PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1514
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
ENTERPRISE LEASING COMPANY SOUTHEAST, LLC,
Respondent.
_______________
On Application for Enforcement of an Order of the National Labor
Relations Board. (11-CA-73779)
No. 12-2000
HUNTINGTON INGALLS INCORPORATED,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS,
Intervenor.
------------------------------
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA;
COALITION FOR A DEMOCRATIC WORKPLACE; AMERICAN HOTEL &
LODGING ASSOCIATION; HR POLICY ASSOCIATION; INTERNATIONAL
FOODSERVICE DISTRIBUTORS ASSOCIATION; NATIONAL ASSOCIATION
OF MANUFACTURERS; NATIONAL ASSOCIATION OF WHOLESALER-
DISTRIBUTORS; SOCIETY FOR HUMAN RESOURCE MANAGEMENT,
Amici Supporting Petitioner.
No. 12-2065
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS,
Intervenor,
v.
HUNTINGTON INGALLS INCORPORATED,
Respondent.
-----------------------------
CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA;
COALITION FOR A DEMOCRATIC WORKPLACE; AMERICAN HOTEL &
LODGING ASSOCIATION; HR POLICY ASSOCIATION; INTERNATIONAL
FOODSERVICE DISTRIBUTORS ASSOCIATION; NATIONAL ASSOCIATION
OF MANUFACTURERS; NATIONAL ASSOCIATION OF WHOLESALER-
DISTRIBUTORS; SOCIETY FOR HUMAN RESOURCE MANAGEMENT,
Amici Supporting Respondent.
On Petition for Review and Cross Application for Enforcement of
an Order of the National Labor Relations Board. (5−CA−81306)
Argued: March 22, 2013 Decided: July 17, 2013
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Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Enforcement denied by published opinion. Senior Judge Hamilton
wrote the opinion, in which Judge Duncan joined. Judge Duncan
wrote a separate concurring opinion. Judge Diaz wrote an
opinion concurring in part and dissenting in part.
ARGUED: Beth S. Brinkmann, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., David A. Seid, Robert James Englehart,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board;
James B. Coppess, AFL-CIO, Washington, D.C., for International
Association of Machinists and Aerospace Workers. Daniel R.
Begian, John P. Hasman, THE LOWENBAUM PARTNERSHIP, LLC, Clayton,
Missouri, for Enterprise Leasing Company Southeast, LLC; Gregory
Branch Robertson, Michael Randolph Shebelskie, HUNTON &
WILLIAMS, LLP, Richmond, Virginia, for Huntington Ingalls
Incorporated. ON BRIEF: Stuart F. Delery, Principal Deputy
Assistant Attorney General, Scott R. McIntosh, Sarang V. Damle,
Melissa N. Patterson, Benjamin M. Shultz, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Lafe E. Solomon, Acting
General Counsel, Celeste J. Mattina, Deputy General Counsel,
John H. Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, Ruth E. Burdick, Supervisory
Attorney, Daniel A. Blitz, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for the Board. D. Michael Linihan, THE
LOWENBAUM PARTNERSHIP, LLC, Clayton, Missouri, for Enterprise
Leasing Company Southeast, LLC. Kurt G. Larkin, HUNTON &
WILLIAMS, LLP, Richmond, Virginia, Dean C. Berry, HUNTINGTON
INGALLS INDUSTRIES, INC., Newport News, Virginia, for Huntington
Ingalls Incorporated. William H. Haller, Associate General
Counsel, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, Upper Marlboro, Maryland, for International Association
of Machinists and Aerospace Workers. Mark Theodore, PROSKAUER
ROSE LLP, Los Angeles, California, Ronald E. Meisburg, Lawrence
Z. Lorber, James F. Segroves, PROSKAUER ROSE LLP, Washington,
D.C., for Amici Curiae; Robin S. Conrad, Shane B. Kawka,
NATIONAL CHAMBER LITIGATION CENTER, INC., Washington, D.C., for
Amicus Curiae Chamber of Commerce of the United States; Quentin
Riegel, NATIONAL ASSOCIATION OF MANUFACTURERS, Washington, D.C.,
for Amicus Curiae National Association of Manufacturers.
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HAMILTON, Senior Circuit Judge:
Before the court are two cases that we have consolidated.
In the first case, Enterprise Leasing Company − Southeast, LLC
(Enterprise) seeks review of a National Labor Relations Board
(the Board) decision and order finding that Enterprise violated
§§ 8(a)(1) and (a)(5) of the National Labor Relations Act
(NLRA), 29 U.S.C. §§ 158(a)(1) and (5), by refusing to bargain
with Local 391 of the International Brotherhood of Teamsters
(Local 391) after the Board certified Local 391 as the exclusive
bargaining representative of a unit of Enterprise’s employees.
The Board has filed an application for enforcement of its order.
In the second case, Huntington Ingalls, Inc. (Huntington)
petitions for review of a Board decision and order finding that
Huntington violated §§ 8(a)(1) and (a)(5) of the NLRA, id., by
refusing to bargain with the International Association of
Machinists and Aerospace Workers (Machinists Union) after the
Board certified the Machinists Union as the exclusive bargaining
representative of a unit of Huntington’s employees. The Board
has filed an application for enforcement of its order.
The determinative question in these cases is whether the
Board had a quorum at the time it issued its decisions in 2012.
See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2639-45
(2010) (holding that, following a delegation of the NLRB’s
powers to a three-member group, two members cannot continue to
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exercise that delegated authority once the group’s (and the
Board’s) membership falls to two). Resolution of this question
turns on whether the three appointments by the President of the
United States to the Board on January 4, 2012 are valid under
the Recess Appointments Clause of the United States
Constitution, which provides that the President “shall have
Power to fill up all Vacancies that may happen during the Recess
of the Senate, by granting Commissions which shall expire at the
End of their next Session.” U.S. Const. art. II, § 2, cl.3. If
these appointments are invalid, the parties agree that the Board
could not lawfully act when it issued its decisions in 2012.
For the reasons stated below, we conclude that the President’s
three January 4, 2012 appointments to the Board are
constitutionally infirm, because the appointments were not made
during “the Recess of the Senate.” Accordingly, we deny the
Board’s applications for enforcement of its orders.
I
The two cases currently before the court have a similar
procedural history. Local 391 prevailed in an election
conducted by the Board. Before a Board Hearing Officer in a
representation case, Enterprise challenged the election result
on multiple fronts. Enterprise lost the representation case
before a Board Hearing Officer and lost again on review by the
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Board. Following these losses, Enterprise refused to bargain
with Local 391. Local 391 initiated an unfair labor practice
proceeding against Enterprise, and, in response, Enterprise
contended, among other things, that the Board lacked a quorum to
issue a decision because the President’s three January 4, 2012
appointments to the Board were invalid under the United States
Constitution. The Board rejected Enterprise’s arguments and
ordered Enterprise to bargain with Local 391. The Board now
seeks enforcement of its decision and order.
The dispute in Huntington’s case centers on the appropriate
bargaining unit for Huntington’s 2,400 technical employees.
Before a Board Regional Director (RD), the Machinists Union
contended that a portion of Huntington’s 2,400 technical
employees, namely those in the “E85 RADCON” department, was an
appropriate bargaining unit whereas Huntington contended that
the bargaining unit should consist of all 2,400 of its technical
employees. The RD agreed with the Machinists Union and issued a
decision and direction of election (DDE). Huntington then
requested Board review of the DDE. On December 30, 2011, the
Board affirmed the RD’s decision.
In the ensuing election, the Machinists Union prevailed.
The Board subsequently certified the Machinists Union as the
exclusive representative for purposes of collective bargaining.
Following certification, Huntington refused to comply with the
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Machinists Union bargaining request, and the Machinists Union
filed an unfair labor practice charge. In that proceeding,
Huntington contended, inter alia, that the Board did not have a
quorum to issue a decision, because the President’s three
January 4, 2012 appointments to the Board were constitutionally
infirm. The Board rejected this argument and others, holding
that Huntington’s refusal to bargain was unlawful. The Board
seeks enforcement of this decision and order, and Huntington
petitions for review of such decision.
In their respective briefs, both Enterprise and Huntington
raise constitutional and non-constitutional arguments. Before
we can address the constitutional arguments, we must first
attempt to resolve these cases on non-constitutional grounds, if
possible. See Spector Motor Serv., Inc. v. McLaughlin, 323 U.S.
101, 105 (1944) (“If there is one doctrine more deeply rooted
than any other in the process of constitutional adjudication, it
is that we ought not to pass on questions of constitutionality .
. . unless such adjudication is unavoidable.”); Ashwander v.
Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring) (noting that a court “will not pass upon a
constitutional question although properly presented by the
record, if there is also present some other ground upon which
the case may be disposed of”); see also Noel Canning v. NLRB,
705 F.3d 490, 493 (D.C. Cir.) (pursuant to Spector Motor and
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Ashwander, court addressed non-constitutional claims concerning
company’s refusal to bargain before addressing the question of
whether the President’s three January 4, 2012 appointments to
the Board were constitutional), cert. granted, 2013 WL 1774240
(U.S. June 24, 2013). In addressing the non-constitutional
arguments advanced by both Enterprise and Huntington, we first
will turn to Enterprise’s case and then to Huntington’s case.
II
A
Enterprise operates an Alamo and National car rental
facility at the Raleigh-Durham International Airport (RDU
Airport). On November 9, 2010, Local 391 filed a petition with
the Board seeking to represent a unit of Enterprise’s employees. 1
Enterprise and Local 391 signed an election agreement, and the
Board conducted an election by secret ballot at Enterprise’s
facility from 7:00 p.m. to 9:00 p.m. on Thursday, December 16,
1
The parties agree that the 101 employee bargaining unit
consisted of full and regular part-time greeters, exit booth
agents, counter representatives, rental agents, handler agents,
service agents, customer service representatives, bus drivers,
push/pullers, and mechanics employed by Enterprise. The
bargaining unit excluded salaried employees, technical
employees, office clerical employees, guards, professional
employees, and supervisors.
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2010, and from 10:00 a.m. to 12:00 p.m., and again from 3:00
p.m. to 5:00 p.m., on Friday, December 17, 2010.
At some point before the election, Local 391 mailed a flyer
to all eligible voters which included a photograph of employee
and eligible voter Roberto Henriquez without his prior
authorization for Local 391 to use his photograph. 2 One side of
the flyer contained the words, “Yes. Everybody can make the
right choice!! To end Unfair treatment & Unfair pay!!” The
words were surrounded by the photographs of eight employees of
Enterprise, including Henriquez. The other side of the flyer
had a note that asked employees to let Local 391 be their voice
for better pay, benefits, and treatment. The photograph of
Henriquez was taken by Chafik Omerani, an Enterprise employee
and Local 391 supporter, at a food court in a shopping mall near
the RDU Airport.
On the first day of the election, December 16, 2010, Wake
County, North Carolina, where the RDU airport is located,
experienced inclement weather. Weather records establish that
between 1/10 and 1/8 of an inch of freezing rain and 1/2 to one
inch of snow fell in Wake County on December 16. No additional
2
Henriquez did not testify at the hearing before the Board
Hearing Officer. Accordingly, the record does not reflect
whether Henriquez was or was not a Local 391 supporter.
However, it is clear that his prior authorization was not
obtained and that Local 391 had a general policy of not using
employees’ images without their prior consent.
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freezing rain or snow fell on December 17, and there was no snow
accumulation at the RDU airport or Enterprise’s facility on
either day.
As a result of the inclement weather, area schools and some
businesses were closed on December 16. The opening of schools
and some government businesses was delayed on December 17. The
RDU Airport and Enterprise’s facility at the airport remained
open during regular hours on both December 16 and 17. Although
Enterprise’s facility remained open, it received ten employee
“call-outs” on December 16 and four “call-outs” on December 17. 3
No evidence was presented concerning Enterprise’s normal or
average call-out rate. There was also no evidence presented
indicating that any eligible Enterprise employee was unable to
vote on account of the weather. Moreover, neither party sought
to postpone the election on account of the weather.
On December 16, 2010, Local 391 organizer Steve Jones
entered Enterprise’s facility approximately thirty minutes
before the start of the election. He approached the customer
service counter where two Enterprise Customer Service
Representatives, one of whom was Damion Knowles, were seated.
After greeting Knowles, Jones asked him how his interview had
3
“Call-out” is a term used to describe an employee who
contacts his or her employer to report that he or she will not
be coming to work.
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gone for a management position that Knowles had mentioned in an
earlier conversation between the two. Knowles replied that the
interview went well and that with more experience he would
receive his own store in Dallas, Texas. Jones noted that the
International Brotherhood of Teamsters had members in the Dallas
area and asked Knowles if he still had Jones’ business card.
After Knowles answered affirmatively, Jones stated, “[w]ell,
keep it, you know, you never know, you might need me sometime.
You never want to burn any bridges.”
Eighty-seven votes were cast in the election. Forty-four
employees voted for Local 391; forty-one against. There were
two challenged ballots, an insufficient number to affect the
outcome of the election.
On December 27, 2010, Enterprise filed six objections to
the election with the RD. A hearing was ordered before a Board
Hearing Officer. On February 7, 2011, the Board Hearing Officer
issued his Report and Recommendation recommending that
Enterprise’s objections be overruled and that a Certification of
Representative issue.
Enterprise then filed exceptions with the Board to the
Board Hearing Officer’s Report and Recommendation. On December
29, 2011, the Board adopted the Board Hearing Officer’s
recommendations to overrule Enterprise’s objections, and the
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Board certified Local 391 as collective bargaining
representative of the Enterprise unit employees.
On January 17, 2012, Local 391 asked Enterprise to bargain
with it, and Enterprise refused. On February 3, 2012, Local 391
filed an unfair labor practices charge with the Board alleging
that Enterprise violated the NLRA by refusing to bargain with
it. On February 27, 2012 the Board’s General Counsel issued a
complaint against Enterprise. On March 14, 2012, the Board’s
General Counsel filed a motion for summary judgment.
On April 18, 2012, the Board granted the Board’s General
Counsel’s motion for summary judgment, holding that Enterprise
violated §§ 8(a)(1) and (a)(5) of the NLRA by refusing to
bargain with Local 391. The Board’s order requires Enterprise
to cease and desist from engaging in the unfair labor practices
found and from in any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under the NLRA. Affirmatively, the Board’s order
requires Enterprise to bargain with Local 391 upon request and
embody any understanding reached in a signed agreement. The
order also requires Enterprise to post a remedial notice and, if
appropriate, distribute copies of the notice electronically.
B
Section 8(a)(1) of the NLRA makes it an unfair labor
practice to “interfere with, restrain, or coerce employees in
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the exercise of [their rights under the NLRA],” while § 8(a)(5)
makes it an unfair labor practice for an employer “to refuse to
bargain collectively with the representatives of his employees.”
29 U.S.C. §§ 158(a)(1), (5). Enterprise admits that it refused
to bargain with Local 391, but claims that the Board erred in
refusing to set aside the results of the election.
A union may obtain certification in one of two ways:
through an election or the employer’s voluntary recognition.
Lincoln Park Zoological Soc. v. NLRB, 116 F.3d 216, 219 (7th
Cir. 1997). Here, of course, there was no voluntary
recognition. Thus, we must address whether Local 391 obtained
recognition through a valid election.
“Congress has entrusted the Board with a wide degree of
discretion in establishing the procedure and safeguards
necessary to insure the fair and free choice of bargaining
representatives by employees.” NLRB v. A.J. Tower Co., 329 U.S.
324, 330 (1946). Consequently, we presume the validity of a
Board-supervised election and will overturn such an election
only if the Board has clearly abused its discretion. NLRB v.
Media Gen. Operations, Inc., 360 F.3d 434, 441 (4th Cir. 2004);
NLRB v. Flambeau Airmold Corp., 178 F.3d 705, 707 (4th Cir.
1999).
A party seeking to have an election set aside bears a heavy
burden and must prove by specific evidence not only that
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improprieties occurred, but also that they prevented a fair
election. Elizabethtown Gas Co. v. NLRB, 212 F.3d 257, 262 (4th
Cir. 2000). When evaluating whether a party has met this heavy
burden, we must be “mindful of the real world environment in
which an election takes place.” NLRB v. Coca-Cola Bottling Co.,
132 F.3d 1001, 1003 (4th Cir. 1997). “Although the Board
strives to maintain laboratory conditions in elections, clinical
asepsis is an unattainable goal. An election is by its nature a
rough and tumble affair, and a certain amount of exaggerations,
hyperbole, and appeals to emotion are to be expected.” Id.
(citation and internal quotation marks omitted).
The Board’s “findings of fact are conclusive as long as
they are ‘supported by substantial evidence on the record
considered as a whole.’” Evergreen Am. Corp. v. NLRB, 531 F.3d
321, 326 (4th Cir. 2008) (quoting 29 U.S.C. § 160(e)).
“Substantial evidence is ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Id.
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“While the Board may not base its inference on pure
speculation[,] it may draw reasonable inferences from the
evidence.” Overnite Transp. Co. v. NLRB, 280 F.3d 417, 428 (4th
Cir. 2002) (en banc) (alteration, ellipsis, and internal
quotation marks omitted).
1
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Enterprise first contends that the results of the election
must be set aside because Local 391 used a photograph of
Enterprise employee Roberto Henriquez on a campaign flyer
without Henriquez’s prior authorization. In rejecting this
contention, the Board found that, at most, Local 391 “implicitly
misrepresented that Henriquez authorized the use of his image in
the flyer.” Enterprise Leasing Co. — Southeast, LLC, 2011 WL
6853530, at *2 (NLRB 2011). According to the Board, such
misrepresentation did not warrant setting aside the results of
the election, because there was no evidence that Local 391 in
fact misrepresented Henriquez’s support for Local 391 or that he
objected to Local 391’s use of his photograph on the flyer. The
Board also emphasized that there was no evidence of pervasive
misrepresentations regarding Enterprise employee authorization
for use of photographs or any claim that eligible Enterprise
employees were unable to recognize the flyer as anything else
than Local 391 propaganda.
In Midland National Life Insurance Company, 263 NLRB 127
(1982), which was approved by this court in Case Farms of North
Carolina, Incorporated v. NLRB, 128 F.3d 841 (4th Cir. 1997),
the Board outlined the standard regarding misrepresentations
occurring in the context of campaign statements. Midland, 263
NLRB at 129-33. Under the Midland standard, the Board “no
longer probe[s] into the truth or falsity of the parties’
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campaign statements” nor will it “set elections aside on the
basis of misleading campaign statements.” Id. at 133; see also
Case Farms, 128 F.3d at 844 (quoting Midland).
The only exception to the Midland standard concerns forged
documents. Midland, 263 NLRB at 133. The premise behind this
particular exception evidences the Board’s central concern that
employee voters not be deceived with respect to the true nature
of the statement in campaign propaganda. Id. In outlining the
Midland standard, the Board displayed its faith in the employee
voters’ ability not to accept what they are told at face value,
but, instead, to weigh it according to its potential for bias.
Accordingly, the Board determined that it would “set an election
aside not because of the substance of the representation, but
because of the deceptive manner in which it was made, a manner
which renders employees unable to evaluate the forgery for what
it is.” Id. The Board further distinguished
misrepresentations, which would not require the election to be
set aside, from other types of campaign misconduct, “such as
threats, promises, or the like,” which if adequately proven
would warrant setting aside the results of an election. Id.
In this case, we cannot say that the Board misapplied “the
permissive Midland standard.” Case Farms, 128 F.3d at 845.
Even if, as Enterprise suggests, the evidence proved that
Henriquez did not authorize the use of his image, such evidence
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would still amount to a mere misrepresentation in the campaign
context. Local 391’s conduct involved no forgery, and there is
nothing in the record to indicate that the eligible Enterprise
employees’ ability to recognize the flyer as campaign propaganda
was compromised. Moreover, the Board’s rejection of
Enterprise’s campaign flyer claim is consistent with its prior
precedent. See Somerset Valley Rehab. & Nursing Center, 2011 WL
4498270, at **1-3 (NLRB 2011) (overruling objection where a
union falsely quoted union supporters as actually stating that
they would vote for the union); BFI Waste Servs., 343 NLRB 254,
254 n.2 (2004) (overruling objection where a union arguably
misrepresented quotes from two employees); Champaign Residential
Servs. Inc., 325 NLRB 687, 687 (1998) (overruling objection
where two employees did not know that their signatures in
support of a union would be shared with others on a flyer);
Findlay Indus. Inc., 323 NLRB 766, 766 n.2 (1997) (overruling
objection where a union, at most, misrepresented that two
employees would vote for it).
In support of its position, Enterprise asserts that the
Board has established a per se rule preventing unions and
employers from using the photograph of an employee without the
employee’s prior authorization, citing Brentwood At Hobart v.
NLRB, 675 F.3d 999 (6th Cir. 2012), Sprain Brook Manor Nursing
Home, LLC, 348 NLRB 851 (2006), Allegheny Ludlum Corporation,
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333 NLRB 734 (2001), and Sony Corporation of America, 313 NLRB
420 (1993). However, the Board’s precedent has not established
such a per se rule.
In Brentwood At Hobart, the court merely recited an
unremarkable proposition that unauthorized photos “may taint” an
election, but found that the employer waived its claim by
failing to present it to the Board. 675 F.3d at 1001, 1005-07.
Thus, the court did not recognize a per se rule. In Sprain
Brook, the Board declined to overturn an election because the
union had purportedly photographed employees without their
consent and then used the photographs in its campaign materials.
348 NLRB at 851. The Board noted that the union had obtained
signed consent forms from employees prior to using their
photographs, id., but it did not hold that the use of employee
photographs without such consent is per se objectionable.
In Allegheny Ludlum, the Board set forth five prerequisites
for permissible employer videotaping of employees for a campaign
video which included assurances that an employee’s participation
was voluntary, 333 NLRB at 743; it also explicitly stated that
it was not creating a per se rule that “employers must obtain
employees’ explicit consent before including their images in
campaign videotapes.” Id. at 744. Further, to the extent that
its earlier decision in Sony was being construed as establishing
a per se rule requiring explicit employee consent, the Board in
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Allegheny Ludlum said that such a construction was “unintended
and unwarranted.” Id.
In sum, we hold that the Board’s determination that the
results of the election should not be set aside because Local
391 used a photograph of Enterprise employee Roberto Henriquez
on a campaign flyer without Henriquez’s prior authorization is
supported by substantial evidence.
2
Enterprise also contends that the election results should
be set aside because an ice/snow storm on December 16, 2010 in
the Wake County, North Carolina area caused a determinative
number of eligible Enterprise employees not to vote in the
election held on December 16 and 17. Adopting the reasoning of
the Board Hearing Officer, the Board concluded that Enterprise
failed to show that the severity of the weather conditions
reasonably denied eligible Enterprise employees an adequate
opportunity to vote.
In In re Baker Victory Services, Inc., 331 NLRB 1068
(2000), the Board stated that an election “should be set aside
where severe weather conditions on the day of the election
reasonably denied eligible voters an adequate opportunity to
vote and a determinative number did not vote.” Id. at 1070; see
also V.I.P. Limousine, Inc., 274 NLRB 641, 641 (1985) (noting
that an election should be set aside where the inclement weather
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“affect[s] the electorate as a whole” and “[a] substantial
number of employees did not vote in the election”). Applying
this standard, we find no reason to disturb the Board’s
decision.
Neither the RDU Airport nor Enterprise’s car rental
facility closed at any time on December 16 or 17, 2010 because
of the inclement weather. Moreover, there is no evidence that
the weather conditions affected the ability of any eligible
Enterprise employee to vote, especially when the weather
improved on December 17, a day where eligible Enterprise
employees were offered two different time periods in which to
vote.
Enterprise turns our attention to the testimony of Jill
Trout, Enterprise’s Human Resources Manager, that Enterprise
received about ten “call outs” on December 16, 2010 and four
more on December 17. However, Enterprise presented no evidence
regarding its normal call-out rate, and, thus, the meaning of
this evidence cannot be discerned. Moreover, Trout testified
that she had no personal knowledge of the reason for the call-
outs, nor did she have any knowledge of any eligible Enterprise
employee who did not vote on account of the weather. Under such
circumstances, Trout’s testimony sheds no light on whether
eligible Enterprise employees were denied an opportunity to
vote.
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The Board’s ruling on Enterprise’s contention concerning
the inclement weather is consistent with its reasoned decisions.
For example, in V.I.P. Limousine, the Board understandably set
aside an election where twenty inches of snow fell around the
election site in Connecticut during the polling period, “making
navigation of the roads extremely difficult, if not impossible.”
274 NLRB at 641. Similarly, in Baker Victory, the Board
properly set aside an election where more than four feet of snow
had fallen in the City of Buffalo during the two-week period
preceding the election, and a state of emergency had been
declared for the city during the week of the election. 331 NLRB
at 1069.
