PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-3440
_____________
NATIONAL LABOR RELATIONS BOARD,
Petitioner
1199 SEIU UNITED HEALTHCARE WORKERS
EAST, N.J. REGION,
Intervenor
v.
NEW VISTA NURSING AND REHABILITATION,
Respondent
_____________
Nos. 12-1027 & 12-1936
_____________
NEW VISTA NURSING AND REHABILITATION,
LLC,
Petitioner
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
1199 SEIU UNITED HEALTHCARE WORKERS
EAST, N.J. REGION,
Intervenor
_______________________
On Application for Enforcement of an Order of the
National Labor Relations Board &
Cross-Petition for Review
(NLRB No. 22-CA-29988)
________________________
Argued March 19, 2013
Before: SMITH, GREENAWAY JR, and
VAN ANTWERPEN, Circuit Judges
(Filed: May 16, 2013)
Beth S. Brinkmann [ARGUED]
United States Department of Justice
Civil Division
Room 3135
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Julie B. Broido
Linda Dreeben
2
National Labor Relations Board
1099 14th Street, N.W.
Washington, DC 20570
Sarang V. Damle
United States Department of Justice
Civil Division
Room 7217
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Scott R. McIntosh
United States Department of Justice
Civil Division
Room 7259
950 Pennsylvania Avenue, N.W
Washington, DC 20530
Melissa N. Patterson
United States Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Milakshmi V. Rajapakse [ARGUED]
National Labor Relations Board
Appellate and Supreme Court Litigation
Branch, Division of Enforcement
Room 8114
3
1099 14th Street, N.W.
Washington, DC 20570
Benjamin M. Shultz
United States Department of Justice
Civil Division
Room 7211
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for Petitioner
William S. Massey
Gladstein, Reif & Meginniss
817 Broadway
6th Floor
New York, NY 10003
Counsel for Intervenor-Petitioner
Louis J. Capozzi [ARGUED]
Capozzi & Assoc.
P.O. Box 5866
Harrisburg, PA 17110
Morris Tuchman
2nd floor
134 Lexington Avenue
New York, NY 10016
Counsel for Respondent
4
Victor Williams
Catholic University of America
School of Law
Faculty Suite 480
3600 John McCormack Road, N.E.
Washington, DC 20064
Counsel for Amicus-Petitioner
________________
OPINION
________________
SMITH, Circuit Judge.
The Recess Appointments Clause in the
Constitution provides that ―[t]he 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. The central question in this case is the
meaning of ―the Recess of the Senate,‖ which is the only
time in which the president may use his power to recess
appoint officers. Three definitions have been offered: (1)
breaks between sessions of the Senate (i.e., ―intersession
breaks‖); (2) these intersession breaks as well as breaks
within a session (i.e., ―intrasession breaks‖) that last for a
non-negligible time, or (3) any break in Senate business
that makes the body unavailable to provide advice and
consent on the president‘s nominations. This is a difficult
5
question that has never been addressed by our Court or
the Supreme Court. We hold that ―the Recess of the
Senate‖ in the Recess Appointments Clause refers to only
intersession breaks. As a consequence, we conclude that
the National Labor Relations Board panel below lacked
the requisite number of members to exercise the Board‘s
authority because one panel member was invalidly
appointed during an intrasession break. We will therefore
vacate the Board‘s orders.
I
New Vista operates a nursing and rehabilitative
care center in Newark, New Jersey. On January 25, 2011,
a healthcare workers‘ union petitioned the National
Labor Relations Board (―the Board‖) for certification as
the representative for New Vista‘s licensed practical
nurses (―LPN‖). New Vista opposed this certification on
the grounds that its LPNs are supervisors who cannot
unionize under the National Labor Relations Act
(―NLRA‖), 29 U.S.C. § 152(3), (11). See NLRB v.
Kentucky River Cmty. Care, Inc., 532 U.S. 706, 709
(2001) (explaining that supervisors do not fall within the
NLRA‘s definition of a bargaining unit). On March 9,
2011, the Board‘s regional director determined that New
Vista‘s LPNs were not supervisors and thus certified the
union as well as ordered an election. New Vista appealed
to the Board, which affirmed the regional director‘s
order.
6
The union won a majority in the ensuing election.
New Vista refused to bargain with the union,1 which then
filed a charge of unfair labor practices against New Vista
before the Board. On behalf of the union, the Board‘s
general counsel moved for summary judgment against
New Vista, which New Vista opposed. The Board
unanimously granted summary judgment in favor of the
Union and against New Vista in a ―decision and order‖
dated August 26, 2011.
This order was issued by a three-member ―delegee
group‖ of the Board. The NLRA establishes that the
Board is composed of up to five members, appointed by
the president and confirmed with the advice and consent
of the Senate. 29 U.S.C. § 153(a). Section 153(b)
authorizes the Board to ―delegate to any group of three or
more members any or all of the powers which it may
itself exercise.‖ Id. § 153(b). These delegee groups must
1
Refusal to bargain is a common way to obtain judicial
review of representation determinations like the Board‘s
affirmation of the regional director‘s March 9, 2011
decision for which direct review is unavailable. NLRB v.
Kentucky River Cmty. Care Inc., 532 U.S. at 709
(explaining that ―direct judicial review of representation
determinations is unavailable‖ but that indirect review
may be obtained by refusing to bargain and thereby
inducing the Board to file an unfair labor practice claim
(citing AFL v. NLRB, 308 U.S. 401, 409–11 (1940)).
7
―maintain a membership of three in order to exercise the
delegated authority of the Board.‖ New Process Steel,
L.P. v. NLRB, 130 S. Ct. 2635, 2644 (2010).
Importantly, this three-member-composition
requirement is distinct from § 153(b)‘s quorum
requirements. The quorum requirements speak to the
number of members who must be present to exercise the
Board‘s powers for either the Board itself or a properly
constituted three-member (or more) delegee group. See
id. at 2642–43 (explaining that the ―group quorum
provision‖ ―authorizes two members to act as a . . . group
of at least three members‖ but does not ―authorize two
members to constitute a valid delegee group‖); see also
id. at 2642 (defining quorum as ―the number of members
of a larger body that must participate for the valid
transaction of business‖). To have a quorum, a delegee
group must have at least two of its three members present
and the Board must have at least three of its five
members present. 29 U.S.C. § 153(b).
In contrast, the three-member-composition
requirement speaks to how many members are required
for a delegee group to be a properly constituted body that
can exercise the Board‘s powers. These different
requirements are certainly related, but this case simply
turns on whether the delegee group that issued the
August 26 Order and the subsequent reconsideration
orders had three members.
8
On September 7, 2011, New Vista filed a motion
with the Board to reconsider the August 26 Order. The
company argued that the three-member delegee group
acted ultra vires because although the order is dated
August 26—one day before one member, Wilma
Liebman, resigned—it was not issued until it was mailed
during the week of August 29. This would mean,
according to New Vista, that the panel had only two
members when the order was issued, thereby violating
29 U.S.C. § 153(d)‘s three-member-composition
requirement. The company also argued that the
August 26 Order was substantively incorrect. Meanwhile,
on September 13, 2011, the Board filed with this Court
an application for enforcement of the August 26 Order.
We granted an uncontested motion to hold in abeyance
the filing of the administrative record pending resolution
of the motion for reconsideration. This functionally acted
as a stay of the proceedings before us.
On December 30, 2011, the Board denied New
Vista‘s motion for reconsideration. New Vista took two
actions. First, it filed a second motion for reconsideration
on January 3, 2012. In this motion, the company argued
that the three-member December 30 delegee group was
improperly constituted and thus without power to issue
the order because one of the panelists was recused from
the case. The company also argued in a March 14
―further motion for reconsideration‖ that the December
30 Reconsideration Order delegee group was improperly
9
constituted because one of the panelists was a recess
appointee whose term concluded at the end of the
Senate‘s 2011 session—which New Vista contended was
December 17, 2007, thirteen days before the December
30 Reconsideration Order was issued.
Second, on January 9, 2012, New Vista filed a
petition for review of the December 30 Reconsideration
Order with this Court. We have treated this petition as a
cross-petition for review opposing the Board‘s petition
for enforcement of the August 26 Order. We also granted
another Board motion to hold in abeyance the filing of
the administrative record for these petitions until New
Vista‘s second motion for reconsideration was resolved.
This, again, functionally acted as a stay of the
proceedings before us.
On March 15, 2012, the Board denied New Vista‘s
second motion for reconsideration. This order did not
address the company‘s March 14 argument that the term
of one panelist had ended on December 17. On March
22, 2012, New Vista filed a third motion for
reconsideration. This motion reiterated the company‘s
March 14 argument that the December 30 delegee group
was improperly constituted because the Senate‘s session
had ended on December 17. The motion also argued that
the three-member delegee group that issued the March 15
Reconsideration Order lacked three members because
two of its members were invalidly appointed to the Board
under the Recess Appointments Clause while the Senate
10
was not in ―recess.‖ In sum, New Vista argued that if the
Senate‘s session had ended when it began using pro
forma sessions, then the December 30 panel had only two
members because the term of one of its members expired.
But if the Senate‘s session did not end at that time, then
the March 15 panel was improperly constituted because
the president‘s recess appointments were invalidly made
while the Senate was not in recess. The Board denied this
motion on March 27, 2012. The Board also filed the
administrative record with this Court on that date,
thereby stripping itself of jurisdiction. See 29 U.S.C.
§ 160(e) (―Upon the filing of the record with it the
jurisdiction of the court shall be exclusive and its
judgment and decree shall be final.‖).
On April 4, 2012, New Vista filed a petition for
review of the March 15 and March 27 Reconsideration
Orders. We granted New Vista‘s request that this petition
be consolidated with New Vista‘s earlier petition for
review for all purposes. These consolidated petitions for
review are collectively a cross petition opposing the
Board‘s petition for enforcement of the August 26 Order.
II
We consider sua sponte whether the delegee group
that issued the August 26 Order had jurisdiction. See
Bender v. Williamsport Area Sch. Bd., 475 U.S. 534, 541
(1986) (explaining that ―every federal appellate court has
a special obligation to ‗satisfy itself not only of its own
11
jurisdiction, but also that of the lower courts in a cause
under review,‘ even though the parties are prepared to
concede it‖ (quoting Mitchell v. Maurer, 293 U.S. 237,
244 (1934))). In their initial briefs, the parties contended
that the delegee group had subject-matter jurisdiction
under 29 U.S.C. § 160(a), which ―empower[s]‖ the Board
(and its three-member delegee groups) ―to prevent any
person from engaging in any unfair labor practice . . .
affecting commerce.‖ We do not doubt that § 160(a)
provides one jurisdictional requirement for the Board to
adjudicate a case. But that does not preclude others. We
have thus inquired whether 29 U.S.C. § 153(b)‘s three-
member-composition requirement is jurisdictional. We
hold that it is.
This Court has previously explained that ―the
overall authority of the Board to hear [a] case under the
NLRA‖ is a jurisdictional question that ―‗may be raised
at any time.‘‖ NLRB v. Konig, 79 F.3d 354, 360 (3d Cir.
1996) (quoting NLRB v. Peyton Fritton Stores, Inc., 336
F.2d 769, 770 (10th Cir. 1964)); see also Polynesian
Cultural Center, Inc. v. NLRB, 582 F.2d 467, 472 (9th
Cir. 1978). Under § 153(b) and New Process Steel,
delegee groups of the Board do not have statutory
authority to act if they have fewer than three members.
New Process Steel, 130 S. Ct. at 2644; Teamsters Local
Union No. 523 v. NLRB, 624 F.3d 1321, 1322 (10th Cir.
2010) (holding that a ―two-member NLRB group that
issued the order in this case lacked statutory authority to
12
act‖ (emphasis added)). The three-member-composition
requirement is thus jurisdictional because it goes to the
Board‘s authority ―to hear [a] case under the NLRA.‖
Konig, 79 F.3d at 360.
Nevertheless, the Supreme Court ―has endeavored
in recent years to ‗bring some discipline‘ to the use of the
term ‗jurisdictional.‘‖ Gonzalez v. Thaler, 132 S. Ct. 641,
648 (2012) (quoting Henderson v. Shinseki, 131 S. Ct.
1197, 1202–03 (2011)). So there may be reason to
believe that Konig‘s analysis and the subsequent
jurisdictional conclusion for this case are no longer valid.
Lebanon Farms Disposal, Inc. v. Cnty. of Lebanon, 538
F.3d 241, 249 n.16 (3d Cir. 2008) (explaining that ―[a]n
intervening decision of the Supreme Court is a sufficient
basis for us to overrule a prior panel‘s opinion without
referring the case for an en banc decision‖). Our review
of the Court‘s recent clarification shows that Konig
remains good law and that the three-member-
composition requirement is jurisdictional. The Court has
explained that jurisdiction ―refers to a court‘s
adjudicatory authority.‖ Reed Elsevier, Inc. v. Muchnick,
130 S. Ct. 1237, 1243 (2010) (quoting Kontrick v. Ryan,
540 U.S. 443, 455 (2004)). Subject-matter jurisdiction
―refers to ‗the courts‘ statutory or constitutional power to
adjudicate the case.‘‖ Id. (quoting Steel Co. v. Citizens
for Better Env’t, 523 U.S. 83, 89 (1998) (emphasis in
original)).
13
Although these statements refer to Article III
courts, jurisdictional issues are just as important for
administrative adjudicative bodies. ―It is well settled that
an administrative agency,‖ like an Article III court, ―is a
tribunal of limited jurisdiction.‖ Pentheny Ltd. v. Gov’t of
Virgin Islands, 360 F.2d 786, 790 (3d Cir. 1966). An
administrative agency ―may exercise only the powers
granted by the statute reposing power in it.‖ Id.; see also
2 Am. Jur. 2d Administrative Law § 282 (2013)
(―Administrative agencies are tribunals of limited
jurisdiction . . . . As a general rule, agencies have only
such adjudicatory jurisdiction as is conferred on them by
statute.‖). These powers are limited by the scope of the
jurisdictional statute in the same way that a federal
court‘s powers are limited by the Constitution and
statute. Compare 2 Am. Jur. 2d Administrative Law §
282, with Exxon Mobil Corp. v. Allapattah Servs., Inc.,
545 U.S. 546, 552 (2005) (―The district courts of the
United States, as we have said many times, are ‗courts of
limited jurisdiction. They possess only that power
authorized by Constitution and statute.‘‖ (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994))). The fact that this case deals with an
administrative agency does not eliminate the requirement
that a delegee group satisfy all jurisdictional
requirements before it may exercise the Board‘s powers.
In Henderson v. Shinseki, the Supreme Court
stated that ―a rule should not be referred to as
14
jurisdictional unless it governs a court‘s adjudicatory
capacity, that is, its subject-matter or personal
jurisdiction.‖ 131 S. Ct. at 1202. As noted, subject-matter
jurisdiction is ―statutory or constitutional power to
adjudicate the case.‖ Steel Co., 523 U.S. at 89 (emphasis
in original). Furthermore, in Arbaugh v. Y&H Corp., 546
U.S. 500 (2006), the Supreme Court provided a ―readily
administrable bright line‖ rule: ―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. ―But when Congress does not rank
a statutory limitation on coverage as jurisdictional, courts
should treat the restriction as nonjurisdictional in
character.‖ Id. at 516. ―Congress, of course, need not use
magic words in order to speak clearly on this point,‖ so
context can show that a requirement is jurisdictional.
Henderson, 131 S. Ct. at 1203.
The Supreme Court‘s recent decision in New
Process Steel indicates that § 153(b)‘s three-member-
composition requirement is jurisdictional. In that case,
the Board had delegated its power to a three-member
delegee group. Three days after the delegation became
effective, the term expired for one of the three members
of the delegated group. This left the group with only two
members. 130 S. Ct. at 2638–39. The Supreme Court
held that § 153(b)‘s three-member-composition
requirement meant that the ―two remaining Board
15
members cannot exercise‖ the authority of the Board. Id.
at 2638, 2644 (―We thus hold that the delegation clause
requires that a delegee group maintain a membership of
three in order to exercise the delegated authority of the
Board.‖). The presence of three Board members in a
delegee group is a necessary condition for the Board to
exercise its power to adjudicate a matter before it.
New Process Steel renders the three-member-
composition requirement ―a threshold limitation‖ on the
scope of the power delegated to the Board by the NLRA:
the Board cannot exercise its power through a delegee
group if that group has fewer than three members. This
statutory mandate is therefore jurisdictional. See
Arbaugh, 546 U.S. at 515 (explaining that ―threshold
limitation[s] on a statute‘s scope‖ imposed by Congress
are jurisdictional); Teamsters Local Union No. 523, 624
F.3d at 1322 (holding that a ―two-member NLRB group
that issued the order in this case lacked statutory
authority to act‖ (emphasis added)). By explaining that
three members are required ―in order to exercise the
delegated authority of the Board,‖ New Process Steel,
130 S. Ct. at 2644, 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. United
States v. Cotton, 535 U.S. 625, 630 (2002); see also Noel
Canning v. NLRB, 705 F.3d 490, 497 (D.C. Cir. 2013)
(―[T]he objections before us concerning lack of a quorum
16
raise questions that go to the very power of the Board to
act.‖).2
The Board relies on three cases3 as authority
providing that ―a claim that a federal officer was
2
The D.C. Circuit appears to have conflated the quorum
requirement with the three-member-composition
requirement. See generally Noel Canning, 705 F.3d
at 490 (discussing challenge as one based on the quorum
requirement); id. at 499 (stating that New Process Steel
―holds that the Board cannot act without a quorum of
three members‖ and ―[i]t is undisputed that the Board
must have a quorum of three in order to take action‖).
Notwithstanding the semantics, the substance of the D.C.
Circuit‘s conclusion was that when less than three
members purport to exercise the adjudicative authority of
the Board, it ―raise[s] questions that go to the very power
of the Board to act.‖ Id. at 497. We agree.
3
The Board also argues that Vermont Agency of Natural
Resources v. United States, 529 U.S. 765 (2000),
describes the Appointments Clause as nonjurisdictional.
Id. at 778 n.8. That case, however, states no such thing.
Instead, it illustrates the very point we make here. It
describes the question in which the appointments issue
arose, rather than the Appointments Clause itself, as
nonjurisdictional. Id. (stating that ―the validity of qui tam
suits‖ is not ―a jurisdictional issue‖). And because that
question was nonjurisdictional, the appointments issue
17
appointed unconstitutionally is not a jurisdictional
challenge.‖ NLRB Ltr. Br. at 2 (Feb. 28, 2013) (citing
Freytag v. Commissioner of Internal Revenue, 501 U.S.
868 (1991); Intercollegiate Broad. Sys., Inc. v. Copyright
Royalty Bd., 574 F.3d 748 (D.C. Cir. 2009); Evans v.
Stephens, 387 F.3d 1220 (11th Cir. 2004) (en banc)
(emphasis in original). These cases hold that
Appointments Clause challenges are nonjurisdictional
when brought independently. Freytag, 501 U.S. at 878–
79; Intercollegiate Broad. Sys., 574 F.3d at 755–56;
Evans, 387 F.3d at 1222 n.1. Those holdings are not
relevant to the jurisdictional conclusion we reach today.
We do not hold that challenges under the Appointments
or Recess Appointments Clauses are jurisdictional. We
instead hold that the NLRA‘s three-member-composition
requirement is jurisdictional and must be met before the
Board can exercise its power over a case. Because this
requirement is jurisdictional, any reason for which the
delegee group consists of fewer than three members—
including whether one member is invalidly appointed
within the question was not treated as jurisdictional. See
id. Our conclusion in relation to the three-member-
composition requirement for delegee groups is the
opposite: it is jurisdictional. Accordingly, the
appointments issue here must be treated as jurisdictional
because it is one reason that there may not have been
three members.
18
under the Recess Appointments Clause—can be raised by
a party or by this Court at any point in litigation as a
jurisdictional defect. See Henderson, 131 S. Ct. at 1202.
The jurisdictional nature of the three-member-
composition requirement is especially important in this
case because it requires us to analyze whether Craig
Becker—one of the three-member delegee group that
decided the August 26 Order—held a valid appointment
under the Recess Appointments Clause. This question is
distinct from the recess-appointments question initially
briefed by the parties. The parties‘ briefs address whether
Richard Griffin and Sharon Block—who were members
of the delegee group that decided the March 15 and
March 27 Reconsideration Orders—were invalidly recess
appointed because their January 9, 2012 appointments
were made while the Senate was holding so-called pro
forma sessions.4 Member Becker was not appointed
when the Senate was holding pro forma sessions but,
instead, was appointed on March 27, 2010, one day after
the Senate ―adjourn[ed]‖ for two weeks. 156 Cong. Rec.
S2180 (daily ed. Mar. 26, 2010) (statement of Sen.
Kaufman) (reporting Senator Ted Kaufman‘s motion for
and the Senate‘s unanimous consent of the body being
―adjourned until Monday April 12, 2010 at 2 p.m.‖). As
will be seen in Part V, this means that our consideration
4
The characteristics of pro forma sessions are described
in Part V.
