S. Court of Appeals for the D.C. Circuit determined by ruling unanimously that three appointments made to the board last year were unconstitutional. The Associated Press reports:

President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel, a federal appeals court panel ruled Friday.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that Obama did not have the power to make three recess appointments last year to the National Labor Relations Board.

…

Obama claims he acted properly in the case of the NLRB appointments because the Senate was away for the holidays on a 20-day recess. But the three-judge panel ruled that the Senate technically stayed in session when it was gaveled in and out every few days for so-called "pro forma" sessions.

Tom Donohue, U.S. Chamber President and CEO was happy with the decision:

We are pleased with the D.C. Circuit’s ruling that the President’s recess appointments to the NLRB were unconstitutional. We warned last year that by appointing these members to the NLRB in such a controversial fashion, the President placed a cloud of uncertainty over the agency and its work. The D.C. Circuit’s historic decision has confirmed our concerns. The U.S. Chamber has been proud to stand with our member Noel Canning from the beginning, and they will continue to enjoy our full support and backing.

[H/t Ed Morrissey at Hot Air.]