Unlike the weather conditions in V.I.P. Limousine and Baker
Victory, there is no evidence that weather conditions impacted
the ability of the eligible Enterprise employees to vote. As
noted above, Enterprise’s car rental facility remained open
throughout the inclement weather on December 16, 2010, and there
is no evidence that weather was a serious issue when the polls
were open on December 17. Accordingly, the Board’s
determination that the results of the election should not be set
aside because of the ice/snow storm on December 16 in the Wake
County, North Carolina area is supported by substantial
evidence.
3
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Enterprise contends that the results of the election should
be set aside because union organizer Steve Jones told Enterprise
employee Damion Knowles in the presence of other Enterprise
employees that “[y]ou never want to burn any bridges.” In
support of this contention, Enterprise heavily relies on the
subjective reaction of Knowles, who says he felt physically
threatened by Jones’s statement. However, adopting the
reasoning of the Board Hearing Officer, the Board concluded that
Jones’s statement failed to establish that the free choice of a
reasonable employee would have been hindered. We agree with the
Board.
First off, we have recognized that the “‘[s]ubjective
reactions of employees are irrelevant to the question of whether
there was, in fact, objectionable conduct.” Media Gen.
Operations, 360 F.3d at 442 (quoting Kmart Corp., 322 NLRB 1014,
1015 (1997)). This is so because the test for coercion is an
objective one. Id.
Second, embracing Enterprise’s argument would do harm to
the precedent that recognizes that “election campaigns, by their
nature, are rough and tumble affairs, and they typically involve
elements of pressure or inducement.” Id. A certain amount of
hyperbole and exaggeration is expected in an election campaign,
which is why the responsibility for assessing the relevant facts
and deciding whether the union’s conduct interfered with a
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reasonable employee’s free and fair choice in a representation
election lies with the Board. Id. This case is no different.
Third and finally, we agree with the Board that, even if
Knowles’ statement could somehow be construed as a threat, the
statement merely implied that Knowles should not forsake a good
relationship with Jones, even if Knowles moved into management,
because no one knows what the future may bring. As such, the
statement would not coerce a voter or cause a voter to change
his or her vote. Cf. id. (holding that a union agent did not
engage in coercive conduct when he told employees that they
should sign a petition stating they would vote for the union to
“‘separate the men from the boys’”).
In sum, the Board’s determination that the results of the
election should not be set aside because Jones told Knowles that
“[y]ou never want to burn any bridges” is supported by
substantial evidence.
III
A
Huntington, formerly Northrop Grumman Shipbuilding,
operates a shipbuilding and dry dock facility in Newport News,
Virginia. Its principal business is the construction, repair,
and overhaul of United States Navy vessels, particularly
nuclear-powered aircraft carriers and submarines.
- 23 -
The construction of an aircraft carrier is a complicated
task. Its construction requires a carefully planned and highly
integrated design and manufacturing process involving thousands
of employees. The lifespan of an aircraft carrier construction
project, from the time the keel is laid through completion,
takes between five and six years. Submarines are smaller than
aircraft carriers but similarly challenging to design and
construct. The process used to build submarines is not unlike
that used for aircraft carriers.
Huntington also performs considerable refueling and
overhaul work. Nuclear-powered aircraft carriers require
refueling of their nuclear core after about twenty-five years of
operation. This intricate process requires over three years to
complete. During refueling, Huntington also performs a general
overhaul of the ship, updating computer, electronic, and combat
systems. As with initial construction, refueling and overhaul
involves the integrated work of thousands of employees.
Huntington employs approximately 18,500 people. It divides
its workforce into four categories—-professional,
administrative, production and maintenance, and technical. This
case concerns Huntington’s approximately 2,400 technical
- 24 -
employees. 4 Technical employees perform non-manual work
requiring some sort of specialized training. Huntington groups
technical employees into ten job classifications: (1) quality
inspectors; (2) test technicians; (3) designers; (4) engineering
technicians; (5) dimensional control technicians; (6) laboratory
technicians; (7) chemical handlers; (8) planners; (9)
radiological control technicians (RCTs); and (10) calibration
technicians.
The technical employees in almost all of these job
classifications work in various divisions and departments, and
work at various locations throughout the shipyard. 5 The RCTs and
4
In addition to the technical employees, Huntington employs
approximately 2,000 professional employees (mostly engineers),
approximately 1,500 administrative employees (mostly office and
clerical staff), approximately 8,500 production and maintenance
employees (electricians, welders, machinists, janitors, and
riggers, among others), approximately 2,500 supervisory
employees (foremen, managers, superintendents, supervisors,
directors, and vice presidents), and approximately 1,600 other
employees who perform various tasks. The production and
maintenance employees, the guards, and the firefighters are the
only employees represented by a union.
5
Structurally, Huntington is headed by a General Manager,
who oversees six operating divisions. The six operating
divisions are: (1) Navy Programs Division, which provides
overall management and oversight over aircraft carrier and
submarine construction and aircraft carrier overhaul; (2) the
Operations and Manufacturing Division, which handles the
manufacture of ship components in the first phase of production
for assembly on the ships; (3) the Quality and Process
Excellence Division, which audits and inspects production work
and provides record reviews and ensures that contract
specifications are met; (4) the Waterfront Nuclear Engineering
(Continued)
- 25 -
calibration technicians are only assigned to one department
within Huntington’s Nuclear Services Division called “E85
RADCON.” Technical employees are salaried, have their own labor
and salary grades separate from all other employees and are paid
under the same bi-weekly payroll system. They are covered by
the same personnel policies and are eligible for the same
pension, 401(k), medical, dental, insurance, and sick leave
plans and other benefits programs, as are all unrepresented
salaried employees. They all perform non-manual work of a
technical nature, requiring the exercise of specialized
training, some on-the-job and others requiring additional
extensive coursework. Seven of the ten technical
classifications have some limited radiation worker training.
Aside from the RCTs, who have extensive radiological control
training, designers, test technicians, quality inspectors,
laboratory technicians, calibration technicians, and chemical
handlers all are given dosimetry training of two to five days
because their duties require that they enter radiological
controlled areas. Many employees do not enter such areas.
and Test Services Division (Nuclear Services Division), which
provides oversight of the nuclear aspects of Huntington’s
operations; (5) the Commercial Nuclear Programs Department,
which is involved in the construction of commercial nuclear
plant equipment and systems; and (6) the Department of Energy
Programs Office, which is involved with various programs offered
by the Department of Energy.
- 26 -
Quality inspectors provide oversight for the construction,
maintenance and overhaul, and refueling of the nuclear vessels.
They use drawings prepared by other technicians to ensure that
all construction and repair work is performed within the
specifications of the drawing requirements.
Test technicians perform a variety of nuclear and non-
nuclear mechanical and electrical testing on a ship’s component
systems. The non-nuclear test technicians work on propulsion
and combat systems while the nuclear test technicians work on
various nuclear systems. Both nuclear and non-nuclear test
technicians help establish system conditions and execute work
control documents during the shipbuilding process.
Designers create drawings and blueprints that serve as
guides for the manufacturing of ship components and ship
assembly. They frequently visit the ships to analyze various
components and systems on which they are working.
Engineering technicians typically are former Navy personnel
with aptitude in mechanical and electrical systems. They
interface with engineers, designers, and the construction
workers who build ship systems. They also prepare technical
work documents that guide certain work processes.
Dimension control technicians provide metrology services.
They use precision instruments to measure the dimensions of
large ship structures and machinery foundations so that
- 27 -
components can be constructed to fit together properly. They
map these materials with photogrammetric instruments and laser
trackers, which requires extensive training.
Laboratory technicians test production materials and
elements generated by shipbuilding. They perform environmental
sampling, metals and coating analysis, water chemistry analysis,
and mechanical and metallurgy testing. They also examine and
test materials generated during nuclear work.
Chemical Handlers dispose of hazardous materials generated
during shipbuilding and overhaul. They primarily handle the
radioactive waste generated during nuclear work.
Planners review ship designs, technical work documents, and
other drawings to determine the proper sequencing of work and
material procurement. They determine needed materials and when
they need to be delivered.
RCTs are part of a department within Huntington’s Nuclear
Services Division called “E85 RADCON.” There are approximately
140 RCTs in the E85 RADCON department. There are also other
technical employees in the department, namely, twenty laboratory
technicians, three calibration technicians, and sixty RCT
trainees.
RCTs essentially perform a safety function: providing
independent radiological oversight for nuclear work areas. RCTs
track radiation levels and ensure that individual employees’
- 28 -
exposure remains within safe limits. They are also responsible
for ensuring that employees meet the radiological control
standards required for Huntington to maintain its license to
work with nuclear materials. Huntington’s overall radiological
control philosophy is known as “ALARA” (As Low As Reasonably
Achievable), and RCT independence is the key to that approach.
Under ALARA, although all nuclear workers are expected to
minimize both their personal exposure and wider contamination,
RCTs are responsible for maintaining protocols and achieving the
required containment. Therefore, under the ALARA program, RCTs
are in a separate department from the rest of the work force in
order to facilitate oversight that is independent of both
production and quality control.
RCT oversight has two prongs: maintaining radiological
control areas and performing routine radiological surveys. RCTs
set up control areas to restrict access near nuclear reactors,
work sites, components, and materials, both on ships and in the
shops. They use Technical Work Documents (TWDs) and drawings to
make a map of areas that require controls and then survey to
establish the baseline radiation levels and find “hot spots,”
which are then marked on the maps. In monitored controlled
areas, RCTs set up barriers, signs, and employee checkpoints.
In less restricted control areas, RCTs simply leave an area
roped off with signs designating the requirements for entry.
- 29 -
At monitored control areas with established checkpoints,
RCTs observe and restrict employee traffic. Only employees with
radiological safety training can enter, and RCTs question them
about their jobs and the materials and tools they are taking in
with them. Then, RCTs assign each employee a dosimeter to
record the employee’s dose of radiation, and brief employees
about the hot spots before allowing entry. As employees leave,
RCTs collect the dosimeters, note employees’ exposure, confirm
that they followed control protocols and screen materials that
they bring out of the area. When they observe contamination or
irregularity, they order that work be stopped and submit a
radiological deficiency report.
RCTs conduct routine radiological surveys around the
shipyard on rotations ranging from daily to annually, in
addition to performing surveys that are required during
particular tests and projects. For “contamination surveys,”
RCTs wipe surfaces to test for contaminants and in “radiation
surveys,” they use a probe to take contact or ambient radiation
readings. Surveys can take anywhere from fifteen minutes to two
hours, depending on the type of survey required.
Laboratory technicians within the E85 RADCON department
test the materials collected by the RCTs, help calibrate
dosimetry equipment, and screen potentially contaminated
materials that require laboratory tests. E85 RADCON
- 30 -
calibration technicians maintain and calibrate the instruments
used by RCTs. As a result, they are qualified to operate all of
the instruments that RCTs use. They interact with RCTs when
they pick up and replace faulty equipment.
RCT trainees perform some of the routine surveys and
monitor limited control points during their on-the-job training.
They can set up the area and allow certain workers inside.
Occasionally, other technical employees perform work
similar to the surveys performed by RCTs. Environmental
laboratory technicians perform radiation and contamination
surveys of drainage ditches and outfalls to make sure that
various contaminants do not spread to the environment, but it is
unclear from the record how often they do this. Nuclear
chemical handlers are qualified to do radiation and
contamination surveys on their vehicles, although, again, the
record does not show how often they actually do so. There are
no temporary transfers into or out of E85 RADCON
classifications. However, there have been permanent transfers.
There is evidence that RCTs have transferred into other
technical classifications, but no evidence about how many or how
often this occurs.
RCTs receive highly specialized training. They attend
orientation at the shipyard for their first month and then leave
for a twenty-two week training course run by the United States
- 31 -
Navy. This training requires math and physical sciences
aptitude and only half of the RCT trainees graduate. After
graduation, Huntington conducts five weeks of training at its
facility and then administers a full-day oral examination. RCTs
must take requalification training every thirty months and
attend “spill drills” to practice responding to emergencies on a
quarterly basis. Other technical employees receive, at most,
only a few days of radiological safety training. Like most
other employees, RCTs are required to possess government
security clearance of “confidential” or higher.
RCTs use specialized tools, including approximately twenty-
seven radiation detection instruments. They receive orange kit
bags and additional supplies such as “wipes, laws, tweezers,
[and] bags.” Only RCTs receive the orange bags. A few other
technical classifications are qualified to use some of these
tools, including environmental laboratory technicians and
nuclear chemical handlers who perform occasional surveys.
RCTs have daily, work-related contact with all employees
who enter radiological control areas. Most of these are trades
employees (painters, machinists, pipefitters, etc.),
supervisors, and other non-technical employees. At certain
stages during refueling overhauls and during the final months of
new ship construction, RCTs have increased contact at control
points with other technical employees, mostly quality inspectors
- 32 -
and test technicians, but also designers and engineering
technicians. Contact with employees at the control points is
brief and involves monitoring them as described above, not
working together to perform technical or production-oriented
jobs. During new construction, there is a period of five or
more years before RCTs are present on the ships. Even during
refueling overhauls, which require radiological oversight from
the beginning, RCTs’ contact with other technicians varies
substantially throughout the period of the ship’s availability
depending on the phase of production and whether RCTs are
assigned to the ship or the shops.
B
On March 3, 2009, the Machinists Union petitioned the Board
to represent the RCTs in the E85 RADCON department. In the
alternative, the Machinists Union agreed to proceed to an
election in a departmental unit of all of the technical
employees in the E85 RADCON department. Huntington argued that
the smallest appropriate unit had to include all of its 2,400
technical employees.
Following a hearing, the RD issued a DDE on May 29, 2009,
finding that a unit consisting of the technical employees in the
E85 RADCON department (namely, the RCTs, calibration
technicians, laboratory technicians, and RCT trainees) was
appropriate for purposes of collective bargaining. Huntington
- 33 -
requested Board review of the DDE, contending that an
appropriate unit must include all of its 2,400 technical
employees. On December 30, 2011, the Board affirmed the RD’s
decision.
In the ensuing Board-conducted election, the technical
employees of the E85 RADCON department voted for representation
by the Machinists Union. The Board subsequently certified the
Machinists Union as the exclusive representative for purposes of
collective bargaining.
Following certification, Huntington refused to comply with
the Machinists Union bargaining request in order to contest the
validity of the certification. The Machinists Union filed an
unfair labor practices charge, and the Board’s General Counsel
issued a complaint alleging that Huntington’s refusal was
unlawful. The General Counsel subsequently filed a motion for
summary judgment, which Huntington opposed. Huntington claimed
once again that the bargaining unit must include all 2,400 of
Huntington’s technical employees. Alternatively, Huntington
argued that the Board lacked a quorum to issue its decision and
order.
On August 14, 2012, the Board issued a decision and order
granting the motion for summary judgment, finding that
Huntington’s refusal to bargain was unlawful. The Board’s
decision and order requires Huntington to cease and desist from
- 34 -
its unlawful conduct and from, in any like or related manner,
interfering with, restraining, or coercing employees in the
exercise of their rights under the NLRA. Affirmatively, the
Board’s decision and order requires Huntington to bargain with
the Machinists Union upon request and embody any understanding
reached in a signed agreement. The decision and order also
requires Huntington to post a remedial notice and, if
appropriate, distribute copies of the notice electronically.
C
Section 9(a) of the NLRA provides that a union will be the
exclusive bargaining representative if chosen “by the majority
of the employees in a unit appropriate for” collective
bargaining. 29 U.S.C. § 159(a). Section 9(b) authorizes the
Board to “decide in each case whether, in order to assure the
employees the fullest freedom in exercising the rights
guaranteed by [the NLRA], the unit appropriate for the purposes
of collective bargaining shall be the employer unit, craft unit,
plant unit, or subdivision thereof.” Id. § 159(b). The Supreme
Court, in construing § 9(b), has stated that the determination
of an appropriate unit “lies largely within the discretion of
the Board, whose decision, if not final is rarely to be
disturbed.” South Prairie Constr. Co. v. Operating Eng’rs,
Local 627, 425 U.S. 800, 805 (1976) (citation and internal
quotation marks omitted). Further, the Board is possessed of
- 35 -
the widest possible discretion in determining the appropriate
unit. Sandvik Rock Tools, Inc. v. NLRB, 194 F.3d 531, 534 (4th
Cir. 1999).
Section 9(b), however, does not direct the Board how it is
to decide in a given case whether a particular grouping of
employees is appropriate. Accordingly, the Board’s selection of
an appropriate unit “involves of necessity a large measure of
informed discretion.” Packard Motor Car Co. v. NLRB, 330 U.S.
485, 491 (1947).
Nothing in the NLRA requires that the unit for bargaining
be the only appropriate unit, or the ultimate unit, or the most
appropriate unit; the NLRA only requires that the unit be
“appropriate.” Sandvik Rock, 194 F.3d at 534; see also Overnite
Transp. Co., 322 NLRB 723, 723 (1996) (“The Board, however, does
not compel a petitioner to seek any particular appropriate unit.
The Board’s declared policy is to consider only whether the unit
requested is an appropriate one, even though it may not be the
optimum or most appropriate unit for collective bargaining.”).
As the Supreme Court has stated, “employees may seek to organize
‘a unit’ that is ‘appropriate’−−not necessarily the single most
appropriate unit.” Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 610
(1991).
The focus of the Board’s determination begins with the
bargaining unit sought by the petitioner, because, under § 9(d)
- 36 -
of the NLRA, “the initiative in selecting an appropriate unit
resides with the employees.” Id. Further, “[i]n many cases,
there is no ‘right unit’ and the Board is faced with alternative
appropriate units.” Corrie Corp. of Charleston v. NLRB, 375
F.2d 149, 154 (4th Cir. 1967). It is within the Board’s
discretion to select among different potential groupings of
employees in determining an appropriate unit. Fair Oaks
Anesthesia Assocs., P.C. v. NLRB, 975 F.2d 1068, 1071 (4th Cir.
1992).
1
In this case, the RD applied the bargaining unit standard
the Board has applied in cases involving technical employees. 6
Under this standard, a unit consisting of only a subset of an
employer’s technical employees is appropriate “when the
employees in the requested unit possess a sufficiently distinct
community of interest apart from other technicals to warrant
their establishment as a separate appropriate unit.” TRW Carr
Div., 266 NLRB 326, 326 n.4 (1983). Under the TRW Carr
standard, the burden is on the union seeking representation of
the subset of technical employees to demonstrate the distinct
6
Technical employees are those who do not meet the NLRA’s
definition of professional employee, 29 U.S.C. § 152(12), but
whose work involves independent judgment and requires
specialized training. NLRB v. Sweetwater Hosp. Ass’n, 604 F.2d
454, 456 n.2 (6th Cir. 1979).
- 37 -
community of interest. Id. at 326 n.3 (“Showing that some
technical employees perform their duties in another phase of the
Employer’s operation is not enough to establish affirmatively
why the segmented group of technical employees should be
represented separately.”); see also Bendix Corp., 150 NLRB 718,
720 (1964) (“But it is not enough for the Petitioner to show
that it is willing to represent all the electronic technicians
at the plant; it must also establish affirmatively why they
should be represented separately.”).
The RD concluded that Huntington’s RCTs possess a distinct
community of interest from all other technicals outside of the
E85 RADCON department. The RD noted that the RCTs, inter alia,
possess unique skills, undergo intensive, lengthy, and
specialized training, have distinct job functions, utilize
special tools and equipment, do not temporarily interchange with
other technicals, and have separate supervision. The RD further
noted that the level of functional integration and contact with
non-radiological control technicals was not so substantial as to
negate their separate and distinct community of interest.
With regard to the RCT trainees, calibration technicians,
and laboratory technicians in the E85 RADCON department, the RD
concluded that these employees share a community of interest
with the RCTs sufficient to require their inclusion in the
bargaining unit. The RD noted that the calibration technicians
- 38 -
and laboratory technicians are in the same department, have job
duties functionally related and integrated in that all are
responsible for radiological control at the facility, are
trained to use the same specialized equipment, work out of the
E85 RADCON facilities, and are under the same departmental
supervision hierarchy. The RD also noted that most of the
laboratory technicians in the E85 RADCON department have
progressed from the RCT classification and that laboratory
technicians generally do not interact with the laboratory
technicians outside of the E85 RADCON department.
With regard to the calibration technicians in the E85
RADCON department, the RD noted that, while not required to
possess the same training or perform the same duties as the
RCTs, these employees work on and operate the instruments and
equipment used by the RCTs and are responsible for ensuring that
these instruments and equipment are in working order. With
regard to the RCT trainees, the RD noted that it was undisputed
that these employees received the same training as the RCTs in
order for them to become monitors in the next step of their job
progression.
Based on all of this evidence, the RD held that a
departmental unit of technical employees (RCTs, laboratory
technicians, calibration technicians, and RCT trainees) in the
E85 RADCON department constituted a functionally distinct group
- 39 -
with a sufficiently distinct community of interest as to warrant
a separate unit appropriate for the purposes of collective
bargaining.
On review of the RD’s decision, the Board analyzed the case
under both the TRW Carr standard and the “community of interest”
standard, which the Board clarified in Specialty Healthcare &
Rehab. Ctr. of Mobile, 2011 WL 3916077 (NLRB 2011), a case
decided after the RD’s decision. 7 Following a line of Board
authority, Specialty Healthcare made clear that the appropriate
bargaining unit determination turns on whether the petitioned-
for employees share a “community of interest.” Specialty
Healthcare, 2011 WL 3916077, at *14 (citation and internal
quotation marks omitted). 8 An employer challenging the Board’s
7
The Board observed that, “arguably,” it had developed a
different standard for determining whether a unit of technical
employees is appropriate. Northrop Grumman Shipbuilding, Inc.,
2011 WL 7121890, at *6 (NLRB 2011). The Board further observed
that it need not reach the question of “whether a distinct test
exists for technical employees,” because it would “reach the
same result even under the technical employee line of cases.”
Id. The RD understandably did not cite to Specialty Healthcare
because, as noted above, the case was decided after he issued
his decision.
8
The “community of interest” test requires the Board to
examine twelve equally important criteria in determining whether
the employees seeking to be represented by a union share a
sufficient community of interest to form an appropriate
bargaining unit. NLRB v. Lundy Packing Co., 68 F.3d 1577, 1580
(4th Cir. 1995). The twelve factors the Board must examine are
the following:
(Continued)
- 40 -
unit determination under the community of interest standard has
the burden to prove that the bargaining unit selected is
“utterly inappropriate.” Sandvik Rock, 194 F.3d at 534
(citation and internal quotation marks omitted); see also Blue
Man Vegas, LLC v. NLRB, 529 F.3d 417, 421 (D.C. Cir. 2008)
(noting that, if the objecting party shows that excluded
employees “share an overwhelming community of interest” with the
employees in the otherwise appropriate unit, then there is no
legitimate basis to exclude them); Specialty Healthcare, 2011 WL
3916077, at *17 (noting that “the Board will find the
petitioned-for unit to be an appropriate unit, despite a
contention that employees in the unit could be placed in a
larger unit which would also be appropriate or even more
appropriate, unless the party so contending demonstrates that
(1) similarity in the scale and manner of determining
the earnings; (2) similarity in employment benefits,
hours of work, and other terms and conditions of
employment; (3) similarity in the kind of work
performed; (4) similarity in the qualifications,
skills and training of the employees; (5) frequency of
contact or interchange among the employees; (6)
geographic proximity; (7) continuity or integration of
production processes; (8) common supervision and
determination of labor-relations policy; (9)
relationship to the administrative organization of the
employer; (10) history of collective bargaining; (11)
desires of the affected employees; [and] (12) extent
of union organization.
Id.
- 41 -
employees in the larger unit share an overwhelming community of
interest with those in the petitioned-for unit”). In Specialty
Healthcare, the Board noted that additional employees share an
overwhelming community of interest with the petitioned-for
employees only when there is no legitimate basis upon which to
exclude the employees from the larger unit because the
traditional community of interest factors “‘overlap almost
completely.’” 2011 WL 3916077, at *16 (quoting Blue Man Vegas,
529 F.3d at 422). 9
In analyzing the case under both of these standards, the
Board first turned to the Specialty Healthcare standard.
Applying this standard, the Board concluded that the E85 RADCON
technical employees shared a community of interest under the
Board’s community of interest criteria. The Board noted that
the E85 RADCON technical employees all worked in the same
department under common supervision and their work had a shared
9
There is obvious tension between the TRW Carr standard and
the community of interest standard clarified in Specialty
Healthcare. The TRW Carr standard places the burden on the
union, while the community of interest standard clarified in
Specialty Healthcare places the burden on the employer.
Moreover, the overwhelming community of interest component of
the community of interest standard may run afoul of our decision
in Lundy Packing. See 68 F.3d at 1581 (“By presuming the union-
proposed unit proper unless there is an overwhelming community
of interest with excluded employees, the Board effectively
accorded controlling weight to the extent of union organization.
This is because “the union will propose the unit it has
organized.”) (citation and internal quotation marks omitted).
These are tensions, however, which we need not resolve here.