19
of Member Becker‘s appointment entails evaluation of at
least one more definition of ―recess‖ than the evaluation
of Members Griffin and Block‘s appointments. Before
delving into the difficult constitutional task of defining
―recess,‖ however, we must first address two preliminary
questions: whether the delegee group that issued the
August 26 Order lacked three members as a result of
Chairman Liebman‘s resignation and whether the
definition of recess is a nonjusticiable political question.
III
―We have a longstanding practice of avoiding
constitutional questions in cases where we can reach a
decision upon other grounds.‖ Egolf v. Witmer, 526 F.3d
104, 109 (3d Cir. 2008). That practice leads us first to
consider New Vista‘s nonconstitutional argument that
the August 26 Order was issued by a delegee group of
fewer than three members. New Vista contends that one
of the three members resigned before the order was
issued. The delegee group that issued the order consisted
of Chairman Liebman, Member Becker, and Member
Hayes. The face of the order is dated August 26, 2011.
New Vista Nursing & Rehab., 367 N.L.R.B. No. 69 (Aug.
26, 2011). The Board docket also reflects August 26,
2011 as the date that the order was issued. New Vista
Nursing & Rehab., NLRB No. 22-CA-029988 (Aug. 26,
2011), http://www.nlrb.gov/case/22-CA-029988. On
August 27, Chairman Liebman resigned. New Vista
argues that the order was actually entered after Liebman
20
resigned because the order ―was mailed, received by the
Regional Board Agent, and was posted on the Board‘s
Summary of Decisions Website on August 31, 2012.‖
Pet‘r‘s Br. at 31. The Board does not dispute that the
order was mailed to interested parties after August 27 but
contends that the order was issued on August 26—the
date that appears on the face of the order.
―Agency action is entitled to a presumption of
regularity.‖ Frisby v. U.S. Dep’t of Hous. & Urban Dev.,
755 F.2d 1052, 1055 (3d Cir. 1985). ―Acts done by a
public officer which presuppose the existence of other
acts to make them legally operative, are presumptive
proofs of the latter.‖ R.H. Stearns Co. of Boston, Mass. v.
United States, 291 U.S. 54, 63 (1934). Here, the act done
was the issuance of the August 26 Order, which
presupposes that the members listed as having made the
decision did in fact make that decision. The issuance of
the order creates a presumption that all three members
listed on the order decided it. See id. It is New Vista‘s
burden to rebut that presumption.
New Vista offers only a single piece of evidence in
rebuttal: that the order was not mailed until after August
26. This is insufficient, and Braniff Airways, Inc. v. Civil
Aeronautics Bd., 379 F.2d 453 (D.C. Cir. 1967),
demonstrates why that is so. In that case, Braniff Airways
argued that the Civil Aeronautics Board lacked a quorum
because one of its members had resigned before the order
was issued. Id. at 459. The order in that case was issued
21
on June 1, the same day the member in question resigned.
The Court found that the Board had a quorum solely on
the basis that the order ―on its face indicated that it was
concurred in and signed on June 1, 1965.‖ Id. The Court
reached that conclusion despite payroll records with
conflicting accounts, one of which showed that the
member was on the payroll only through May 31, 1965.
Id. Notably, the Court also discounted that the order ―was
not served until June 2,‖ on the basis that ―[i]n [their]
view it is plain that once all members have voted on an
award and caused it to be issued the order is not nullified
because of incapacity, intervening before the ministerial
act of service, of a member needed for a quorum.‖ Id.
(emphasis added).
The D.C. Circuit‘s reasoning is equally persuasive
here. The only evidence New Vista puts forth is that the
order was mailed after it was dated and posted on the
docket. This falls short even of what Braniff Airways
presented. It relied not only on a delay in service but also
on payroll records. New Vista presents even weaker
grounds to doubt the order‘s date than Braniff offered the
D.C. Circuit. New Vista cannot overcome the
presumption of regularity.
New Vista also argues that it is entitled to seek
further discovery into when the members voted on the
August 26 Order. The company acknowledges, however,
that ―the NLRB may not be required to enter for the
record the time, place, and content of their deliberations,‖
22
Pet‘r‘s Br. at 53, and the Board has stated that the
minutes sought do not exist, Resp. Br. at 29. Yet New
Vista persists, asserting ―that the record of the time of
their votes on agency actions under review is essential to
determine‖ the validity of the August 26 Order. Pet‘r‘s
Br. at 53. The company fails to explain why the date
listed on the order itself is not evidence ―of the time of
their vote.‖ Absent a reason to doubt the date listed, the
presumption of regularity requires that we consider the
date as the record of when the delegee group caused the
opinion to be issued, which presupposes that they voted
on or before that date. Accordingly, New Vista has failed
to show that one of the members resigned prior to the
issuance of the August 26 Order.
IV
The amicus argues that we should decline to define
the word ―recess‖ within the Recess Appointments
Clause because it is a nonjusticiable political question.
―Questions of justiciability are distinct from questions of
jurisdiction, and a court with jurisdiction over a claim
should nonetheless decline to adjudicate it if it is not
justiciable.‖ Gross v. German Found. Indus. Initiative,
456 F.3d 363, 376 (3d Cir. 2006) (citing Baker v. Carr,
396 U.S. 186, 198 (1962)). An issue presents a
nonjusticiable political question when one of the
following characteristics is ―inextricable from the case‖:
23
a textually demonstrable constitutional
commitment of the issue to a coordinate
political department; or a lack of judicially
discoverable and manageable standards for
resolving it; or the impossibility of deciding
without an initial policy determination of a
kind clearly for nonjudicial discretion; or the
impossibility of a court's undertaking
independent resolution without expressing
lack of the respect due coordinate branches
of government; or an unusual need for
unquestioning adherence to a political
decision already made; or the potentiality of
embarrassment from multifarious
pronouncements by various departments on
one question.
Baker, 369 U.S. at 217. Amicus‘s principal contentions
are that the recess-appointments claim by New Vista is
nonjusticiable because (1) ―‗the issue is textually
committed‘ to the president,‖ Amicus Br. at 4 (quoting
Nixon v. United States, 506 U.S. 224, 228 (1993)), and
(2) there are ―no ‗manageable standards‘ to solve the
partisan argument between the Executive and Congress
. . . regarding dysfunctional Senate confirmation
processes,‖ id.5 Neither argument is persuasive.
5
The amicus also briefly refers to two other bases for
concluding this is a political question: that (1) resolving
24
Nothing in the language of the Recess
Appointments Clause textually commits to the president
the issue is impossible ―‗without expressing lack of the
respect due coordinate branches of government,‘‖ id. at 5
(quoting Baker, 369 U.S. at 217), and (2) ―the nation‘s
extreme need for finality in the president‘s recess
appointment practice,‖ id. (emphasis in original). Neither
is persuasive. Defining recess in the Recess
Appointments Clause does not express a lack of respect
for coordinate branches of government because defining
the word is merely an exercise of our judicial authority
―to say what the law is,‖ which sometimes requires an
evaluation of whether one branch is aggrandizing its
power at another‘s expense. See Zivotosky v. Clinton, 132
S. Ct. 1421, 1427–28 (2012); see also Nixon v.
Fitzgerald, 457 U.S. 731, 753–54 (1982) (explaining,
when discussing appropriate exercise of judicial review
of executive action, that ―[w]hen judicial action is
needed to serve broad public interest—as when the Court
acts, not in derogation of the separation of powers, but to
maintain their proper balance . . . the exercise of
jurisdiction has been warranted‖ (citations omitted)). Nor
is the constitutionality of the president‘s recess-
appointments practice the type of question implicating an
extreme need for finality that would make it
nonjusticiable. Cf. Baker, 369 U.S. at 213 (discussing the
need for finality in the context of the president‘s war
power to end a conflict).
25
the task of defining ―recess.‖ The Clause states that
―[t]he 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. This
language lacks the explicit assignment of power to any
one branch, such as the assignment found in the
Constitution‘s Impeachment Trial Clause which states
that ―[t]he Senate shall have the sole Power to try all
Impeachments.‖ U.S. Const. art. I, § 3, cl. 6 (emphasis
added); Nixon, 506 U.S. at 228–35 (concluding that the
explicit assignment, along with drafting history
indicating that the assignment was intentional, meant that
the power to try impeachments was textually committed
to the Senate). The Recess Appointments Clause also
does not contain an imperative to either branch to craft a
rule regarding the meaning of recess—or, more broadly,
when the president may use his recess appointments
power. The Clause is thus also distinguishable from the
Naturalization Clause‘s grant to Congress of the authority
to ―establish an uniform Rule of Naturalization.‖ U.S.
Const. art. I, § 8, cl. 4; New Jersey v. United States, 91
F.3d 463, 469 (3d Cir. 1996) (stating that this Clause
represents a textual commitment to Congress).6
6
Even Congress‘ plenary authority over immigration and
naturalization does not render its actions in this area
immune from judicial review under the political-question
26
Finally, the Clause does not provide unqualified
power to either the Senate or the president that would
suggest it makes a textual commitment to either. It limits
the president‘s recess-appointment power by requiring
that the Senate be in recess, and it limits the Senate‘s
ordinary advice-and-consent power by eliminating that
power while the Senate is in recess. The Clause thus
cannot be read to invariably favor one branch‘s interests
in such a way that it makes a textual commitment to one
of them. See Freytag, 501 U.S. at 880 (―Because it
articulates a limiting principle, the Appointments Clause
does not always serve the Executive‘s interests.‖); Ryder
v. United States, 515 U.S. 177, 182 (1995) (―The
[Appointments] Clause is a bulwark against one branch
aggrandizing its power at the expense of another branch,
but it is more: it ‗preserves another aspect of the
Constitution‘s structural integrity by preventing the
diffusion of the appointment power.‘‖ (quoting Freytag,
doctrine. In INS v. Chadha, for example, the Supreme
Court held that Congress‘ plenary authority over
immigration did not render any challenge to that
authority to be a nonjusticiable political question. 462
U.S. 919, 940–41 (1983). The Court explained that ―[t]he
plenary authority of Congress over aliens . . . is not open
to question‖ except when it is alleged that the means
chosen ―‗offend[s] some other constitutional restriction‘‖
on Congress. Id. (quoting Buckley v. Valeo, 424 U.S. 1,
132 (1976)).
27
501 U.S. at 878)); The Federalist No. 76 (Alexander
Hamilton) (explaining the Constitution‘s rejection of
unitary power in either the president or the Senate in
favor of one that divides power between them).
The amicus disputes this, arguing that the Clause
makes a textual commitment by providing the president
―unilateral appointment authority when the Senate [is]
unavailable to render its advisory consent vote.‖ Amicus
Br. at 12. This argument reveals the tendency of the
political-question doctrine ―to obscure the need for case
by case inquiry.‖ Gross, 456 F.3d at 377–78 (quoting
Baker, 369 U.S. at 210–11). We have cautioned against
this tendency, instructing that our inquiry must ―avoid
‗resolution by any semantic cataloguing,‘‖ and must
instead ―undertake a ‗discriminating inquiry into the
precise facts and posture of the particular case.‘‖ Id.
(quoting Baker, 369 U.S. at 217). The amicus‘s argument
runs afoul of our instruction because it merges the issue
present in this case (when the president can use his
recess-appointments power) with an issue not in this case
(how the president can use that power). The amicus‘s
characterization of the power speaks to both issues: it
states how the president can use his recess-appointment
power (―unilateral authority‖) and assumes the answer to
the question in this case of when he can use that power
(―when the Senate [is] unavailable to render its advisory
consent vote‖). The greater power the president has
during a recess does not shed light on what the word
28
―recess‖ means or who decides what it does mean and
thus does not provide a reason to conclude that the
Clause makes a textual commitment to the president. Cf.
INS v. Chadha, 462 U.S. 919, 940–41 (1983) (explaining
that Congress‘ plenary authority over immigration does
not immunize it from judicial review for violations of
other constitutional restrictions on its power committed
while exercising that authority).
The amicus‘s concerns regarding the lack of
judicially manageable standards for defining ―the Recess
of the Senate‖ are similarly unfounded. There are several
judicially manageable standards for defining ―the Recess
of the Senate‖ and, correspondingly, for when the
president may use his recess-appointments power. The
parties present two different standards: according to New
Vista, any time after both houses have agreed to adjourn
for more than three days, Pet‘r‘s Br. at 40–41, and
according to the Board, any time the Senate is not
available to conduct regular business, Resp. Br. at 44. Cf.
Zivotofsky, 132 S. Ct. at 1428–30 (relying on the
―detailed legal arguments‖ provided by the parties
regarding whether the statute at issue was constitutional
to show the existence of judicially manageable
standards). The D.C. Circuit has provided another:
intersession breaks that follow adjournments sine die of
the Senate. Noel Canning, 705 F.3d at 506–07. Of these
standards, those provided by the D.C. Circuit and New
Vista are judicially manageable because they rely on
29
regular procedures employed in the Senate and found in
the Senate‘s record. The Board‘s more open-ended
definition of recess might very well be unmanageable
because it does not rely on any particular Senate
procedure and would require judicial ―explor[ation] [of]
communications between the Senate Minority and the
president‖ in addition to review of the ―scheduling
schemes of the Senate Minority and House Majority.‖
Amicus Br. at 20–24 (arguing, after rejecting the standard
offered by New Vista, that the Board‘s standard is
unmanageable). But this only cautions against selecting
the Board‘s standard rather than showing that there are
no judicially manageable standards available.
Of course, if the question is framed—as the amicus
has—as a need to derive a judicially manageable
standard ―to resolve [ ] the underlying cycles of partisan
confirmation obstruction payback which caused the
NLRB vacancies,‖ Amicus Br. at 25, then there is likely
no judicially manageable standard. See also Evans, 387
F.3d at 1227 (rejecting as nonjusticiable an argument that
the president unconstitutionally used the recess-
appointment power because the appointee had been
previously rejected by the Senate and thus constituted a
circumvention of the Senate‘s advice and consent role).
But that is not the question we face. Instead, we must
define the phrase ―the Recess of the Senate,‖ which is a
question distinct from resolving the ―cycles of partisan
confirmation obstruction payback.‖ See id. at 1224–26,
30
1227 (defining recess to include intrasession breaks
despite holding that the political argument made was
nonjusticiable).
This task falls within the ―‗province and duty of
the judicial department to say what the law is.‘‖
Zivotosky, 132 S. Ct. at 1427–28 (quoting Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). This ―duty
will sometimes involve the ‗[r]esolution of litigation
challenging the constitutional authority of one of the
three branches,‘ but courts cannot avoid their
responsibility merely ‗because the issues have political
implications.‘‖ Id. at 1428 (quoting Chadha, 462 U.S.
at 943) (alteration in original). Thus, ―the fact that the
resolution of the merits of a case would have ‗significant
political overtones does not automatically invoke the
political question doctrine.‘‖ Khouzam v. Att’y Gen., 549
F.3d 235, 249–50 (3d Cir. 2008) (quoting Chadha, 462
U.S. at 942–43). That the issue presented here touches on
political events of the day is not dispositive of whether
this case presents a nonjusticiable question. Because
there are manageable standards and because the Clause
does not make a textual commitment to the Senate or the
president, we hold that interpreting the phrase ―the
Recess of the Senate‖ is a justiciable question.
V
Having determined that the Recess Appointments
question is justiciable, we now begin our analysis of the
31
recess-appointment issue. Member Becker is the only
member of the delegee group that issued the August 26
Order who was recess appointed and thus the only one
whose appointment is in question. As noted, he was
appointed during an intrasession break that began on
March 26, 2010, and ended on April 12, 2010. This break
lasted seventeen days and the Senate was indisputably
not open for business. His appointment will be invalid if
the Recess Appointments Clause does not empower
presidents to make recess appointments during these
types of breaks.
The Clause provides that ―[t]he 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. This is understood
to allow the president to use his recess appointment
power only ―during the Recess of the Senate,‖ thereby
rendering the definition of recess, along with its temporal
reach, of pivotal consequence to the controversy now
before us. See Noel Canning, 705 F.3d at 499–500;
Evans, 387 F.3d at 1224. Three possible definitions have
been presented. The D.C. Circuit defines the term to
mean only intersession breaks, which are ―the period
between sessions of the Senate when the Senate is by
definition not in session and therefore unavailable.‖ Noel
Canning, 705 F.3d at 499–500, 506. The end of a session
is typically demarcated by a particular type of Senate
32
adjournment—an adjournment sine die—which is the
procedure used to end a Senate session. Id. at 512–13.7
An intersession break is the period between an
adjournment sine die and the start of the next session.
David H. Carpenter et al., Cong. Research Serv., R42323,
President Obama’s January 4, 2012, Recess
Appointments: Legal Issues 4 n.23 (2012).
A second definition, one which the Eleventh
Circuit has adopted, is that recess includes intersession
breaks as well as some ―intrasession‖ breaks, which are
breaks in Senate business during a session. Evans, 387
F.3d at 1224. An intrasession break is demarked by a
Senate adjournment of any type—other than adjournment
sine die—and lasts until the next time the Senate
convenes, which is set by the motion to adjourn. See,
e.g., Cong. Rec. S2180 (daily ed. Mar. 26, 2010)
7
Senate practice also ends sessions automatically
through its understanding of the Constitution‘s
requirement that they ―shall assemble at least once in
every year‖ in a meeting that begins ―at noon on the 3d
day of January.‖ U.S. Const. Amend. XX. Under this
practice, if a session of Congress has not ended by noon
on January 3 of a given year, then the session
automatically ends and another begins at noon of that
day. See Thomas Jefferson, A Manual of Parliamentary
Practice: For the Use of the Senate of the United States
166 (2d ed. 1812).
33
(statement of Sen. Kaufman) (reporting Senator
Kaufman‘s March 26, 2010 motion for and the Senate‘s
unanimous consent of the body being ―adjourned until
Monday April 12, 2010 at 2 p.m.‖). From 1921 until
recently, there was a consensus that an intrasession break
was not ―the Recess of the Senate‖ unless the break
lasted for a non-negligible number of days. The first
attorney general to adopt this view suggested that the
minimum duration was ten days. 33 U.S. Op. Att‘y Gen.
20, 24–25 (1921) (rejecting the proposition that ―an
adjournment for 5 or even 10 days can be said to
constitute the recess intended by the Constitution,‖ but
advising the president that a break of 28 days is within
the meaning of recess). All presidents, at least in practice,
followed this ten-day minimum until January 2012.
Carpenter et al., supra, at 15 & n.97 (stating that no
presidents until 2012 made a recess appointment during
an intrasession break shorter than ten days). Accordingly,
the second definition includes only those intrasession
breaks that last for a significant duration, which
historically has been ten days or more.8
8
Others have argued that a three-day break is sufficient
to constitute ―the Recess of the Senate.‖ See, e.g.,
Edward A. Hartnett, Recess Appointments of Article III
Judges: Three Constitutional Questions, 26 Cardozo L.
Rev. 377, 419–21 (2005). This number is drawn from the
Adjournments Clause, which requires the Senate and the
34
The third and final possible definition is of more
recent vintage. In January 2012, President Barack Obama
made several recess appointments while the Senate was
holding pro forma sessions every three or four days.
These sessions are considered recesses under the third
definition. Pro forma sessions are formal meetings of the
Senate in which usually only one Senator is present to
convene the body briefly before adjourning it until the
next pro forma session. Id. at 2; see also, e.g., 157 Cong.
Rec. S8787 (daily ed. Dec. 20, 2011) (statement of Sen.
Warner) (recording Senator Mark Warner‘s convening
and adjournment of the Senate in a span of thirty-five
seconds). Before such sessions are held, the Senate
agrees by unanimous consent that there will be ―no
business conducted‖ except business that was previously
agreed to, such as convening a new session of the Senate.
See, e.g., 157 Cong. Rec. S8783–84 (daily ed. Dec. 17,
2011) (statement of Sen. Wyden) (recording the schedule
of pro forma sessions to be held between December 17,
2011 and January 23, 2012). However, these consent
agreements can, and have been, subsequently altered to
allow initially unplanned business—including the passing
of legislation—during a pro forma session. See, e.g., 157
House to concur on any adjournment lasting longer than
three days. U.S. Const. art. I, § 5, cl. 4. The argument is
that any intrasession break of less than three days is de
minimis and thus not adequate to constitute ―the Recess
of the Senate.‖ Hartnett, supra, at 419–20.
35
Cong. Rec. S8789 (daily ed. Dec. 23, 2011) (statement of
Sen. Reid) (obtaining unanimous consent that a bill ―be
considered read three times and passed‖ if an identical
version is passed by the House, which the House
subsequently did, during a pro forma session); see also
Carpenter et al., supra, at 18 & n.108. Importantly, these
sessions prevent the Senate from being adjourned for
more than three or four days at a time, which means the
adjournment never reaches the ten-day minimum
discussed above. See, e.g., 157 Cong. Rec. S8784 (daily
ed. Dec. 17, 2011) (statement of Sen. Wyden) (recording
Senator Ron Wyden‘s motion, and the Senate‘s
unanimous concurrence therewith, that the Senate be
―adjourned until Tuesday, December 20, 2011, at 11
a.m.‖); 157 Cong. Rec. S8787 (daily ed. Dec. 20, 2011)
(statement of Sen. Warner) (recording the Senate‘s
adjournment ―until Friday, December 23, 2011, at 9:30
a.m.‖).