- 42 -
purpose and was functionally integrated. The Board further
noted that the RCTs monitor employees and collect samples when
appropriate; they rely on laboratory technicians to analyze the
samples they collect; and calibration technicians keep the RCTs’
instruments in proper working order. The Board noted that RCT
trainees assist RCTs and operate limited control checkpoints as
they learn the job, and that many of the E85 RADCON laboratory
technicians used to be RCTs.
The Board rejected Huntington’s argument that the technical
employees outside of the E85 RADCON department shared an
overwhelming community of interest with the E85 RADCON technical
employees. The Board noted that all of the facts relied upon by
Huntington (namely, that all of Huntington’s technicians operate
under the same salary structure and personnel policies, share
break facilities, and enjoy the same benefits) were outweighed
by the facts distinguishing the E85 RADCON technicians from the
other technicians. In so noting, the Board emphasized that the
RCTs’ job function was to ensure workplace safety and control
radioactive contamination at the shipyard, a task distinct from
the production-oriented jobs of technical employees outside of
the E85 RADCON department. Consequently, the Board concluded
that the RCTs are not functionally integrated into the
production work flow of the shipyard, but instead have an
independent oversight role, and often their role conflicted with
- 43 -
the production and quality control goals of other technical
employees.
The Board also emphasized that, in keeping with the RCTs’
independent oversight role, Huntington had placed all the RCTs
in a separate department, under separate supervision from its
production employees. In addition, work contacts between the
RCTs and other technical employees were brief and limited to the
same radioactive screening at safety checkpoints that thousands
of trades employees receive, with only a few exceptions during
particular projects. The Board further emphasized that the RCTs
receive extensive and highly-specialized radiological training
and use numerous radiation detection instruments specific to
their job; as a result, they possess unique skills. Based on
this evidence, the Board concluded that the technical employees
in the E85 RADCON department shared a community of interest
sufficiently distinct from Huntington’s production-oriented
technical employees at the shipyard.
The Board then turned to the standard set forth in TRW
Carr. The Board agreed with the RD’s extensive reasoning,
discussed above, supporting his conclusion that, under the TRW
Carr standard, the technical employees in the E85 RADCON
department shared a community of interest distinct from that
which they share with the production-oriented technical
employees in Huntington’s shipyard. Accordingly, the Board
- 44 -
concluded that, under the TRW Carr standard, a unit of all of
the technical employees in the E85 RADCON department was an
appropriate unit for collective bargaining.
2
Huntington attacks the Specialty Healthcare standard on a
variety of fronts. For example, Huntington argues that the
Board’s Specialty Healthcare standard, in particular the
overwhelming community of interest portion of that standard,
improperly gives controlling weight to a union’s extent [of
organization] in the workplace and, thus, offends § 9(c)(5) of
the NLRA, which provides that the Board, in making unit
determinations, shall ensure that “the extent of organization
shall not be controlling.” 29 U.S.C. § 159(c)(5). Huntington
also argues that the Specialty Healthcare standard usurps the
well-settled standard for technical employees set forth in TRW
Carr. According to Huntington, the TRW Carr standard applies
here, and the Board erred when it concluded under that standard
that all of the technical employees in the E85 RADCON department
was an appropriate unit for collective bargaining.
We need not decide whether the Board erred in applying the
standard set forth in Specialty Healthcare, as Huntington
submits, or even address whether Specialty Healthcare is
consistent with the NLRA or our decision in Lundy Packing. This
- 45 -
is so because the Board’s decision under the TRW Carr standard
is supported by substantial evidence.
Under the TRW Carr standard, when technical employees work
in similar jobs and have similar working conditions and
benefits, the smallest appropriate unit for a group of technical
employees must include all technical employees similarly
employed. See Western Electric, 268 NLRB 351, 352 (1983) (“In
general, the smallest appropriate unit of technical employees
working in similar jobs with similar working conditions and
benefits comprises all such technical employees.); TRW Carr, 266
NLRB at 326 (“When technical employees work in similar jobs and
have similar working conditions and benefits, the only
appropriate unit for a group of technicals must include all such
employees similarly employed.”). Thus, while the Board has
found units of some, but not all, similarly situated technical
employees to be inappropriate, it has also found a smaller unit
to be appropriate when the petitioned-for technical unit
possesses a sufficiently distinct community of interest apart
from other technical units to warrant their establishment as a
separate appropriate unit. See Western Electric, 268 NLRB at
352 (“Although a unit of less than all professional employees
may be appropriate if that unit consists of a readily
identifiable group with distinct skills and functions, the Board
will not certify an arbitrarily defined segment of an employer’s
- 46 -
similarly situated professionals.”); TRW Carr, 266 NLRB at 326
n.4 (“[I]t is the Board’s policy to grant a unit including some,
but not all, technical employees only when the employees in the
requested unit possess a sufficiently distinct community of
interest apart from other technicals to warrant their
establishment as a separate appropriate unit.”).
In this case, it was within the discretion of the Board to
find that the technical employees in the E85 RADCON department
possessed a sufficiently distinct community of interest apart
from other technical employees at the shipyard to warrant their
establishment as a separate bargaining unit. First, the RCTs
perform--with the integrated support of calibration technicians,
laboratory technicians, and RCT trainees in the E85 RADCON
department--the unique function of providing independent
radiological oversight at the shipyard. No employees outside of
the E85 RADCON department perform that task. The E85 RADCON
technical employees are also distinct from other technical
employees because they possess unique skills, have distinct job
functions, are qualified to use specialized tools and equipment,
have separate supervision, and do not temporarily interchange
with other technical employees.
The E85 RADCON technical employees’ work contacts with
other technical employees, and their level of functional
integration, is not so substantial as to negate their separate
- 47 -
and distinct community of interest. The RCTs’ work contacts
with technical employees outside the E85 RADCON department are
limited to subjecting them to the same radiological screening
that other employees receive. Employees in technical
classifications outside of the E85 RADCON department perform
tasks that are directly related to production, as opposed to
radiological safety, and the E85 RADCON technical employees are
not part of the production work flow. In sum, the technical
employees in the E85 RADCON department perform a radiological
safety function that is sufficiently distinct from all other
employees at the shipyard to warrant their having a separate
bargaining unit.
In support of its contention that the only appropriate
bargaining unit must include all of Huntington’s technical
employees, Huntington heavily relies on two cases in which the
Board found that units not including all of the employer’s
technical employees were not appropriate. Both cases involved
RCTs at Westinghouse Electric Corporation’s Naval Reactors
Facility (NRF) at the National Reactor Testing Station in Idaho
Falls, Idaho. Westinghouse Elec. Corp., 137 NLRB 332 (1962)
(Westinghouse I), and Westinghouse Elec. Corp., 300 NLRB 834
(1990) (Westinghouse II). According to Huntington, our case is
controlled by the Westinghouse cases because Huntington’s RCTs
- 48 -
perform similar, if not identical, duties at its facility as did
the employees at issue in the Westinghouse cases.
In Westinghouse I, the union sought to establish two units
of technical employees, excluding industrial hygiene technicians
among others. 137 NLRB at 332. 10 The Board found that the
petitioned-for units were not “functionally distinct or
homogenous groups of employees, [or] administrative or
departmental units.” Id. at 337. In so finding, the Board
explained that NRF was “one big scientific laboratory for the
development and simulation of scientific problems, and the
analysis and discovery of answers to those problems.” Id. at
334. Consequently, the Board found that the “technical
functions of NRF [were] thoroughly integrated,” that the skills
of all the technical employees were “quite similar,” that
technical employees all “receive the same training course,” and
that the petitioned-for employees were not a “departmental
unit.” Id. at 337. The Board concluded that all of the NRF’s
technical employees “must be taken together as constituting an
appropriate unit.” Id.
In Westinghouse II, the RD found a bargaining unit of RCTs
and chemistry technicians, excluding other technical employees,
10
The industrial hygiene technicians in Westinghouse I
performed a radiological control function similar to the RCTs at
Huntington’s shipyard. 137 NLRB at 336.
- 49 -
to be appropriate. 300 NLRB at 834. On review, the Board found
that that unit was not appropriate. Id. at 835. The Board
heavily relied on its earlier decision in Westinghouse I
concerning the functional integration of the technical
employees. Id. Thus, the Board found that radiological control
was not a task “discrete from the [e]mployer’s major service” of
handling and processing nuclear material and operating reactors.
Id. According to the Board, this control function required RCTs
to have “close contact with other technical employees” and
provide them with “direct support services.” Id. The Board
further noted that the record concerning the working conditions
of RCTs and other technical employees was “strikingly similar”
to the facts presented in Westinghouse I. Id. Consequently,
the Board found no grounds for departing from its earlier
holding and concluded that only a comprehensive unit of
technical employees was appropriate at the NRF. Id.
The Board distinguished the Westinghouse cases from
Huntington’s case. The Board noted that, although all three
cases involved RCTs who performed similar functions, the
similarity between Huntington’s case and the Westinghouse cases
ended there. The Board observed that the overall technical work
force at Huntington and Westinghouse is quite different, due in
large measure to the substantial differences between running a
nuclear research and training lab, as in the Westinghouse cases,
- 50 -
and operating a shipyard that builds and refurbishes aircraft
carriers and submarines, as in Huntington’s case. In the
Westinghouse cases, the RCTs provided radiological safety for a
relatively small complement of technical employees, all working
near nuclear reactors and materials. In contrast, in
Huntington’s case, a large proportion of its shipyard is engaged
in non-nuclear construction, so hundreds of its technical
employees require no radiological oversight, and it is
undisputed that many employees are not even qualified to enter
nuclear work areas.
Moreover, the Board observed that the amount of
radiological oversight that is required varies substantially
over the course of work on any given ship at the Huntington
shipyard, and there is a period of several years at the
beginning of new ship construction where no oversight is
necessary at all. In contrast, the Board explained, in the
Westinghouse cases, the RCTs’ “presence is an absolute necessity
at all stages of some functions of [the] facilities.” Northrop
Grumman Shipbuilding, Inc., 2011 WL 7121890, at *7 (citation and
internal quotation marks omitted). Unlike the RCTs in the
Westinghouse cases, Huntington’s RCTs do not provide direct
support to or have close contact with the other technical
classifications. To the contrary, the Board noted, Huntington’s
- 51 -
RCTs have little or no regular working contact with a majority
of the other technical employees.
The Board also observed that the absence of even temporary
interchange between RCTs and other technical classifications at
the Huntington shipyard further distinguished this case from the
Westinghouse cases, where there was such temporary interchange.
In light of all the meaningful distinctions between Huntington’s
case and the Westinghouse cases, the Board concluded that the
Westinghouse cases were not controlling.
We agree with the Board that the Westinghouse cases are
distinguishable from our case, for the reasons persuasively set
forth by the Board. Accordingly, we hold that the Board’s
decision, that under the standard set forth in TRW Carr, the
technical employees in the E85 RADCON department share a
community of interest sufficiently distinct from the other
technical employees at Huntington’s shipyard, is supported by
substantial evidence.
IV
Having determined that Enterprise and Huntington do not
prevail on their statutory challenges under the NLRA, we must
proceed to the constitutional question presented: Whether the
President’s three appointments to the Board on January 4, 2012
- 52 -
are valid under the Recess Appointments Clause of the United
States Constitution.
A
Section 3(b) of the NLRA provides in relevant part:
The Board is authorized to delegate to any group of
three or more members any or all of the powers which
it may itself exercise. . . . A vacancy in the Board
shall not impair the right of the remaining members to
exercise all of the powers of the Board, and three
members of the Board shall, at all times, constitute a
quorum of the Board, except that two members shall
constitute a quorum of any group designated pursuant
to the first sentence hereof.
29 U.S.C. § 153(b). In New Process Steel, the Supreme Court
addressed the question of whether, under § 3(b), following a
delegation of the Board’s powers to a three-member group, two
members may continue to exercise that delegated authority once
the group’s (and the Board’s) membership falls to two. 130 S.
Ct. at 2638. The Supreme Court held that the two remaining
Board members could not exercise such authority. Id. The Court
identified three reasons supporting its reading of § 3(b).
First, the Court noted that reading the first sentence of
§ 3(b) to require “the Board’s delegated power be vested
continuously in a group of three members [was] the only way to
harmonize and give meaningful effect to all of the provisions in
§ 3(b).” Id. at 2640. Second, the Court noted that,
if Congress had intended to authorize two members
alone to act for the Board on an ongoing basis, it
could have said so in straightforward language.
- 53 -
Congress instead imposed the requirement that the
Board delegate authority to no fewer than three
members, and that it have three participating members
to constitute a quorum. Those provisions are at best
an unlikely way of conveying congressional approval of
a two-member Board.
Id. at 2641. Third, the Court noted that its interpretation of
§ 3(b) was consistent with the longstanding practice of the
Board. Id. at 2641-42.
At the time it issued its 2012 decisions in the unfair
labor practices cases currently before us, 11 the Board had two
properly seated members, namely, Mark Gaston Pearce and Brian
Hayes, both of whom were confirmed by the Senate on June 22,
2010. Its third member, Craig Becker, had been appointed to a
recess term that ended on January 3, 2012. As of that date, the
Board lost its quorum. The President, purportedly acting
pursuant to the Recess Appointments Clause, appointed Sharon
Block, Richard Griffin, Jr., and Terence Flynn (who has since
resigned his seat) to the Board the next day, January 4, 2012. 12
The lawfulness of the Board’s 2012 unfair labor practices
decisions in both the Enterprise and Huntington cases turns on
11
April 2012 in Enterprise’s case, and August 2012 in
Huntington’s case.
12
Block replaced Becker on the Board. Flynn filled the
seat which became vacant on August 27, 2010 when Peter
Schaumber’s term expired. Griffin filled Wilma Leibman’s seat,
which became vacant when her term expired on August 27, 2011.
- 54 -
whether the President’s appointments pursuant to the Recess
Appointments Clause are valid. 13 If the appointments are
invalid, the Board’s quorum requirement was not met at the time
it issued the 2012 decisions. Both Enterprise and Huntington
challenge these Presidential appointments; the Board asserts
that the President validly exercised his delegated authority.
We begin our discussion by setting forth the governing
interpretative law and the relevant constitutional provisions at
issue. 14
13
Understandably, neither Enterprise nor Huntington
challenge the validity of Becker’s appointment to the Board
under the Recess Appointments Clause. In NLRB v. New Vista
Nursing and Rehabilitation, LLC., 2013 WL 2099742, at **11-30
(3d Cir. May 16, 2013), the court held that Becker’s appointment
was invalid under the Recess Appointments Clause. The validity
of Becker’s appointment is not before us because direct judicial
review of Board representation decisions is unavailable; rather,
only indirect review of such decisions is available, and this is
obtained through a refusal to bargain and the filing of an
unfair labor practices charge. NLRB v. Kentucky River Cmty.
Care Inc., 532 U.S. 706, 709 (2001); AFL v. NLRB, 308 U.S. 401,
409–11 (1940). Thus, the only Board decisions under direct
review in these cases are the ones issued in the unfair labor
practices cases in 2012.
14
Neither Enterprise nor Huntington argue that § 3(b)’s
three-member-composition requirement deprives us of jurisdiction
to review the Board’s 2012 unfair labor practices decisions in
the cases before us. However, as a federal appellate court, we
have an obligation to satisfy ourselves that we have
jurisdiction to review these decisions. See Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)
(observing that “every federal appellate court has a special
obligation to satisfy itself not only of its own jurisdiction,
but also that of the lower courts in a cause under review, even
though the parties are prepared to concede it”) (citation and
(Continued)
- 55 -
B
When interpreting the text of the Constitution, we begin
with the presumption that every word in the Constitution has
independent meaning, “that no word was unnecessarily used, or
needlessly added.” Wright v. United States, 302 U.S. 583, 588
(1938). Moreover, we must bear in mind in our evaluation of the
constitutional provisions at issue that “‘[t]he Constitution was
written to be understood by the voters; its words and phrases
were used in their normal and ordinary as distinguished from
internal quotation marks omitted). In Arbaugh v. Y & H
Corporation, 546 U.S. 500 (2006), the Supreme Court set forth a
“readily administrable bright line” jurisdictional standard.
Id. at 516. “If the Legislature clearly states that a threshold
limitation on a statute’s scope shall count as jurisdictional,
then courts and litigants will be duly instructed and will not
be left to wrestle with the issue.” Id. at 515–16. In New
Process Steel, the Supreme Court held that § 3(b)’s three-
member-composition requirement mandated that a delegee group
maintain a membership of three in order to exercise the
delegated authority of the Board. 130 S. Ct. at 2639-42. Such
a requirement is a threshold limitation on the scope of the
Board’s delegated power under the NLRA, and, therefore, we are
satisfied that we have jurisdiction to determine whether there
is any reason for which the delegee group consists of fewer than
three members, including whether one member is invalidly
appointed under the Recess Appointments Clause. See New Vista
Nursing, at *5 (“By explaining that three members are required
in order to exercise the delegated authority of the Board, . . .
the Supreme Court has in essence declared that the three-member-
composition requirement goes directly to the board’s power to
hear a case, which is exactly what jurisdictional questions
relate to”) (citations and internal quotation marks omitted);
Noel Canning, 705 F.3d at 497 (“[T]he objections before us
concerning lack of a quorum raise questions that go to the very
power of the Board to act.”).
- 56 -
technical meaning.’” District of Columbia v. Heller, 554 U.S.
570, 576 (2008) (quoting United States v. Sprague, 282 U.S. 716,
731 (1931)). The “[n]ormal meaning may of course include an
idiomatic meaning, but it excludes secret or technical meanings
that would not have been known to ordinary citizens in the
founding generation.” Id. at 576–77.
The Appointments Clause of the Constitution provides that
the President “shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the [S]upreme Court, and all
other Officers of the United States . . . .” U.S. Const. art.
II, § 2, cl.2. 15 The shared responsibility between the President
and the Senate was created to act as a “check upon a spirit of
favoritism in the President,” and to prevent the appointment of
“unfit characters.” The Federalist No. 76, at 392 (Alexander
Hamilton) (Carey and McClellan ed., 1990).
The Recess Appointments Clause was created to supplement
the Appointments Clause. The Federalist No. 67, at 350
(Alexander Hamilton). The clause states that the President
“shall have Power to fill up all Vacancies that may happen
during the Recess of the Senate, by granting Commissions which
15
The parties agree that members of the Board are “Officers
of the United States” within the meaning of the Appointments
Clause.
- 57 -
shall expire at the End of their next Session.” U.S. Const.
art. II, § 2, cl.3. “Recesses can generally be classified into
two categories: intersession recesses--or, recesses that occur
between two sessions of Congress--and intrasession recesses--or
recesses that occur within one particular session of Congress.”
Alexander Wolf, Taking Back What’s Theirs: The Recess
Appointments Clause, Pro Forma Sessions and A Political Tug-of-
War, 81 Fordham L. Rev. 2055, 2062 (2013) (footnotes omitted).
Stated differently, an intersession break of the Senate refers
to the period of time between an adjournment sine die and the
start of the Senate’s next session, while an intrasession break
refers to the period of time between a non-sine die adjournment
and the time the Senate reconvenes.
The Recess Appointments Clause has two important features
relevant here. First, it was designed to ensure that the
government would remain in operation during times when the
Senate would be unable to advise and consent to a nomination.
Id. at 2062-63. When the Constitution was written, intersession
recesses regularly lasted between six and nine months. Michael
B. Rappaport, The Original Meaning of the Recess Appointments
Clause, 52 UCLA L. Rev. 1487, 1498 (2005). Consequently, in the
absence of a recess appointments provision, there was a genuine
possibility that an important government position, for example,
a cabinet post, would remain vacant for a long period of time,
- 58 -
because recalling the Senate, U.S. Const. art. II, § 3, was not
an easy task considering the slow transportation of the late
1700s. Rappaport, 52 UCLA L. Rev. at 1498. Second, and more
importantly, the Recess Appointments Clause was designed to
prevent the President from unilaterally exercising appointment
power, thereby preserving the separation of the powers between
the Legislative and Executive Branches. Id. at 1511 n.68; cf.
Freytag v. C.I.R., 501 U.S. 868, 884 (U.S. 1991) (“The Framers
understood, however, that by limiting the appointment power,
they could ensure that those who wielded it were accountable to
political force and the will of the people.”); cf. id. (noting
that the Appointments Clause “bespeaks a principle of limitation
by dividing the power to appoint the principal federal officers—
ambassadors, ministers, heads of departments, and judges—between
the Executive and Legislative Branches”).
There was no debate surrounding the inclusion of the Recess
Appointments Clause into the Constitution, and the clause was
included in the Constitution without a single dissenting vote.
Wolf, 81 Fordham L. Rev. at 2063. Moreover, it is clearly
established that the phrase “End of [the Senate’s] next
Session,” U.S. Const. art. II, § 2, cl.3, means “the end of the
session following the final adjournment of the current session
of Congress. Thus, an appointment made during the first session
of a particular Congress will not expire until the end of the
- 59 -
second session of that Congress.” Wolf, 81 Fordham L. Rev. at
2064 (footnotes, citations, and internal quotation marks
omitted).
Under the Adjournments Clause, “neither [chamber], during
the Session of Congress, shall, without the Consent of the
other, adjourn for more than three days.” U.S. Const. art. I,
§ 5, cl.4. 16 An adjournment of more than three days by one
chamber of Congress thus requires the consent of the other
chamber. Such an adjournment usually is accomplished through
the passage of concurrent resolutions permitting such
adjournment. Wolf, 81 Fordham L. Rev. at 2065. The parties
agree that the Senate was not adjourned pursuant to the
Adjournments Clause when the President made the three 2012
16
“Adjourn” or “adjournment” is used in the Constitution on
five more occasions (in four clauses): (1) Article I, § 5,
Clause 1 (allowing a minority of members to “adjourn from day to
day”); (2) Article I, § 7, Clause 2 (“If any Bill shall not be
returned by the President within ten Days (Sundays excepted)
after it shall have been presented to him, the Same shall be a
Law, in like Manner as if he had signed it, unless the Congress
by their Adjournment prevent its Return, in which Case it shall
not be a Law”); (3) Article I, § 7, Clause 3 (“Every Order,
Resolution, or Vote to which the Concurrence of the Senate and
House of Representatives may be necessary (except on a question
of Adjournment) shall be presented to the President of the
United States”); and (4) Article II, § 3 (“[The President] may,
on extraordinary Occasions, convene both Houses, or either of
them, and in Case of Disagreement between them, with Respect to
the Time of Adjournment, he may adjourn them to such Time as he
shall think proper.”).
- 60 -
recess appointments to the Board at issue in the cases before
us. 17
The Take Care Clause requires the President to “take Care
that the Laws be faithfully executed.” U.S. Const. art. II,
§ 3. This clause’s application here is subtle. On the one
hand, it may be said that the Take Care Clause requires the
President to ensure that the laws of the United States, such as
the NLRA, be faithfully executed and that the use of pro forma
sessions prevents such execution. On the other hand, it may be
said that the use of pro forma sessions ensures that the
President will seek the advice and consent of the Senate in
exercising his appointment power.
C
In pressing their respective constitutional arguments
before this court, the parties take umbrage under authority
supporting their position. The Board’s view is supported by
decisions out of the Second, Ninth, and Eleventh Circuits. See
Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004); United States
v. Woodley, 751 F.2d 1008 (9th Cir. 1985); United States v.
17
The use of pro forma sessions every three days allows one
chamber of Congress effectively to adjourn when the other
chamber will not consent to an adjournment. A Senate pro forma
session usually begins with a single senator gaveling-in the
session and concludes with the same senator ending the session
only several seconds or minutes later. Wolf, 81 Fordham L. Rev.
at 2067.
- 61 -
Allocco, 305 F.2d 704 (2d Cir. 1962). Two recent decisions
support the position pressed by Enterprise and Huntington. See
New Vista Nursing, 2013 WL 2099742; Noel Canning, 705 F.3d 490.
An analysis of the Eleventh Circuit’s decision in Evans, the
D.C. Circuit’s decision in Noel Canning, and the Third Circuit’s
decision in New Vista Nursing is helpful in resolving the
constitutional question before us.
1
In Evans, between February 12 and February 23, 2004, the
Senate took a break in their session. 387 F.3d at 1221. During
that break, on February 20, the President, relying on the Recess
Appointments Clause, appointed William Pryor, Jr., to the
Eleventh Circuit Court of Appeals. Id. The plaintiffs in Evans
challenged the authority of Judge Pryor to act as a United
States Circuit Judge. Id. at 1222.
The Evans court first held that a recess appointment to an
Article III court is permitted under the Recess Appointments
Clause. Id. at 1222-24. The court also held that the term “the
Recess” also includes an intrasession break. Id. at 1224-26.
In so holding, the court first indicated that the Senate’s
twelve-day break fit within the definition of a “recess” that
was “in use when the Constitution was ratified: the dictionary
definitions that have been called to our attention (or that we
- 62 -
have found) did not, for example, speak of a minimum time.” Id.
at 1224.
The Evans court then rejected the argument that the term
“the Recess” limits the opportunity to make recess appointments
to one particular recess, that is, the recess at the end of a
session. Id. Rather, the court observed, the term “the Recess”
could refer to both intersession as well intrasession breaks.
Id. at 1224-45.
The court in Evans was not persuaded that the Framers’ use
of the term “adjournment” in other clauses and not the term “the
Recess” necessarily limited the meaning of the term “the Recess”
to a break at the end of a session. Id. at 1225. The court
stated that, “[i]nstead of describing a block of time, the term
‘Adjournment’ in the Constitution can be read to signify a
parliamentary action: Congress’s taking or having taken a
break.” Id.
The Evans court noted that the “Constitution, on its face,
does not establish a minimum time that an authorized break in
the Senate must last to give legal force to the President’s
appointment power under the Recess Appointments Clause,” and the
court elected not to establish a minimum time. Id. The court
did observe that, although a President had not before appointed
a judge to an Article III court during an intrasession break as
short as the one in Judge Pryor’s case, appointments to other
- 63 -
offices requiring Senate confirmation had been made during
intrasession breaks of about this length or shorter. Id.
The Evans court noted that its interpretation of the term
“the Recess” was consistent with one of the main purposes behind
the Recess Appointments Clause. The court noted that, to assure
the proper functioning of the government, both intrasession
breaks and intersession breaks were permitted, because, in
theory, an intersession break could be shorter than an
intrasession break. Id. at 1226.
The Evans court then turned to the question of whether the
vacancy needs to “happen” or “arise” during “the Recess” in
order to be filled. The court concluded that such vacancies can
be filled if they happen to exist during a recess, id. at 1226-
27, citing the Ninth Circuit’s decision in Woodley and the
Second Circuit’s decision in Allocco. Id. at 1226. The court
agreed that the phrase “that may happen” is subject to more than
one interpretation, noting that the word “happen” can be defined
as “befall,” which can mean “happen to be.” Id. (citation and
internal quotation marks omitted). Such a definition, which the
court described as the “most accepted,” does not contradict the
plain meaning rule. Id.
The Evans court also relied on the past practice of early
Presidents (in particular, President Washington) making recess
appointments that originated while the Senate was in session.
- 64 -
Id. Finally, the court noted that, interpreting the phrase
“that may happen” to “prohibit the President from filling a
vacancy that comes into being on the last day of a Session but
to empower the President to fill a vacancy that arises
immediately thereafter (on the first day of a recess)
contradicts what we understand to be the purpose of the Recess
Appointments Clause: to keep important offices filled and the
government functioning.” Id. at 1227.
2
In Noel Canning, the D.C. Circuit held that the President’s
three January 4, 2012 appointments to the Board were invalid
under the Recess Appointments Clause. 705 F.3d at 499-514. In
its decision, the court first tackled the meaning of the term
“the Recess” as used in the Recess Appointments Clause. The
court concluded that the term “the Recess” refers to the
intersession break of the Senate, that is, the period between
sessions of the Senate when the Senate is by definition not in
session and therefore unavailable to receive and act upon
nominations from the President. Id. at 499-507. The court
relied on eight key points to support its conclusion.
First, the court in Noel Canning emphasized that the use of
the definite article “‘the’” suggested “specificity.” Id. at
500. According to the court, as a “matter of cold, unadorned
logic, it makes no sense to adopt the Board’s proposition that
- 65 -
when the Framers said ‘the Recess,’ what they really meant was
‘a recess.’” Id.
In support of its definite/indefinite article distinction,
the court in Noel Canning observed that on six occasions the
Constitution uses some form of the verb “adjourn” or the noun
“adjournment” to refer to breaks in the proceedings of one or
both houses of Congress, and in each case, an indefinite article
is used. Id. In contrast, the two uses of “Recess” (once in
the Recess Appointments Clause and the other in the original
Senate Vacancies Clause, U.S. Const. art. I, § 3, cl.2,
superseded by id. Amend. XVII) contain a definite article
(“the”). According to the court, this “points to the
inescapable conclusion that the Framers intended something
specific by the term “‘the Recess,’ and that it was something
different than a generic break in proceedings.” Id.
Second, the Noel Canning court looked to the structure of
the Recess Appointments Clause. The court noted that the clause
“sets a time limit on recess appointments by providing that
those commissions shall expire ‘at the End of their [the
Senate’s] next Session.’” Id. The court observed that the
structure of the clause was such that the there was a difference
between the term “‘the Recess’” and the term “‘Session.’” Id.
Accordingly, “[e]ither the Senate is in session, or it is in the
recess. If it has broken for three days within an ongoing
- 66 -
session, it is not in ‘the Recess.’” Id. Since it was
“universally accepted that ‘Session’ here refers to the usually
two or sometimes three sessions per Congress . . . , ‘the
Recess’ should be taken to mean only times when the Senate is
not in one of those sessions.” Id.
Third, the Noel Canning court observed that its
interpretations of the terms “the Recess” and “Session” was
supported by constitutional history. The court cited to The
Federalist No. 67, where Alexander Hamilton noted that recess
appointments would expire at the end of the ensuing session of
Congress. Id. For there to be an ensuing session, the court
stated, recess appointments must be “made at a time when the
Senate was not in session−that is, when it was in ‘the Recess.’”
Id. at 500-01.
Fourth, the Noel Canning court noted that historical
practice supported its interpretation of the term “the Recess.”
The court observed that there were no intrasession recess
appointments for the first eighty years following the
Constitution’s ratification, id. at 501, and there were only
three documented intrasession recess appointments prior to 1947.
Id. at 502. According to the court, the “infrequency of
intrasession recess appointments during the first 150 years of
the Republic suggests an assumed absence of the power to make
- 67 -
such appointments.” Id. (citation, alterations, and internal
quotation marks omitted).
Fifth, the Noel Canning court indicated that the
Constitution’s overall appointments structure provided
additional support for its position. According to the court,
the Framers emphasized that the “recess appointment power served
only as a stopgap for times when the Senate was unable to
provide advice and consent.” Id. at 502. The court quoted from
Hamilton’s The Federalist No. 67, where Hamilton observed that
advice and consent “‘declares the general mode of appointing
officers of the United States,’ while the Recess Appointments
Clause serves as ‘nothing more than a supplement to the other
for the purpose of establishing an auxiliary method of
appointment, in cases to which the general method was
inadequate.’” Id. at 502-03 (quoting The Federalist No. 67, at
350). Such a structure was important to the Framers, the court
observed, because appointments made pursuant to the advice and
consent of the Senate under the Appointments Clause served to
prevent Presidential favoritism and the appointment of the
unqualified. Id. at 503.
By contrast, to keep the government functioning during
lengthy intersession periods (typically six to nine months)
where it was difficult to recall the Senate, the Framers created
a supplemental method for appointments. Id. The court noted,
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however, that the Framers placed strict limits on the execution
of this supplemental method. Id. According to the court,
[i]t would have made little sense to extend this
“auxiliary” method to any intrasession break, for the
“auxiliary” ability to make recess appointments could
easily swallow the “general” route of advice and
consent. The President could simply wait until the
Senate took an intrasession break to make
appointments, and thus “advice and consent” would
hardly restrain his appointment choices at all.
Id.
Seventh, the court in Noel Canning observed that there was
no other plausible interpretation of the term “the Recess.” The
term could not refer to all breaks, otherwise the President
could make an appointment during a Senate lunch break. Id. The
court also noted that this interpretation could not “explain the
use of the definite article ‘the,’ the singular ‘Recess’ in the
Clause, or why the Framers used ‘adjournment’ differently from
‘Recess.’” Id.
The next interpretation addressed by the Noel Canning court
was that the term “the Recess” refers to some substantial
passage of time. This interpretation was adopted by Attorney
General Harry Daugherty in 1921. In an opinion, Attorney
General Daugherty argued that “[t]o give the word ‘recess’ a
technical and not a practical construction, is to disregard
substance for form.” 33 Op. Att’y Gen. 20, 22 (1921). In this
opinion, Attorney General Daugherty did not put an exact time on
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the length of the break necessary for a recess, stating that
“[i]n the very nature of things the line of demarcation can not
be accurately drawn.” Id. at 25. However, Attorney General
Daugherty rejected the proposition that an adjournment for five
or ten days met his definition, though he did conclude that a
break of twenty-eight days did. Id.
The Noel Canning court rejected Attorney General
Daugherty’s vague alternative in favor of the clarity of the
intersession interpretation. According to the court, “the
inherent vagueness of Daugherty’s interpretation counsels
against it,” because “the Framers would not likely have
introduced such a flimsy standard.” Id. at 504.
The court in Noel Canning likewise rejected the notion that
the term “the Recess” refers to any adjournment of more than
three days pursuant to the Adjournments Clause, because such an
interpretation lacked “any constitutional basis.” According to
the court,
[t]he Framers did not use the word “adjournment” in
the Recess Appointments Clause. Instead, they used
“the Recess.” The Adjournments Clause and the Recess
Appointments Clause exist in different contexts and
contain no hint that they should be read together.
Nothing in the text of either Clause, the
Constitution’s structure, or its history suggests a
link between the Clauses. Without any evidence
indicating that the two Clauses are related, we cannot
read one as governing the other. We will not do
violence to the Constitution by ignoring the Framers’
choice of words.
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Id.
The Noel Canning court also rejected an interpretation
adopted by the Office of Legal Counsel in 2012. Under this
interpretation of the term “the Recess,” the President has
discretion to determine when the Senate is in recess. See
Lawfulness of Recess Appointments During a Recess of the Senate
Notwithstanding Periodic Pro Forma Sessions, 36 Mem. Op. O.L.C.
1, 23 (2012) (“[T]he President therefore has discretion to
conclude that the Senate is unavailable to perform its advise-
and-consent function and to exercise his power to make recess
appointments.”). The court in Noel Canning rejected this
interpretation because to allow
the President to define the scope of his own
appointments power would eviscerate the Constitution’s
separation of powers. The checks and balances that
the Constitution places on each branch of government
serve as “self-executing safeguard[s] against the
encroachment or aggrandizement of one branch at the
expense of the other.” Buckley v. Valeo, 424 U.S. 1,
122, 96 S. Ct. 612, 46 L. Ed. 2d. 659 (1976). An
interpretation of “the Recess” that permits the
President to decide when the Senate is in recess would
demolish the checks and balances inherent in the
advice-and-consent requirement, giving the President
free rein to appoint his desired nominees at any time
he pleases, whether that time be a weekend, lunch, or
even when the Senate is in session and he is merely
displeased with its inaction.
705 F.3d at 504.
Eighth, the Noel Canning court rejected the analysis of the
Eleventh Circuit’s decision in Evans. The court observed that
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the Evans court’s analysis failed to recognize one of the
important purposes of the Recess Appointments Clause, that is,
that the clause allows the President to fill a vacancy only when
the Senate cannot provide advice and consent. Id. at 505. The
Noel Canning court also rejected the implication of the Evans
court’s analysis−that the term “the Recess” applies to any
recess. Id. Finally, the Noel Canning court observed that the
court in Evans failed to distinguish between “adjournment” and
“recess,” “rendering the latter superfluous and ignoring the
Framers’ specific choice of words.” Id. at 506.
Summarizing its holding concerning the meaning of the term
“the Recess,” the court in Noel Canning stated:
Finally, we would make explicit what we have implied
earlier. The dearth of intrasession appointments in
the years and decades following the ratification of
the Constitution speaks far more impressively than the
history of recent presidential exercise of a supposed
power to make such appointments. Recent Presidents
are doing no more than interpreting the Constitution.
While we recognize that all branches of government
must of necessity exercise their understanding of the
Constitution in order to perform their duties
faithfully thereto, ultimately it is our role to
discern the authoritative meaning of the supreme law.
As Chief Justice Marshall made clear in Marbury v.
Madison, “[i]t is emphatically the province and duty
of the judicial department to say what the law is.
Those who apply the rule to particular cases, must of
necessity expound and interpret that rule. If two
laws conflict with each other, the courts must decide
on the operation of each.” 5 U.S. (1 Cranch) at 177.
In Marbury, the Supreme Court established that if the
legislative branch has acted in contravention of the
Constitution, it is the courts that make that
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determination. In Youngstown Sheet & Tube Co. v.
Sawyer, the Supreme Court made clear that the courts
must make the same determination if the executive has
acted contrary to the Constitution. 343 U.S. 579, 72
S. Ct. 863, 96 L. Ed. 1153 (1952). That is the case
here . . . .
In short, we hold that “the Recess” is limited to
intersession recesses.
705 F.3d at 506.
Although the court in Noel Canning needed to go no further,
it went on to address the scope of the meaning of the word
“happen” in the Recess Appointments Clause. The court indicated
that two interpretations were available. The first, pressed by
Noel Canning, was that “happen” means “‘arise’” or “‘begin’” or
“‘come into being.’” Id. at 507. The second, pressed by the
Board, was that “happen” means “‘happen to exist.’” Id. The
court agreed with Noel Canning’s interpretation. Id. at 507-14.
The Noel Canning court first observed that the word
“happen” cannot logically mean vacancies that happened to exist
during “the Recess,” because such a construction rendered the
phrase “that may happen” unnecessary. Id. at 507. The court
next observed that its interpretation of the word “happen” was
consistent with the understanding of the word contemporaneous
with the Constitution’s ratification, citing to a dictionary at
the time of ratification defining the word “happen” as “[t]o
fall out; to chance; to come to pass.” Id. (citation and
internal quotation marks omitted). The court posited that a
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“vacancy happens, or comes to pass, only when it first arises,
demonstrating that the Recess Appointments Clause requires that
the relevant vacancy arise during the recess.” Id. (alterations
and internal quotation marks omitted).
The Noel Canning court next turned to the structure of the
Constitution to support its view. The court noted that it
“would have made little sense to make the primary method of
appointment the cumbersome advice and consent procedure
contemplated by that Clause if the secondary method would permit
the President to fill up all vacancies regardless of when the
vacancy arose.” Id. at 508. Otherwise, the court indicated,
the President could sidestep the Appointments Clause altogether
by simply waiting for a recess. Id.
The court in Noel Canning also observed that its
interpretation of the word “happen” was consistent with other
uses of the term in the Constitution. See id. (noting that the
Senate Vacancies Clause, which provided at the time of the
adoption of the Constitution “if Vacancies happen by
Resignation, or otherwise, during the Recess of the Legislature
of any State, the Executive thereof may make temporary
Appointments until the next Meeting of the Legislature, which
shall then fill such Vacancies,” U.S. Const. art. I, § 3, cl.2,
superseded by id. Amend. XVII, would make no sense if it refers
to vacancies that happen to exist at the time of a recess).
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The court in Noel Canning also observed that its
interpretation of the word “happen” was consistent with the
earliest Presidential interpretation of the word, examining the
actions of President Washington. According to the court,
President Washington understood the recess appointment power to
extend only to vacancies that arose during a Senate recess. Id.
Specifically, President Washington followed a practice that if
not enough time remained in the session to ask a person to serve
in an office, he would nominate a person without the nominee’s
consent, and the Senate would confirm the individual before
recessing. Rappaport, 52 UCLA L. Rev. at 1522. Then, if the
person declined to serve during the recess, thereby creating a
new vacancy during the recess, President Washington would fill
the position using his recess appointment power. Id. “If
President Washington and the early Senate had understood the
word ‘happen’ to mean ‘happen to exist,’ this convoluted process
would have been unnecessary.” Noel Canning, 705 F.3d at 508.
The Noel Canning court also distinguished Evans, Woodley,
and Allocco on the basis that these decisions did not focus
their analyses on the original public meaning of the word
“happen.” Id. The court also noted that modern scholarship had
demonstrated that President Washington’s exercise of the
appointment power was an example of “‘the practice of appointing
an individual without his consent and then, if he turns down the
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appointment during the recess, making a recess appointment at
that time.’” Id. at 509-10 (quoting Rappaport, 52 UCLA L. Rev.
at 1522 n.97).
The Noel Canning court also rejected the notion that its
interpretation of the word “happen” ran afoul of the Take Care
Clause. The court noted that the constitutional dilemma raised
by the case was an easy fix−Congress could provide that a Board
member’s service extends until the qualification of a successor,
or provide for action by less than the current quorum, or deal
with any inefficiencies in some other manner. Id. at 511.
Applying its interpretation of the word “happen,” the court
in Noel Canning held that the relevant vacancies did not arise
during the intersession break of the Senate. Id. at 512. The
three Board seats that the President filled on January 4, 2012
had become vacant on August 27, 2010, August 27, 2011, and
January 3, 2012, respectively. On August 27, 2010, the Senate
was in the midst of an intrasession break, so the vacancy that
arose on that date did not arise during “the Recess” for
purposes of the Recess Appointments Clause. Id. Similarly, the
Senate was in an intrasession break on August 27, 2011, so the
vacancy that arose on that date also did not qualify for a
recess appointment. Id. The seat formerly occupied by Becker
became vacant at the end of the Senate’s session on January 3,
2012. According to the court, it did not “‘happen during the
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Recess of the Senate’” because the Senate did not take an
intersession recess between the first and second sessions of the
112th Congress. Id.
3
In New Vista Nursing, the court addressed the question of
whether the President’s March 27, 2010 appointment of Becker to
the Board was valid under the Recess Appointments Clause. 2013
WL 2099742, at **11-30. On March 26, 2012, the Senate
“adjourned” for a two-week period. Id. at *6 (citation,
alterations, and internal quotation marks omitted). The court
in New Vista Nursing held that Becker’s appointment was invalid
under the Recess Appointments Clause because the Recess
Appointments Clause only applies to intersession breaks. Id. at
**11−30.
In beginning its analysis, the court in New Vista Nursing
identified three plausible definitions for the phrase “the
Recess of the Senate.” Id. at *13. According to the court, the
phrase “the Recess of the Senate” could refer to: (1)
intersession breaks as the court held in Noel Canning; (2)
intrasession breaks that last at least ten days as developed in
Evans and Attorney General Daugherty’s opinion; or (3) any time
in which “the Senate is not open for business and is unavailable
to provide its advice and consent” as developed by the Office of
Legal Counsel in 2012. Id.
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In deciding which definition to adopt, the court in New
Vista Nursing first examined dictionaries from the time of the
Constitution’s ratification. The court noted that such
dictionaries were inconclusive, because the definitions of
“recess” in Founding-era dictionaries supported each definition
of the phrase “the Recess of the Senate.” Id. at **13-14; id.
at *13 (noting that Samuel Johnson’s 1785 dictionary defined
“recess” to mean “retirement; retreat; withdrawing; secession”
as well as “departure” and “removal to distance”) (citation,
alterations, and internal quotation marks omitted).
The New Vista Nursing court then examined the parliamentary
practice of the English Parliament to see if it shed light on
the meaning of the phrase “the Recess of the Senate,” because
the parliamentary procedures of the first Senate were based on
the parliamentary procedures employed by the English Parliament.
Id. at *14. English parliamentary procedure during the Founding
era had three types of breaks: adjournments, prorogations, and
dissolutions. Id. Adjournments were “continuances of the
session from one day to another . . . and sometimes a fortnight
or a month together.” Id. (citation and internal quotation
marks omitted). Prorogations were “continuances of the
parliament from one session to another initiated by the king,”
id. (citation and internal quotation marks omitted), and
dissolutions were “terminations of a Parliament initiated by the
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king’s order, his death, or a length of time that necessitated
new elections before another Parliament could be convened.” Id.
(citation and internal quotation marks omitted).
The court in New Vista Nursing stated that it was
“tempt[ed] to say” that the phrase “the Recess of the Senate”
corresponded to a prorogation and, thus, the phrase “must refer
only to terminations of sessions and the intersession breaks
that follow them.” Id. at *15. However, the court stopped
short of such a conclusion because “adjournment,” as used in the
Constitution, did not mean the same thing to the Framers as it
did to the English Parliament. Specifically, the Constitution
employs “adjourn” and “adjournment” to refer to an intrasession
break (e.g., U.S. Const. art. I, § 5, cl.1 (allowing a minority
of members to “adjourn from day to day”)), as well as an
intersession break. See id. (noting that the Supreme Court in
The Pocket Veto Case, 279 U.S. 655 (1929), adopted a definition
of “adjournment” that included intrasession as well as
intersession breaks).
Because the parliamentary procedure of the English
Parliament proved inconclusive, the New Vista Nursing court
turned to other historical sources, namely, numerous state
constitutions and the practices of state legislatures and
governors. Id. at *15-16. The court observed that this
historical evidence demonstrated that, at the time of the
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Constitution’s ratification, the word “recess” had one of two
meanings, “either intersession breaks only or intersession
breaks plus long intrasession breaks,” id. at *16, with
legislatures preferring the former definition, while the
governors preferred the latter. Id. While the court concluded
that the historical evidence is unclear on whether “recess”
refers to intersession breaks only or intersession breaks plus
long intrasession breaks, the court made clear that the
historical evidence does not support the unavailable-for-
business definition. The court first noted that the historical
evidence suggests that a break of considerable length is
necessary to trigger a recess and that the unavailable-for-
business definition does not require a break of any particular
duration. Id. Second, the court noted that, at the time of the
Constitution’s ratification, a “recess” was “determined solely
by when the legislature adjourned—rather than by some
functionalist definition of when the body was unavailable for
business.” Id. at *17. The court could find no examples, and
the Board had provided none, suggesting that the definition of
the word “recess” turned on such factors “as whether members
were required to attend, the legislative chamber was empty, and
the body could receive messages.” Id. Rather, whether there
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was a “recess” turned on the “type, or possibly the duration, of
the legislature’s self-defined adjournment.” Id. 18
In trying to break the intersession/intrasession knot, the
New Vista Nursing court addressed the significance of the
definite article “the” in the phrase “the Recess of the Senate.”
The court observed that “the” might refer to a “specific thing,”
such an intersession break. Id. (citing Noel Canning). But the
court also noted that “the” could refer to another specific
thing, such as whenever the Senate was in recess. Id. (citing
Evans). The court also observed that the Constitution used
“the” in several different contexts. Id. (citing U.S. Const.
art. I, § 3, cl.4 (stating that “[t]he Vice President . . .
shall be President of the Senate”); art. I, § 3, cl.5 (stating
that that the Senate shall select a President Pro Tempore “in
the Absence of the Vice President”). Based on this evidence,
18
The court in New Vista Nursing found additional faults in
the unavailable-for-business definition. The court noted that
the structure of the Appointments and Recess Appointments
Clauses meant that the unavailable-for-business definition was
“implausibl[e],” 2013 WL 2099742, at *19, because adopting this
definition “would eviscerate the divided-powers framework the
two Appointments Clauses establish.” Id. The court noted that,
if the Senate refused to confirm one of the President’s
nominations, then the President could circumvent the Senate’s
constitutional role simply by waiting for the Senate to adjourn
for lunch or the evening; thus, the “exception of the Recess
Appointments Clause would swallow the rule of the Appointments
Clause.” Id.
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the court found the use of “the” in the phrase “the Recess of
the Senate” to be “uninformative.” Id.
The court in New Vista Nursing then turned to the
constitutional context of the phrase “the Recess of the Senate.”
Following the reasoning of Noel Canning, the court observed that
the structure of the Appointments Clause and the Recess
Appointments Clause was such that the Recess Appointments Clause
is a “secondary, or exceptional, method of appointing officers,
while the Appointments Clause provides the primary, or general,
method of appointment.” Id. According to the court, the
“clauses thus reveal a constitutional preference for divided
power over the appointments process, which is deviated from only
in specified situations.” Id. (footnote omitted). In support
of this conclusion, the court discussed at length Hamilton’s The
Federalist No. 67. Id. at *18. Thus, the court posited that
the main purpose of the Recess Appointments Clause was not, as
the Evans court suggested, to enable the President to fill
vacancies to assure the proper functioning of our government,
but rather “to preserve the Senate’s advice-and-consent power by
limiting the president’s unilateral appointment power.” Id.
According to the court, ignoring the separation of powers
between the Legislative and Executive Branches “neglect[ed] a
central principle that underlies the two Appointments Clauses.”
Id. (footnote omitted).
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The court in New Vista Nursing found further guidance in
several relevant constitutional provisions. First, the court
looked to the word “adjournment,” a term the court noted that
could refer to a break of any type or length. Id. at *20. The
court observed that, “if the framers had intended for the
president to be able to appoint officers during intrasession
breaks, then the Recess Appointments Clause could have been
worded differently, allowing recess appointments ‘during the
Adjournment of the Senate.’” Id. For this reason, the court
concluded that the use of the word “recess” instead of
“adjournment,” meant that “recess” had a different meaning than
“adjournment.” Id. (citing Noel Canning).
To discern the meanings of the words “adjournment” and
“recess,” the court in New Vista Nursing examined such words in
their constitutional context. The court noted that the lack of
temporal guideposts in the Constitution concerning the phrase
“the Recess of the Senate.” Id. at 21. The court rejected the
notion that the Adjournments Clause, which requires either
chamber of Congress to obtain the consent of the other to
adjourn for more than three days, U.S. Const. art. I, § 5, cl.4,
provides such a guidepost for the Recess Appointments Clause,
because “‘[n]othing in the text of either Clause, the
Constitution’s structure, or its history suggests a link between
the Clauses.’” New Vista Nursing, 2013 WL 2099742, at *21
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(quoting Noel Canning, 705 F.3d at 504). Without the hint of a
connection, the court noted that there was “no reason to believe
that the Adjournment Clause’s duration requirement controls the
meaning of the Recess Appointment[s] Clause.” Id. The court
further noted that “nothing in the Constitution establishe[d]
the necessary length of an intrasession break that would
constitute a recess.” Id. (footnote omitted).