The third definition of recess, which is offered by
the Board, allows the president to make recess
appointments while the Senate is holding these pro forma
sessions. The Board argues that a recess occurs when
―the Senate is not open to conduct business‖ and thus
unavailable to ―provid[e] advice and consent on
nominations.‖ Resp. Br. at 44. The Board argues that this
definition follows from Attorney General Harry
Daugherty‘s 1921 opinion, which adopted a partially
functionalist definition of ―the Recess of the Senate‖:
36
[T]he essential inquiry, it seems to me, is
this: Is the adjournment of such duration that
the members of the Senate owe no duty of
attendance? Is its chamber empty? Is the
Senate absent so that it can not [sic] receive
communications from the President or
participate as a body in making
appointments?
33 U.S. Op. Att‘y Gen. at 25. The Board contends that
these criteria decide whether the Senate is open to
conduct business and available to provide its advice and
consent. Unlike Attorney General Daugherty‘s opinion,
the Board appears to consider these criteria controlling in
themselves, such that there is no requirement for a
minimum, non-negligible period of time to pass in order
for the Senate to be in recess.9 Id.
9
The Board does note that if pro forma sessions are
ignored, then more than ten days passed during the break
in which the president recess appointed two Board
members who sat on the March 15 and 27 delegee group.
Resp. Br. at 46 (noting that twenty days passed between
when the second session of the Senate was convened on
January 3, 2012 and when the Senate held its first non–
pro forma session). This might suggest that the Board
believes a period of time greater than ten days between
non–pro forma sessions is still required, but such a
contention is absent from its briefs and was not suggested
37
Based on these criteria, the Board contends that
periods in which the Senate holds pro forma sessions
only constitute a recess. This is because during these
sessions, the body is neither doing business nor available
to provide its advice and consent. This means, per the
third definition, that these sessions do not interrupt what
would otherwise be an intrasession break that begins with
the adjournment before the first pro forma session and
lasts until the next convening of the Senate in a non–pro
forma session.
In sum, the parties argue that ―the Recess of the
Senate‖ has one of three meanings: (1) intersession
breaks; (2) intersession and intrasession breaks that last a
non-negligible period, which has historically been ten
days (―long intrasession breaks‖ hereinafter); or (3) any
time in which the Senate is not open for business and is
at oral arguments when asked for limiting principles to its
definition. Resp. Br. at 43–45 (defining recess in only
functionalist terms), 58 (rejecting the relevance of a
three-day requirement derived from the Adjournment
Clause because nothing shows that it is related to the
Recess Appointments Clause); Oral Arg. Tr. at 48:11 to
50:1 (explaining that ―unavailability of the Senate to
provide advice and consent‖ is the limiting principle on
the functionalist definition of recess).
38
unavailable to provide its advice and consent.10 We hold
10
We disagree with the dissent that the second and third
definitions of recess should be combined into one
―intrasession recess‖ definition. Dissenting Op. at 1–2.
Distinguishing between these definitions provides
necessary nuance to the analysis. First, as has been
discussed, these two definitions have starkly different
historical pedigrees: Until 2012, presidents and their
attorneys general have always tied intrasession breaks to
a non-negligible period of time. See, e.g., 33 U.S. Op.
Att‘y Gen. at 25. In fact, the Office of Legal Counsel‘s
2012 memorandum on President Obama‘s recess
appointments during pro forma sessions begins by
emphasizing that the period between the non–pro forma
sessions was of sufficient length to be a recess. 36 Op.
O.L.C. *4–9 (Jan. 6, 2012). The availability-based
definitions of recess that reject any need for a fixed
number of days to pass thus represent a significant
departure from past practice. Combining the unavailable-
for-business definition with the long-intrasession-break
definition glosses over important historical differences
between the two.
Second, as will be shown, the unavailable-for-business
definition has significantly less support than the long-
intrasession-break definition from the historical meaning
of ―recess‖ as well as the purpose of the Recess
Appointments Clause. Accordingly, we reject each
definition for somewhat different reasons.
39
that ―the Recess of the Senate‖ means only intersession
breaks, and so we conclude that Member Becker‘s
appointment was invalid.
A. ―[T]he Recess of the Senate‖
1. The Literal Meaning of Recess
When interpreting the Constitution, ―we begin
with its text.‖ City of Boerne v. Flores, 521 U.S. 507, 519
(1997). In doing so, ―we are guided by the principle 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 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 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.
Dictionaries from the time of ratification provide
definitions that can be read to support any of these
definitions. Samuel Johnson‘s dictionary defines recess
to mean ―[r]etirement; retreat; withdrawing; secession‖
as well as ―[d]eparture‖ and ―[r]emoval to distance.‖
40
Samuel Johnson, 2 A Dictionary of the English Language
469 (6th ed. 1785).11 All of these definitions contain
some connotation of permanence or, at least, longevity.
―Secession,‖ for example, means ―[t]he act of departing‖
or ―[t]he act of withdrawing from councils or actions.‖
Id. at 589; see also Merriam-Webster’s Collegiate
Dictionary 1121 (11th ed. 2003) (defining ―secession‖ to
mean ―formal withdrawal from an organization‖). And
―departure‖ is defined by Johnson to mean ―[a] going
away,‖ the ―[d]eath; . . . the act of leaving the present
state of existence,‖ and ―an abandoning.‖ Samuel
Johnson, 1 A Dictionary of the English Language 568
(6th ed. 1785); see also Merriam-Webster’s at 334
(defining ―departure‖ to mean ―the act or an instance of
departing,‖ ―a setting out (on a new course)‖); 1 William
Blackstone, Commentaries *187–88 (defining one
method of terminating parliamentary business, the
11
The entire definition found in Johnson‘s dictionary is:
1. Retirement; retreat; withdrawing;
secession. 2. Departure. 3. Place of
retirement; place of secrecy; private abode.
4. Perhaps an abstract of the proceedings of
an imperial diet. 5. Departure into privacy.
6. Remission or suspension of any
procedure. 7. Removal to distance. 8.
Privacy; secrecy of abode. 9. Secret part.
Johnson, 2 A Dictionary of the English Language at 469.
41
dissolution, as ―the civil death of the parliament‖). The
implication of permanence supports an understanding of
recess to mean only intersession breaks because these are
followed by an adjournment sine die, which are
adjournments without a set date for reconvening. And the
implication of longevity supports the idea that recess
includes long intrasession breaks.
Neither of these implications is consistent with the
Board‘s unavailable-for-business definition of recess, but
other entries in Johnson‘s dictionary provide some
support for that definition. Johnson‘s definition of recess
includes ―[r]emission or suspension of any procedure.‖
Johnson, 2 A Dictionary of the English Language at 469.
And, of course, words such as ―departure‖ also have less
permanent implications than death. Johnson, 1 A
Dictionary of the English Language at 568 (defining
―departure‖ as ―[a] going away‖). The term ―recess,‖ by
itself, thus lacks a literal meaning that unambiguously
supports one of the three definitions.
2. The Historical Use of Recess
Importantly, though, the Constitution does not say
only ―Recess.‖ Rather, it limits the president‘s recess-
appointments power to the ―Recess of the Senate.‖ The
words ―of the Senate‖ provide some context for our
analysis: parliamentary procedure at the time of
ratification. Deal v. United States, 508 U.S. 129, 132
(1993) (―[T]he meaning of a word cannot be determined
42
in isolation, but must be drawn from the context in which
it is used.‖).
American colonial legislatures and the first Senate
largely derived their parliamentary procedures from the
procedures used by the English Parliament. See Henry M.
Robert III, et al., Robert’s Rules of Order: Newly Revised
xxxiv–xxxv (11th ed. 2011) (recounting the migration of
English procedures to the American colonies); Thomas
Jefferson, A Manual of Parliamentary Practice: For the
Use of the Senate of the United States (2d ed. 1812)
(relying heavily on English precedents in providing
procedural rules for the Senate). English parliamentary
procedure at the time had three types of breaks:
adjournments, which were ―continuances of the session
from one day to another . . . and sometimes a fortnight or
a month together‖; prorogations, which were
―continuances of the parliament from one session to
another‖ initiated by the king; and dissolutions, which
were terminations of a Parliament initiated by the king‘s
order, his death, or a length of time that necessitated new
elections before another Parliament could be convened. 1
William Blackstone, Commentaries *186–89; see also
Jefferson, supra, § 51 at 164–65; Michael B. Rappaport,
The Original Meaning of the Recess Appointments
Clause, 52 U.C.L.A. L. Rev. 1487, 1550–51 (2005). The
Parliament thus had three breaks: adjournments for
intrasession breaks and prorogations as well as
dissolutions for intersession breaks.
43
At first blush, these three types of breaks appear to
correspond with the three mechanisms for breaks referred
to in our Constitution. ―Adjournment,‖ or its verbal form
―adjourn,‖ is the same phrase the Constitution uses to
denote day-to-day and longer breaks within sessions of
either chamber. U.S. Const. art. I, § 5, cl. 1 (allowing a
minority of members to ―adjourn from day to day‖); id.
art. I, § 5, cl. 4 (requiring concurrence between both
chambers if, ―during the session of Congress,‖ they are to
―adjourn for more than three days‖).12 The word
―dissolution‖ does not appear in the Constitution,
12
The words adjourn or adjournment appear six times in
five clauses of the Constitution. U.S. Const. art. I, § 7, cl.
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.‖); id. at art. I, § 7, cl. 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‖); id. at art. 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.‖).
44
probably because the president does not have the power
to dissolve Congress. See id at art. II, § 3 (providing that
the president, at most, ―may adjourn [Congress] to such
time as he shall think proper‖ if they cannot agree on ―the
time of adjournment‖); The Federalist No. 69 (Alexander
Hamilton) (explaining the powers of the president and
how they are less than those of the king and even the
governor of New York by contrasting the president‘s
power to ―only adjourn the national legislature‖ with the
―British monarch[‘s]‖ power to ―prorogue or even
dissolve the Parliament‖). But the concept of dissolution
is still present in the Constitution: Congress is
automatically dissolved—and any ongoing session
ended—every two years by termination of the terms of
one-third of Senators and all members of the House. U.S.
Const. art. I, § 2, cl. 1; id. art. I, § 3, cls. 1–2. These
dissolutions end a session and, following elections, begin
another session in a new Congress, see Jefferson, supra,
§ 51 at 166 (―A dissolution certainly closes one session;
and the meeting of the new Congress begins another.‖)—
just as the king‘s dissolution, or the dissolution by the
passage of time, did for the English Parliament, 1
William Blackstone, Commentaries *189.
In light of these parallels, it is tempting to say that
―Recess of the Senate‖ corresponds with prorogations
and thus must refer only to terminations of sessions and
the intersession breaks that follow them. But this
argument proves too much. Even though the Constitution
45
uses ―adjournment‖ to mean breaks within a session, it
also uses the term to mean breaks between sessions. The
Supreme Court held in the Pocket Veto Case, 279 U.S.
655 (1929), that ―adjournment‖ in Article I, § 7, clause 2
of the Constitution is any break in business ―that prevents
the President from returning the bill to the House in
which it originated within the time allowed.‖ Id. at 680
(internal quotation marks omitted); see also U.S. Const.
art. I, § 7, cl. 2 (providing that a bill passed by Congress
becomes law after ten days after presentment to the
president ―unless the Congress by their adjournment
prevent its return‖). This definition does not distinguish
between breaks within sessions and those between
sessions. See id.; accord Rappaport, supra, at 1551 n.198
(explaining that ―the Framers used the term
‗adjournment‘ with a broader meaning than it had
traditionally under English law‖). This means that the
Constitution does not simply adopt ―adjournment‖ as it
was used in Parliament and correspondingly suggests that
―Recess of the Senate‖ is not simply prorogation by
another name.
Understanding the differences between prorogation
and adjournment is helpful, however, to make sense of
ratification-era state constitutions.13 Eight of these
13
The dissent argues that our discussion of state
constitutions and early American practice transforms our
definition of recess into a technical one. Dissenting Op.
46
constitutions use the word ―recess.‖ Six contain the same
ambiguity found in the federal Constitution.14 The word
at 16–18 & n.11. These sources are, however, frequently
relied on by the Supreme Court to decide the meaning of
Constitution. See, e.g., Heller, 128 S. Ct. at 585–86;
Collins v. Youngsblood, 497 U.S. 37, 42 (199). We, too,
consider such reliance to be appropriate because the
average citizen likely would have understood the
Constitution in reference to the state constitutions and
practices at the time.
14
See Del. Const. of 1776 art. 7; Md. Const. of 1776
pt. 2, art. XIII; N.C. Const. of 1776 pt. 2, arts. XVIII–
XX; Pa. Const. of 1776 pt. 2, § 20; S.C. Const. of 1778
arts. IX, XVIII, XXXV; Vt. Const. of 1777 ch. II, §§
XVII–XVIII.
Of these provisions, the North Carolina Constitution‘s
Recess Appointments Clause has been argued to be the
most relevant to the federal Recess Appointments Clause
because the federal clause is thought by some to be
modeled after the North Carolina one. Noel Canning, 705
F.3d at 501. The North Carolina Constitution gives the
governor power to ―grant[] temporary commission[s]‖ of
officers ―whose appointment[s] [were] by [the North
Carolina] Constitution vested in the General Assembly
. . . during their recess.‖ N.C. Const. of 1776, pt. 2, art.
XX. Recess here is essentially used in the same manner
that it is in the federal constitution, which limits the
47
―recess‖ in the Massachusetts and New Hampshire
constitutions, however, includes only intersession breaks.
See Rappaport, supra, at 1552. These constitutions have
similar provisions that provided their respective
governors with different powers depending on whether
the legislature was in ―session‖ or ―in recess.‖ Mass.
Const. of 1780, pt. 2, ch 2, § 1, art. V; N.H. Const. of
1792 pt. 2, § L. When the legislatures were in ―session,‖
the governors had the power either to prorogue or to
adjourn them. See, e.g., Mass. Const. of 1780, pt. 2, ch. 2,
§ 1 (―The Governor . . . shall have full power and
authority, during the session of the General Court [i.e.,
the Massachusetts legislature], to adjourn or prorogue the
same to any time the two Houses shall desire‖). But when
recess-appointment power to ―the Recess of the Senate.‖
Both constitutions thus contain the same ambiguity.
The D.C. Circuit concluded that this ambiguity is
clarified for the North Carolina constitution by a North
Carolina Supreme Court decision that the D.C. Circuit
argues implicitly distinguishes between session and
recess. Noel Canning, 705 F.3d at 501. We disagree. The
North Carolina Supreme Court opinion is not informative
because—as the Board argues—the question in the case
was not the meaning of ―recess‖ but whether a recess-
appointed judge‘s court had jurisdiction to determine
whether he was properly appointed. Beard v. Cameron, 3
Mur. 181, 184–86 (N.C. 1819).
48
the legislatures were ―in recess,‖ the governors only had
the power to prorogue them—or, in simpler terms, extend
the duration of the intersession recess, see Johnson, 2 A
Dictionary of the English Language 412 (defining
―prorogue‖ as ―to withhold a session of parliament to a
distant time.‖). See, e.g., Mass. Const. of 1780, pt.2, ch 2,
§ 1 (providing the governor, ―in the recess of the said
Court,‖ the power ―to prorogue the same from time to
time‖). These provisions make sense only if the
legislature is not in ―session‖ when it is ―in recess.‖
Otherwise, the provisions are in conflict, stating that the
governors both had and did not have the power to
adjourn the legislature during intrasession breaks. These
two constitutions thus used recess to mean intersession
breaks only.15
15
The intersession-breaks-only definition of recess is
also seen in a second way. As explained, the governors
only had the power to prorogue when their respective
legislatures were ―in recess‖; but they had the power to
both adjourn as well as to prorogue the legislatures when
they were in session. See Mass. Const. of 1780, pt. 2,
ch 2, § 1, art. V; N.H. Const. of 1792 pt. 2, § L. This is
telling because if recess included intrasession breaks as
well as intersession breaks, then the power to adjourn
ought to also be included. Recall that one central
difference between adjournments and prorogations is that
the former do not end all business such that it need be
49
There are, however, examples of state executives
assuming that a constitutional recess includes
intrasession breaks. Vermont and Pennsylvania‘s former
constitutions, for example, provided their respective
executives power to ―lay embargoes . . . in the recess of
the house only.‖ Vt. Const. of 1777, ch. 2, § XVIII; Pa.
Const. of 1776, pt. 2, § 20. Governors of both states
imposed embargos during intrasession breaks,16 which
started anew when the legislature reconvenes while the
latter do end business. Jefferson, supra, at 164–65. So in
these constitutions, while the legislatures were in session,
the governors had the option of either ending business
through prorogation or, through adjournment, merely
ending their meetings but without ending their business.
There is no obvious reason that if recess included
intrasession breaks—after which business that was
ongoing before the break would continue—the governors
would lose their power to end that business. The most
plausible explanation of the differing powers in each
situation is that recesses were only constituted of
intersession recesses, which made it unnecessary to
provide the governors the power to adjourn the
legislatures because there was no business that could be
continued. The Massachusetts and New Hampshire
constitutions thus used recess to mean intersession
recesses only.
16
For the Vermont example, see 3 J. & Proceedings of
the General Assemb. of the State of Vt. 235 (P.H. Gobia
50
Press 1924) (recording the Vermont Assembly‘s
―adjourn[ment] until the second Wednesday of June‖ on
April 16, 1781); 2 Records of the Governor and Council
of the State of Vt. 164 (E.P. Walton ed., 1874) (recording
the May 1781 imposition of an embargo by the
executive). This was an intrasession break because the
legislature had not adjourned without day, as they often
did to end the last meeting of the year. See, e.g., 3 J. &
Proceedings of the General Assemb. of the State of Vt.
at 31 (adjourning on June 17, 1778 ―until his Excellency
the Governor commands them to meet‖), 73 (adjourning
―without day‖ on June 4, 1779); 123 (adjourning
―without day‖ on March 16, 1780); 271 (adjourning
―without day‖ on June 28, 1781).
For the Pennsylvania example, see J. & Minutes of the
Pa. Assembly 212 (1778) (recording the Pennsylvania
House of Representatives‘ adjournment on May 25, 1778
―to meet on the 9th day of September next‖ and its
subsequent reconvening on August 4, 1778 pursuant to
the summons of the ―vice-president and [s]upreme
executive council‖); 11 Minutes of the Supreme Exec.
Council of Pa. 544–45 (Theo Fenn & Co., 1852)
(recording the August 1, 1778 imposition of an embargo
by the executive). The Board has stated that this
intrasession break lasted until September 9, 1778. This
does not take into account the Pennsylvania House of
Representative‘s being recalled on August 4, however.
This discrepancy does not undermine the Board‘s general
51
suggests they understood that such breaks were included
in the meaning of recess.
The New Jersey governor acted similarly. He
relied on the Senate Vacancies Clause in the federal
Constitution to appoint a senator on December 19, 1798.
8 Annals of Cong. 2197 (1798). Prior to the Twentieth
Amendment, this Clause allowed state executives to
make temporary appointments of Senators ―during the
Recess of the Legislature of [that] State.‖ U.S. Const. art.
I, § 3, cl. 2. His appointment of a senator on December
19, 1798, shows that he construed recess to include
intrasession breaks because the New Jersey General
Assembly was in an intrasession break from November 8,
1798, until January 16, 1799.17
point that the embargo was set by the executive during an
intrasession break because the May 25 adjournment was
not an adjournment sine die and the August 1 embargo
imposition is before the Assembly‘s August 4
reconvening date.
17
Votes and Proceedings of the Twenty-Third General
Assemb. of the State of N.J, 1st sitting, 64 (1798–99)
(recording the adjournment of the New Jersey General
Assembly); J. of Proceedings of the Legis. Council of the
State of N.J., 23d Sess., 1st sitting 20 (1798–99)
(recording the adjournment of the New Jersey Legislative
Council).
52
This history shows that recess had at least two
meanings at the time of ratification: either intersession
breaks only or intersession breaks plus long intrasession
breaks. The state constitutions favor the former, while the
governors‘ actions favor the latter. To be sure, the
executive‘s actions should be viewed with some
skepticism because an expansive definition of recess
served their institutional self-interest by expanding their
powers. See Steven G. Calabresi & Saikrishna B.