The court in New Vista Nursing then turned to the
durational component of the Recess Appointments Clause−that the
term of the officer recess-appointed expired “at the End of [the
Senate’s] next Session,” U.S. Const. art. II, § 2, cl.3. The
court noted that all parties agreed that a session of the Senate
begins at the Senate’s first convening and ends either when the
Senate adjourns sine die or automatically expires at noon on
January 3 in any given year. New Vista Nursing, 2013 WL
2099742, at *22. According to the court, the expiration of an
officer’s term “‘at the End of [the Senate’s] next Session’”
implies that the appointment is made during a period between
sessions. Id. Such implication arises because the appointment
is designed to last only as long as it would normally take to
confirm the President’s nomination. Id. The court noted that
“[l]imiting the duration to a single opportunity follows from
the auxiliary nature of the Clause” and is consistent with the
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principle that “the Senate’s decision not to act on a nomination
effectively is a rejection of that nomination.” Id.
According to the New Vista Nursing court, the durational
component of the Recess Appointments Clause suggested that the
Framers adopted the intersession definition of the phrase “the
Recess of the Senate,” because such definition retained the
primacy of the Appointments Clause over the Recess Appointments
Clause. Id. at *23. The court stated:
Under the intersession-only definition, the president
would make a recess appointment between sessions of
the Senate, which ensures the continued operation of
the government even though the Senate has not
considered the president’s selection. Once the Senate
begins its “next Session” by reconvening, the primary
appointments process becomes available and—because the
Constitution requires joint appointment authority—must
be undertaken by the Senate and the president.
However, to allow the operation of government to
continue, the Senate has until the end of this session
to consider the president’s selection and confirm or
deny it. And if the body does not act or denies that
appointment, then the recess appointment ends because
the constitutional requirement of joint agreement has
not been reached. Through this process, the
Appointments Clause retains its primacy as the
preferred constitutional method of appointing
officers, while the Recess Appointments Clause retains
its auxiliary role that allows the president to fill
positions when the ordinary process is unavailable.
Under an intrasession definition, the Clause would no
longer have an auxiliary role. The president would
make the recess appointment during a break within a
Senate session. But the Senate’s reconvening and
first subsequent adjournment—whether that be for a
long intrasession break or for the intersession break—
would have no immediate effect on the recess
appointment because the appointment lasts until the
“next Session,” as demarked by adjournments sine die.
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The appointment would not expire until the Senate
reconvened, adjourned sine die, reconvened, and then
adjourned sine die a second time. Thus, the
appointment would continue even though the opportunity
to undergo the ordinary, preferred process had come
and gone. This shows that when the intrasession
definition of recess is combined with the durational
provision, a fundamentally different relationship
between the clauses is created: the intrasession
definition makes the Recess Appointments Clause an
additional rather than auxiliary method of appointing
officers.
Id. at *23.
The court in New Vista Nursing next observed that the
intersession definition of the phrase “the Recess of the Senate”
was supported by the language of the original Senate Vacancies
Clause, which used “‘the next Meeting’” as its durational
component. Id. (quoting U.S. Const. art. I, § 3, cl.2,
superseded by id. Amend. XVII). According to the court, the
durational component of the Recess Appointments Clause
could have been phrased in a manner that would have
allowed the Senate and president only one opportunity
to undergo the ordinary process if recess instead
included intrasession breaks. By setting the duration
to the “‘next Meeting,’” it becomes irrelevant what
type of break the legislature took because once it
convenes, the appointment expires and the legislature
must act. That the Clause uses “next Session” rather
than “next Meeting” thus shows that recess
contemplates a particular type of break. And, in
light of the competing operations of the definitions,
that type is the intersession break.
Id. (footnote omitted).
The court in New Vista Nursing next rejected the Board’s
argument that the durational component of the Recess
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Appointments Clause is consistent with the intrasession
definition of the phrase “the Recess of the Senate.” The Board
argued that “if recess appointees’ tenures did not extend until
the end of the next session, then the Senate would lack an
opportunity to consider a recess appointee when an intrasession
break coincides with the end of a session.” Id. at *24. The
court rejected this argument, first, because the problem arises
only if the intrasession definition of recess is adopted. Id.
It does not arise under the intersession definition because,
under that definition, the Senate can only weigh in one time,
when it reconvenes for its next session. Id. Second, the court
indicated the Board’s reading of the durational component was
not the most natural reading of the phrase “next Session”;
otherwise, the phrase would be intended to address an unusual
situation−where an intrasession break coincides with the end of
a session. Id. The court noted that an intrasession break
extended until the end of one of the Senate’s 296 completed
sessions at most only three times. Id. “The complete absence
of the problem described by the Board in the last 225 years”
implied that the durational component of the Recess Appointments
Clause “was most likely written simply to reinforce the
auxiliary nature of the Recess Appointment[s] Clause by limiting
recess appointees’ terms to last only as long as necessary to
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afford the Senate one opportunity to undergo the ordinary
process.” Id.
The New Vista Nursing court then observed that its
construction of the phrase “the Recess Appointments Clause” was
supported by early historical practice, relying on much of the
authority relied upon by the court in Noel Canning. Id. at *25.
The court observed that, from ratification until 1921, there was
a general consensus that recess appointments could be made only
during intersession breaks. Id. This general understanding
supported the intersession definition. Id. at **26-27. In
relying on this early historical practice, the court rejected
the notion that recent Presidential practices could alter the
structural framework of the Constitution, especially the
presumption that actions by the President are constitutional.
Id. at *27. The court expressed doubt that such a presumption
applies in separation-of-powers cases. Id. The court also
observed that recent Presidential practice was inconsistent with
the structure of the Constitution because the Constitution
provides no measure of a “‘long’ duration and limits the
duration of recess appointees’ terms in a manner that indicates
an intersession-only definition.” Id. at *28.
Finally, the court in New Vista Nursing identified some
additional considerations supporting its holding. The court
noted that the unavailable-for-business definition was vague,
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making the standard “difficult for the Senate and the president
to predictably apply.” Id. The court next noted that the
intrasession definition that limits the term “recess” to long
breaks is not “judicially defensible because whatever duration
is selected as long [enough] would be based on something other
than the Constitution.” Id. at *29 (citation and internal
quotation marks omitted). The court noted that the intrasession
definition was “fraught with ambiguity,” because if an
“intrasession break of over ten days constitutes a recess, it is
unclear at which point the adjournment evolves into a recess.”
Id. The court candidly noted that all of the definitions of the
phrase “the Recess of the Senate” provided an opportunity for
abuse. Id. However, such potential for abuse simply was the
product of the separation-of-powers framework. Id. at *30. The
solution to such abuse was not to tinker with the definition of
“recess,” but rather to allow the political process to play out,
with each branch exercising their allocated powers. Id.
Because Becker was invalidly recess appointed to the Board
during the March 2010 intrasession break, the court in New Vista
Nursing concluded that the Board did not have the authority to
issue its unfair labor practices decision in that case. Id. In
so holding, the court declined to address the meaning of the
word “happen” in the Recess Appointments Clause. Id.
D
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All parties agree that the President may exercise his
recess appointment power only “during the Recess of the Senate.”
There are three plausible definitions of the term “the Recess”
as used in the Recess Appointments Clause. Id. at *13. 19 First
is the definition adopted by the Noel Canning and New Vista
Nursing courts: the term “the Recess” refers to intersession
breaks of the Senate, that is, the period of time between an
adjournment sine die and the start of the Senate’s next session.
See id. (“We hold that ‘the Recess of the Senate’ means only
intersession breaks.”); Noel Canning, 705 F.3d at 499 (observing
that the term “the Recess” means “the period between sessions of
the Senate when the Senate is by definition not in session and
therefore unavailable”). Second is the definition adopted by
the court in Evans: the term “the Recess” includes intersession
breaks as well as intrasession breaks. 387 F.3d at 1224. As
noted above, an intrasession break is the period of time between
a non-sine die adjournment and the time the Senate reconvenes.
Although the court in Evans did not create any temporal
boundaries, a twelve-day break was at issue there, presumably
the court in that case would agree with Attorney General
19
The Board does not argue that the President may exercise
his recess appointment power anytime the Senate takes a break,
and we note that such a definition of the term “the Recess” has
never been embraced by the Executive or Legislative Branches, or
the courts. This anytime definition, though possible, simply is
not plausible.
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Daugherty’s 1921 observation that a break for five or ten days
does not fall within the definition of the term “the Recess.”
33 Op. Att’y Gen. at 25. Although the Board agrees with the
definition of the term “the Recess” as developed in Evans and
Attorney General Daugherty’s opinion, it offers another
definition, which gives us a third option. The Board posits
that the term “the Recess” refers to a period when the Senate is
not open for business and, thus, unable to provide advice and
consent on the President’s nominations. Under this unavailable-
for-business definition, when the Senate holds pro forma
sessions, the President may exercise his recess appointment
power because the Senate is neither doing business nor available
to provide its advice and consent.
As noted above, Enterprise and Huntington urge us to follow
the first definition of the term “the Recess” set forth above,
that is, the definition adopted by the Noel Canning and New
Vista Nursing courts. The Board urges us to adopt one of the
two remaining definitions. For the reasons stated below, we
agree with the Noel Canning and New Vista Nursing courts that
the term “the Recess,” as used in the Recess Appointments
Clause, refers to the legislative break that the Senate takes
between its “Session[s].” In other words, the term “the Recess”
means the intersession period of time between an adjournment
sine die and the start of the Senate’s next session.
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As noted above, the Recess Appointments Clause states that
the President “shall have Power to fill up all Vacancies that
may happen during the Recess of the Senate, by granting
Commissions which shall expire at the End of their next
Session.” U.S. Const. art. II, § 2, cl.3. From the text
itself, the meaning of the term “the Recess” is not evident. As
noted by the New Vista Nursing court, Founding-era dictionaries
are inconclusive on the meaning of the word “recess,” with some
definitions favoring an intersession definition and others
favoring an intrasession or unavailable-for-business definition.
2013 WL 2099742, at *13 (noting that Samuel Johnson’s 1785
dictionary defined “recess” to mean “retirement; retreat;
withdrawing; secession” as well as “departure” and “removal to
distance”) (citation, alterations, and internal quotation marks
omitted). The clarity of the term “recess” is only marginally
improved with the inclusion of the definite article “the.” On
the one hand, the definite article “the” arguably points to a
specific type of recess (an intersession break), on the other
hand, “the” points to anytime the Senate is in recess (an
intrasession break). Id. at *17. While we may not agree with
the level of significance placed upon “the” by the court in Noel
Canning, we agree that the use of the definite article suggests
some “specificity.” Noel Canning, 705 F.3d at 500. This is
especially true since the Recess Appointments Clause does not
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refer to “a recess,” nor does it refer to the plural form
“recesses.” 20 The use of the definite article over the
indefinite and plural forms provides some instructive evidence
that “the Recess” refers to a legislative break between two
“[s]ession[s].”
Even though the textual evidence is inconclusive,
compelling reasons exist for adopting the intersession
definition over the other two available definitions. First, the
Constitution uses the more inclusive term “adjourn” or
“Adjournment” to refer to those parliamentary breaks that could
occur either after or during a session of Congress. See, e.g.,
U.S. Const. art. I, § 5, cl.1 (less than a majority of each
House “may adjourn from day to day”); id. art. I, § 7, cl.2 (a
bill not signed by the President shall not become law if “the
Congress by their Adjournment prevent its Return”). Most
instructive, the Adjournments Clause specifically provides that
“during the Session of Congress” neither House may “adjourn for
more than three days” without the “Consent of the other.” Id.
art. I, § 5, cl.4. By contrast, the term “the Recess” appears
only once in the Constitution in relation to congressional
breaks-−in the Recess Appointments Clause, where it refers to a
20
Interestingly, the Framers did use the plural form
“vacancies” in the Recess Appointments Clause.
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particular sort of adjournment, the break between sessions of
the Senate.
The Board responds by emphasizing that when the word
“Adjournment” appears in the Constitution, it refers to both
intersession and intrasession legislative breaks. This
certainly is true. See The Pocket Veto Case, 279 U.S. at 680
(noting that the word “Adjournment” is used in the Constitution
to refer not only to the final adjournment at the end of a
Congress, but also to adjournments “from day to day”). However,
the Board’s arrow misses the target. Each time the term
“adjourn” or “Adjournment” appears in the Constitution, it
refers to an intrasession cessation of business, even when it
may also encompass intersession breaks. Thus, the Framers
consistently used the term “adjournment,” rather than the term
“the Recess,” when it wanted to refer to a legislative break
that could occur either during or between sessions of Congress.
Cf. Noel Canning, 705 F.3d at 500 (“Not only did the Framers use
a different word, but none of the ‘adjournment’ usages is
preceded by the definite article. All this points to the
inescapable conclusion that the Framers intended something
specific by the term ‘the Recess,’ and that it was something
different than a generic break in proceedings.”). As noted by
the court in New Vista Nursing, “if the framers had intended for
the president to be able to appoint officers during intrasession
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breaks, then the Recess Appointments Clause could have been
worded differently, allowing recess appointments ‘during the
Adjournment of the Senate.’” 2013 WL 2099742, at *20.
Second, our interpretation of the term “the Recess” is
supported by the Framers’ understanding of the term. In The
Federalist No. 67, Hamilton explained that the recess
appointment power supplemented the “ordinary power of
appointment.” The Federalist No. 67, at 350. This ordinary
power, under the Appointments Clause, was to be exercised
“jointly” by the President and Senate. Id. The supplemental
authority only was to be exercised when “it might be necessary
for the public service” to fill without delay certain vacancies
that “might happen in [the Senate’s] recess.” Id. The Recess
Appointments Clause was added because the joint power could only
be “exercised during the session of the Senate.” Id. Thus, by
necessary implication, under Hamilton’s view, recess
appointments would be necessary, and thus permissible, only
outside the session of the Senate.
The Framers’ understanding of the Recess Appointments
Clause is underscored by the appointment of duties inspectors by
the First Congress, which contained twenty members who had been
delegates to the Philadelphia Convention, see Bowsher v. Synar,
478 U.S. 714, 724 n.3 (1986). The Act of March 3, 1791, ch. 15,
1 Stat. 199, authorizing the appointment of duties inspectors,
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provided “[t]hat if the appointment of the inspectors of surveys
. . . shall not be made during the present session of Congress,
the President may, and he is hereby empowered to make such
appointments during the recess of the Senate, by granting
commissions which shall expire at the end of their next
session.” Id. § 4, 1 Stat. at 200; see also Act of Sept. 22,
1789, Ch. 17, § 4, 1 Stat. at 71 (authorizing payment to Senate
clerk of “two dollars per day during the session, with the like
compensation to such clerk while he shall be necessarily
employed in the recess”).
The Framers’ understanding is further underscored by the
valid reasons supporting the distinction between intersession
and intrasession breaks. As noted above, at the time of the
Constitution’s ratification, breaks between sessions of Congress
typically were six to nine months. During such periods, it was
unrealistic to think the Senate could perform its advice and
consent function. By contrast, there is no evidence that the
Framers thought it was necessary to empower the President to
make unilateral appointments while the Senate was adjourned
within its session for short periods. The Framers would not
have contemplated any need to set aside “the ordinary power of
appointments,” The Federalist No. 67, at 350, during short
breaks, let alone lunch, evening, or weekend breaks.
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Third, the historical record supports the intersession
definition of the term “the Recess.” From 1789 until 1921,
Presidents frequently made recess appointments between sessions
of Congress. Notably, however, Executive practice was
dramatically different during the thousands of instances when
the Senate ceased or suspended business during its sessions over
the course of those 132 years. Admittedly, most of those
adjournments were for periods of fewer than three days,
including almost every evening and weekend; but on at least
sixty occasions the Senate also adjourned for more than three
days. See U.S. Gov’t Printing Office, 2003-2004 Official
Congressional Directory: 108th Cong. 512-17 (2004). Taken to
its logical conclusion, in the Board’s view, each of these
intrasession breaks was “the Recess” for purposes of the Recess
Appointments Clause, during which the President could have made
unilateral appointments. However, with only a single known
possible exception (President Andrew Johnson), Presidents did
not make recess appointments during these breaks. Edward A.
Hartnett, Recess Appointments of Article III Judges: Three
Constitutional Questions, 26 Cardozo L. Rev. 377, 408–09 (2005).
In 1901, the Executive Branch first considered the
constitutionality of intrasession recess appointments. At that
time, Attorney General Philander Knox opined “that the President
is not authorized to appoint an appraiser at the port of New
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York during the current [intrasession] adjournment of the
Senate.” 23 Op. Att’y Gen. 599, 604 (1901). Attorney General
Knox explained that, in contrast to the Constitution’s use of
the broader term “adjourn[ment],” the term “the Recess” refers
to “the period after the final adjournment of Congress for the
session, and before the next session begins.” Id. at 601. An
“intermediate temporary adjournment” during the session,
“although it may be a recess in the general and ordinary use of
that term,” is not “the recess during which the President has
power to fill vacancies by granting commissions which shall
expire at the end of the next session.” Id.
As noted earlier, Attorney General Daugherty’s opinion in
1921 changed the Executive Branch’s understanding of the Recess
Appointments Clause in favor of a functional approach, asking,
in a practical sense, whether the Senate was in session so that
its advice and consent could be obtained. 33 Op. Att’y Gen. at
21-22. He concluded that an intrasession adjournment could be
deemed “the Recess” for purposes of the Recess Appointments
Clause only when the Senate is “absent so that it can not
receive communications from the President or participate as a
body in making appointments.” Id. at 25. Notably, Attorney
General Daugherty rejected the argument that the President may
make a recess appointment during any pause in Senate business.
“[L]ooking at the matter from a practical standpoint,” he
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reasoned that “no one . . . would for a moment contend that the
Senate is not in session when an adjournment [of two or three
days] is taken,” and added that even an adjournment “for 5 or
even 10 days” could not satisfy his “practical” test. Id.
As noted by the court in Noel Canning, the infrequency of
intrasession recess appointments in the historical record and
the relative disdain harbored toward such appointments in at
least the first 132 years of our Nation suggests an “absence of
[the] power” to make such appointments. 705 F.3d at 502
(citation and internal quotation marks omitted). The marked
increase in the number of recess appointments since the Reagan
Administration may be attributed to political polarization being
at an all-time high, rather than fidelity to the plain language
and structure of the Recess Appointments Clause. Wolf, 81
Fordham L. Rev. at 2078.
Fourth, we are troubled by the intrasession and
unavailable-for-business definitions of the term “the Recess”
because they thwart the advice and consent function engrained in
the Appointments Clause. Clearly, an expansive reading of the
Recess Appointments Clause gives the President the ability to
appoint controversial individuals to high government posts by
preventing the Senate from performing its constitutional advice
and consent function. Obviously, such use of the Recess
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Appointments Clause is at odds with the original purposes of
both the Appointments and Recess Appointments Clauses.
The Board urges us to recognize an expansive reading of the
Recess Appointments Clause as a way to ensure that the President
can adhere to the Take Care Clause. The growing animosity
between the Executive and Legislative Branches over Presidential
nominees is an obvious concern, and such animosity explains the
Board’s reliance on Presidential discretion to determine when
the Senate is in recess. See Lawfulness of Recess Appointments,
36 Mem. Op. O.L.C. at 23 (“[T]he President therefore has
discretion to conclude that the Senate is unavailable to perform
its advise-and-consent function and to exercise his power to
make recess appointments.”). But, ultimately, as noted by the
Noel Canning court, it is incumbent on the judiciary to state
what the law is, notwithstanding any presumption that arises
under the Take Care Clause. 705 F.3d at 506 (quoting Marbury, 5
U.S. (1 Cranch) at 177). We simply cannot rely on political
gridlock to embrace the Board’s interpretation of the term “the
Recess.” Id. at 504 (“Allowing the President to define the
scope of his own appointments power would eviscerate the
Constitution’s separation of powers.”).
Fifth, the intrasession definition offers vague and the
unavailable-for-business definition offers no durational
guideposts. Under these definitions of the term “the Recess,”
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the President simply is left to determine whether the Senate is
in recess, with little or no guidance and/or judicial oversight.
Yet, the constitutional structure of the Appointments and Recess
Appointments Clauses demands more to ensure that the separation
of the Executive and Legislative Branches is maintained.
Drawing the line between intersession and intrasession breaks,
in our view, strikes the appropriate balance.
To be sure, the durational component of the Recess
Appointments Clause (“End of [the Senate’s] next Session,” U.S.
Const. art. II, § 2, cl.3), only makes sense under the
intersession definition of the term “the Recess.” Under the
intrasession and the unavailable-for-business definitions, a
Presidential appointment does not proceed through the ordinary
and preferred confirmation process because the Senate does not
necessarily have to take up the appointment in the next session.
As noted by the court in New Vista Nursing, the appointment
would not expire until the Senate reconvened, adjourned sine
die, reconvened, and then adjourned sine die a second time.
2013 WL 2099742, at *23. This makes the Recess Appointments
Clause an alternative rather than an auxiliary method of
appointment. Id.
Along a similar vein, because a recess appointee’s
commission lasts until the end of the Senate’s “next [s]ession,”
there is no reason to think that the Framers would have designed
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a scheme in which intrasession appointments could last longer
than intersession appointments, i.e., to last throughout the
remainder of the session, one additional intersession break, and
the entire subsequent session, a period that could last almost
two years. Thus, the relevant question is not, as the Evans
court intimated, how long an intersession or intrasession recess
may last, 387 F.3d at 1226, but rather how long such appointees
may serve. 21
Sixth, the intrasession and unavailable-for-business
definitions of the term “the Recess” essentially prevent the
Senate from establishing its own rules concerning the conduct of
its proceedings. See U.S. Const. art. I, § 5, cl.2 (“Each House
may determine the Rules of its Proceedings.”). It is the
Senate, not the President, who has the privilege of determining
the manner in which the Senate meets during a Congressional
session. In this case, the Senate decided to meet in pro forma
sessions during a five-week period. During such sessions, the
Senate is called to order. On December 23, 2011, during a pro
21
The language of the original Senate Vacancies Clause,
which used the phrase “‘the next Meeting’” as its durational
component, U.S. Const. art. I, § 3, cl.2, superseded by id.
Amend. XVII, also supports the intersession definition of the
term “the Recess” because the Recess Appointments Clause’s use
of the term “the Recess” instead of the phrase “the next
Meeting” demonstrates that the Framers had a particular type of
break in mind when it created the Recess Appointments Clause,
instead of any type of break in Senate business, which
essentially is what the intrasession definition allows.
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forma session, the Senate passed payroll tax extension
legislation, and that same day the President signed into law the
payroll tax extension. This coordination of the Legislative and
Executive Branches during pro forma sessions suggests that the
Senate can perform its advice and consent function during such
sessions. 22
For the reasons set forth above, we agree with the Noel
Canning and New Vista Nursing courts that the term “the Recess,”
as used in the Recess Appointments Clause, refers to the
legislative break that the Senate takes between its
“Session[s].” That is to say “the Recess” occurs during an
intersession break--the period of time between an adjournment
sine die and the start of the Senate’s next session. Such an
interpretation adheres to the plain language of the Appointments
and Recess Appointments Clauses, and is consistent with the
structure of the Constitution, the history behind the enactment
of these clauses, and the recess appointment practice of at
least the first 132 years of our Nation.
E
22
We note that this case is not, as the Board would have us
believe, about the propriety of legislative pro forma sessions.
While the use of such sessions arguably can have an impact on
the President’s ability to make recess appointments, the
practice does not alter our conceptual understanding of the
Recess Appointments Clause, especially since the Senate is more
than capable of conducting business during this time, as
evidenced by the passage of the payroll tax extension.
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In his spirited dissent, our good colleague embraces the
unavailable-for-business definition of the term “the Recess,”
opining that the Senate is in “‘the Recess’ when it is not
available to provide advice and consent on nominations.” Post
at 143. As the dissent sees it, the Senate is in “the Recess”
if it “is not engaged in its regular course of business, is
unavailable to receive messages from the President, or cannot
meet to consider a nomination for a position.” Post at 143.
The unavailable-for-business definition embraced by the
dissent is a contemporary definition of the term “the Recess.”
Such definition, as the dissent recognizes, sets no minimum
length for an intrasession break to be considered “the Recess.”
Post at 149. According to the dissent, the absence of such a
minimum is not “a flaw, but rather a part of the[] grand design
in drafting a compact” that would remain relevant for future
generations. Post at 153. Untethering the recess appointment
power from a durational guidepost, says our dissenting
colleague, “operates to exclude the altogether silly scenario of
the President making recess appointments during the Senate’s
breaks for meals or weekends, while including the types of
weeks-long intrasession recesses that could stall the
functioning of government if an important post is left vacant.”