Prakash, The President’s Power to Execute the Laws, 104
Yale L.J. 541, 558–59 (1994) (explaining that post-
enactment actions by the first Congress must be viewed
cautiously because of their institutional interest in
limiting the president‘s power). But it would be
erroneous to reject their understanding on this basis
alone. Nothing in the historical record affirmatively
rejects their understanding for purposes of the federal
Constitution.18 But neither is there anything affirmatively
18
Besides state-executive practice, the Board also points
to the Continental Congress‘s understanding of the
meaning as revealed by its practices. NLRB Ltr. Br. at 6
& n.3. Under the Articles of Confederation, the Congress
could only convene a ―Committee of the States‖ during
―the recess of Congress.‖ Articles of Confederation of
1781, art. IX, para. 5; id. art. X, para 1. Such a committee
was convened during the period that followed the
Continental Congress‘s adjournment on June 3, 1784
until October 30, 1784. 27 J. of Continental Congress
53
establishing that it adopted this definition of recess in lieu
of the definition found in the Massachusetts and New
Hampshire constitutions. Standing alone, ―Recess of the
Senate‖ is thus ambiguous. Edwards v. A.H. Cornell &
Son, Inc., 610 F.3d 217, 222 (3d Cir. 2010) (―Words or
provisions are ambiguous when ‗they are reasonably
susceptible of different interpretations.‘‖ (quoting
Dobrek v. Phelan, 419 F.3d 259, 263 (3d Cir. 2005))).
Importantly, though, neither of these possibilities
is similar to the unavailable-for-business definition put
forth by the Board. Every example discussed thus far has
two common characteristics. First, each break lasted for a
considerable period of time. The intrasession breaks in
555 (1784). That this adjournment was until a fixed date
suggests that the period after ought to have been an
intrasession break because it was not an adjournment sine
die, which would be denoted by the absence of a fixed
reconvening date. Subsequent proceedings, however, call
this understanding into question because the Continental
Congress‘s journal does not record their reconvening on
October 30 but instead shows them convening when the
Articles of Confederation required they meet again, 28 J.
of Continental Congress 639–41 (1784) (convening
―[p]ursuant to the Articles of Confederation,‖ rather than
pursuant to the prior adjournment), which is consistent
with having adjourned sine die. We decline to rely on this
practice one way or another because of the uncertainty.
54
which the governors of Vermont and Pennsylvania used
their powers were 57 and 71 days, respectively. See
supra note 10. And the intrasession break in which the
New Jersey governor appointed a senator was 69 days.
See supra note 11. As far as we are aware, the shortest
break referred to as a recess lasted 14 days, 2 A
Documentary History of the English Colonies in North
America 1346–48 (Peter Force, ed., 1839), which
conforms with the modern practice equating recess with
breaks lasting at least 10 days. These durations suggest
that a recess was more than the day-to-day adjournment
of a legislature and likely held the connotation of long
duration. This is contrary to the Board‘s current view that
breaks in business need not be of any particular duration
to constitute a recess.
The second notable trait of these breaks is that the
beginning of each was determined solely by when the
legislature adjourned—rather than by some functionalist
definition of when the body was unavailable for business.
The Board has pointed to no examples of the word
―recess‖ turning on factors such as whether members
were required to attend, the legislative chamber was
empty, and the body could receive messages. The
examples instead show that recess was tied to the type, or
possibly the duration, of the legislature‘s self-defined
adjournment. Accord Jefferson, supra, at 51 at 165
(explaining that Senate ―Committees may be appointed to
sit during a recess by adjournment, but not by
55
prorogation‖).
In short, the natural meaning of recess does not
help us decide between intersession breaks and
intrasession breaks of a fixed duration, but the relevant
context does undermine the Board‘s current position.19
19
The dissent refers to our reliance on state constitutions
and contemporary interpretations of recess as a ―dubious‖
method of interpretation. Dissenting Op. at 20. To be
clear, these historical examples demonstrate that the use
of recess at the time of ratification was consistent with
either the intersession-break definition of recess or the
intersession-plus-long-intrasession-break definition. We
discuss these only to show the ordinary meanings of the
word ―recess‖ for the founding generation, as
demonstrated by their usage. Heller, 554 U.S. at 576. We
do not use them as conclusive evidence that recess means
intersession breaks only, which cannot be done because
there is not sufficient historical evidence on which
meaning was intended in the Constitution.
These historical practices do, however, cast doubt on the
unavailable-for-business definition argued for by the
Board, a version of which is adopted by the dissent. This
is not so much because of what the practices were but
what they were not. Namely, the Board and the dissent
cannot point to a single example from the period of
ratification in which a legislative body or executive
defined recess exclusively using a functionalist definition
56
To resolve the remaining ambiguity, one might argue that
the Constitution uses a definitive article: ―the Recess of
the Senate.‖ The word ―the‖ might mean that the phrase
refers to a specific thing, possibly suggesting that recess
refers to the one recess that follows every session, an
intersession break. See Noel Canning, 705 F.3d at 499–
500. But ―the‖ also can denote a particular class of
something as well. Indeed, that is how the D.C. Circuit
ultimately interpreted ―the Recess,‖ holding that it means
all intersession breaks. Id. But even conceding that ―the‖
is meant to denote a specific class of something, there is
nothing in the word ―the‖ itself that necessarily requires
that class to be intersession breaks. ―[T]he Recess‖
might, for example, simply refer to times in which the
Senate is in a recess. See Evans, 387 F.3d at 1224–25.
There is nothing that shows what ―the‖ means in the
Recess Appointments Clause, especially because the
Constitution uses ―the‖ in several manners. See, e.g., U.S.
Const. art. I, § 3, cl. 4 (providing that ―[t]he Vice
President . . . shall be President of the Senate‖); art. I,
§ 3, cl. 5 (providing that the Senate shall select a
president pro tempore ―in the Absence of the Vice
President‖). Accordingly, we are convinced that use of
―the‖ is uninformative. We must therefore look to the
based on availability. If such a definition of recess were a
―normal and ordinary‖ meaning for the ―founding
generation,‖ Heller, 554 U.S. at 576, there ought to be at
least one example of its use from that period.
57
broader textual context in which ―the Recess of the
Senate‖ was ratified.
B. Textual Context
1. Constitutional Context and the Unavailable-for-
Business Definition
―If, from the imperfection of human language,
there should be serious doubts respecting the extent of
any given power, it is a well settled rule, that the objects
[i.e., the purpose] for which it was given . . . should have
great influence on the construction.‖ Gibbons v. Ogden,
22 U.S. 1, 188–89 (1824). The purpose of the Recess
Appointments Clause is most evident in its relation to the
Appointments Clause. The text and structure of the
Constitution demonstrate 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.
The Appointments Clause provides the general rule for
appointing officers through presidential nomination and
senatorial advice and consent. U.S. Const. art. II, § 2,
cl. 2. The Clause lacks any limitation on when this power
is operative—the president always has the power to fill
vacancies through nomination and the advice and consent
of the Senate. See id. (―[The President] shall nominate,
and by and with the Advice and Consent of the Senate,
58
shall appoint . . .‖).20 This perpetual power stands in
contrast to the power given to the president in the Recess
Appointments Clause, which explicitly allows him to fill
vacancies unilaterally only ―during the Recess of the
Senate.‖ Id. at art. II, § 2, cl. 3. The clauses thus reveal a
constitutional preference for divided power over the
20
The Appointments Clause states in full:
He shall have Power, by and with the
Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators
present concur; and he 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, whose Appointments are not
herein otherwise provided for, and which
shall be established by Law: but the
Congress may by Law vest the Appointment
of such inferior Officers, as they think
proper, in the President alone, in the Courts
of Law, or in the Heads of Departments.
U.S. Const. art. II, § 2, cl. 2.
59
appointments process, which is deviated from only in
specified situations.21
Alexander Hamilton echoed this understanding of
the Constitution. He explained in Federalist 67 that the
Appointments Clause ―declares the general mode of
appointing officers of the United States.‖ The Federalist
No. 67 (Alexander Hamilton). The Recess Appointments
Clause, however, is ―nothing more than a supplement to
the [the Appointments Clause], for the purpose of
establishing an auxiliary method of appointment, in cases
to which the general method was inadequate.‖ Id.
Accordingly, the ―ordinary power of appointment is
confined to the president and the Senate jointly, and can
therefore only be exercised during the session of the
Senate.‖ Id. (emphasis in original). But ―in [the Senate’s]
recess,‖ the ―President, singly,‖ has power to make
temporary appointments. Id. (emphasis in original). This
deviation is necessary, Hamilton argues, because it is
―improper to oblige this body to be continually in
session‖ and because ―it might be necessary for the
21
Besides the exception found in the Recess
Appointments Clause, the Appointments Clause also
creates an exception for ―inferior Officers.‖ These
officers can be appointed either through the ordinary
process or, if specified by statute, unilaterally by the
President, courts, or department heads. See U.S. Const.
art. II, § 2, cl. 2.
60
public service to fill without delay.‖ Id.
The ―main purpose‖ of the Recess Appointments
Clause, therefore, is not—as the Eleventh Circuit held
and the Board argues—only ―to enable the President to
fill vacancies to assure the proper functioning of our
government.‖ Evans, 387 F.3d at 1226. This formulation
leaves out a crucial aspect of the Clause‘s purpose: to
preserve the Senate‘s advice-and-consent power by
limiting the president‘s unilateral appointment power.
Accord Noel Canning, 705 F.3d at 505 (explaining that
the Eleventh Circuit‘s statement of the Clause‘s purpose
―omits a crucial element of the Clause, which enables the
president to fill vacancies only when the Senate is unable
to provide advice and consent‖ (emphasis in original)).
The importance of this aspect of the Clause‘s
purpose is difficult to understate. At the time of
ratification, skepticism in executive unilateral
appointments power was firmly established. ―‗[T]he
power of appointments to offices‘ was deemed ‗the most
insidious and powerful weapon of eighteenth century
despotism.‘‖ Freytag, 501 U.S. at 883 (quoting Gordon
Wood, The Creation of the American Republic 1776–
1787 79 (1969)). But the framers‘ skepticism concerning
unilateral power was not limited to the executive. They
also rejected unilateral legislative control of
appointments out of concern for ―diversity of views,
feelings, and interests, which frequently distract and warp
the resolutions of a collective body.‖ The Federalist No.
61
76 (Alexander Hamilton). As a consequence of these
concerns, 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 any one person or body. They did so by
dividing that power between the executive and legislative
branches. Freytag, 501 U.S. at 883–84; see also Ryder,
515 U.S. at 182 (―The [Appointments] Clause is a
bulwark against one branch aggrandizing its power at the
expense of another branch, but it is more: it preserves
another aspect of the Constitution‘s structural integrity by
preventing the diffusion of the appointment power.‖). To
ignore this division of power is to neglect a central
principle that underlies the two Appointments Clauses.22
22
The dissent understands this principle to mean that one
purpose of the Recess Appointments Clause is ―to
provide a check on the Senate‘s control over the
appointment of officers by sharing the power of
confirmation with the executive.‖ Dissenting Op. at 28.
While we agree that the Clause is intended to preserve
the balance of power struck in the Appointments Clause,
we disagree that it does this by limiting the Senate‘s
power to provide its advice and consent. The Recess
Appointments Clause preserves the balance of power by
limiting the instances in which the president has
unilateral authority to appoint officers, which is
illustrated by its explicit limitation of that power to ―the
62
Recess of the Senate.‖ Nothing in the text of the Clause
or the historical record suggests that it is intended to be a
type of pressure valve for when the president cannot
obtain the Senate‘s consent, whether that be because it
has become dysfunctional or because it rejects a
president‘s nominations. Cf. The Federalist No. 67
(Alexander Hamilton) (explaining that the Clause is
needed because it is ―improper to oblige this body to be
continually in session‖ or because ―it might be necessary
for the public service to fill without delay‖ rather than
because it is a necessary tool to check the Senate‘s
power).
Our disagreement with our dissenting colleague is rooted
in a difference in understanding of the president‘s and the
Senate‘s respective powers. Regarding the president, the
dissent contends that we must interpret the president‘s
recess-appointment power broadly because to do
otherwise would ―eviscerat[e] his appointments
prerogative‖ so that he may ―be able to surround himself
with the people he believed best fit to help him fulfill his
duty.‖ Dissenting Op. at 23–24. But the president does
not have an ―appointments prerogative‖ or the
constitutional right to surround himself with those he
believes are ―best fit to help.‖ That is exactly what the
drafters rejected when they rejected unilateral
appointments authority in the executive. The president
has a prerogative to nominate whomever he likes, and the
Senate has the prerogative to reject or confirm whomever
63
And therein lies the implausibility of the
unavailable-for-business definition. As explained above,
the Board argues that a recess occurs any time members
the president nominates. To construe the Recess
Appointments Clause as providing presidents these rights
is to promote it from an auxiliary appointments device to
an additional one, which we know from Hamilton is
exactly what it is not. See Federalist No. 67 (Alexander
Hamilton).
Regarding the Senate‘s advice-and-consent power, the
dissent analogizes it to the president‘s veto power.
Dissenting Op. at 21–23 & nn.14–15. This analogy is
inaccurate. The drafters of the Constitution rejected an
approval mechanism proposed by Madison that gave the
Senate only the power to veto presidential nominees by a
majority vote in favor of ―advice and consent.‖ 2 The
Records of the Federal Convention of 1787 at 80–83
(Max Farrand ed., 1911); see also Matthew C.
Stephenson, Can the President Appoint Principal
Executive Officers without a Senate Confirmation Vote?,
122 Yale L.J. 940, 964–95 (2013). This means there is no
reason to think that the balance of powers created
through provisions of the advice-and-consent power to
the Senate is anything like the president‘s veto power. As
we have explained, the balance is much more equitable
between the branches and provides each the ability to
negate the role of the other.
64
of the Senate do not have a duty to attend, the Senate
chamber is empty, and the Senate is unavailable to
receive communications from the president. See Resp.
Br. at 44–45; 33 U.S. Op. Att‘y Gen. at 21–22, 25. The
problem with this definition is that the Senate fulfills
these criteria whenever its members leave for the
weekend, go home for the evening, or even take a break
for lunch. In each of these instances, the senators have no
duty to attend, the Senate chamber is empty, and the
body cannot receive messages from the president.
Defining recess in this way would eviscerate the
divided-powers framework the two Appointments
Clauses establish. If the Senate refused to confirm a
president‘s nominees, then the president could
circumvent the Senate‘s constitutional role simply by
waiting until senators go home for the evening. The
exception of the Recess Appointments Clause would
swallow the rule of the Appointments Clause.
The Board appears to recognize this difficulty with
its definition. Oral Arg. Tr. at 48:6–9 (stating that ―[t]he
executive branch has not claimed authority to make
recess appointments during lunch‖). Accordingly, the
Board argues that there is a limitation in addition to the
three open-for-business criteria: unavailability to provide
advice and consent. Oral Arg. Tr. at 49:15–18. But the
Board does not clearly define unavailability in a way that
distinguishes it from the Board‘s discussion of when the
Senate is open for business. At times, its brief treats the
65
two requirements as one. Resp. Br. at 44 (―[T]he Clause
authorizes appointments when the Senate is not open to
conduct business and thus not providing advice and
consent on nominations.‖).
Perhaps the best indication of what the Board
means by unavailability is its reliance on the Senate‘s
unanimous-consent agreement that established the
schedule for the pro forma sessions from December 20,
2011, through January 23, 2012. This resolution provided
that there would be ―no business conducted‖ during the
sessions. 157 Cong. Rec. at S8783 (statement of Sen.
Wyden). This resolution might be understood to mean
that during the pro forma sessions the Senate was open
for business but unavailable to provide advice and
consent on nominations because of the body‘s prior
agreement.
The first problem with this argument is that the
Senate‘s actions under the resolution reveal that it could
have provided advice and consent during these pro forma
sessions if it had desired to do so. On December 23,
2011, during one of the pro forma sessions stipulated in
the unanimous-consent agreement, the Senate passed a
bill that provided ―a 2-month extension of the reduced
payroll tax, unemployment insurance, TANF, and the
Medicare payment fix.‖ 157 Cong. Rec. at S8789
(statement of Sen. Reid). That same day, the Senate also
―agree[d] to the request for a conference‖ from the House
in relation to related bills passed by both chambers. Id. If
66
the Senate could pass a bill and agree to a request from
the House to create a conference for another bill, then the
Senate likely could have provided its advice and consent
but chose not to—as they are entitled to under the
Appointments Clause.23
23
The dissent rejects this conclusion on the ground that if
the Senate is available any time it could act on
nominations ―if it had the desire[] to do so,‖ then the
Senate would logically always be available. Dissenting
Op. at 51. This misses one central feature of pro forma
sessions: the Senate has convened. We do not hold that
the Senate is available any time when it could confirm
nominations if it wanted to. Instead, we are pointing out
that the Board cannot 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 desires to. This is evidenced by the
Senate‘s passing of legislation during these sessions.
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 its advice and consent.
The dissent suggests one possibility, which is that the
Senate is not available to provide its advice and consent
during pro forma sessions because ―business via
67
Besides this factual difficulty, the Board‘s limiting
principle has another, larger problem: it still does not
foreclose day-to-day adjournments from constituting
unanimous consent agreement . . . is not the type of
business that yields the advice and consent envisioned by
the Framers.‖ Id. at 29. Underlying this is the assertion
that advice and consent requires a vote by the Senate‘s
members. Id. at 7. This is a complicated question. See
Adam J. White, Toward the Framers’ Understanding of
“Advice and Consent”: A Historical and Textual Inquiry,
29 Harv. J.L. & Pub Pol‘y 103, 107–08, 147–48 (2005)
(collecting sources arguing the Senate is required to act
on nominations before analyzing the text and convention
debates to conclude that the Senate has no obligation to
act on presidential nominees). We are reluctant to express
an opinion on it, especially because it has not been
briefed.
Assuming that a vote is required to provide the Senate‘s
advice and consent, however, it is also the case that the
Senate must vote to ―pass‖ a bill. See Chadha, 462 U.S.
at 980–81 (equating pass with vote). Why unanimous-
consent agreements are sufficient to pass legislation, and
thus constitute a vote, yet are inadequate to constitute a
vote for the purpose of advice and consent is unclear. The
dissent‘s definition thus suffers from the same flaw as the
Board‘s: it cannot provide a principled method of
defining availability.
68
recesses. The important feature of the Senate‘s
scheduling agreement that the Board emphasizes is the
provision that there would be ―no business conducted.‖
Resp. Br. at 45–47; Oral Arg. Tr. at 49:21–24. This,
however, is indistinguishable from a daily adjournment.
At the end of the day, the Senate adjourns, which
represents an agreement that it will do no business until it
reconvenes the next day. In fact, when the Senate agrees
to adjourn, it agrees that no senator can even be
recognized to speak on the floor. See Riddick’s Senate
Procedure: Precedents and Practices, S. Doc. No. 101-
28, at Adjournment 2 (1992) (―Once the Chair has
announced that the Senate stands in adjournment, there is
no recourse available to the Senator seeking recognition
until the Senate reconvenes.‖). The only distinction is
formalistic—day-to-day adjournments are embodied in a
motion to adjourn (that is often unanimously agreed to)
rather than a unanimous consent agreement—but there is
no reason to believe that makes an actual difference
under the Board‘s approach. Therefore, the Board‘s
limiting principle fails to limit the meaning of recess and
must be rejected to prevent the Recess Appointment
Clause‘s exception from swallowing the rule of divided
power.
Now that we have established what ―the Recess of
the Senate‖ does not mean, we must establish what it
does mean. The Recess Appointments Clause‘s
preservation of the Senate‘s advice-and-consent power
69
does not help us decide between the remaining two
possibilities because the requirement that an intrasession
break last a certain duration would prevent the exception
from swallowing the rule. We must therefore look to
provisions of the Constitution.
Several constitutional provisions appear relevant to
our analysis, such as those that use the word
―adjournment.‖ See Noel Canning, 705 F.3d at 500.
Adjournment, as discussed above, is an instance in which
Congress or one of its chambers takes a break of any type
or length. See, e.g., Pocket Veto Case, 279 U.S. at 680
(interpreting ―adjournment‖ in the Pocket Veto Clause to
include both types of breaks). Thus, 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.‖ See Noel Canning, 705 F.3d at 500, 505–06.
Because the Constitution uses recess instead of
adjournment, we presume that recess has a meaning
different from adjournment. Kelo v. City of New London,
Connecticut, 545 U.S. 469, 496 (2005) (―When
interpreting the Constitution, we begin with the
unremarkable presumption that every word in the
document has independent meaning, ‗that no word was
unnecessarily used, or needlessly added.‘‖) (quoting
Wright v. United States, 302 U.S. 583, 588 (1938)).
That the words have different meanings, however,
70
does not necessarily tell us what those meanings are and
whether they might overlap. The Eleventh and D.C.
Circuits provide two different possibilities. On the one
hand, adjournment could mean the act of adjourning (i.e.,
ending business) for any period of time, while recess
could refer to the period of time that follows an
adjournment. Evans, 387 F.3d at 1225. On the other
hand, adjournment could again mean the act of
adjourning for any period of time, while recess might
refer to breaks of a more limited nature—whether that be
limited by the duration of the break or the type of break.
Noel Canning, 705 F.3d at 500. In both instances,
adjournment and recess have different meanings but
nothing about the dichotomy between the words tells us
which meaning was intended.
When these possibilities are considered in light of
the purpose of the Recess Appointments Clause,
however, the dichotomy must be that adjournment results
in more breaks than recess does. If the Eleventh Circuit is
correct that the sole reason for using recess instead of
adjournment was to recognize a difference between the
act of adjourning and the period that follows, then recess
would mean any break in Senate business regardless of
the break‘s length. This is a broad definition that no one,
including the Board, adopts because it would result in the
exception swallowing the rule. So the dichotomy does
reveal that recess must mean something narrower than
any break that follows an adjournment.
71
But what this narrower definition is cannot be
derived from the dichotomy between adjournment and
recess alone. Nothing about the words tells us whether
recess is limited by the duration of the break (as the
intrasession definition does) or by the type of break (as
the intersession definition does). Contra Noel Canning,
705 F.3d at 500, 505–06 (using the dichotomy plus the
fact that recess is preceded by ―the‖ as support for its
conclusion that ―the Recess‖ must mean intersession
breaks only). The dichotomy between adjournment and
recess therefore leaves us in the same place as the Recess
Appointments Clause‘s purpose: rejecting an all inclusive
definition of recess but without a basis to decide between
the intersession definition and the intersession-plus-long-
intrasession-breaks definition.
2. Constitutional Context and the Remaining
Definitions
We resolve this uncertainty by first noting what is
absent in the Constitution: a link between ―the Recess of
the Senate‖ and any particular length of time. Attorney
General Daugherty, who first suggested a minimum
duration of ten days, did not tie this duration to any
constitutional provision. See 33 U.S. Op. Att‘y Gen.
at 24–25 (―Nor do I think an adjournment for 5 or even
10 days can be said to constitute the recess intended by
the Constitution.‖). Some have tried to tie the duration to
the Adjournment Clause, which requires either chamber
of Congress to obtain the consent of the other to adjourn
72
for more than three days, U.S. Const. art. I, § 5, cl. 4.24
See, e.g., 33 U.S. Op. Att‘y gen. at 24–25 (invoking the
Adjournment Clause to reject the idea that two days may
constitute a recess); Edward A. Hartnett, Recess
Appointments of Article III Judges: Three Constitutional
Questions, 26 Cardozo L. Rev. 377, 419–21 (2005). The
argument is that the Adjournment Clause provides a
measure of what constitutes a de minimis break—one that
should be read into the Recess Appointments Clause to
prevent the exception from swallowing the rule. See
Hartnett, supra, at 419–21.25 The central error in this
24
The Clause states:
Neither House, during the session of
Congress, shall, without the consent of the
other, adjourn for more than three days, nor
to any other place than that in which the two
Houses shall be sitting.
U.S. Const. art. I, § 5, cl. 4.
25
The Adjournment Clause may be thought to create a
problem for the intersession definition of recess. Namely,
by requiring that the two chambers of Congress agree on
any adjournment lasting longer than three days, the
Clause enables the House to prevent the Senate from
adjourning sine die. This would be problematic for the
intersession definition because, as the argument goes, it
inserts the House into the appointments process even
73
argument, however, is that ―[n]othing in the text of either
Clause, the Constitution‘s structure, or its history
suggests a link between the Clauses.‖ Noel Canning, 705
F.3d at 504; cf. Atl. Cleaners & Dyers v. United States,
286 U.S. 427, 433–34 (1993) (demonstrating that the
context of individual provisions is important to deciding
the meaning of them by explaining that the same words
in the Constitution often have different meanings
depending on their context). Absent some connection,
there is no reason to believe that the Adjournment
Clause‘s duration requirement controls the meaning of
the Recess Appointment Clause. And beyond the
Adjournment Clause, nothing in the Constitution
establishes the necessary length of an intrasession break
though the Constitution purposely excludes it from the
process.
The problem is eliminated, however, by Article II, § 3 of
the Constitution. This provision allows the president to
―adjourn both Houses‖ only ―if the two Houses cannot
agree on a date of adjournment.‖ U.S. Const. Art. II, § 3.
Assuming that the Supreme Court would interpret
adjourn to be the verbal form of adjournment, which it
has said constitutes both inter- and intra-session breaks,
Pocket Veto Case, 279 U.S. at 680, this provision allows
the president to prevent the House from interfering in the
appointments process if it prevents the Senate from
adjourning for either an inter- or intra-session break.
74
that would constitute a recess.26 This is the most
significant weakness of the long-break intrasession
argument.
Although there is no constitutional basis for any
sort of durational limit on what constitutes ―the Recess,‖
the Recess Appointments Clause does contain a temporal
characteristic: the Recess Appointment Clause‘s
specification that recess-appointed officers‘ terms ―shall
expire at the End of [the Senate‘s] next Session.‖ U.S.
Const. art. II, § 2, cl. 3. A session of the Senate, everyone
agrees, 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. Henry B.
Hogue, Cong. Research Serv., RS21308, Recess
Appointments: Frequently Asked Questions 1–2 & n.5
26
Another possible source of a durational limitation on
recess is the Pocket Veto Clause, which provides that a
bill passed by Congress becomes a law if the President
takes no action on it for ten days ―unless the Congress by
their adjournment prevent its return.‖ U.S. Const. art. I,
§ 7, cl. 2. The ten-day-duration requirement that might be
drawn from this fails for the same reason the three-day-
duration requirement fails in relation to the Adjournment
Clause. Namely, the context of the Pocket Veto Clause is
significantly different from the context of the Recess
Appointments Clause, which means there is no reason to
believe the former controls interpretation of the latter.
75
(2012). The expiration of these officers‘ terms at the end
of the next session implies that their appointments were
made during a period between sessions.
This implication follows from the reason for
making recess appointments expire at the end of the
―next Session.‖ As discussed, the Recess Appointment
Clause provides an ―auxiliary‖ method of appointing
officers. The Federalist No. 67 (Alexander Hamilton)
(explaining that the Clause is ―nothing more than a
supplement to the [Appointments Clause]‖ that
―establish[es] an auxiliary method of appointment, in
cases to which the general method is inadequate‖). The
durational provision maintains this by limiting recess
appointees‘ terms to last for only the time needed for the
president and the Senate to have the opportunity to
undergo the normal process. As Justice Joseph Story
explained, the Clause authorizes the president ―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 Story, Commentaries on
the Constitution of the United States § 1551 at 410
(1833) (emphasis added). Limiting the duration to a
single opportunity follows from the auxiliary nature of
the Clause. After all, the Senate‘s decision not to act on a
nomination effectively is a rejection of that nomination,
as evidenced by the Senate‘s routine return to the
president of nominations who have not been acted on.
Standing Rules of the Senate XXXI, para. 6
76
(―Nominations neither confirmed nor rejected during the
session at which they are made shall not be acted upon at
any succeeding session without being again made to the
Senate by the President.‖). In fact, a system in which
Senate silence would allow for the appointment of
officers was explicitly rejected at the drafting convention.
2 The Records of the Federal Convention of 1787 at 80–
83 (Max Farrand ed., 1911); see also Adam J. White,
Toward the Framers’ Understanding of “Advice and
Consent”: A Historical and Textual Inquiry, 29 Harv.
J.L. & Pub Pol‘y 103, 117–19 (2005) (explaining the
drafters‘ rejection of a system in which only the Senate
had the power to veto nominations); Matthew C.
Stephenson, Can the President Appoint Principal
Executive Officers without a Senate Confirmation Vote?,
122 Yale L.J. 940, 964–95 (2013). The Clause‘s function
is thus fulfilled once an opportunity for the Senate to act
has come and gone.
So if recess includes intrasession breaks, then we
would expect the recess-appointment term to last only
until the end of that session. This is because once the
Senate returned from its break there would be an
opportunity to undergo the normal process. Yet the
Constitution provides that the term would last until the
end of the next session. This suggests that the durational
provision contemplates a meaning of recess that means
intersession breaks only.
This is best seen in the process of recess
77
appointments that results under each definition of recess.
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
78
because the appointment lasts until the ―next Session,‖ as
demarked by adjournments sine die. 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.
The durational provision thus indicates that the
most natural reading of the Clause defines recess to mean
intersession breaks only. Cf. Weinberger v. Hynson,
Westcott & Dunning, Inc., 412 U.S. 609, 631–32 (1973)
(―It is well established that our task in interpreting
separate provisions of a single Act is to give the Act the
most harmonious, comprehensive meaning possible in
light of the legislative policy and purpose.‖ (internal
quotation marks omitted)); Gustafson v. Alloyd, Inc., 513
U.S. 561, 575 (1995) (―[A] word is known by the
company it keeps. This rule we rely upon to avoid
ascribing to one word a meaning so broad that it is
inconsistent with its accompanying words‖). This is
supported by the fact that the original Senate Vacancies
Clause used a different durational provision: ―the next
79
Meeting.‖ U.S. Const. art. I, § 3, cl. 2, superseded by id.
Amend. XVII.27 The original language shows that the
durational provision in 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.28 That
27
The Senate Vacancies Clause stated in full:
[I]f Vacancies [in the Senate] 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.
28
Correspondingly, this could mean that the break before
that meeting—i.e., ―the Recess of the Legislature‖—did
not necessarily have to be an intersession break. If this is
the case, it is unlikely that recess was used in the same
manner in the Senate Vacancies Clause as it is in the
Recess Appointments Clause. Some words in the
Constitution have different meanings ―according to the
80
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.
The Board disagrees with this characterization. It
argues that the duration provision conforms with an
intrasession definition of recess because 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. NLRB Ltr. Br. at 12–
13. After all, if the appointment lasted until the end of the
Senate‘s session, and the intrasession break in which he
was appointed lasted until the end of that session, then
the appointee‘s term would expire at the end of that break
and the Senate would not have a chance to consider the
appointment. So, according to the Board, fixing the
duration to the next session might ensure that the Senate
has an opportunity to provide its advice and consent.
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). The different meanings of recess
would likely be necessary here to account for varying
state procedures that may or may not have had formal
sessions similar to the Senate.
81
This argument is unpersuasive for two reasons.
First, the problem arises only if one adopts an
intrasession definition of recess. If recess is limited to
intersession breaks, then there will never be any doubt
that the Senate will have its single chance to weigh in:
once it reconvenes for its next session. Avoiding this
problem is yet another reason to define recess to mean
intersession breaks. Cf. Am. Tobacco Co. v. Patterson,
456 U.S. 63, 71 (1982) (explaining that ―[s]tatutes should
be interpreted to avoid untenable distinctions and
unreasonable results whenever possible‖).
Second, we acknowledge that the durational
provision can be read consistently with an intrasession
definition. But the Board‘s point does not show that the
most natural reading of the Clause‘s duration provision
supports this definition. Instead, it tends to show the
opposite. We doubt that the phrase ―next Session‖ is
intended to address an unusual situation—one that the
drafters‘ of the Constitution were unlikely to
contemplate. An intrasession break has extended until the
end of one of the Senate‘s 296 completed sessions only
once, in 1992. (And even if we were to adopt the Board‘s
contention that pro forma sessions constitute a recess—
which we do not—then the number increases to three
times, in 2008 and 2011).29 In other words, if fixing the
29
The Official Congressional Directory records fourteen
sessions of Congress that have ended within a day of the
82
Constitution‘s automatic termination date. See
Congressional Directory for the 112th Congress 522–38
(2011). This directory was completed before the end of
the 2011 session of Congress, so the inclusion of the
session that ended on January 3, 2012, brings the total to
fifteen. A session automatically ended the first Monday
of December until the Twentieth Amendment changed it
to January 3 in 1933. U.S. Const. art. I, § 4, cl. 2; Amend.
XX. These are the only relevant terminations of Senate
sessions because if the Senate ends their session by
convening and then adjourning sine die, then the Senate
has a chance to consider nominations while they are
convened. For example, in 2003, the Senate had an
intrasession break that lasted from November 25 until
December 9. 149 Cong. Rec. 31985 (Nov. 25, 2003)
(statement of Sen. McConnell). On December 9, they
convened and adjourned sine die. 149 Cong. Rec. 32404
(Dec. 9, 2003) (statement of Sen. Frist). The Board points
to this as one example of a session ending before the
Senate has the chance to consider a president‘s recess
appointments. NLRB Ltr. Br. at 12–13. But, even though
the recess ended on the same day the session did, when
the Senate convened to adjourn sine die they conducted
quite a bit of business—including the confirmation of
fifty-two people as officers of the United States. 149
Cong. Rec. at 32404–05.
Only in one instance has an intrasession break ended at
the same time that a Senate session has. See 137 Cong.
83
Rec. 36362–64 (Nov. 27, 1991 through Jan. 3, 1992)
(recording the Senate‘s November 27, 1991 adjournment
until January 3, 1992). Even there, however, the Senate
still convened before the session ended and had the
opportunity to conduct business if it had wanted to. For
example, it received messages from the president
regarding nominations, though it did not confirm anyone
before adjourning sine die. See 137 Cong. Rec. at 36364.
Two were preceded by a series of pro forma Senate
sessions. See 157 Cong. Rec. S8783–84 (daily ed. Dec,
17, 2011) (recording the unanimous consent agreement to
a schedule of pro forma session); 154 Cong. Rec. 24802–
08 (Dec. 12, 2008; Dec. 12, 2008; Dec. 16, 2008; Dec.
19, 2008; Dec. 23, 2008; Dec. 26, 2008; Dec. 30, 2008;
Jan. 2, 2009) (holding a series of pro forma sessions from
Dec. 13, 2008 through Jan. 2, 2009).
Eleven were preceded by the Senate conducting business.
See 158 Cong. Rec. S8637–68 (daily ed. Jan. 2, 2013)
(confirming presidential nominees and completing
business from days immediately prior before adjourning
pursuant to the Constitution); 141 Cong. Rec. 38549–
38608 (Dec. 29, 1995; Dec. 30, 1995; Jan. 2, 1996; Jan.
3, 1996); 116 Cong. Rec. 43999–44129, 44346–44597
(Dec. 30, 1970; Dec. 31, 1970; Jan. 2, 1971) (adjourning
sine die one day before the constitutional deadline of
January 3 after completing business); 96 Cong. Rec.
17022–17121 (Jan. 2, 1951) (same); 87 Cong. Rec.
84
duration until the Senate‘s next session (rather than the
end of that session) is meant only to ensure the Senate
has a chance to provide its advice and consent without
regard to its effect on the broader framework, then the
duration provision‘s purpose has only become important
10138–10143 (Dec. 26, 1941; Dec. 30, 1941; Jan. 2,
1942) (same); 86 Cong. Rec. 13997–14000, 14003–07,
14011–46, 14058–59 (Dec. 26, 1940; Dec. 30, 1940; Jan.
2, 1941; Jan. 3, 1941) (conducting business several days
before the session terminated by function of the
Constitution on January 3, 1941); 63 Cong. Rec. 440–48,
450–52 (Dec. 2, 1922; Dec. 4, 1922) (conducting
business on the first Monday of December, and the days
preceding it, before adjourning sine die as required by the
Constitution); 50 Cong. Rec. 6030–37, 6041–44, 6050–
53 (Nov. 26, 1913; Nov. 29, 1913; Dec. 1, 1913) (same);
37 Cong. Rec. 520–25; 529–31; 542–44 (Dec. 4, 1903;
Dec. 5, 1903; Dec. 7, 1903) (same); 6 Cong. Rec. 764–
98, 799–805, 816–17 (Nov. 30, 1877; Dec. 1, 1877; Dec.
3, 1877) (same); 38 Cong. Globe, 40th Cong., 1st Sess.
793–95, 802, 810–11, 816–17 (Nov. 26, 1867; Nov. 27,
1867; Nov. 29, 1867; Dec. 2, 1867) (same).
And one of these terminations of Congress‘s session was
due to continued business by the House, even though the
Senate had adjourned sine die earlier. See 125 Cong. Rec.
37605–06 (Dec. 20, 1979) (recording the Senate‘s sine
die adjournment on December 20, 1979).
85
one time. And even during this recent instance, the
Senate convened before their constitutionally imposed
deadline and could have considered nominations if they
had chosen to do so. See 137 Cong. Rec. 36364 (Jan. 3,
1992). The complete absence of the problem described
by the Board in the last 225 years suggests that the
Constitution most likely was not written with such a
problem in mind. Cf. Marozsan v. United States, 852
F.2d 1469, 1498 (7th Cir. 1988) (en banc) (Easterbrook,
J., dissenting) (―The terror of extreme hypotheticals
produces much bad law.‖). This implies that the
durational provision was most likely written simply to
reinforce the auxiliary nature of the Recess Appointment
Clause by limiting recess appointees‘ terms to last only
as long as necessary to afford the Senate one opportunity
to undergo the ordinary process.
The Constitution thus shows that the more limited
definition of recess—that is necessitated by the purpose
of the Recess Appointments Clause and the adjournment-
recess dichotomy—includes only intersession breaks.
Nothing within the broader context of the Constitution
supports the Board‘s definition. As for the intersession-
plus-long-intrasession definition, although it could
conform with the relationship between the Clauses, there
is no constitutional basis for defining ―long‖ and the
definition is unsupported by the other relevant
86
constitutional provisions.30 The relationship between the
30
The dissent argues that our interpretation of recess
reads the modifier ―intersession‖ into the Constitution,
contrary to the Supreme Court‘s admonition to avoid
doing so. Dissenting Op. at 12–14. This misunderstands
our reasoning. As we have shown, the ordinary meaning
of recess could support any of the definitions asserted,
including the intersession definition. Through analysis of
historical usage, application of the Recess Appointment
Clause‘s purpose, and analysis of the relevant
constitutional context, we hold that of the ordinary
meanings, the Constitution uses the intersession
definition of recess. In short, we do not read
―intersession‖ into the Constitution because—as the word
is used in the document—―recess‖ means only
intersession breaks.
This method is also seen in the dissent‘s reasoning,
which defines recess to mean when the Senate is
unavailable to provide its advice and consent. Id. at 2. Per
the dissent‘s logic, Judge Greenaway‘s definition would
read the Clause to be ―the Recess of the Senate [in which
it cannot provide its advice and consent].‖ This is best
illustrated by the dissent‘s acknowledgement that the
Senate recesses when it goes to lunch but that these
recesses do not fall within ―Recess‖ as it is meant in the
Constitution. Id. at 8–10. Adding ―in which it cannot
provide its advice and consent‖ to the Clause is not what
we understand the dissent to do. Instead, our colleague
87
Appointments Clauses, the duration of recess
appointments, and the Constitution‘s use of adjournment
elsewhere all show that ―the Recess of the Senate‖
includes only breaks between sessions of the Senate.
C. Historical Practice
Our conclusion is supported by early historical
practice. From ratification until 1921, there was a rough
consensus that recess appointments could be made only
during intersession breaks. See Rappaport, supra,
at 1572–73. Before 1867, no president made a recess
appointment during an intrasession break of the Senate.
Id.; Hartnett, supra, at 408–10. In 1867 and 1868,
President Andrew Johnson made several recess
appointments during intrasession breaks of the Senate.
Hartnett, supra, at 408–10. His use of the appointments
powers, however, was a cause of significant turmoil at
the time and it served a not insignificant role in his
eventual impeachment. Id. at 409; Rappaport, supra,
at 1572. Accordingly, it is unclear whether President
Johnson‘s actions were based on a consensus view of the
Constitution. There is evidence that it was not. U.S.
argues that recess itself means moments in which the
Senate cannot provide advice and consent. While we
disagree with this conclusion, both the majority opinion
and the dissent are engaged in the same task—defining
the word ―recess.‖
88
Attorney General Philander Knox—the first attorney
general to directly address the meaning of recess—
advised President Theodore Roosevelt that he could not
make a recess appointment during intrasession breaks. 23
U.S. Op. Att‘y Gen. 599, 604 (1901). For over one-
hundred years following ratification, recess was generally
understood to mean intersession breaks only.
To be sure, this practice arose when intrasession
breaks were generally no longer than two weeks.
Rappaport, supra, at 1572; Hartnett, supra, at 410. But
that is no reason to discount the practice. As modern
practice has shown, it is sometimes in the interest of
presidents to make recess appointments during breaks as
short as two weeks. See, e.g., Evans, 387 F.3d at 1221
(describing President George W. Bush‘s recess
appointment of Judge William Pryor to the Eleventh
Circuit during an eleven-day intrasession break). That
presidents did not assert this power for over 100 years—
despite this interest—suggests that they do not, in fact,
have this power. Cf. Printz v. United States, 521 U.S.
898, 907–08 (1997) (explaining that an absence of
examples of Congress ―impress[ing] the state executive
into its service . . . suggests an assumed absence of such
power‖ (emphasis in original)); see also Noel Canning,
705 F.3d at 502.
Executive practice changed in 1921 when
President Warren Harding made an intrasession recess
appointment. Michael A. Carrier, Note, When is the
89
Senate in Recess for Purposes of the Recess
Appointments Clause?, 92 Mich. L. Rev. 2204, 2235
(1994). As explained above, this act was supported by
U.S. Attorney General Daugherty, who reversed the
opinion offered by Attorney General Knox a mere twenty
years earlier. 33 U.S. Op. Att‘y Gen. at 21–22. Attorney
General Daugherty explained that ―whether the Senate
has adjourned or recessed . . . is whether in a practical
sense the Senate is in session so that its advice and
consent can be obtained.‖ Id. This conclusion was based
on a Senate Judiciary Committee report, which argued
that practical considerations should prevent a president
from using his recess-appointment power during
intersession breaks that last mere seconds. Id. at 24. From
this report, he drew the practical considerations that the
Board urges us to adopt today, explaining that the Senate
is not in session when its members have no duty to
attend, the chamber is empty, and the Senate cannot
receive communications. Id.