Post at 153.
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This contemporary definition of the term “the Recess” has
no historical support. As noted earlier, up until 1921, that
the President could only exercise his recess appointment power
during an intersession break was settled. Attorney General
Daugherty’s 1921 opinion introduced a functional approach, yet
even his definition recognized that a five or ten-day
intrasession break would not suffice. 33 Op. Att’y Gen. at 25
(“Nor do I think an adjournment for 5 or even 10 days can be
said to constitute the recess intended by the Constitution.”).
Moreover, the Office of Legal Counsel’s 2012 memorandum opinion
recognizes some durational minimum in reaching the conclusion
that “the President’s authority to make recess appointments
extends to an intrasession recess of twenty days.” Lawfulness
of Recess Appointments, 36 Mem. Op. O.L.C. at 9. However, under
the unavailable-for-business definition espoused by the dissent,
a break as little as a couple of work days would suffice if the
Senate could not meet to consider a nomination. No historical
support exists for this proposition. The utter lack of
historical support begs the question: How could all three
branches of the federal government have been so wrong for so
long? But the lack of historical support is just the beginning
of the unavailable-for-business definition’s shortcomings, and
we have identified some of them in the previous section of this
opinion. A closer analysis of the dissent reveals why the
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unavailable-for-business definition simply is not a viable
option.
The dissent begins where it should--with the language of
the Recess Appointments Clause. Upon examining such language,
the dissent concludes the term “the Recess” is ambiguous. To
reach this conclusion, the dissent starts with the unremarkable
proposition that the use of the definite article “the” in the
term “the Recess” is inconclusive on the meaning of the term.
From there, the dissent stresses that, if the term “the Recess”
in the Recess Appointments Clause refers only to intersession
breaks, the use of the term “the Recess” in the original Senate
Vacancies Clause, U.S. Const. art. I, § 3, cl. 2, superseded by
id. Amend. XVII, should mean the same thing. The dissent posits
that the term “the Recess” in the Senate Vacancies Clause cannot
mean a singular recess (i.e., an intersession break) because
“the clause is used to refer collectively to the various
recesses of the several state legislatures.” Post at 137. It
follows, then, according to the dissent, that the term “the
Recess” in the Recess Appointments Clause points to both
intrasession and intersession recesses. However, comparing the
term “the Recess” in the Recess Appointments Clause to the term
“the Recess” in the Senate Vacancies Clause is like comparing
apples to oranges. Critically, the Recess Appointments Clause
and the Senate Vacancies Clause have different durational
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components, “the next [s]ession” in the case of the Recess
Appointments Clause, and “the next [m]eeting” in the case of the
Senate Vacancies Clause. Because the durational component in
the Senate Vacancies Clause is tied to “the next [m]eeting,” the
type of break the state legislature takes before it reconvenes
is irrelevant because the recess appointment expires upon
reconvention. Equally critical, the Senate Vacancies Clause
does not involve the relationship between the Executive and
Legislative Branches of the federal government, nor does it
involve the relationship between the Appointments Clause and the
Recess Appointments Clause. Thus, the term “the Recess” must be
construed in two very different contexts. The Supreme Court has
recognized that some words in the Constitution have different
meanings “according to the connection in which [they are]
employed” and “the character of the function” in which the word
is found. Atlantic Cleaners & Dryers v. United States, 286 U.S.
427, 433–34 (1932). Such is the case here. The term “the
Recess” in the Senate Vacancies Clause must apply in a variety
of situations to account for the various parliamentary
procedures used by state legislatures. The same cannot be said
about the term “the Recess” as used in the Recess Appointments
Clause. Moreover, the Recess Appointments Clause’s use of “the
next [s]ession” shows that the Recess Appointments Clause
“contemplates a particular kind of break[, a]nd, in light of the
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competing operations of the definitions, that type is the
intersession break.” New Vista Nursing, 2013 WL 2099742, at
*23.
The dissent finds further ambiguity in the term “the
Recess” because the intersession definition of the term “the
Recess” requires the insertion of a modifier, namely
“intersession,” before the term “the Recess.” However, if the
intersession definition requires the insertion of a modifier, so
does the unavailable-for-business definition. To make that
definition work, one has to read “the Recess” to mean “the
Recess in which the Senate cannot provide advice and consent.”
Thus, the dissent’s modifier argument misses the mark. Both the
majority and the dissent are attempting to divine the meaning of
the term “the Recess” by examining the text of the Constitution
and historical usages and practices. We believe, for the
reasons expressed above, such evidence decidedly points to the
intersession definition, while the dissent sees the evidence
pointing in a different direction. Put another way, after
examining such evidence, the intersession definition does not
use “intersession” as a modifier because “the Recess” “means
only intersession breaks.” New Vista Nursing, 2013 WL 2099742,
at *25 n.30.
Next, continuing its ambiguity analysis, the dissent
downplays the significance that the Constitution uses the terms
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“adjourn” and “adjournment” in a broader sense than the term
“the Recess,” describing “the distinction between adjournments
and ‘the Recess’” as a “convenient correlation” with “no basis
in the text of the Constitution.” Post at 139. However, the
fact remains that the terms “adjourn” and “adjournment”
necessarily apply to both intersession and intrasession
recesses, while the term “the Recess” does not. This certainly
indicates that the Framers believed “the Recess” applied in a
narrower context.
Concluding its ambiguity analysis, the dissent rejects as
irrelevant the fact that an intrasession appointee’s term could
last twice as long as an intersession appointee. According to
the dissent, “nothing in the Recess Appointments Clause,” or
anywhere else in the Constitution for that matter, “requires
that all recess appointments be of the same length, and such an
interpretation does not further” the purpose of the clause.
Post at 140. But the dissent’s view ignores the structure of
the Recess Appointments Clause. It provides that a recess
appointment expires at the end of the Senate’s “next [s]ession.”
Thus, there is a dichotomy between “the Recess” and the “next
[s]ession” such that the Senate is either in session or it is in
recess. Recess appointments are allowed during “the Recess”
preceding the “next [s]ession” and that “next [s]ession” then
caps the length of any such appointments--one Senate session.
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This ensures that the Senate always has one full session to
consider confirmation. Once the Senate has that opportunity to
consider confirmation, the need for an emergency appointment is
gone. As Justice Story explained way back in 1833, “the
president should be authorized to make temporary appointments
during the recess, which should expire, when the senate should
have had an opportunity to act on the subject.” 3 Joseph L.
Story, Commentaries on the Constitution of the United States
§ 1551 (1833); see also New Vista Nursing, 2013 WL 2099742, at
*22 (“The Clause’s function is . . . fulfilled once an
opportunity for the Senate to act has come and gone.”).
More telling, the dissent offers no explanation for why the
Constitution would empower the President to double the length of
recess appointments through strategic timing. We can find none.
But the fact remains, the unavailable-for-business definition
creates the inexplicable anomaly that intrasession recess
appointees may serve twice as long as their intersession
counterparts. It strains credulity that the Framers intended
such a result. Rather, they intended all recess appointments to
be made during the intersession break, which would result in all
such appointments lasting one Senate session.
Having found “a strictly textual interpretation” of the
Recess Appointments Clause “inconclusive,” the dissent turns its
attention to the purpose underlying the clause. The dissent
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concludes that the sole purpose of the clause is to “ensure the
proper functioning of government,” Post at 144, and that the
unavailable-for-business definition fits comfortably within that
purpose. Telling from the dissent’s discussion is its
reluctance to give one of the core functions of the clause its
proper place. One of the purposes behind the Recess
Appointments Clause is “to preserve the Senate’s advice-and-
consent power by limiting the president’s unilateral appointment
power.” New Vista Nursing, 2013 WL 2099742, at *18. Yet, the
dissent downplays the Senate’s role almost to the point of a
casual bystander, noting that it is not permitted to “weigh the
executive’s policy choice.” Post at 142. What the dissent is
doing, really by necessity, is placing all of the face cards in
the hands of the President. However, the Framers had something
completely different in mind when it created the Appointments
and Recess Appointments Clauses. At the time of ratification,
the Framers were skeptical with the notion of unilateral
executive appointments power. As noted by the Supreme Court in
Freytag, the “power of appointments to offices was deemed the
most insidious and powerful weapon of eighteenth century
despotism.” 501 U.S. at 883 (citation and internal quotation
marks omitted); see also Edmond v. United States, 520 U.S. 651,
659 (1997) (noting that the advice and consent feature in the
Constitution “serves both to curb Executive abuses of the
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appointment power, . . . and to promote a judicious choice of
persons for filling the offices of the union”) (citations,
internal quotation marks, and alterations omitted). As a
consequence of this concern, the Framers sought to “ensure that
those who wielded [appointments powers] were accountable to
political force and the will of the people” by limiting the
power of the Executive and Legislative Branches. Freytag, 501
U.S. at 884. This was accomplished through a division of power
between these two branches. Id. And to ignore this division of
power, as the dissent essentially does, destroys one of the
central pillars undergirding the Appointments and Recess
Appointments Clauses.
Moving from its discussion of the purpose of the Recess
Appointments Clause, the dissent engages in an extended
discussion concerning how the unavailable-for-business
definition “fits with historical practice.” Post at 144 The
dissent begins its discussion by downplaying the significance of
the fact that it was universally recognized for the first 132
years of our Nation that “the Recess” meant an intersession
recess. See post at 145 (“In my view, a functional
interpretation of the Recess Appointments Clause properly
counsels against a blind adherence to the precise procedural
conditions in which earlier executives exercised the power.”).
Yet historical practice is extremely important to the Recess
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Appointments Clause analysis. See, e.g., District of Columbia
v. Heller, 554 U.S. 570, 600-19 (2008) (examining historical
practices and understandings concerning the Second Amendment’s
right to bear arms); Freytag, 501 U.S. at 883-84 (examining
history to determine the scope of the Appointments Clause).
In any event, what the dissent ignores here is that, in the
first 132 years of our Nation, there were numerous opportunities
to make intrasession recess appointments, but none, with the
lone possible exception of one by President Andrew Johnson, were
made. The Senate took three intrasession recesses in 1800,
1817, and 1828, and, beginning in 1863, the Senate started
taking annual intrasession recesses of approximately two weeks
from the end of December through the beginning of January.
Michael A. Carrier, Note, When is the Senate in Recess for
Purposes of the Recess Appointments Clause?, 92 Mich. L. Rev.
2204, 2211 (1994). Despite this increase in intrasession
breaks, and the corresponding increase in opportunities to make
appointments during such breaks, Presidents continued to make
recess appointments exclusively (with the possible President
Andrew Johnson exception) during intersession breaks. Id.
Unlike our dissenting colleague who must view the Recess
Appointments Clause in a contemporary, “practical light,” post
at 149, we find this historical understanding of the recess
appointments procedure telling.
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The dissent next turns its focus to a purported flaw in the
intersession definition of the term “the Recess”--the lack of a
durational minimum. The dissent notes that, like the
unavailable-for-business definition, the intersession definition
fixes no minimum length. See post at 149 (“Thus, if Congress
takes a one-day break between sessions, the majority apparently
would find no fault with the President making a recess
appointment during that time, despite the fact that the Senate
would have returned to business the next day and been available
to provide its advice and consent on the nominee.”). According
to the dissent, the intersession definition is flawed because it
allows for a recess appointment during a momentary intersession
break. The dissent’s argument here is a red-herring. All
courts and commentators agree that the President may make recess
appointments during intersession breaks, regardless of the
break’s length. So the lack of a durational minimum in the
intersession definition simply is of no consequence. But the
lack of such a minimum is understandable for another reason.
The durational component of the Recess Appointments Clause
entered the discussion only when the Executive Branch sought in
1921 to expand the settled understanding of the term “the
Recess.” Until that time, a durational minimum was not brought
to the forefront because it was understood that the President’s
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recess appointment power could only be exercised during the
intersession break, regardless of its length.
The dissent next argues that the intersession definition of
the term “the Recess” is flawed because it assumes “the
President might abuse his power to appoint officials.” Post at
150. In this regard, the dissent likens the President’s recess
appointment power to his veto and pardoning powers, noting that
there are no limits on the exercise of these latter powers;
thus, we must “expect some modicum of good faith in the
individual our fellow citizens elect to the most powerful office
in the world.” Post at 150-51. And the dissent adds that we
give “short shrift” to the “presumption of constitutionality”
accorded to Presidential actions. Post at 152. The dissent’s
argument once again misses its intended target. First off, we
harbor doubt that a presumption of constitutionality applies in
separation-of-powers cases. See New Vista Nursing, 2013 WL
2099742, at *27 (“Our role as the ultimate interpreter of the
Constitution requires that we ensure its structural safeguards
are preserved. . . . It is a role that cannot be shared with
the other branches anymore than the president can share his veto
power or Congress can share its power to override vetoes.”)
(citations and internal quotation marks omitted); see also Free
Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct.
3138, 3155 (2010) (noting that “the separation of powers does
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not depend on the views of individual Presidents, nor on whether
the encroached-upon branch approves the encroachment”) (citation
and internal quotation marks omitted); Clinton v. New York City,
524 U.S. 417, 428-48 (1998) (analyzing the constitutionality of
the line-item veto without expressing the need to defer to the
other branches’ constitutional judgments); New York v. United
States, 505 U.S. 144, 182 (1992) (noting that the
“Constitution’s division of power among the three branches is
violated where one branch invades the territory of another,
whether or not the encroached-upon branch approves the
encroachment”). But notwithstanding any presumption, comparing
the President’s veto and pardoning powers to his recess
appointment power is just another apples to oranges comparison.
These other powers were not “the most insidious and powerful
weapon of eighteenth century despotism.” Freytag, 501 U.S. at
883 (citation and internal quotation marks omitted). The power
that can be wielded by a President who desires to make an end-
run around Senate approval is obvious. The dissent says that
Presidents will not act so unruly because the President will
want to maintain favor with the Senate and with the public at
large. But the recent historical record suggests otherwise. In
the past two Presidential administrations, nearly all recess
appointees themselves previously were nominated to their posts,
usually by several months. See Henry B. Hogue & Maureen
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Bearden, Cong. Research Service, R42329, Recess Appointments
Made by President Barack Obama, at 7 (2012); Henry B. Hogue &
Maureen Bearden, Cong. Research Service, RL33310, Recess
Appointments Made by President George W. Bush, January 20, 2001-
October 31, 2008, at 3-5 (2008). If anything, this recent
evidence shows that recess appointments have become a means to
sidestep the confirmation process.
The dissent next posits that the intersession definition of
the term “the Recess” is flawed because it leaves the President
powerless to act. According to the dissent, “the Senate is free
to read out of the Constitution the President’s recess
appointment power by refusing to take intersession recesses,
opting instead to take an extended intrasession break, returning
just before the session ends, and then moving directly into the
next session.” Post at 153. The dissent here is overstating
its case. For starters, under the unavailable-for-business
definition, the President easily can get around Senate advice
and consent by strategically making his recess appointments, as
he did in this case. More importantly, the Senate already is in
a position to substantially limit the President’s appointments
power by remaining in session. But remaining in session does
not ensure that the Senate will act on the President’s
nominations. The upshot is that the Constitution envisions the
potential for gridlock between the Executive and Legislative
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Branches, with neither side having the upper hand in resolving
such gridlock. Such gridlock simply is resolved through the
political process.
The dissent next claims that the intersession definition of
the term “the Recess” is flawed because it “actually gives the
House of Representatives a de facto veto on Presidential recess
appointments.” Post at 155. According to the dissent, because
the Adjournments Clause requires the House and Senate to agree
on any adjournment lasting longer than three days, the
Adjournments Clause enables the House of Representatives to
prevent the Senate from adjourning sine die. This, the dissent
says, inserts the House of Representatives into the appointments
process even though the Constitution purposely excludes it from
that process. Such is not the case. The Constitution allows
the President to adjourn both houses of Congress if the two
houses cannot agree on a date of adjournment. U.S. Const. art.
II, § 3. This provision allows the President to prevent the
House of Representatives from interfering in the appointments
process if the House and Senate cannot agree on a date of
adjournment.
The dissent “confess[es] to some surprise” concerning the
basis for our rejection of the dissent’s de facto veto argument.
Post at 156. Because we reject the dissent’s de facto veto
argument on the basis that the President may adjourn Congress
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when there is a disagreement between the houses of Congress
concerning the date of adjournment, the dissent says such
reasoning necessarily means that the President gets to decide
when the Senate is in “the Recess.” See post at 156 (“[I]t
would allow the President to decide when the Senate is in “‘the
Recess,’ thereby granting the President the precise unilateral
power of appointment that the majority finds objectionable.”).
Not so. Either the House will agree to a date of adjournment
sine die or it will not. In the latter case, the Senate has two
choices, remain in session or ask the President to set a date of
adjournment and a date of reconvention. Here, the Senate chose
to remain in session by way of pro forma sessions, which meant
that the Appointments Clause was the proper mechanism to make
the Board appointments at issue. Moreover, Article II, § 3 does
not give the President unilateral power concerning adjournments.
There must be a disagreement concerning the date of adjournment
which would give rise to one house of Congress seeking
Presidential intervention. As far as we can tell, neither house
of Congress has ever sought such intervention. But if the
Senate felt the need to request Presidential intervention, it is
an available option if the House and Senate cannot reach an
agreement on the date of adjournment. And once Presidential
intervention is sought, and the President sets a date of
adjournment sine die and a date of reconvention, the President
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may exercise his appointments power pursuant to the Recess
Appointments Clause. Of course, that is not what happened
here. 23
Finally, the dissent suggests that the unavailable-for-
business definition does not interfere with the Senate’s ability
to regulate its own rules. According to the dissent, “while the
Senate may meet in pro forma sessions when its members see fit,
the President may also choose to use his recess appointment
power during such sessions if the Senate is practically
unavailable to provide its advice and consent for nominees.”
Post at 157. The dissent here gives the President a dual light-
saber. The President has the power to both unilaterally make
recess appointments and unilaterally declare when the Senate is
23
There is an important similarity between the President’s
adjournment power and his appointment power worth noting. In
the adjournment setting, both houses of Congress work together
on setting a date of adjournment. If they cannot agree and one
house is determined to adjourn for more than three days, that
house can seek Presidential intervention. Before the moment of
Presidential intervention, each house is acting pursuant to its
own chosen rules of procedure, and the President must respect
such rules before acting; otherwise the President can exercise
almost absolute power over when Congress can meet. The same
Presidential respect is necessary to make the Appointments
Clause and Recess Appointments Clause function properly. The
Senate operates pursuant to its own rules and determines in what
manner it will meet. If the Senate decides to meet in pro forma
sessions, the President must respect such decision and make
appointments pursuant to the Appointments Clause. If he chooses
to ignore such Senate action, he can exercise almost absolute
power over appointments. The intersession definition of the
term “the Recess” preserves this necessary Presidential respect;
the unavailable-for-business definition does not.
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in recess. Such a view gives the President the very absolute
power of appointment that the Framers sought to withhold. This
dual light-saber has disastrous consequences. If the President
dictates when the Senate is in recess, essentially he can make
recess appointments any time he feels the Senate is unavailable
to advise and consent. This results in the Recess Appointments
Clause swallowing the Appointments Clause. Appointments under
the Appointments Clause could become the exception rather than
the rule. In this regard, the circumstances surrounding the
appointments in this case are telling. Block and Griffin were
nominated approximately three weeks before their recess
appointments. The President nonetheless made these recess
appointments even though the Senate was in a position to advise
and consent. One of the central features of a pro forma session
is that the Senate convenes. Neither the dissent nor the Board
can distinguish pro forma sessions from ordinary sessions on the
basis of the Senate’s availability because during pro forma
sessions the Senate convenes in a manner that allows it to
consent to nominations if it wants to do so. This is evidenced
by the Senate’s passing of the payroll tax legislation.
“Holding that the Senate is unavailable during these sessions
requires a definition of availability that allows the
counterintuitive situation in which the Senate is available to
enact legislation while simultaneously unavailable to provide
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its advice and consent.” New Vista Nursing, 2013 WL 2099742, at
*19 n.23.
The dissents says that the payroll tax legislation was an
“extraordinary bill that was part of a broader legislative
effort to avert a national financial catastrophe, and was passed
by unanimous consent, thus not requiring the Senate to return to
Washington.” Post at 158. Yet, the dissent never explains why
legislation passed pursuant to a unanimous-consent agreement is
permissible, but a similar procedure would be inadequate to give
advice and consent on a nominee. 24 This flaw in the dissent’s
reasoning explains why the Senate is responsible for
establishing its own rules subject to the limitations outlined
in the Constitution. 25 Reduced to its essence, then, the dissent
is objecting not to the Senate’s inability to conduct business,
24
Of course, the payroll tax legislation is not the only
piece of legislation to have been passed during a pro forma
session. There have been many. See, e.g., Airport and Airway
Extension Act of 2011, 157 Cong. Rec. S5297 (daily ed. Aug. 5,
2011) (passed by the Senate during its August 5, 2011 pro forma
session).
25
The constraints on the manner in which the Senate
conducts its business are minor. It must meet once a year on
January 3 (or another date Congress chooses), U.S. Const. amend.
XX, § 2, and when called into special session by the President,
id. art. II, § 3. And once convened, the Senate cannot adjourn
for more than three days (or to another place) without the
House’s consent. Id. art. I, § 5, cl.4. As noted earlier, only
if the House and Senate disagree does the President play a role
in adjournments. Id. art. II, § 3.
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but rather to the procedure chosen by the Senate to conduct its
business. And the Senate has chosen to conduct business through
unanimous-consent agreements rather than through actual roll-
call votes. 26 But this is a judgment call made by the Senate.
It simply is not the province of this court to dictate the
manner in which the Senate chooses to conduct its business. Yet
this is exactly what the dissent would do here--it is saying
that the Senate was not in session even though it was fully
capable of acting if it desired to do so.
We certainly respect the position taken by our good
colleague in dissent. The dissent attempts to craft a solution
to a very difficult problem that hopefully the Supreme Court
will resolve in Noel Canning. At the end of the day, we have an
honest disagreement with a colleague we hold in high esteem.
But for the reasons stated above, we cannot embrace the
unavailable-for-business definition.
F
In this case, the President’s three January 4, 2012
appointments to the Board were not made during an intersession
recess because Congress began a new session on January 3, 2012.
26
The use of unanimous-consent agreements is commonplace.
From the 101st to the 110th Congresses, “an average of 93
percent of approved measures did not receive roll call votes and
in the 111th Congress through February 1, 2010, 94 percent of
approved measures were approved without a roll call vote.” 156
Cong. Rec. S7137-38 (daily ed. Sept. 15, 2010).
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Consequently, “these appointments were invalid from their
inception.” Noel Canning, 705 F.3d at 507. Because the Board
lacked a quorum of three members when it issued its 2012 unfair
labor practices decisions in both the Enterprise and Huntington
cases, its decisions must be vacated. New Process Steel, 130 S.
Ct. at 2644–45. 27
V
Unfortunately, in modern times, the question concerning the
scope of the President’s recess appointment power under the
Recess Appointments Clause has become a political debate
regarding the qualifications of the President’s nominations,
rather than a genuine, meaningful debate regarding the true
meaning of the clause. Today, it is the Executive Branch, with
a Democratic president in office, seeking to exercise expansive
recess appointment power. Republicans are crying foul. See
Brief of Senate Republican Leader Mitch McConnell and 44 Other
Members of the United States Senate as Amici Curiae in Support
of Certiorari in NLRB v. Noel Canning, 2013 WL 2352593, at **5-
19 (May 28, 2013) (challenging, inter alia, President Obama’s
27
Because we agree with Enterprise and Huntington that “the
Recess,” as used in the Recess Appointments Clause, refers to
the legislative break that the Senate takes between its
“Session[s],” we need not decide whether the appointments at
issue are also invalid because the vacancies did not “happen”
during “the Recess.”
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three January 4, 2012 recess appointments to the Board); Senator
Roger Wicker, Executive Overreach and Recess Appointments, 31
Miss. C. L. Rev. 319, 321-27 (2013) (same). In the case of
Judge Pryor, it was a Republican president, President Bush, in
office, seeking to exercise expansive recess appointment power,
with the Democrats crying foul. See Brief of Amicus Curiae
Senator Edward Kennedy in Support of Petitioner’s Petition for
Writ of Certiorari in Franklin v. United States, 2004 WL
2326801, at **6-19 (October 12, 2004) (challenging the recess
appointment of Judge Pryor). Who knows what tomorrow will
bring? Regardless, one thing must remain constant--the meaning
of the Recess Appointments Clause, and it is the duty of this
court to set forth that meaning irrespective of political
fortunes. We have done so here. 28 We deny the Board’s
applications for enforcement of its orders.
ENFORCEMENT DENIED
28
The Board does not suggest that we should decline to
address the meaning of the term “the Recess” because it is a
non-justiciable political question. See Baker v. Carr, 369 U.S.