Importantly, Attorney General Daugherty
explicitly rejected the ―all recesses‖ implication of this
test. He recognized that the practical considerations
identified could allow presidents to use their power for
―an adjournment for only 2 instead of 28 days‖ but
rejected the idea that 2 days were sufficient to constitute
a recess within the meaning of the Constitution. Id.
at 24–25 (answering ―unhesitatingly‖ that two days did
not amount to a recess). He explained that not ―even 10
90
days can be said to constitute the recess intended by the
Constitution.‖ Id. at 25. As discussed above, though, this
suggestion of ten days is not linked to any text in the
Constitution.
Since issuance of Attorney General Daugherty‘s
opinion, the executive has claimed the authority to recess
appoint officers during intrasession breaks. Before World
War II, however, the power was used only one other
time. Carrier, supra, at 2211–12. After World War II,
intrasession appointments remained relatively rare for
some time: President Harry Truman made twenty,
President Dwight Eisenhower made nine, President
Richard Nixon made eight, and President Jimmy Carter
made seventeen; but Presidents John Kennedy, Lyndon
Johnson, and Gerald Ford made none. Id. at 2212–13.
The practice grew dramatically under President Ronald
Reagan, who made 73 intrasession appointments, and it
has seen significant use ever since: President George
H.W. Bush made 37, President Bill Clinton made 53, and
President George W. Bush made 141; President Barack
Obama made 26 as of January 5, 2012. Id. at 2214–15;
Henry B. Hogue et al., Cong. Research Serv., The Noel
Canning Decision and Recess Appointments Made from
1981–2013 *4 (2013). Thus, it has been only over the last
thirty years that presidents began relying so heavily on
such recess appointments.
Notably, this relatively recent practice supports
only an intrasession definition that is associated with a
91
long duration. It does not support the Board‘s
functionalist definition. The executive has maintained
from 1921 until 2012, at least in practice, that a certain
number of days must pass before an intrasession
appointment could be made. See Carpenter et al., supra,
at 15 (―The length of the recess may be of great
importance, as it appears that no President, at least in the
modern era, has made an intrasession recess appointment
during a recess of less than 10 days.‖); see also 36 Op.
O.L.C. *1 (Jan. 6, 2012) (―This Office has consistently
advised that a recess during a session of the Senate, at
least if it is sufficient length, can be a ‗Recess.‘‖
(citation and internal quotation marks omitted)). The
Board now seeks to abandon this limitation, which is
completely unsupported by modern practice.
More important, however, recent practices cannot
alter the structural framework of the Constitution. The
Eleventh Circuit relied on a presumption that actions by
the president are constitutional. Evans, 387 F.3d
at 1222.31 We doubt that the presumption applies in
31
The Eleventh Circuit also implicitly derives this
presumption from the framework explained by Justice
Jackson in Youngstown Sheet & Tube Company v.
Sawyer, 343 U.S. 579 (1952). See Evans, 387 F.3d
at 1222. Evans does not discuss Youngstown, but it cites
United States v. Allocco, 305 F.2d 704, 713 (2d Cir.
1962), as support for the presumption. Evans, 387 F.3d
92
separation-of-powers cases. In Clinton v. New York City,
524 U.S. 417 (1998), for example, the Supreme Court
analyzed the constitutionality of the line-item veto
without ever expressing the need to defer to the other
at 1222. Allocco, in turn, relies on Youngstown to defer to
executive practice regarding the meaning of ―happens‖ in
the Recess Appointments Clause. 305 F.2d at 713–14.
Specifically, Allocco relied on Youngstown by using it as
support for its interpretation of ―happen‖ since the
Second Circuit believed its interpretation as ―‗a
systematic, unbroken, executive practice, long pursued to
the knowledge of the Congress and never before
questioned,‘‖ which ―‗may be treated as a gloss on
‗Executive Power‘ vested in the President by § 1 of Art.
II.‘‖ Id. (quoting Youngstown, 343 U.S. at 610–11).
While we are unsure whether the executive practice
before the Allocco Court regarding the meaning of
―happen‖ is actually ―systematic‖ and ―unbroken,‖ we
are sure that the executive practice regarding the meaning
of ―the Recess of the Senate‖ is not. As discussed, the
modern executive practice is contrary to executive
practice before 1921 and has only become commonly
used in the past thirty years. Furthermore, Congress has
questioned presidents‘ practices by, for example, holding
pro forma sessions in an effort to stop it. We consider the
Eleventh Circuit‘s reliance on Allocco as support for a
presumption of constitutionality in separation-of-power
cases unpersuasive.
93
branches‘ constitutional judgments. And in Morrison v.
Olson, 487 U.S. 654 (1988), Justice Scalia noted in his
dissent that one could ―not find anywhere in the Court‘s
opinion the usual, almost formulary caution that we owe
great deference to Congress‘ view that what it has done is
constitutional.‖ Id. at 704–05 (Scalia, J., dissenting). The
absence of deference is also found in the Supreme
Court‘s most recent separation-of-powers case, Free
Enterprise Fund v. Public Company Accounting
Oversight Board, 130 S. Ct. 3138 (2010). There, the
Court pointedly explained that ―the separation of powers
does not depend on the views of individual Presidents,
nor on whether ‗the encroached-upon branch approves
the encroachment.‘‖ Id. at 3155 (quoting New York v.
United States, 505 U.S. 144, 182 (1992)). This is because
―[t]he 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.‖ New York, 505 U.S.
at 182.
The lack of deference to executive and legislative
judgments on these issues follows from the fact that
―separation-of-powers jurisprudence generally focuses on
the danger of one branch‘s aggrandizing its power at the
expense of another branch.‖ Freytag, 501 U.S. at 878.
Giving deference to either branch is inconsistent with this
concern because a presumption could prevent us from
stopping one branch from ―aggrandizing its power at the
94
expense of another branch,‖ or ensuring that ―the
carefully defined limits on the power of each Branch‖ are
not eroded, Chadha, 462 U.S. at 957–58. Our role as the
―ultimate interpreter of the Constitution‖ requires that we
ensure its structural safeguards are preserved. Baker, 369
U.S. at 211. 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. See United States v. Nixon, 418 U.S. 683, 704–05
(1974). This ―requires that [we] on occasion interpret the
Constitution in a manner at variance with the
construction given the document by another branch.‖
Powell v. McCormack, 395 U.S. 486, 549 (1969).
The Supreme Court has stated as much in respect
to the appointments provisions of the Constitution. In
Freytag, the Supreme Court explained that the
Appointments Clause represents an independent restraint
on both branches—one that does not exclusively serve
either branch‘s interests. 501 U.S. at 880. This is equally
true for the Recess Appointments Clause: just as ―[t]he
structural interests protected by the Appointments Clause
are not those of any one branch of Government but of the
entire Republic,‖ id., the structural protections of the
Recess Appointments Clause belong to no single branch.
Accordingly, ―[t]he assent of the Executive to a bill
which contains a provision contrary to the Constitution
does not shield it from judicial review.‖ Id. (quoting
Chadha, 462 U.S. at 942 n.13). This applies equally to
95
the legislature‘s assent to executive practice. Any
acquiescence between the branches remains subject to the
constraints imposed by the Constitution. There is ―no
statute of limitations for interpreting and enforcing the
Constitution.‖ Evans, 387 F.3d at 1237 (Barkett, J.,
dissenting).
Furthermore, our analysis of recent practice is
―sharpened rather than blunted by the fact that [the
practice in question is] appearing with increasing
frequency.‖ Chadha, 462 U.S. at 944. Our analysis has
shown that defining recess to mean intersession plus long
intrasession breaks is incompatible with the Constitution.
Although this definition is consistent with one possible
meaning of ―recess‖ in isolation, it is unsupported by the
rest of the Constitution. 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. This means that the current
practice is contrary to the structural framework set out in
the Constitution and must be held unconstitutional.
D. Additional Considerations
Our conclusion that recess includes only
intersession breaks is supported by the Supreme Court‘s
direction that ―the doctrine of separation of powers is a
structural safeguard‖ which has as one of ―its major
feature[s]‖ the ―establish[ment] [of] high walls and clear
distinctions because low walls and vague distinctions will
96
not be judicially defensible in the heat of interbranch
conflict.‖ Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,
239 (1995) (emphasis in original). This bolsters our
rejection of the Board‘s definition because the
unavailable-for-business criteria are almost by definition
a ―low wall‖ that contain ―vague distinctions‖ which will
make them difficult for the Senate and the president to
predictably apply. The vagueness of the Board‘s
definition is perhaps best captured by its argument that
the Senate is not available for business during pro forma
sessions even though there are documented examples of
the Senate conducting business during such sessions. Its
definition thus falls far short of containing the ―major
feature‖ of separation-of-powers structural safeguards.
This is also true for the intrasession definition that
limits recess to long breaks. This definition is not
―judicially defensible‖ because whatever duration is
selected as long would be based on something other than
the Constitution. See Maryland v. Shatzer, 559 U.S. 98,
__, 130 S. Ct. 1213, 1228 (2010) (Thomas, J., concurring
in part, dissenting in part) (explaining that ―an otherwise
arbitrary rule is not justifiable merely because it gives
clear instruction‖). Furthermore, although an arbitrary
number of days at first seems to erect a high wall and
clear distinction, further review reveals that it is also
fraught with ambiguity. For example, if we were to hold
that an intrasession break of over ten days constitutes a
recess, it is unclear at which point the adjournment
97
evolves into a recess. Assume the Senate initially agrees
to adjourn for twelve days but provides the majority
leader the power to recall the body earlier, as it often
does. See, e.g., H. Con. Res. 307, 111th Cong. (2010)
(providing the House of Representative‘s concurrence
with the Senate that the latter would take a month-long
recess starting in August 2010 that ended on September
13, 2010 unless ―[t]he Majority Leader of the Senate . . . ,
after consultation with the Minority Leader of the Senate,
shall notify the Members of the Senate to reassemble at
such place and time as he may designate if, in his
opinion, the public interest shall warrant it‖). Does this
adjournment become a recess at the moment the Senate
votes for the adjournment or must ten days first elapse?
If the former, then assume the majority leader reconvenes
the body after eight days of the adjournment. At this
point, would a recess appointment made on the first day
of the adjournment become invalid because it was not
made during ―the Recess‖ of the Senate? The
Constitution provides no clear answer to these difficult
questions. The long-intrasession break definition thus
lacks the clear distinctions required by the Supreme
Court, which means that the intersession definition is the
only one that provides high walls and clear distinctions
rooted in the text of the constitution.
The Board nevertheless argues that the rule we
adopt today creates too powerful an opportunity for
98
mischief by the Senate.32 The intersession definition
32
The dissent makes a form of this argument as well,
arguing that the intersession-break definition of recess is
―unworkable,‖ ―not judicially manageable,‖
impracticable, and leads to absurd results. Dissenting Op.
at 52–54. We disagree that the definition is unworkable,
unmanageable, or impracticable; whether a break is
intersession or not is a simple matter of reviewing how
the Senate has adjourned. We also disagree that the result
of a president‘s recess appointment being valid one day
and not the next is absurd, id. at 53–54, because this is a
necessary result of defining recess. The dissent‘s own
definition, for example, would have this effect: a
presidential recess appointment presumably would be
valid on January 22, 2012, because the Senate did not
convene at all on that day, see 158 Cong. Rec. S11 (Jan.
20, 2012) (adjourning until Monday, January 23, 2012);
but be invalid if made on January 23, 2012, because the
Senate became available by convening for a non–pro
forma session, 158 Cong. Rec. S13 (daily ed. Jan. 23,
2012). Absurdity is also not clearly shown from the
intersession-break definition‘s allowance of recess
appointments during intersession recesses that last very
short periods. Id. at 54. It is a result that has been rejected
only by one 110-year-old Senate Committee Report—no
president, court, or scholar has rejected the possibility.
Cf. Hartnett, supra, at 406 (―All agree that recesses
99
allows the Senate to prevent the president from
exercising his recess-appointment powers by
manipulating the timing and the types of its
adjournments. See NLRB Ltr. Br. at 10–11. This is true.
But the opportunity for abuse is present under any
possible definition of recess. Under the Board‘s
definition, the Senate might avoid being in recess by
stopping the practice of agreeing by unanimous consent
that no business will be done during pro forma sessions;
or it might alter its procedures to allow messages to be
received during such sessions, thus making itself
available for business under the Board‘s definition, see
Resp. Br. at 44. And under the other intrasession
definition, the Senate could very well adopt scheduling
orders that prevent a break from lasting longer than
whatever duration courts selected—as, in fact, pro forma
sessions are designed to do. Yet the potential for abuse is
not limited to the Senate, as presidents may also abuse
any definition given to recess. Under the intersession
definition, as a final example, presidents still could recess
appoint (and indeed have so appointed33) officers during
between sessions . . . give rise to the President‘s recess
appointment power.‖).
33
Hartnett, supra, at 416 & nn.176–77 (describing
President Theodore Roosevelt‘s recess appointment of
160 officers during an intersession break that lasted mere
seconds).
100
intersession breaks that last negligible periods of time—
the lack of a constitutional basis for selecting a long
duration in defining intrasession breaks is just as absent
to define intersession breaks.
All this is to say that the potential for abuse and
subsequent gridlock lies not in what recess means but in
the Constitution‘s framework of divided powers. A
division of powers demonstrates that ―[c]onvenience and
efficiency are not the primary objectives—or the
hallmarks—of democratic government.‖ Chadha, 462
U.S. at 944. We, as federal judges, are not empowered to
regulate, recommend, or comment on how the two other
branches of the federal government should use the
powers the Constitution allocates between them—not
because we can-but-chose-not-to, but because we lack
the factual record, institutional tools, and constitutional
authority to evaluate which branch is more or less likely
to abuse the powers given to them. We can, however, and
indeed we must, decide what powers each branch has and
when they may use them because ―[i]t is emphatically the
province and duty of the judicial department to say what
the law is.‖ Marbury v. Madison, 5 U.S. (1 Cranch) 137,
177 (1803). That is all we do today.
VI
Member Becker was invalidly recess appointed to
the Board during the March 2010 intrasession break. This
means that the delegee group had fewer than three
101
members when it issued the August 26 Order.
Consequently, the delegee group acted without power
and lacked jurisdiction when it issued the order. Our
holding makes it unnecessary to interpret the word
―happen‖ in the Recess Appointments Clause. Accord
Noel Canning, 705 F.3d at 515 (Griffith, J.,
concurring).34 Furthermore, we need not address whether
the Board‘s substantive decision was correct or whether
the delegee groups that decided the subsequent
reconsideration orders were properly composed. Dir.,
Office of Workers’ Compensation Programs v. Sun Ship,
Inc., 150 F.3d 288, 291 (3d Cir. 1998). Review of the
reconsideration orders is also unnecessary because they
were based on consideration of an invalid order. We will
therefore vacate the Board‘s orders.
34
Accordingly, we do not have to address the conflict
between the Second, Ninth, and Eleventh Circuits and the
D.C. Circuit over the definition of ―happen.‖ Compare
United States v. Allocco, 305 F.2d 704, 709–12 (2d Cir.
1962) (defining ―happen‖ to mean ―to exist‖; United
States v. Woodley, 751 F.2d 1008, 1009–13 (9th Cir.
1985) (same); Evans, 387 F.3d at 1226–27, with Noel
Canning, 705 F.3d at 507–14 (defining ―happen‖ to mean
―to occur‖).
102
GREENAWAY, JR., Circuit Judge, dissenting.
The tension between the branches of our government
reflects the brilliance and prescience of our Founding Fathers
and is the foundation of our nation‟s democracy. Who may
exercise power, and under what circumstances, is often
dependent on our branches‟ interpretation of the wording and
meaning of the Constitution. In this matter, the Recess
Appointments Clause of Article II is at issue. My colleagues
in the Majority have determined that the recess appointment
of Member Craig Becker on March 27, 2010 is invalid and,
for the same reasons, would presumably find that the recess
appointments of Members Sharon Block, Terence Flynn, and
Robert Griffin on January 4, 2012 are likewise invalid. The
Majority‟s rationale undoes an appointments process that has
successfully operated within our separation of powers regime
for over 220 years.
In defining the scope of the Recess Appointments
Clause, the critical issue is more straightforward than the
Majority suggests: The issue is whether “the Recess” includes
only intersession recesses (those between two regular sessions
of Congress) or intersession recesses and intrasession recesses
(those within a regular session of Congress).1 The Majority‟s
three possible definitions of “Recess” can be distilled into one
question: Are intrasession recesses included within the ambit
of “the Recess”? I would hold that “the Recess” refers to
both intrasession and intersession recesses because the Senate
1
No party argues that “the Recess” should be limited only to
intrasession recesses, and neither do I.
1
can be unavailable to provide advice and consent during both.
The availability of the Senate to provide advice and consent is
the crux of the Recess Appointments Clause because its
operation depends on its complementary interplay with the
Appointments Clause, which requires that the Senate be
available to provide advice and consent.
The plain meaning and structure of the text of the
Constitution, the intent of the Framers, the purpose of the
Recess Appointments Clause, and the tradition and practice of
the branches of our government all demand this result. Any
interpretation of the Recess Appointments Clause is
incomplete without consideration of the executive power and
the system of separation of powers devised by the Framers,
and such consideration leads to the pragmatic conclusion that
the President must be able to make recess appointments
during intrasession recesses. Since the March 27, 2010 recess
appointment of Member Becker and the January 4, 2012
recess appointments of Members Block, Flynn, and Griffin
were all made during intrasession recesses, I would hold that
each appointment was a valid exercise of the executive power
granted to the President in the Recess Appointments Clause
of Article II of the Constitution.2 I respectfully dissent.3
2
Given the procedural posture on appeal and the Majority‟s
holding, resolving the merits of whether New Vista‟s
Licensed Practical Nurses (LPNs) are supervisors is
unnecessary at this time.
3
I also disagree with the Majority‟s conclusion that the group
quorum requirement (what I believe the Majority refers to as
the “three-member-composition” requirement) is
jurisdictional. In New Process Steel, L.P. v. NLRB, 130 S. Ct.
2
I. “THE RECESS”
A. The Text of the Constitution
Our examination of the Recess Appointments Clause is
dependent on the interpretation of two words: “the Recess”.
This examination then begs two inquiries: 1) the meaning of
“Recess” within the Recess Appointments Clause and 2) the
significance of “the”, a definite article, as a modifier.
Recesses fall into two general categories, intersession and
intrasession, and so unraveling the meaning of “Recess”
begins and ends with resolving the intersession-intrasession
dynamic. The Majority posits that this dichotomy
contemplates that intersession breaks and intrasession breaks
are both recesses by the Senate that have contrasting effects
on the President‟s ability to make recess appointments. I
disagree.
As a starting point in defining a “recess”, it is helpful
to define a “session” since the two terms are related. There
are various types of sessions, including the “daily sessions” of
Congress, during which it conducts its day-to-day business, as
well as its “regular sessions”, which are the periods during
which Congress conducts its business on a regular basis. In
addition to these sessions, there are also “extraordinary
sessions” of Congress that can be called by the President
under Article II.4 U.S. Const. art. II, § 3. And, since the
2635 (2010), the Supreme Court does not use the word
“jurisdictional”, or any variant thereof, and did not
characterize the § 153(b) requirement as jurisdictional.
4
The Majority‟s definition of an intersession recess also
includes recesses preceding and following extraordinary and
3
House and Senate are not required to match schedules, the
session or recess of one body may be different than that of the
other.
Based on the definition of a regular session, recesses
can be divided into the two mentioned categories of breaks,
intersession recesses and intrasession recesses. Intersession
recesses are those breaks of the Senate that occur between
two regular sessions of the Senate; they are generally initiated
by an adjournment sine die. See Henry B. Hogue, Cong.
Research Serv., Recess Appointments: Frequently Asked
Questions 1-2 (Jan. 9, 2012). Intrasession recesses are breaks
that occur during a regular session of the Senate. It had been
suggested that Congress cannot be in a recess and in a regular
session concurrently, but the Supreme Court has rejected this
conclusion. Wright v. United States, 302 U.S. 583, 589
(1938) (“Plainly the taking of such a recess [by one house] is
not an adjournment by the Congress. The „Session of
Congress‟ continues.”); see also Evans v. Stephens, 387 F.3d
1220, 1225 (11th Cir. 2004) (en banc). From this, it is
possible for one house to recess while the session of the
Congress, as a joint body, continues.5
special sessions of Congress, but such a holding is beyond the
facts of our case. See Edward A. Hartnett, Recess
Appointments of Article III Judges: Three Constitutional
Questions, 26 Cardozo L. Rev. 377, 408 n.136, 414-15
(2005).