186, 198, 217 (1962) (outlining requirements of non-
justiciability). However, if the Board raised such an argument,
we would reject it. See New Vista Nursing, 2013 WL 2099742, at
**8-10 (rejecting non-justiciability argument); Evans, 387 F.3d
at 1227 (same).
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DUNCAN, Circuit Judge, concurring:
I concur in Parts I-III of the majority opinion. I also
fully concur in Parts IV and V, because I agree that the most
plausible reading of the Constitution’s Recess Appointments
Clause limits “the Recess” to the so-called “intersession break”
between two legislative sessions. I write separately to briefly
underscore what, in my view, compels the conclusion reached by
the majority in this regard.
I begin by explicitly recognizing what should be evident
from the spirited and principled debate between my two
colleagues: this appeal presents a challenging issue with
respect to which there is limited guidance. The Constitution
does not define “the Recess,” and we find no discussion of the
Recess Appointments Clause at the Constitutional Convention in
Philadelphia or the state ratifying conventions. Alexander
Hamilton’s brief essay in Federalist 67 addresses the Recess
Appointments Clause only in passing, focusing instead on
counteracting the misrepresentation made by opponents of
ratification that the Constitution permitted the President to
fill vacancies in the Senate. Historical practice in the
decades following ratification of the Constitution is similarly
sparse, and too easily subject to manipulation by “savvy
lawyers,” as the dissent rightly notes. Diss. Op. at 147. Nor
is it obvious how the uptick in intrasession recess appointments
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since 1981 ought to affect our analysis. Compare Marsh v.
Chambers, 463 U.S. 783, 792 (1983) (upholding the practice of
beginning legislative sessions with a prayer because its long
history of use had made it “part of the fabric of our society”),
with INS v. Chadha, 462 U.S. 919, 944 (1983) (observing that the
increased frequency of the Congressional veto in statutes
“sharpened rather than blunted” the judicial inquiry).
But therein lies the flaw at the heart of the dissent’s
logic. It faults the majority’s textual arguments, but,
significantly, proffers none in response. Rather, the dissent
falls back on the same purposive reading of legislative tea
leaves for which it chides the majority, but without any textual
underpinning. It is certainly noteworthy that “the Recess” sits
in grammatical tension with a reference to all inter-and intra-
session breaks. And although perhaps not decisive, the
interplay of “recess” and “adjourn/adjournment” and the framers’
use of “Session,” see Maj. Op. at 91-95, at least tips the scale
of the textual argument in favor of the majority’s intersession-
only reading of the Recess Appointments Clause when there is no
counter-weight in the balance.
I am further troubled--and unpersuaded--by the dissent’s
skating past the constitutional text and “look[ing] to the
purpose of the clause as our lodestar.” Diss. Op. at 148. If,
as the dissent contends, the text is ambiguous, surely
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discerning the proper application of the Recess Appointments
Clause’s purpose is even more so. The clause’s purpose is, as
the dissent acknowledges, actually twofold: “to ensure a
functioning government and maintain the separation of powers
between the executive and legislative branches of that
government.” Id. at 131. The dissent reaches its conclusion
only by elevating the goal of ensuring the functioning of the
government when the Senate is (ostensibly) unavailable to
provide its advice and consent, and ignoring that of maintaining
the separation of powers by cabining the President’s unilateral
appointments power to limited circumstances. The dissent’s
failure to explain why it has emphasized one of the Recess
Appointments Clause’s purposes and largely ignored the other
also gives one pause.
Finally, the majority offers a more judicially manageable
interpretation of “the Recess” than that offered by the dissent.
Although the dissent criticizes the majority’s reading of the
Recess Appointments Clause as “unworkable in practice,” id. at
134, in my view, that description more aptly applies to the
dissent’s position. Limiting “the Recess” to intersession
breaks creates clear parameters for the Legislative and
Executive branches on when the Senate is in recess for purposes
of the Recess Appointments Clause. Such clarity is of
particular importance when, as here, the case implicates the
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separation of powers doctrine. See Plaut v. Spendthrift Farm,
Inc., 514 U.S. 211, 239 (1995) (identifying the separation of
powers doctrine as a structural safeguard which requires
“establishing high walls and clear distinctions because low
walls and vague distinctions will not be judicially defensible
in the heat of interbranch conflict”).
The dissent’s proposed standard, by contrast, offers no
guidance, meaningful or otherwise. Its view that the Senate
would be in “the Recess” when it “is not engaged in its regular
course of business, is unavailable to receive messages from the
President, or cannot meet to consider a nominee for a position,”
Diss. Op. at 143, raises more questions than it answers. What
constitutes the Senate’s “regular course of business”? What
precludes the Senate from providing its advice and consent
during a pro forma session? How long must the Senate be
unavailable to receive messages, and what (and who) determines
its unavailability? Would a senator filibustering a nominee
mean the Senate “cannot meet to consider th[at] nominee for a
position,” and therefore give rise to the President’s recess
appointments power? I fear that these and other questions, for
which the dissent provides no answers, would be more, rather
than less, problematic.
I therefore fully concur in the majority’s reading of the
Recess Appointments Clause.
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DIAZ, Circuit Judge, concurring in part and dissenting in part:
When they convened in Philadelphia in May 1787 for the
Constitutional Convention, the Framers understood that they were
engaged in something more than a drafting exercise. Their
effort was an inspired work following a debate for the ages
about the role of government, its relationship to the people,
and--as we consider today--the division of power among its
coordinate branches. These consolidated appeals require us to
interpret the Recess Appointments Clause of Article II of the
Constitution, which received little attention or discussion at
the Founding, and yet serves as a linchpin of the division of
power between the President and the Senate.
I am pleased to join my colleagues’ resolution of these
cases as to the merits of the National Labor Relations Act
issues, contained in parts I, II, and III of the majority
opinion. But I part company with my friends on the
constitutional questions before us. 1 In interpreting the Recess
1
The Board contends that Enterprise Leasing Co. and
Huntington Ingalls, Inc. (the “Employers”) have waived certain
constitutional arguments--namely, that “the Recess” refers to
intersession recesses only and that “may happen” means “happen
to arise”--by first raising them in their reply briefs. But we
have discretion to consider an untimely constitutional challenge
to an officer’s appointment, see Freytag v. CIR, 501 U.S. 868,
878-79 (1991), and considering the significance of the
constitutional questions presented by these appeals, such
discretion is properly exercised here. We also remedied any
(Continued)
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Appointments Clause, we must be mindful of the Framers’ intent
in drafting it: to ensure a functioning government and maintain
the separation of powers between the executive and legislative
branches of that government. With this purpose fixed firmly in
mind, and for the reasons I explain below, I find no
constitutional defect in President Barack Obama’s intrasession
recess appointments of National Labor Relations Board (“NLRB” or
the “Board”) Members Sharon Block, Terence Flynn, and Richard
Griffin, Jr.
I.
These appeals originate from the Senate’s unanimous consent
resolution to “adjourn and convene for pro forma sessions only,
with no business conducted,” between December 20, 2011 and
January 23, 2012. 157 Cong. Rec. S 8783-03 (daily ed. Dec. 17,
2011). These pro forma sessions were necessary, at least in
part, because the House of Representatives, relying on the
Adjournments Clause of the Constitution, 2 refused to give consent
for the Senate to take its normal extended intersession recess.
harm the Board would have suffered by granting both parties
permission to address the arguments in supplemental briefs.
2
The Adjournments Clause provides that “[n]either House,
during the Session of Congress, shall, without the Consent of
the other, adjourn for more than three days.” U.S. Const. art.
I, § 5, cl. 4.
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See NLRB v. New Vista Nursing and Rehabilitation, LLC, Nos. 11-
3440, 12-1027, 12-1936, 2013 WL 2099742, at *32 n.6 (3d. Cir.
May 16, 2013) (Greenaway, J., dissenting) (citing Lawfulness of
Recess Appointments During a Recess of the Senate
Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. 1, 2–
3 (2012)). As a result, the pro forma sessions created two
intrasession recesses: one lasting from December 17, 2011, to
January 2, 2012, and another lasting from January 3 (when a new
session of Congress began) to January 23, 2012.
Each Tuesday and Friday during these periods, a single
senator took to the floor to convene and adjourn each pro forma
session, which typically lasted for no more than a minute. The
Senate did not say a prayer or recite the Pledge of Allegiance
during these sessions, see 158 Cong. Rec. S3-11 (daily eds. Jan.
6-20, 2012), nor did it receive messages from the President or
the House, see 158 Cong. Rec. S37 (daily ed. Jan. 23, 2012).
During one such session, the Senate agreed by unanimous consent
to the payroll tax extension, see 157 Cong. Rec. S 8789 (daily
ed. Dec. 23, 2011), which the President signed into law that
same day.
On January 3, 2012, Board Member Craig Becker’s recess
appointment term ended, leaving the Board without a quorum.
President Obama had nominated Sharon Block and Richard Griffin
to the Board on December 14, 2011, but the Senate had not yet
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voted on their nominations before recessing on December 17. On
January 4, the President, apparently concluding that the Senate
had entered “the Recess” despite its pro forma sessions,
appointed Members Block, Griffin, and Flynn using his recess
appointment power. See Press Release, The White House,
President Obama Announces Recess Appointments to Key
Administration Posts (Jan. 4, 2012), available at
http://www.whitehouse.gov/the-press-office/2012/01/04/president-
obama-announces-recess-appointments-key-administration-posts.
The President acted pursuant to the Recess Appointments
Clause, which gives him the “Power to fill up all Vacancies that
may happen during the Recess of the Senate, by granting the
Commissions which shall expire at the End of their next
Session.” U.S. Const. art. II, § 2, cl. 3. The majority says
that, as used in the clause, “the Recess” refers to the break
between the end of one regular session of the Senate and the
convening of the next (the so-called “intersession recess”).
Because the Senate was not in an intersession recess when the
President made his appointments, the majority holds that they
are constitutionally invalid. As the Board notes, this view of
the Recess Appointments Clause also deems invalid over 500
appointments by fourteen Presidents dating back to the 1860s.
See NLRB Supp. Br. 17.
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The majority’s definition of “the Recess” presumes a
textual clarity not found in the clause and, more importantly,
upsets the Framers’ carefully crafted allocation of power
between the President and the Senate in the appointments
process. I would hold instead that “the Recess” “refers to both
intra- and intersession recesses because the Senate can be
unavailable to provide advice and consent during both.” New
Vista, 2013 WL 2099742, at *30 (Greenaway, J., dissenting).
Interpreting the clause as I propose, that is, with an eye to
its original purpose, lends a pragmatic understanding of the
scope of the authority it confers, while maintaining the
delicate balance of power that the Framers intended. Because
the majority’s reading of the clause is not supported by the
language itself and is unworkable in practice, I respectfully
dissent from parts IV and V of the opinion.
II.
The Appointments Clause of the Constitution provides that
the President shall nominate, “and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all
other Officers of the United States[.]” U.S. Const. art. II,
§ 2, cl. 2. Recognizing that it would be impractical for the
Senate to remain perpetually in session to consider presidential
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nominees, The Federalist No. 67, at 410 (Alexander Hamilton) (C.
Rossiter ed., 1961), the Framers also gave the President the
power to make recess appointments.
The majority has accurately summarized the law supporting
the conflicting interpretations of the Recess Appointments
Clause: the first, championed by the Employers and recently
embraced by the Third and D.C. Circuits, 3 reads the clause so as
to allow the President to make recess appointments only during
an intersession recess, while the second, favored by the Board
and by the Second, Ninth, and Eleventh Circuits, 4 as well as by
Judge Greenaway in dissent in New Vista, maintains that the
President’s power to appoint extends to recesses generally, no
matter when they occur. 5 I find the latter reading--also termed
the “functional approach” 6--to be more persuasive.
3
See New Vista, 2013 WL 2099742; Noel Canning v. NLRB, 705
F.3d 490 (D.C. Cir.), cert. granted, __ U.S. ____ (2013).
4
See Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (en
banc); United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985)
(en banc); United States v. Allocco, 305 F.2d 704 (2d Cir.
1962).
5
The majority says that the Board espouses a third
interpretation of the clause, i.e., that a break need not meet a
minimum time threshold in order to be considered “the Recess.”
I do not think the Board goes so far. To the contrary, the
Board has specifically distinguished the instant situation from
“an ordinary, long-weekend recess,” NLRB Br. 40, and aligned
itself with the understanding that the clause generally excludes
“very short breaks” of fewer than three days, NLRB Supp. Br. 15-
16.
(Continued)
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A.
The first rule of constitutional interpretation is, of
course, to apply the plain meaning of the text. McPherson v.
Blacker, 146 U.S. 1 (1892); see also District of Columbia v.
Heller, 554 U.S. 570, 576 (2008) (“In interpreting [the] text,
we are guided by the principle that the Constitution was written
to be understood by the voters; its words and phrases were used
in their normal and ordinary as distinguished from technical
meaning.” (internal quotations omitted)).
The problem with a textualist view of the Recess
Appointments Clause is that the language, while sparse, is
anything but clear. See New Vista, 2013 WL 2099742, at *13
(“The word ‘recess’ lacks a natural meaning that clearly
identifies whether it includes only intersession breaks or also
includes intrasession breaks, whether they be of a certain
duration or a period of unavailability.”). Most Americans would
understand a “recess” to be a break from something--in this case
a break from Senate proceedings. The question, then, becomes
whether the Framers’ use of the definite article (i.e., “the”)
6
See Noel Canning, 705 F.3d at 504 (calling the Board’s
interpretation, as set out by Attorney General Daughtery in
1921, the “functional approach”); New Vista, 2013 WL 2099742, at
*12 (same).
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as a modifier was intended to denominate a particular type of
break.
I think it a stretch to say that the plain language of the
clause shows that the Framers intended to limit the President’s
recess appointment power to the singular period between two
congressional sessions. If that were so, then it would stand to
reason that the other use of “the Recess” in the Constitution--
in Article I, Section 3, Clause 2, 7 which provides for the
temporary appointment of Senators by state executives during
their legislatures’ recesses--would have the same singular
meaning. Yet we know that is not so because in that latter
context, the clause is used to refer collectively to the various
recesses of the several state legislatures. The Constitution
also refers repeatedly to “the Congress” and “the President,”
yet I doubt the majority ascribes the same literal meaning to
the definite article in these contexts.
Perhaps the Framers’ use of the definite article has some
unique meaning in this context, but there is nothing in the
clause that points unambiguously to the majority’s view of
things. It seems to me equally plausible that the Framers
7
“[I]f Vacancies happen by Resignation, or otherwise,
during the Recess of the Legislature of any State, the Executive
thereof may make temporary Appointments until the next Meeting
of the Legislature, which shall then fill such Vacancies.” U.S.
Const. art. I, § 3, cl. 2.
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choice of words was intended to exclude other types of recesses-
-for example, when the Senate breaks for lunch by recessing.
Alternatively, as the en banc Eleventh Circuit concluded in
Evans, the word “the” might have also been intended to refer
“generically to any one--intrasession or intersession--of the
Senate’s acts of recessing, that is, taking a break.” 387 F.3d
at 1225.
Furthermore, the majority’s reading does more than simply
give meaning to the word “the”--it also requires the court to
inject an additional modifier into the Constitution, a practice
that the Supreme Court has disfavored. See The Pocket Veto
Case, 279 U.S. 655, 679 (1929). As Judge Greenaway notes in his
dissent in New Vista, the majority’s reading necessitates that
one insert “intersession” before “Recess” in the clause. New
Vista, 2013 WL 2099742, at *34. By contrast, a functional view
of the clause does not require an additional modifier, because
“the Recess” would refer without qualification to any break from
Senate business when that body is functionally unavailable to
give advice and consent.
The majority also concludes that because “adjourn” and
“adjournment” are used elsewhere in the Constitution to refer to
various types of congressional breaks, including intrasession
recesses, “the Recess” must refer to a specific suspension of
business: an intersession recess. The majority is correct that
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“adjourn” is used throughout the Constitution as a broader term
than “the Recess.” On that point, the Adjournments Clause of
the Constitution demonstrates that an adjournment may either be
very short--for example, a break from day to day--or much
longer. See U.S. Const. art. I, § 5, cl. 4 (providing that
“during the Session of Congress” neither House may “adjourn for
more than three days” without the “consent of the other”).
However, I fail to see how this fact logically leads to the
conclusion that all intrasession breaks are excluded from “the
Recess.” The notion that the distinction between adjournments
and “the Recess” applies with equal force to intra- and
intersession recesses is a convenient correlation, but it has no
basis in the text of the Constitution.
Nor does the balance of the clause shed further light on
the question before us. The Employers argue that because the
clause mandates that recess appointments expire at the end of
Congress’s “next session,” the President’s power to appoint
necessarily must be limited to intersession recesses.
Otherwise, they say, two recess appointees could have widely
disparate tenures--that is, the President could appoint one
official during an intrasession recess and another months later,
during a subsequent intersession recess, yet both appointments
would expire at the same time: the end of the next session.
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But nothing in the Recess Appointments Clause requires that
all recess appointments be of the same length, and such an
interpretation does not further its purpose. “The check on the
Recess Appointments Clause . . . is that recess appointments
have a fixed end, not necessarily a fixed length.” New Vista,
2013 WL 2099742, at *45 (Greenaway, J., dissenting). In that
regard, I agree with Judge Greenaway that the Framers likely
expected that recess appointments, even those made between
sessions, would have varying durations, particularly given that
intersession recesses in the nation’s early years routinely
lasted six months or longer. See id.
B.
Finding the clause’s text inconclusive, I turn to consider
its purpose. The Supreme Court has embraced this approach,
often looking to the spirit and purpose of the language for
guidance when constitutional text is ambiguous. See, e.g.,
Polar Tankers, Inc. v. City of Valdez, 557 U.S. 1, 6-7 (2009)
(noting that “[t]he Court over the course of many years has
consistently interpreted the language of the [Tonnage Clause] in
light of its purpose . . . .”); Maryland v. Craig, 497 U.S. 836,
849 (1990) (“We have accordingly interpreted the Confrontation
Clause in a manner sensitive to its purposes . . . .”); Tashjian
v. Republican Party of Conn., 479 U.S. 208, 227 (1986) (“Our
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inquiry begins with an examination of the Framers’ purpose in
enacting the first Qualifications Clause.”). 8
Although The Federalist Papers are indispensable in
ascertaining many aspects of the Framers’ intent and purpose,
they reveal precious little about the Recess Appointments
Clause, which was adopted without debate. It is undisputed,
however, that the clause’s purpose was to “establish[] an
auxiliary method of appointment, in cases to which the general
method was inadequate.” The Federalist No. 67, at 409. The
power was designed to work in concert with the Appointments
Clause, which allows the President to fill vacancies with the
advice and consent of the Senate.
Alexander Hamilton offered a succinct rationale for the
recess appointment power, stating that “it might be necessary
for the public service [for the President] to fill [vacancies]
8
The Supreme Court also applied this functional approach in
a case testing the meaning of the Pocket Veto Clause. See The
Pocket Veto Case, 279 U.S. at 680. There, in considering
whether the Senate was available to receive a bill from the
President for the purposes of the Pocket Veto Clause, the Court
eschewed a myopic focus on Congress’s procedural status in favor
of an analysis of the underlying purpose of the clause. See id.
(holding that it was immaterial to whether the Senate had
“adjourned” if it was a “final adjournment” or an “interim
adjournment,” and instead considering “whether [the adjournment]
‘prevents’ the President from returning the bill to the House in
which it originated within the time allowed”). By ignoring
procedural technicalities, the Court’s interpretation upheld the
purpose underlying the text and preserved the Framers’ intended
governmental structure.
- 141 -
without delay.” Id. at 410. Such a view is consistent with the
Executive’s separate constitutional duty to “take Care that the
Laws be faithfully executed,” U.S. Const. art. II, § 3, cl. 5,
which in turn requires that the President have in place the
principal officers necessary to carry out this mandate.
To that end, I submit that the Framers intended to place
the power of appointment chiefly in the President. In The
Federalist No. 76 for example, Hamilton explained that “one man
of discernment is better fitted to analyze and estimate the
peculiar qualities adapted to particular offices than a body of
men of equal or perhaps even of superior discernment.” The
Federalist No. 76, at 455 (Alexander Hamilton) (C. Rossiter ed.,
1961).
The Framers no doubt intended the Senate to play a
significant role in the process, but its duty primarily was to
ferret out appointments doled out based upon favoritism or
corruption, and certainly not to weigh the executive’s policy
choice and impede the selection to an extent that risks shutting
down entire agencies of the government. As Hamilton described
it, “[The Senate] would be an excellent check upon a spirit of
favoritism in the President, and would tend greatly to prevent
the appointment of unfit characters from State prejudice, from
family connection, from personal attachment, or from a view to
popularity.” Id. at 457; see also Myers v. United States, 272
- 142 -
U.S. 52, 118 (1926) (stating that the Senate’s advice and
consent role should be “strictly construed” and not “enlarged
beyond words used”).
Thus, while Hamilton described the recess power as an
“auxiliary method of appointment,” The Federalist No. 67, at
409, his broader view of the coordinate branches’ respective
roles in the process shows that the power was intended primarily
for the President, and that the recess appointment power in
particular was a practical aid in support of the President’s
constitutional obligations as the nation’s chief executive.
Against this backdrop, I discern a meaning of “the Recess”
that I believe would find favor with the Framers: the Senate is
in “the Recess” when it is not available to provide advice and
consent on nominations. Particularly, if the Senate is not
engaged in its regular course of business, is unavailable to
receive messages from the President, or cannot meet to consider
a nominee for a position, it is in “the Recess.” I note that
this is not a test foreign to Congress; indeed the Senate
Judiciary Committee long ago opined that “the Recess” denotes “a
period of time when the Senate is not sitting in regular or
extraordinary session . . . when its chamber is empty[,] when,
because of its absence, it cannot receive communications from
the President or participate as a body in making appointments.”
S. Rep. No. 58-4389, at 2 (1905).
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My view of the clause thus does not distinguish between
intrasession and intersession recesses, because such a
distinction, while perhaps grist for wordsmiths, is meaningless
in the context of the recess power’s core purpose--to ensure the
proper functioning of the government. Whatever label one
chooses to affix to “the Recess,” so long as the Senate is
unable to provide its advice and consent on the President’s
nominees, the result is the same: important offices remain
unfilled and the government does not function as intended.
III.
The majority contends that its interpretation of the Recess
Appointments Clause should be favored because it is consistent
with the historical record. But a closer look at the conduct of
the coordinate branches, both past and present, reveals that the
functional approach not only fits with historical practice, but
also better sustains the balance of powers inherent in our
constitutional structure.
A.
Relying on Noel Canning, the majority posits that “the
infrequency of intrasession appointments in the historical
record and the relative disdain harbored toward such
appointments in at least the first 132 years of our Nation
suggests an ‘absence of [the] power’ to make such appointments.”
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Maj. Op. at 99 (quoting Noel Canning, 705 F.3d at 502). In my
view though, a functional interpretation of the Recess
Appointments Clause properly counsels against a blind adherence
to the precise procedural conditions in which earlier executives
exercised the power. In any event, I do not think the
majority’s “use it or lose it” theory of constitutional
interpretation is dispositive, particularly since the relevant
history purporting to support it is not so compelling.
In the infancy of our republic, the Senate rarely took
intrasession recesses, instead working steadily while in
Washington and opting to take lengthy intersession recesses--
sometimes lasting six to nine months--to return home to family
and constituents. See Congressional Directory for the 112th
Congress 522-38 (2011). Travel for those early legislators was
both arduous and treacherous, creating an additional
disincentive to take additional breaks during a session. Thus,
“until the Civil War, there were no intrasession recesses longer
than 14 days, and only a handful that even exceeded three days.”
NLRB Supp. Br. 12 (citing Congressional Directory for the 112th
Congress 522-25 (2011)).
The first time that Congress took an extended intrasession
recess--from April 20, 1867 to July 3, 1867--President Andrew
Johnson made the first known intrasession recess appointment.
Edward A. Hartnett, Recess Appointments of Article III Judges:
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Three Constitutional Questions, 26 Cardozo L. Rev. 377, 408-09
(2005). President Johnson made other intrasession recess
appointments during his tenure, including one whose legitimacy
was later challenged in--and upheld by--the Court of Claims. 9
Id. at 409 (citing Gould v. United States, 19 Ct. Cl. 593
(1884)).
As the country’s transportation infrastructure improved
substantially in the 20th century, it became easier for Senators
to travel quickly and easily between the Capitol and their home
states; this, in turn, has led to more intrasession breaks at
the expense of the traditional extended intersession recess.