5
For one, the regular session of the Senate does not end when
it takes an intrasession recess. See generally Congressional
Directory for the 112th Congress (2011) (showing that the
dates of intrasession recesses occur within the dates spanning
4
To begin our textual analysis, the Recess
Appointments Clause must be read in conjunction with the
Appointments Clause. While the Majority also reads these
two clauses together, it takes a shortsighted view of their
interrelation. The Majority contends that the Appointments
Clause gives the President a “perpetual” power to seek the
advice and consent of the Senate. (Majority Op. at 58-59.)
The Majority also contends that the Appointments Clause
suggests a preference for “divided power” in the
appointments process. I could not agree more with the
Majority that every facet of the appointments process must
reinforce the separation of powers, but the Majority‟s view is
too narrow. While the Recess Appointments Clause gives the
President sole authority to make appointments during the
“Recess” of the Senate, the Recess Appointments Clause
maintains the separation of powers within the larger
framework of the appointments process. In The Federalist
No. 67, which the Majority relies upon for this point,
Alexander Hamilton emphasized that the recess appointment
power was only a supplement to the advice and consent
power of the Senate. The Federalist No. 67, at 409
(Alexander Hamilton) (Clinton Rossiter ed., 1961). The
Majority misinterprets Hamilton‟s point. The supplemental
nature of the Recess Appointments Clause helps to maintain
the separation of powers by preventing the President from
holding the entire power to appoint in his hands.
the convening date and adjournment date of regular sessions
of the Senate). For another, the House and the Senate, as one
Congress, generally share the same regular session and the
recess of one body, such as the Senate, does not interrupt the
regular session of the House and Congress as a whole.
5
The Appointments Clause provides that a nominee
may only be presented by the President but, on the other
hand, may only be confirmed to office with the advice and
consent of the Senate. The Recess Appointments Clause
thereafter provides an alternate means of confirming
nominees when the Appointments Clause cannot be
implemented, namely when the Senate cannot provide advice
and consent to the President. After all, the Appointments
Clause and Recess Appointments Clause cannot both operate
simultaneously — one means of appointment must be used or
the other. Thus, it can be adduced that the meaning of “the
Recess” is the converse of when the Senate can provide
advice and consent to the Senate: The Senate is in “the
Recess” when it is not available to provide advice and
consent. See Noel Canning v. NLRB, 705 F.3d 490, 505
(D.C. Cir. 2013) (observing that there is “a crucial element of
the [Recess Appointments] Clause, which enables the
President to fill vacancies only when the Senate is unable to
provide advice and consent” (emphasis in original)). Since
the Senate can be unavailable to provide advice and consent
during either an intrasession recess or an intersession recess,
“the Recess” naturally encompasses both types of recesses.
To provide advice and consent, the Senate must be able to
offer a confirmation vote on nominees, be it up or down.6
6
This segues to an inherent weakness in restricting “the
Recess” to intersession recesses. The House was largely
responsible for the pro forma sessions because it refused to let
the Senate take a longer recess due to the Adjournments
Clause‟s requirement that the House and Senate have the
other body‟s consent to “adjourn for more than three days.”
U.S. Const. art. I, § 5, cl. 4; Office of Legal Counsel,
6
Lawfulness of Recess Appointments During a Recess of the
Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op.
O.L.C. 1, 2-3 (2012). Without doubt, the Framers did not
intend for the House to single-handedly stall the appointments
process. The plain and uncontestable text of the
Appointments Clause makes it clear that only the President
and the Senate are to consult on appointments. Nowhere in
the Appointments Clause is the House mentioned. If
“Recess” were limited to intersession recesses, because that is
the only time when the Senate is not in a regular session, and
the Senate is always available to provide advice and consent
when in a regular session, then the House would be allowed
to inject its whims into the appointments process by limiting
even the duration of the intersession recess. This is because
an adjournment of more than three days requires the
imprimatur of the House under the Adjournments Clause.
After all, the purpose of the Adjournments Clause is to make
sure that one house of Congress cannot abandon the other in
the legislative process, and the House cannot legislate with
the Senate if it is not in session. See Edward A. Hartnett,
Recess Appointments of Article III Judges: Three
Constitutional Questions, 26 Cardozo L. Rev. 377, 379
(2005). If the Recess Appointments Clause was only
triggered when the Senate ended a regular session, then a
recess appointment made during an intersession recess of at
least three days would effectively be subject to the approval
of the House. The House could simply deny the Senate leave
to adjourn in order to thwart the President‟s ability to make
recess appointments. In at least the last thirty years, the
President has never made a recess appointment, of either the
intersession or intrasession variety, during a recess of less
than ten days. See Henry B. Hogue, Cong. Research Serv.,
7
While courts have not had occasion to articulate a
standard for advice and consent, it is clear through the plain
meaning of “advice and consent” that the provision of advice
and consent cannot be perfunctory. It is only reasonable to
require that there must be a deliberative process (“advice”), a
vote (“consent”), and a quorum of Senators actually present
in the Senate chamber. See Elizabeth Rybicki, Cong.
Research Serv., Senate Consideration of Presidential
Nominations: Committee and Floor Procedure 10 (July 1,
2003) (“A majority of Senators present and voting, a quorum
being present, is required to approve a nomination.”). It is no
secret that the advice and consent process is a long and
arduous ordeal. See Noel Canning, 705 F.3d at 508 (calling
the advice and consent process “cumbersome”). Various
forms of “vote” are used frequently elsewhere in the
Constitution, so the Framers would not have used “Advice
and Consent” if they only intended for nominees to be
confirmed by a vote.7
Recess Appointments: Frequently Asked Questions 3 (Jan. 9,
2012). Based on that empirical data, it is highly improbable
that, under these circumstances, the President would make a
recess appointment without needing the House‟s approval.
This cannot be what the Framers intended. See Noel
Canning, 705 F.3d at 504 (“Without any evidence indicating
that [the Recess Appointments Clause and Adjournments
Clause] 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.”).
7
As for a presence requirement, “presence” is not mentioned
in the Appointments Clause but it is mentioned explicitly as a
requirement of advice and consent in the Treaty Clause. U.S.
8
“Recess”, no doubt, is a malleable term because of the
several types of breaks that the Senate takes. As far as a
recess is considered a break of the Senate, all recesses can be
classified generally as adjournments, in the sense that they are
suspensions in the business of the Senate until a further date.
Adjournments, though, come in different species. An
adjournment sine die usually signifies the end of a regular
session of Congress. See Henry B. Hogue, Cong. Research
Serv., Recess Appointments: Frequently Asked Questions 1-2
(Jan. 9, 2012). An adjournment to a day and time certain will
conclude the business of one legislative day until the next.
Floyd M. Riddick & Alan S. Furman, Riddick’s Senate
Procedure: Precedents and Practice, S. Doc. No. 101-28, at
14 (1992) (hereinafter “Riddick‟s Senate Procedure”). The
Senate will also adjourn for lunch by recessing. See, e.g., 159
Cong. Rec. S1249 (daily ed. Mar. 7, 2013) (“Under the
previous order, the Senate stands in recess until 2 p.m.
Thereupon, the Senate, at 12:30 p.m., recessed until 2 p.m.
and reassembled when called to order by the Presiding
Officer . . . .”).
It is telling that the Framers chose to use the term
“Adjournment” several times elsewhere in the Constitution.
Accordingly, there must be some reason why the Framers did
not use “Adjournment” in the Recess Appointments Clause
and did not use “Recess” where “Adjournment” appears. The
apparent and plain explanation for this distinction in
terminology is that, elsewhere in the Constitution,
Const. art. II, § 2, cl. 2 (“[The President] shall have Power, by
and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur .
. . .” (emphasis added)).
9
“Adjournment” refers to a certain species of breaks of
Congress different from the species of breaks referred to by
the “Recess” in the Recess Appointments Clause. See Noel
Canning, 705 F.3d at 500 (determining that “the Framers
intended something specific by the term „the Recess,‟ and that
it was something different than a generic break in
proceedings”).
To illustrate, the scenarios embodied by the clauses
that employ “Adjournment” could apply to adjournments
between two daily sessions of Congress — perhaps the
adjournment that occurs during the weekends of a regular
session of Congress — whereas “Recess” would not apply to
such an adjournment if the Senate was still available to
provide advice and consent. The Majority observes that the
Supreme Court held that “Adjournment”, as used in the
Pocket Veto Clause, could refer to any break in business.
(Majority Op. at 45.) It is true that “Recess” encompasses a
narrower subcategory of breaks than “Adjournment”.
(Majority Op. at 71 (“So the dichotomy does reveal that
recess must mean something narrower than any break that
follows an adjournment.”).) But, unlike the Majority, I do not
understand this distinction to be meaningless. (Majority Op.
at 71 (“But what this narrower definition is cannot be derived
from the dichotomy between adjournment and recess
alone.”).)
As a narrower species of breaks than “Adjournment”,
“Recess” cannot reasonably be read to include every type of
adjournment, such as the breaks the Senate takes for lunch,
for the night between daily sessions, and over the weekends.
See 3 The Debates in the Several State Conventions on the
Adoption of the Federal Constitution as Recommended by the
General Convention at Philadelphia in 1787, at 409-10
10
(Jonathan Elliott ed., 2d ed. 1836) (hereinafter “Elliott‟s
Debates”) (statement of James Madison at the Virginia
convention) (“There will not be occasion for the continual
residence of the senators at the seat of government. . . . It is
observed that the President, when vacancies happen during
the recess of the Senate, may fill them till it meets.”).
In the case of the Adjournments Clause, the
adjournment contemplated there is also different than “the
Recess” contemplated by the Recess Appointments Clause.
To encompass “the Recess” within the adjournment
contemplated by the Adjournments Clause would submit the
President‟s recess appointment power to the whims of the
House because the House must provide its consent if the
Senate is to adjourn for more than three days. This is a result
clearly antithetical to the text of the Constitution and the
intent of the Framers. As Hamilton admonished, the House
was not to 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 [of
appointments]. Its unfitness will appear manifest to all when
it is recollected that in half a century it may consist of three or
four hundred persons.” The Federalist No. 77, at 463
(Alexander Hamilton) (Clinton Rossiter ed., 1961).
Our analysis must also be educated by the provident
lesson of the Supreme Court in The Pocket Veto Case, 279
U.S. 655 (1929), since the mechanism and construction of the
Pocket Veto Clause closely parallels the Recess
Appointments Clause in striking ways.8 The Majority relies
8
The Pocket Veto Case and Wright, like other cases on other
aspects of the executive power, are not wholly applicable to
11
on The Pocket Veto Case in its analysis but misses the true
import of that case‟s analysis. (Majority Op. at 45, 69.) Both
the Pocket Veto Clause and the Recess Appointments Clause
provide a check on Congress when it is unavailable to
perform one of its functions by placing a procedural limit on
the exercise of its power. In that case, the Court considered
whether the “ten Days” language of the Pocket Veto Clause
included all days or just “legislative” days. The Court refused
to read the modifier “legislative” into the Pocket Veto Clause,
favoring a more expansive reading of the Clause. Id. at 679-
80. The Court then faced a dichotomy similar to our
intersession-intrasession divide: Whether the use of
“Adjournment” in the Pocket Veto Clause only applied to
final adjournments or also to interim adjournments. Id. at
680-81. The Court again rejected a constricted reading of the
Clause and favored a broader executive power, holding that
“adjournment” could apply to either type of adjournment
because “[t]he power thus conferred upon the President
cannot be narrowed or cut down by Congress, nor the time
within which it is to be exercised lessened, directly or
indirectly.” Id. at 677-78.
While the Majority focuses on why “the Recess” only
refers to intersession recesses, there is a bald deficiency in
these arguments. The Majority‟s intersession limitation reads
modifiers into the Recess Appointments Clause that are
plainly not part of the text.9 These modifiers rewrite the
our decision but both certainly provide insight and counsel
about how we should resolve what is an analogous issue.
9
The Majority attempts to show that I, too, am reading a
modifier into the Recess Appointments Clause by turning
“the Recess” into “the Recess in which the Senate cannot
12
Constitution for the Framers. The imperative set in The
Pocket Veto Case, where parties attempted to read similar
modifiers into the Constitution, chides against limiting the
recess appointment power by inserting a modifier like
“intersession” before “Recess” and supports including
multiple types of recesses within the meaning of “the
Recess”. See 279 U.S. at 679 (“There is nothing whatever to
justify changing this meaning by inserting the word
„legislative‟ as a qualifying adjective.”); id. at 680 (“The
word „adjournment‟ is not qualified by the word „final‟; and
there is nothing in the context which warrants the insertion of
such a limitation.”).
The Recess Appointments Clause does not distinguish
between intersession and intrasession recesses. See Evans,
387 F.3d at 1224-25. Accordingly, we should not read such a
limitation onto the executive power where one has not been
directly conferred by the Framers. Cf. Myers v. United States,
272 U.S. 52, 118 (1926) (reasoning that the executive power
provide Advice and Consent”. But there is a distinction
between our approaches. If my definition can be considered a
modifier, it only reflects how the Appointments Clause
modifies the Recess Appointments Clause. While I limit the
operation of the Recess Appointments Clause, as a whole,
with another clause (the Appointments Clause), the Majority
limits the word “Recess” with another word (the modifier).
As opposed to the modifier that the Majority reads into the
Constitution, the Appointments Clause already exists in the
Constitution and is meant to modify the Recess Appointments
Clause. Under my definition, any type of recess — be it
intersession or intrasession — is considered “the Recess”, so I
do not read a new modifier onto “the Recess” itself.
13
is “limited by direct expressions where limitation was needed,
and the fact that no express limit was placed on the power of
removal by the executive was convincing indication that none
was intended”). The Recess Appointments Clause sets forth
no exceptions defining the type of recesses that may be
excluded, whereas the Framers provided exceptions
elsewhere in the Constitution. The only modifier of “Recess”
is “the” and “the” certainly is not synonymous with
“intersession”. Evans, 387 F.3d at 1224. Nor is “the” readily
interpreted as “a single type of”, which would need to be the
reading if “Recess” is only to refer singularly to intersession
recesses. Even the Majority, unlike Noel Canning, concedes
that “the” lacks the necessary specification to limit “Recess”
to one type of recess.10 (Majority Op. at 57 (observing that
“there is nothing in the word „the‟ itself that necessarily
requires . . . intersession breaks”).)
10
The Majority also attempts to extract a sense of
“permanence” and “longevity” from dictionary definitions of
“recess” at the time of ratification, but such vague terms lack
any real substance. (Majority Op. at 40-41.) Even if the
Majority‟s qualifications, “permanence” and “longevity”,
were persuasive, they would support recess appointments
during long intrasession recesses and prohibit recess
appointments during short intersession recesses. The
longevity and permanence of a thirty-day intrasession recess
is no less than that of a thirty-day intersession recess.
Moreover, as the Majority admits about a similarly vague
descriptor, “there is no constitutional basis for defining „long‟
and the definition is unsupported by the other relevant
constitutional provisions.” (Majority Op. at 86.)
14
Framed differently, if the text of the Recess
Appointments Clause was meant to distinguish between
intersession and intrasession recesses, the Framers would
have employed some other modifier not as cryptic or
pedestrian as “the”. If that had been their intent, the Framers
were certainly deliberate enough to have inserted some
modifier to indicate that “the Recess” only refers to the recess
between regular sessions of Congress. See Wright, 302 U.S.
at 588 (establishing that, as an essential tenet of constitutional
interpretation, courts must respect “„the high talent, the
caution, and the foresight of the illustrious men who framed
[the Constitution]‟” such that “„[e]very word appears to have
been weighed with the utmost deliberation‟” (quoting Holmes
v. Jennison, 39 U.S 540, 571 (1840))); United States v.
Sprague, 282 U.S. 716, 732 (1931) (describing the
Constitution as an “instrument drawn with such meticulous
care and by men who so well understood how to make
language fit their thought”).
Consequently, it is telling that, despite that possibility,
they chose not to include such a modifier and chose one of
the most bland modifiers in the English language. Also,
congruent with the Framers‟ use of “Adjournment” to refer to
a broader category of breaks than “Recess”, it is plausible that
“the” as a modifier serves to emphasize that “Recess” refers
to a definite, circumscribed class of adjournments. As
Hamilton assured, there is an “obvious meaning of the terms”
in the Recess Appointments Clause. The Federalist No. 67, at
409 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
This same point about reading modifiers into the
Constitution applies with equal vigor to arguments that the
length of “the Recess” should be limited to a certain number
of days. In relation to the durational limits of intrasession and
15
intersession recesses, the use of express day limits elsewhere
in the Constitution suggests that the Framers deliberately
chose not to include such a modifier in the Recess
Appointments Clause. In the Pocket Veto Clause, the
Framers deliberately added a day limitation (rather than
simply saying that a bill would not become law if it could not
be returned to the house in which it originated). This shows
that the Framers could have crafted a similar day limitation
into the Recess Appointments Clause if they had so desired.
In addition, there are no time constraints on the Appointments
Clause itself. As the Majority points out, the Appointments
Clause “lacks any limitation on when this power is operative”
such that “the president always has the power to fill vacancies
through nomination and the advice and consent of the
Senate.” (Majority Op. at 58 (emphasis in original).) But,
since the Recess Appointments Clause depends on when the
Appointments Clause is not operative and similarly lacks any
explicit limitation, there is no consistency in reading a hard
time limit into the Recess Appointments Clause without
reading one into the Appointments Clause.
The other flaw in the Majority‟s premise that “Recess”
is restricted to intersession recesses is that it relies on a
technical definition of “recess” rather than a plain and
ordinary definition of “recess”. See The Pocket Veto Case,
279 U.S. at 679 (“The words used in the Constitution are to
be taken in their natural and obvious sense . . . .”); see also
District of Columbia v. Heller, 554 U.S. 570, 576-77 (2008)
(“Normal 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.”). As a document written for the people
and meant to be accessible to every citizen, we must assume
16
that the Framers intended for words to be understood by their
ordinary, rather than their technical, definition. See Heller,
554 U.S. at 576-77. The Majority admits that “Recess”
“lacks a natural meaning that clearly identifies whether it
includes only intersession breaks or also includes intrasession
breaks.” (Majority Op. at 40.) The logical inference from the
Majority‟s assessment is that “Recess” lacks a natural
limitation or natural specification. Thus, the only way to
delimit “Recess” to intersession recesses would be to shroud
it in an unnatural meaning, which would not lend an obvious
or ordinary meaning to the word.11
The narrowing of the term “Recess” by the Majority
belies the broad latitude of the plain meaning of the word
used by the Framers. The Framers did not modify the term by
11
The Majority‟s definition is even more technical since it
intertwines the practices of a hodgepodge of state
constitutions and state governors‟ practices. It is highly
unlikely that early citizens would have made such a strained
correlation; in other words, it would not have been “obvious”
to an average citizen to look to state constitutions, let alone to
know which two of the twelve constitutions of the ratifying
states to analyze. See Heller, 554 U.S. at 576 (“In
interpreting this text, we are guided by the principle 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 technical meaning.‟” (quoting United
States v. Sprague, 282 U.S. 716, 731 (1931))). It may be
reasonable to expect the average citizen to have knowledge of
the words in a dictionary, but it is a very different expectation
to assume that they would be able to reference state
constitutions.
17
describing it as “the intersession Recess” or “the Recess
between Sessions” — they deliberately used a less qualified
and, duly, broader term. To interpret the text otherwise also
seems less plausible since it is far-fetched to suppose that the
Framers expected for the Recess Appointments Clause to be
interpreted through the textual hopscotch needed to arrive at
the intersession interpretation. Such a patchy guesswork does
not conjure the “obvious meaning” described by Hamilton.12
The Federalist No. 67, at 409 (Alexander Hamilton) (Clinton
Rossiter ed., 1961).
The Majority attempts to thread together several
divergent lines of reasoning for why “the Recess” should be
limited to intersession recesses, but each of these lines frays
too easily. To begin with, there is no evidence that the
Framers based the terms used in the Constitution on
Jefferson‟s A Manual of Parliamentary Practice and the
Majority readily admits that the correlation between the
12
In addition, the Framers used the singular “Recess” rather
than the plural “Recesses” but this distinction reveals little.
Given the multiple intersession recesses, and multiple
intrasession recesses, during and between the regular sessions
of Congress, the singular “Recess” cannot refer literally to a
single recess of the Senate (for instance, the single Recess
that happens between the last regular session of one Congress
and the first regular session of the following Congress). The
only other use of “Recess” in the Constitution, which appears
in Article I, Section 3, Clause 2, also does not literally refer to
a single type of recess. Used in the context of “the Recess of
the Legislature of any State”, the Article I “Recess” does not
refer to a particular recess since it was used to generically
refer collectively to the recesses of every state‟s legislature.