Indeed, intrasession recesses today often last longer than
intersession ones. See Evans, 387 F.3d at 1226 & n.10 (noting
that the Senate has taken “zero-day intersession recesses” as
well as “intrasession recesses lasting months”). The net result
9
The majority is correct that the Senate took a number of
intrasession recesses--typically around the Christmas holiday--
between 1867 and 1947, during which presidents did not make
recess appointments. But the majority points to nothing in the
historical record showing that the reason for this dearth of
appointments was a concern as to the scope of the executive’s
recess appointment power. It appears, rather, that the record
is silent on the question, although, as Judge Greenaway points
out in his dissent in New Vista, one possible explanation is
that “intersession recesses [during that period] were still
rather lengthy, often spanning several months, which gave the
President ample time to make recess appointments during
intersession recesses, compared to the relatively short duration
of early intrasession recesses.” New Vista, 2013 WL 2099742, at
*46 (Greenaway, J., dissenting).
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is that in modern Senate practice, intrasession recesses account
for more of the Senate’s absences than intersession recesses.
See Congressional Directory for the 112th Congress 530-37
(2011).
I therefore attach little, if any, negative constitutional
significance to the historical fact that since 1947, presidents
from both parties have made over 400 intrasession appointments.
See New Vista, 2013 WL 2099742, at *44 (Greenaway, J.,
dissenting). Yet the majority’s fixation on bygone history--at
the expense of the reality that informs recess appointment
practices today--effectively deems every single one of those
appointments to be constitutionally infirm.
I do not suggest that history should be ignored as a tool
of constitutional interpretation. But one need only read the
fine briefs in these cases to recognize that, given time, savvy
lawyers can excavate historical references to support virtually
any proposition. 10 Compare NLRB Supp. Br. 9 (noting that George
10
The same holds true for any attempt to divine an answer
to the questions before us by relying on dictionary definitions
of the day. Compare Evans, 387 F.3d at 1226 (citing
dictionaries that define “happen” in the recess appointment
clause as “to happen to be”) with id. at 1230 n.4 (Barkett, J.,
dissenting) (citing dictionaries that define “happen” as “to
occur”). Indeed, the parties’ resort to historical and
dictionary references here is “the equivalent of entering a
crowded cocktail party and looking over the heads of the guests
for one’s friends.” Conroy v. Aniskoff, 507 U.S. 511, 519
(1993) (Scalia, J., concurring).
- 147 -
Washington once referred to an intrasession break as “the
recess” in a letter to John Jay), and NLRB Supp. Br. 9 (arguing
that the eighteenth-century Pennsylvania and Vermont state
constitutions supported the “intrasession” definition of
“recess”), with Resp’ts’ Supp. Br. 14-15 (citing Judge Barkett’s
dissent in Evans in which she notes George Washington’s
reference to an intersession break as “the recess” in a message
to Congress) and Resp’ts’ Supp. Br. 15 (arguing that the
Massachusetts and North Carolina state constitutions supported
the “intersession” definition).
Rather than impute dubious meaning to sparse text or
ascribe consistency to what is, at best, ambiguous historical
practice, I would look to the purpose of the clause as our
lodestar. To that end, we would do well to remember that
[t]ime works changes, brings into existence new
conditions and purposes. Therefore, a principle to
be vital must be capable of wider application than
the mischief which gave it birth. This is
peculiarly true of constitutions. They are not
ephemeral enactments, designed to meet passing
occasions. They are, to use the words of Chief
Justice John Marshall, ‘designed to approach
immortality as nearly as human institutions can
approach it.’ The future is their care and
provision for events of good and bad tendencies of
which no prophecy can be made. In the application
of a constitution, therefore, our contemplation
cannot be only of what has been, but of what may be.
Weems v. United States, 217 U.S. 349, 373 (1910) (quoting Cohens
v. Virginia, 19 U.S. 264, 387 (1821)).
- 148 -
Viewed in this practical light, the Recess Appointments
Clause sheds the ambiguity of its text in favor of a meaning
that promotes its core function. I would therefore hold that
“the Recess” refers to recesses generally, no matter the type,
as long as the Senate is not engaged in its regular business and
is unable to perform its constitutional duty of providing advice
and consent on the President’s nominees.
B.
Admittedly, a functional view of the President’s recess
appointment power does not fix a minimum length for the Senate’s
break in business to constitute “the Recess.” But the
majority’s own reading of the clause fares no better. Under its
interpretation, “the Recess” authorizing the President to act
occurs only when Congress breaks between sessions, without
regard to whether the break spans weeks, days, or hours. Thus,
if Congress takes a one-day break between sessions, the majority
apparently would find no fault with the President making a
recess appointment during that time, despite the fact that the
Senate would have returned to business the next day and been
available to provide its advice and consent on the nominee.
Nor would the majority’s interpretation prevent the
President from making hundreds of recess appointments during a
momentary intersession recess. Indeed, I note with some irony
that the sole instance in which a President assumed such
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audacious power occurred in 1903 when President Theodore
Roosevelt “used a moment’s intersession recess . . . to make 193
executive branch appointments, literally between two raps of a
gavel.” Peter M. Shane, Third Circuit Further Fuels the
Constitutional Conflict Over Recess Appointments, U.S. Law Week,
June 11, 2013. The majority’s decision today would do nothing
to stop a future President from channeling the Rough Rider.
Certainly, we should not ignore the possibility that the
President might abuse his power to appoint officials in the
manner suggested by the Employers here. But the majority
appears eager to assume the worse from the nation’s chief
executive. I, for one, decline to “imput[e] to the President a
degree of turpitude entirely inconsistent with the character
which his office implies, as well as with the high
responsibility and short tenure annexed to that office.”
Allocco, 305 F.2d at 714 (quoting Exec. Auth. to Fill Vacancies,
1 Op. Att’y Gen. 631, 634 (1823)). After all, “[t]here is
[also] no text limiting the laws a President may veto (or his
reasons for vetoing them), the pardons he may issue, or the
occasions on which he may convene Congress on his own
initiative.” Shane, Third Circuit Further Fuels the
Constitutional Conflict Over Recess Appointments, U.S. Law Week,
June 11, 2013. We should nonetheless expect some modicum of
good faith in the individual our fellow citizens elect to the
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most powerful office in the world, otherwise his “textual powers
are quite adequate, if asserted irresponsibly, to undermine both
Congress and the judiciary.” Id.
In any event, there are checks in our constitutional
structure, both explicit and implicit, that protect against just
such abuse. To begin with, the President may make recess
appointments only when the Senate is not in session for regular
business. If the Senate wishes to give its advice and consent
as to particular nominees, it may remain in regular session for
that purpose. Second, the very fact that all recess
appointments are temporary restrains the President’s power.
Third, the President has a substantial interest in obtaining the
Senate’s advice and consent for full terms for the principal
officers he nominates to implement the administration’s agenda,
rather than relying on short-term recess appointees. Fourth, as
Judge Greenaway notes in his dissent in New Vista, “the
structure of the branches of government, as conceived by the
Constitution, give[s] the President a very strong interest in
maintaining the favor of the Senate and not stoking its ire.”
New Vista, 2013 WL 2099742, at *41. (citing The Federalist No.
77, at 459 (Alexander Hamilton) (C. Rossiter ed., 1961)). 11 The
11
It appears that President Obama has acknowledged and
respected this interest, given that he has made but thirty-two
recess appointments while in office. In contrast, his two
(Continued)
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President also must consider public opinion, as an executive who
abuses his power will damage his reputation, as well as that of
his party. See id.
The majority also gives short shrift to the fact that the
President too swears an oath to uphold the Constitution, and
that when he acts under its express authority, his actions
should be accorded a presumption of constitutionality. See
Evans, 387 F.3d at 1222 (citing United States v. Nixon, 418 U.S.
683 (1974)). The Supreme Court has further underscored the
necessity of the legislative branch providing some latitude to
the President in his use of constitutional authority,
admonishing that congressional action is invalid if it
“undermine[s] the powers of the Executive Branch, or disrupt[s]
the proper balance between the coordinate branches [by]
prevent[ing] the Executive Branch from accomplishing its
constitutionally assigned functions.” Morrison v. Olsen, 487
U.S. 654, 658 (1988) (citations and internal quotations
omitted).
But the more direct response to the claim that the
functional view fails for lack of temporal limits is, so what?
Limiting principles are important when courts engage in
immediate predecessors made 310 such appointments. Henry Hogue,
Cong. Res. Serv., Recess Appointments: Frequently Asked
Questions (Jun. 7, 2013).
- 152 -
constitutional interpretation, but a slavish devotion to them at
the expense of common sense is no virtue. That the Framers
chose not to draw a bright line delineating the limits of the
President’s recess appointment power is not a flaw, but rather a
part of their grand design in drafting a compact “intended to
endure for ages to come, and consequently to be adapted to the
various crises of human affairs.” McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 415 (1819).
In short, because any fixed time limitation has no basis in
the text of the clause, it would perforce be arbitrary. See New
Vista, 2013 WL 2099742, at *44 (Greenaway, J., dissenting). The
proper test in assessing whether a “Recess” triggers the
President’s power to appoint is whether the Senate is engaged in
its regular business and thus available to give its advice and
consent: this inquiry operates to exclude the altogether silly
scenario of the President making recess appointments during the
Senate’s breaks for meals or weekends, while including the types
of weeks-long intrasession recesses that could stall the
functioning of government if an important post is left vacant.
As the majority would have it, the Senate is free to read
out of the Constitution the President’s recess appointment power
by refusing to take intersession recesses, opting instead to
take an extended intrasession break, returning just before the
session ends, and then moving directly into the next session.
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Even though the harm to the country of leaving vital offices
unfilled while the Senate is away and unable to give advice and
consent is no less compelling in this scenario, the President
would be powerless to act. The Supreme Court has long made
clear, however, that no clause should be interpreted in a manner
that would render it meaningless. See Marbury v. Madison, 5
U.S. 137, 174 (1803) (“It cannot be presumed that any clause in
the constitution is intended to be without effect . . . .”).
This concern is far from hypothetical, as the NRLB’s
history of vacancies demonstrates. Despite nominations made by
Presidents of both parties, the NLRB has not had a full panel of
Senate-confirmed members since 2003, a problem exacerbated by
the Supreme Court’s decision in New Process Steel LP v. NLRB,
130 S. Ct. 2635 (2010), which held that the Board must have at
least three members in order to constitute a quorum for purposes
of resolving unfair labor practice charges. Board Member and
Chairman Mark Gaston Pearce’s term will expire in August of this
year, see 29 U.S.C. § 153(a), 12 leaving the Board again without a
quorum unless the President’s nominees are confirmed by the
Senate. It is this precise scenario, that is, where an
appointment vacuum (whatever its origins) impedes the
enforcement of a statute--in these cases one designed “to
12
Mark Gaston Pearce, NLRB.gov, http://www.nlrb.gov/who-we-
are/board/mark-gaston-pearce-chairman.
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protect the rights of employees and employers, to encourage
collective bargaining, and to curtail certain private sector
labor and management practices, which can harm the general
welfare of workers, businesses and the U.S. economy,” 13--that the
President’s recess appointment power was designed to remedy.
To make matters worse, while the majority claims that its
reading simply restores the Senate’s power in the appointments
process, it actually gives the House of Representatives a de
facto veto on presidential recess appointments. The
Adjournments Clause provides that neither House of Congress may
adjourn for more than three days without mutual consent. See
U.S. Const. art. I, § 5, cl. 4. Its purpose is to allow the
business of Congress to be conducted by preventing either House
to adjourn for an extended period without the other’s consent.
But these appeals are before us precisely because the House has
wielded this power in part to block intrasession recess
appointments by refusing to adjourn, thereby forcing the Senate
to rely on pro forma sessions to allow its members to break for
significant periods of time. See New Vista, 2013 WL 2099742, at
*32 n.6 (Greenaway, J., dissenting).
Under the majority’s holding, the House has effectively
gained a check on the President’s appointment power, a
13
National Labor Relations Act, NLRB.gov,
http://www.nlrb.gov/national-labor-relations-act.
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proposition neither contemplated by the Constitution nor
intended by the Framers. See id. at *34 (stating that the House
should not “interfere with the appointments process because ‘[a]
body so fluctuating and at the same time so numerous can never
be deemed proper for the exercise of that power’”) (quoting The
Federalist No. 77, at 463 (Alexander Hamilton) (C. Rossiter ed.,
1961))).
The majority contends that the President may override this
House “veto” by invoking his power to force an adjournment of
Congress, thus creating an intersession recess during which he
could make appointments. See U.S. Const. art. II, § 2, cl. 3;
Todd Garvey et al., Cong. Res. Serv., The Recess Appointment
Power After Noel Canning v. NLRB: Constitutional Implications
(Mar. 27, 2013). It appears, however, that no President has
ever exercised this power, and it is unclear how it would be
determined that the House and Senate are truly in “disagreement
. . . with respect to the Time of Adjournment.” In any event, I
confess to some surprise that the majority has taken this tack,
as it runs counter to their view of the President’s authority in
two ways: First, it would allow the President to decide when
the Senate is in “the Recess,” thereby granting the President
the precise unilateral power of appointment that the majority
finds objectionable. Second, given the majority’s clear
distinction between an “adjournment” and “the Recess,” see Maj.
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Op. at 93-94, even if the President forced an adjournment of
Congress, presumably the majority would not countenance the
President’s use of the recess appointment power during the
resulting break.
The majority also claims that the functional approach
interferes with the Senate’s ability to regulate its own
procedure. Not so. My reading of the Recess Appointments
Clause would not prevent the Senate from engaging in any
practice, including its use of pro forma sessions. Indeed, I
recognize that such practices may be necessary for the Senate to
conform to the requirements of the Adjournments Clause. But
“[t]he Senate cannot be both unavailable and yet force the
President to submit to its advice and consent.” New Vista, 2013
WL 2099742, at *42 (Greenaway, J., dissenting). Put another
way, we should not allow the Senate to determine the effect of
such actions on a coordinate branch. Rather, while the Senate
may meet in pro forma sessions when its members see fit, the
President may also choose to use his recess appointment power
during such sessions if the Senate is practically unavailable to
provide its advice and consent for nominees.
Finally, I find no merit to the Employers’ argument that
the Senate was, in fact, available to provide advice and consent
during the relevant period due to its passing the payroll tax
extension legislation on December 23, 2011. To begin with,
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Congress began a new session on January 3, 2012, and therefore
this legislative action took place during a different
intrasession recess than the one in which the President made his
appointments. Thus, even assuming that the Senate had been
available during the December intrasession recess, that fact has
no bearing on whether it could act on a nomination during a
subsequent break. Second, the payroll tax extension was an
extraordinary bill that was part of a broader legislative effort
to avert a national financial catastrophe, and was passed by
unanimous consent, thus not requiring the Senate to return to
Washington. See 157 Cong. Rec. S 8789-03 (daily ed. Dec. 23,
2011) (statement of Sen. Harry Reid). By contrast, nominees to
offices like the Board are typically subject to a confirmation
hearing, followed by a vote. Considering the time and attention
typically given to presidential nominees, it was reasonable for
the President to assume that the Senate could not practically
give its advice and consent to nominations during pro forma
sessions in which (1) a lone senator gaveled the body to order
for sessions lasting no more than a few minutes, (2) the Senate
could not receive messages from the President, (3) no debates
were held, and (4) no speeches were made. See New Vista, 2013
WL 2099742, at *32 (Greenaway, J., dissenting) (“While courts
have not had occasion to articulate a standard for advice and
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consent, it is clear . . . that provision of advice and consent
cannot be perfunctory.”).
C.
Under a functional interpretation of the Recess
Appointments Clause, the Senate’s intrasession break during
January 2012 qualifies as “the Recess.” The Senate had adopted
a no-business order, 157 Cong. Rec. S 8783-07 (daily ed. Dec.
17, 2011), instead holding pro forma sessions wherein the Senate
was not engaged in regular business, and thus was unable to
provide its advice and consent on any nominations that the
President may have presented. Therefore, I would hold that the
intrasession recess from January 3, 2012, to January 23, 2012,
constituted “the Recess” for purposes of the Recess Appointments
Clause.
IV.
Next, I consider the Employers’ contention that a vacancy
must arise during the recess in order for the President to use
his recess appointment power to fill it. Because it found the
interpretation of “the Recess” to be dispositive, the majority
did not reach this issue.
The Employers argue that the appointments of Members Block,
Flynn, and Griffin are invalid because the relevant vacancies
did not arise during “the Recess of the Senate.” According to
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the Employers, to be filled by a recess appointment, a position
must be vacated during the recess--that is, the President cannot
use his power during the recess to fill a vacancy that arose
while the Senate was still in session. For this proposition,
the Employers rely on the Noel Canning opinion, wherein the
court concluded that the plain language and history of the
clause shows that “may happen” means “may arise” and is modified
by “during the Recess of the Senate.” Noel Canning, 705 F.3d at
507-12).
The Board, on the other hand, claims that the clause places
no such restriction on the President’s power. In its view, “may
happen” means “may exist,” and therefore the President may use
his authority to make recess appointments to any vacant position
while the Senate is in recess. Because both the text and the
purpose of the clause support its interpretation, I agree with
the Board.
If “during the Recess of the Senate” modifies “may happen,”
as the Employers assert, then the clause would allow the
President to make recess appointments at any time, even while
the Senate is in session, as long as the vacancy first arose
during a recess. In effect, one would have to read “during the
Recess of the Senate” twice to give the clause the Employers’
preferred meaning: once to denote when the vacancy must arise,
and once again to limit when the President may exercise his
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recess appointment power. I decline to give the text of the
clause such a convoluted meaning. See Woodley, 751 F.2d at 1012
(noting that the “may arise” interpretation “conflicts with a
common sense reading of the word happen, as well as the
construction given to this word by the three branches of our
government”).
The Board’s interpretation, by contrast, flows from a plain
reading of the text. Reading “may happen” to mean “happen to
exist,” one need only read “during the Recess of the Senate”
once in order to reach the traditional understanding of when the
President may make recess appointments.
The D.C. Circuit in Noel Canning disagrees with this
reading, concluding that it renders “the operative phrase ‘that
may happen’ wholly unnecessary.” 705 F.3d at 507. That is
incorrect. Were the clause to read “[t]he President shall have
Power to fill up all Vacancies during the Recess of the Senate,”
it would imply a much broader power than the Framers intended,
suggesting that the recess appointment power was on equal par
with that given in the Appointments Clause. The inclusion of
“that may happen” makes clear that the power is not intended to
be the default method of appointment, but is rather an auxiliary
to be used when vacant positions could not, for some reason, be
filled during the session.
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Nor is the clause’s purpose served by limiting the
President’s appointment authority to those vacancies that arise
during a recess. It bears repeating that the Recess
Appointments Clause serves to maintain a functioning government
at times when the Senate is unavailable to provide its advice
and consent for a nominee. As a practical matter, when a
vacancy arises, the President and his advisors may take a
significant amount of time to select and vet a candidate before
officially presenting the nominee to the Senate. At times, this
period may be longer than that which remains before the Senate’s
recess.
Such was the case in Allocco, 305 F.2d 704, when a judicial
vacancy arose on July 31, 1955, and the President was unable to
fill the position before the Senate adjourned three days later.
The court there held that the President’s recess power extended
to all vacancies, regardless of when they arose, relying in part
on “a long and continuous line of opinions” by the Attorneys-
General of the United States, beginning in 1823, advising the
President “the recess power extends to vacancies which arise
while the Senate is in session.” Id. at 713.
But under the Employers’ interpretation, the President
could not temporarily appoint an official to an important
government post, even if the vacancy arose the day prior to the
Senate’s recess, and even if the recess were expected to last
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for weeks or months. “It is inconceivable that the drafters of
the Constitution intended to create such a manifestly
undesirable situation.” Allocco, 305 F.2d at 710. Rather, the
public interest lies in maintaining a functioning government,
and the Board’s interpretation of the clause effects that very
purpose. See Evans, 387 F.3d at 1227 (“[I]nterpreting the
phrase to prohibit the President from filling a vacancy that
comes into being on the last day of a Session but to empower the
President to fill a vacancy that arises immediately thereafter
(on the first day of recess) contradicts what we understand to
be the purpose of the Recess Appointments Clause: to keep
important offices filled and the government functioning.”). 14
This understanding of the recess appointment power has been
espoused by every Attorney General confronted with the question
since 1823, when Attorney General William Wirt advised President
Monroe that the clause extended to all vacancies that exist
14
Congress has effectively acquiesced in the Board’s
reading of the clause. The Pay Act, originally enacted during
the Civil War and currently codified as 5 U.S.C. § 5503,
provides for the payment of salaries to recess appointees who
fill vacancies that first arise while the Senate is in session.
Although the act originally postponed salaries to these
appointees, Act of Feb. 9, 1863, ch. 25 § 2, 12 Stat. 642, 646,
Congress subsequently amended it to permit them to be paid under
certain conditions, see Act of July 11, 1940, 54 Stat. 751. In
passing a law that regulated the salaries of these appointees--
even if its terms display an aversion to the practice--Congress
acknowledged that it was within the President’s constitutional
authority to make recess appointments to pre-existing vacancies.
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during a recess, including those that arose beforehand. See,
e.g., Exec. Auth. to Fill Vacancies, 1 Op. Att’y Gen. 631
(1823); President’s Power to Fill Vacancies in Recess of the
Senate, 12 Op. Att’y Gen. 32 (1866); Appointments Made During
the Recess of the Senate, 16 Op. Att’y Gen. 522 (1880). 15
Furthermore, until this year, every circuit court to have
considered this issue has endorsed that interpretation. See
Evans, 387 F.3d at 1226-27 (en banc); Woodley, 751 F.2d at 1012-
13 (en banc); Allocco, 305 F.2d at 709-15.
The sole outlier is Noel Canning. But the D.C. Circuit’s
reasoning, in addition to running counter to nearly two hundred
years of precedent and distorting the text of the clause, is
squarely at odds with the clause’s purpose. As one scholar
aptly notes, “[i]f the [P]resident needs to make an appointment,
15
One earlier opinion, from Attorney General Edmund
Randolph, endorses the “happen to arise” interpretation. See
Edmund Randolph, Opinion on Recess Appointments (July 7, 1792),
in 24 The Papers of Thomas Jefferson 165, 165-67 (John
Catanzariti ed., 1990). However, as the Board points out, not
only has that reading been repudiated by the long line of
subsequent Attorneys-General opinions, but it is not clear that
any President found it persuasive. Even George Washington, to
whom the opinion was addressed, appeared to reject the
interpretation when he appointed William Clarke to be U.S.
Attorney for Kentucky and Robert Scot to be the first Engraver
of the Mint--both to vacancies that arose prior to the Senate’s
recess. See S. Exec. J., 4th Cong., 2d Sess. 217 (1796);
Tachau, Federal Courts in the Early Republic: Kentucky 1789-
1816, at 65-73 (1979); 27 The Papers of Thomas Jefferson 192
(John Catanzariti, ed. 1990); S. Exec. J., 3d Cong., 1st Sess.,
142-43 (1793).
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and the Senate is not around, when the vacancy arose hardly
matters; the point is that it must be filled now.” Michael
Herz, Abandoning Recess Appointments?: A Comment on Hartnett
(and Others), 26 Cardozo L. Rev. 443, 445-46 (2005) (emphasis
added).
Finding that both text and purpose support the Board’s
view, I conclude that “may happen” means “may exist” in the
context of the Recess Appointments Clause. Therefore, the
President’s recess appointments to the NLRB are valid, despite
the fact that the vacancies first arose prior to the recess of
the Senate.
V.
The constitutional questions before us are vexing ones, and
I respect deeply my colleagues’ good faith effort to resolve
them. The majority’s interpretation of the Recess Appointments
Clause attempts a literal reading of the text, which it
endeavors to bolster by reviewing the manner in which it claims
the power was exercised during the first half of our democracy.
But I can divine no textual clarity in the words of the clause,
and the history of its use is muddled at best.
The majority’s view also ignores the modern recess
practices of the Senate, wherein intrasession recesses have
become the norm, and does violence to the fundamental purpose of
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the recess appointment power--to allow the President to fill up
important offices and keep the government functioning. Worse,
it grants the House a veto over recess appointments, a power
nowhere to be found in the Constitution, and grants the Senate--
through the use of a procedural artifice unworthy of the world’s
greatest deliberative body--unfettered power to prevent the
President from making recess appointments to fill up important
offices. Indeed, the majority’s reading tilts our
constitutional separation of powers far out of balance,
according excessive leverage to the Congress in the appointment
of government officials, at the expense of the President’s
constitutional prerogative to choose those he or she deems best
fit to aid in taking care that the laws be faithfully executed.
It is a reading contrary to the Framers’ intent.
Under the functional interpretation of the Recess
Appointments Clause that I propose, the Senate’s break from
January 3 to January 23, 2012, was--pro forma sessions
notwithstanding--“the Recess” for the purposes of the
President’s recess appointment power because the Senate was not
then available to give its advice and consent. In my view, the
plain language of the clause and its fundamental purpose allow
the President--as he has done here--to fill up all vacancies
then-existing during the Recess.
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On this reasoning, I would uphold the President’s appointments
of Members Block, Flynn, and Griffin to the NLRB and would
affirm the Board’s decisions in these appeals.
I respectfully dissent from parts IV and V of the majority
opinion.
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