18
Constitution‟s terminology and Jefferson‟s treatise is rather
tenuous. (Majority Op. at 45.) Further, while it may be
reasonable to assume that the Framers were aware of the
parliamentary procedures described by Jefferson in A Manual
of Parliamentary Practice, it is less reasonable to assume that
the Framers intentionally based their use of “recess” and
“adjournment” in the Constitution on particular terms used in
Jefferson‟s treatise without any reference.13
The Majority‟s discussion of early state constitutions is
similarly off the mark. Noticeably absent from the Majority‟s
analysis of state constitutions is any reference to the
constitution of North Carolina, which is generally accepted as
a model used by the Framers in drafting the Recess
Appointments Clause. See Noel Canning, 705 F.3d at 501;
Office of Legal Counsel, Lawfulness of Recess Appointments
During a Recess of the Senate Notwithstanding Periodic Pro
Forma Sessions, 36 Op. O.L.C. 1, 10 n.14 (2012) (“The
[Recess Appointments] Clause, which was proposed by a
North Carolina delegate, is generally considered to have been
based on a similar provision then in the North Carolina
Constitution.”). Further, despite the Majority‟s reliance, it is
unclear that the Massachusetts and New Hampshire
constitutions have any connection to “the Recess” except for
13
The Majority attempts to draw significance from the “of the
Senate” language but this phrase could not be plainer.
(Majority Op. at 42.) It means exactly what is says and there
is no indication, whatsoever, that the Framers used that phrase
to indicate that they were relying on the “recess” as it might
be defined in Jefferson‟s A Manual of Parliamentary
Practice.
19
the fact that representatives from those states ratified the
Constitution.
Finally, based on its analysis of a smattering of early
state practices and state constitutions, the Majority concludes
that “Recess” must refer to a break of a “considerable period
of time” and must be marked by when the Senate adjourns.
This point fares no better. One flaw in these two
characteristics is that a “considerable period of time” lacks a
limiting principle since “considerable” is a relative term.
(Unsurprisingly, the Majority finds such a lack of a limiting
principle problematic for intrasession recesses.) While I
agree that “Recess” does not refer to the day-to-day recesses
between daily sessions of the Senate (or its breaks for lunch
and the weekend), the Majority‟s method of interpretation is
dubious. From a mere three instances of intrasession breaks
by three state governors over 200 years ago, the Majority
extrapolates this characteristic. (Majority Op. at 54.) But
three actions by different state governors is thin ice upon
which to interpret our Constitution.
B. The Intent of the Framers and the Purpose of the
Recess Appointments Clause
While the proper starting point, textual interpretation
of the Recess Appointments Clause is nettlesome because the
Constitution was not written with a definition of terms
section. With such difficulty in its textual interpretation,
other sources, namely the intent of the Framers, the purpose
of the Constitution and its Recess Appointments Clause, and
the tradition and practice of the President and the Senate, are
20
pivotal in arriving at an intelligent and sensible definition of
“the Recess”.
1. The Framers’ Intent
The Framers‟ purpose in creating the separation of
powers was to devise a system of equal give and take, so that
the President and the Senate, while not beholden to each
other, would be forced to work with each other and reach
compromise.14 By protecting the governmental architecture
that the Framers inscribed in the Constitution, the inclusion of
intrasession recesses in “the Recess” is most faithful to the
intent of the Framers. The Majority‟s definition of “the
Recess” essentially tips that balance in favor of the Senate
and, therefore, upsets the applecart of the balance of powers.
The Majority states that the “most significant weakness” of
14
To discern the Framers‟ intent, one reliable source is The
Federalist Papers. See Dames & Moore v. Regan, 453 U.S.
654, 659 (1981); Buckley v. Valeo, 424 U.S. 1, 129 (1976);
see e.g., Heller, 554 U.S. at 595, 598; United States v. Lopez,
514 U.S. 549, 552, 576-77 (1995); INS v. Chadha, 462 U.S.
919, 947, 950, 955 n.21 (1983). The Federalist Papers that
directly comment on the Recess Appointments Clause and the
Appointments Clause are useful sources of edification, but
also helpful are those Federalist papers that articulate the
philosophy and principles guiding the operation of the
Constitution as a whole, particularly those concerning the
separation of powers and the system of checks and balances.
See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
610 (1952) (Frankfurter, J., concurring).
21
the intrasession recess definition is that it lacks a discrete day
limit. But nothing in the Constitution or the intent of the
Framers suggests that such a finite day limit is necessary to
the definition of the Recess Appointments Clause. The
fragile balance of power underlying the recess appointments
process is inconsistent with specific time strictures and
neither the Constitution nor the Framers contemplated such
exactitude.
In The Federalist No. 67, Hamilton established that the
President‟s recess appointment power is “nothing more than a
supplement” and an “auxiliary method of appointment” to be
used when “the general method [of seeking the Senate‟s
advice and consent] was inadequate.” The Federalist No. 67,
at 409 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
Beyond these few sentiments, the Recess Appointments
Clause cannot be fully understood in isolation but only within
the fabric and spirit of the Constitution as a whole. Other
Federalist papers, which describe the separation of our
government‟s powers, instruct that the power of appointment
must be coordinated so that no branch can “possess, directly
or indirectly, an overruling influence over the others.” The
Federalist No. 48, at 308 (James Madison) (Clinton Rossiter
ed., 1961). The wisdom of this structuring is borne out in the
appointments process because the recess appointment power
and the advice and consent power, as any well-defined check,
are not absolute, but cabined, in their design.
While it cannot function as an absolute negative, the
recess appointment power must provide some balance to the
Senate‟s power to provide or withhold advice and consent.
The Federalist No. 73, at 442 (Alexander Hamilton) (Clinton
Rossiter ed., 1961) (“From these clear and indubitable
principles [of legislative overreach] results the propriety of a
22
negative, either absolute or qualified, in the executive upon
the acts of the legislative branches.”). Both James Madison
and Hamilton recognized the zealousness of the legislature
and the importance of establishing checks to counteract its
overruling influence. The Federalist No. 51, at 322 (James
Madison) (Clinton Rossiter ed., 1961) (explaining that, while
the executive predominates in a monarchy, “[i]n republican
government, the legislative authority necessarily
predominates”). Without such a counterbalance, the Senate‟s
advice and consent power could degenerate into an absolute
negative that would undermine the President‟s recess
appointment power, along with the entire appointments
process.15 See The Federalist No. 48, at 309-10 (James
Madison), No. 51, at 322 (James Madison) (Clinton Rossiter
ed., 1961).
Consequently, to protect this separation and balance of
powers, the President must be formidable enough to
countermand Congress and prevent the Senate from
eviscerating his appointments prerogative through its use of
advice and consent. See Myers, 272 U.S. at 116-17 (“The
debates in the Constitutional Convention indicated an
intention to create a strong executive . . . .”). It is critical that
the President be afforded greater checks to guard against the
15
In this respect, the advice and consent power of the Senate
mimics the veto power of the President since they are both
qualified negatives on the other branch‟s inherent power. See
Myers, 272 U.S. at 120 (calling the advice and consent power
“the Senate‟s veto on the President‟s power of appointment”).
Just as the veto power cannot exist without a check, the
advice and consent power of the Senate cannot exist without a
check.
23
coercion of Congress since the executive is the inherently
weaker branch of government. The Federalist No. 51, at 322-
23 (James Madison) (Clinton Rossiter ed., 1961) (“As the
weight of the legislative authority requires that it should be
thus divided, the weakness of the executive may require, on
the other hand, that it should be fortified.”).
In many ways, the check of the Recess Appointments
Clause also resembles the Pocket Veto Clause in Article I,
Section 7. Interestingly, Justice Joseph Story remarked that
without the pocket veto “[C]ongress might . . . defeat the due
exercise of [the President‟s] qualified negative by a
termination of the session, which would render it impossible
for the President to return the bill.” 2 Joseph Story,
Commentaries on the Constitution § 888, at 354-55 (1833).
Likewise, without intrasession recess appointments, the
Majority‟s position makes it impossible for the President to
exert his necessary influence in the appointment of his
executive officers since the Senate could too easily wrest that
power from him through procedural machinations.16
16
Like the veto power, the recess appointment power is a
check that the President exerts against the Senate, such that
both are shaped by the same principles of governmental
design. Further, the Framers‟ motivation for creating the
President‟s veto power underlies the other checks it has given
the President. Primarily, that motivation was the “propensity
of the legislative department to intrude upon the rights, and to
absorb the powers, of the other departments [which] has been
already more than once suggested.” The Federalist No. 73, at
442 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
Hamilton also believed that giving the President such strong
checks on Congress would not lead him to abuse his power.
24
With these considerations in mind, courts must
proceed carefully in construing the executive power narrowly.
The stakes are too high and the consequences too dire if the
executive power is unduly constricted. See Marshall Field &
Co. v. Clark, 143 U.S. 649, 670 (1892) (assessing the severe
consequences of the judiciary interceding in the actions of the
other branches of government); Baker v. Carr, 369 U.S. 186,
211 (1962); Youngstown Sheet & Tube Co. v. Sawyer, 343
U.S. 579, 640 (1952) (Jackson, J., concurring) (“However,
because the President does not enjoy unmentioned powers
does not mean that the mentioned ones should be narrowed
by a niggardly construction.”).
Ultimately, the executive power must be strong
enough to allow the President to “take Care that the Laws be
faithfully executed” and “Commission all the Officers of the
United States.” U.S. Const. art. II, § 3, cl. 1. The central role
of the President in appointing the officers serving his branch
of government was devised by the Framers with great
He surmised that, “[i]f a magistrate so powerful and so well
fortified as a British monarch would have scruples about the
exercise of the [veto power], how much greater caution may
be reasonably expected in a President of the United States,
clothed for the short period of four years with the executive
authority of a government wholly and purely republican?” Id.
at 444. “[A]s a rule,” Hamilton wrote, “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” since
the legislature is more easily captured by private interests.
The Federalist No. 76, at 455-56 (Alexander Hamilton)
(Clinton Rossiter ed., 1961).
25
purpose. See Myers, 272 U.S. at 117-19. By having a hand
in choosing the officers serving in his branch, the President
would be able to surround himself with the people he
believed best fit to help him fulfill his duty to faithfully
execute the laws under the Take Care Clause. See id. Not
only does he need to have input in the officers chosen, but the
President needs the power to keep offices occupied in order to
keep his branch and the government, as a whole, running.
Therefore, ensuring that the Senate does not unduly encroach
upon the President‟s role in the appointments process is
integral to ensuring that the President is able to faithfully
execute his duties. Id. at 117-18 (“[The President‟s] selection
of administrative officers is essential to the execution of the
laws by him . . . .”).
2. The Purpose of the Recess Appointments Clause
The purpose of the Recess Appointments Clause,
which is much more ascertainable than the textual
interpretation of “the Recess”, offers further guidance in this
construction of the Recess Appointments Clause and the
meaning that should be ascribed to “the Recess”. In The
Federalist No. 67, Hamilton pinpointed the dual purposes of
the Recess Appointments Clause, which are 1) to allow the
Senate to take breaks and 2) to keep offices filled (since “it
might be necessary for the public service to fill [vacancies]
without delay”).17 The Federalist No. 67, at 410 (Alexander
17
In addition, other contemporaneous writings reveal that the
reason why the Senate was given the check of providing
advice and consent on appointments was that representatives
of the smaller states were worried that the larger states would
26
Hamilton) (Clinton Rossiter ed., 1961). To Madison, this
meant that the Senate would be recessed for purposes of the
Recess Appointments Clause when Senators were not in
“continual residence” in the Capitol. 3 Elliott‟s Debates 409-
10 (statement of James Madison at the Virginia convention).
Thus, as imagined by the Framers, the Recess
Appointments Clause had a two-part purpose: to allow the
Senate to break from its usual business and, in that absence,
to allow vacant offices to be filled in order to keep the
machinery of government running. See Evans, 387 F.3d at
1226 (“[W]hat we understand to be the main purpose of the
Recess Appointments Clause—to enable the President to fill
vacancies to assure the proper functioning of our
government—supports reading both intrasession recesses and
intersession recesses as within the correct scope of the
Clause.”).
The Majority claims that a “crucial” purpose of the
Recess Appointments Clause is to preserve the Senate‟s
advice and consent power by limiting the President‟s
unilateral appointment power. (Majority Op. at 60-61.) This
misses the intent of the Framers. It is indisputable that the
Recess Appointments Clause gives the President additional
power, so why would the Framers limit the President‟s power
by giving him additional power? There is no dispute that
there are limitations written into the Recess Appointments
Clause, but all the separate powers of the appointments
be favored in the appointments process. See Myers, 272 U.S.
at 119-20. This purpose is not served any more or less by
intrasession recess appointments than intersession recess
appointments.
27
process have limitations despite being drafted to give a
branch enhanced power. Further, nothing in the
contemporaneous writings, especially The Federalist Papers,
claims that this was a “crucial” purpose of the Recess
Appointments Clause, let alone any other purpose.
In the words of Justice Story, the purpose of the
Recess Appointments Clause was “convenience, promptitude
of action, and general security.” 3 Joseph Story,
Commentaries on the Constitution § 1551, at 410 (1833).
Moreover, consistent with the Framers‟ principles underlying
the framework of our republic, the purpose of the Recess
Appointments Clause was also to provide a check on the
Senate‟s control over the appointment of officers by sharing
the power of confirmation with the executive branch.
Allowing the advice and consent of the Senate to act as an
absolute negative on the President‟s nominations without a
check would defeat the dual purposes of the Recess
Appointments Clause and allow “advice and consent” to be
aggrandized into the “mandate and order” of the Senate. See
Myers, 272 U.S. at 118 (characterizing the Senate‟s advice
and consent as a “limitation[] upon the general grant of the
executive power, and as such, being [a] limitation[], should
not be enlarged beyond the words used”).
As a check, though, the Recess Appointments Clause
is by no means absolute. Thus, although allowing the
President to make intrasession recess appointments increases
his clout in the appointments process, his power to make
recess appointments has embedded limitations. First, the
recess appointment power can only be used when the Senate
is recessed. If the Senate wants to curb the President‟s use of
recess appointments, it can simply remain available to
provide advice and consent, thereby forcing the President to
28
rely on its advice and consent in making appointments.18
Second, recess appointments have a temporary duration since
they only last until “the End of [the Senate‟s] next Session.”
At most, this allows the term of a recess appointee to last the
length of two regular sessions (under current Senate practices,
this equates to a maximum of approximately two years).
Third, as evidenced by the structure of Article II, Section 2,
the recess appointment power can only be a secondary means
of appointing officers and can never be used as a primary
means of doing so as long as the Senate is available to
provide advice and consent.
Nevertheless, the Majority concludes that intrasession
recess appointments would allow the President to circumvent
the Senate‟s role in the appointments process; however,
protection against such circumvention is built into the Recess
Appointments Clause. By these three limiting principles,
alone, the President pays a steep price for using his recess
appointment power. See United States v. Woodley, 751 F.2d
1008, 1014 (9th Cir. 1985) (en banc) (observing that a recess-
appointed Article III judge “lacks life tenure and is not
protected from salary diminution” such that the “[recess
appointment] power is not unfettered . . . but is subject to its
own limitations and safeguards”). Indeed, these strictures on
the President‟s recess appointment power prevent him from
usurping the Senate‟s power to provide advice and consent.
Moreover, use of the recess appointment power during
intrasession recesses does not undermine the reason why the
18
Of course, reference to advice and consent in this context
does not include pro forma sessions, which clearly do not
provide an opportunity for the Senate to provide its advice
and consent. This point will be elaborated further infra.
29
Framers granted the Senate the power of advice and consent,
which was preventing larger states from having a
disproportionate influence on appointments, any more than
use of the recess appointment power during intersession
recesses. See Myers, 272 U.S. at 119-20. With these
strictures, the Majority‟s concern about the President making
unannounced recess appointments “by waiting until [the
Senators] go home for the evening” is not fathomable.
(Majority Op. at 64.)
But these are not the only limiting principles cabining
the President‟s recess appointment power. In addition to
these express checks, there are implicit checks on the use of
his recess appointment power that were recognized by the
Framers. Firstly, as explained in The Federalist Papers, the
structure of the branches of government, as conceived by the
Constitution, give the President a very strong interest in
maintaining the favor of the Senate and not stoking its ire.
The Federalist No. 77, at 459 (Alexander Hamilton) (Clinton
Rossiter ed., 1961) (“[A] new President would be restrained
from attempting a change in favor of a person more agreeable
to him by the apprehension that a discountenance of the
Senate might frustrate the attempt, and bring some degree of
discredit upon himself.”). Secondly, the President is
beholden to public opinion. See The Federalist No. 73, at 444
(Alexander Hamilton) (Clinton Rossiter ed., 1961); 3 Joseph
Story, Commentaries on the Constitution § 1523, at 375
(1833) (“He will be compelled to consult public opinion in
the most important appointments . . . . If he should act
otherwise, and surrender the public patronage into the hands
of profligate men, or low adventurers, it will be impossible
for him long to retain public favour.”); Myers, 272 U.S. at
123. Because of public opinion, the President is incentivized
30
to use his recess appointment power sparingly, lest the public
perceive that he is trying to thwart the advice and consent of
the Senators that they have elected to office, or lest the public
lack faith in his appointees because they have not been vetted
by the Senators that they have elected to office. Thirdly, as
far as mechanics, the Senate can check the President‟s use of
his recess appointment power during intrasession recesses by
controlling when it recesses and how long it stays in regular
sessions. As a result, it can control if the President is able to
use his recess appointment power at all and how long his
recess appointees will remain in office.
What the Majority overlooks is the following: The
problem with limiting the Recess Appointments Clause to
intersession recesses is that such an interpretation disarms the
reciprocal checks that the President needs to have on the
Senate. While the President pays a steep price for foregoing
the advice and consent of the Senate, the Senate pays a
relatively low price for thwarting the President‟s power to
make recess appointments by, for example, reducing its
intersession recesses to negligible periods of time (for
instance, one day). Consequently, the safeguard against the
encroachment of the Senate on the power of the President is
much weaker. The great harm is that the Senate may engage
in machinations, as some would argue is the case with pro
forma sessions, to avoid voting on nominees in order to
strong-arm the President into capitulating to its demands,
forcing the President to nominate the Senate‟s preferred
candidates or else leave offices vacant, as Hamilton expressly
feared. It is inconceivable that the Framers intended such
strong-arming by the Senate; of equal, and possibly greater,
concern is the House‟s involvement in the strong-arming,
31
which surely was not intended by the Framers.19 See The
Federalist No. 51, at 322 (James Madison), No. 73, at 442-43
(Alexander Hamilton), No. 76, at 455-56 (Alexander
Hamilton), No. 77, at 463 (Alexander Hamilton) (Clinton
Rossiter ed., 1961).
Therefore, the President must be able to exercise his
recess appointment power whenever the Senate is not
available to provide advice and consent, including when the
Senate is holding pro forma sessions, when it is not readily
available to be present to deliberate and vote on nominees.
Just as it is incredulous to suggest that the President can make
recess appointments during the Senate‟s lunch, it is equally
incredulous for the Majority to suggest that advice and
consent can be provided in thirty-second increments once
every three days. (In fact, it may be more incredulous since it
presumably takes longer than thirty seconds for 100 Senators
to act on a nomination.) Further, conducting business via
unanimous consent agreement, as the Senate did on
19
The Majority suggests that the issue of the House exerting
influence over recess appointments is remedied by the
President‟s ability to adjourn both houses if they cannot agree
on a date of adjournment. U.S. Const. art. II, § 3. This
assertion misses the mark. This power of the President does
not address the issue of the House essentially creating pro
forma sessions to corrupt the intersession-intrasession
dynamic. The Majority‟s remedy is tantamount to saying that
the President can initiate an adjournment sine die to create an
intersession recess of more than three days whenever he
wishes to utilize the Recess Appointments Clause. This is not
true. Moreover, this clearly would not be a supplemental use
of his recess appointment power.
32
December 23, 2011, is not the type of business that yields the
advice and consent envisioned by the Framers.20
The Constitution does not contemplate that the Senate
may have it both ways. The Senate cannot be both
unavailable and yet force the President to submit to its advice
and consent. This dynamic acts as a check on Senate
coercion (and House coercion) because, in order to take
recesses and breaks from its regular business, the Senate will
either have to cooperate with the President and figure out
mutually acceptable nominees or will have to yield its advice
and consent power to the President‟s recess appointment
power.
Along these lines, the Supreme Court has applied a
functional approach in determining the scope of executive
powers. It did so in determining when the Senate is available
to receive a bill from the President for the purposes of the
Pocket Veto Clause, concluding that having a secretary of the
20
The Majority assumes that the Senate could have simply
remained available to provide advice and consent by not
agreeing to not conduct business during the pro forma
sessions or “alter[ing] its procedures to allow messages to be
received during such sessions.” (Majority Op. at 99.) First, it
is a stretch to suggest that the receipt of messages from the
President equates to providing advice and consent. In that
respect, the Senate could remain available to provide advice
and consent even during intersession recesses by leaving an
agent of the Senate to receive messages. Second, the
Majority identifies the danger of its own definition of
“Recess”: The Senate‟s procedures are too easily
manipulated.
33
Senate present was sufficient, even if the members of the
Senate had already departed to their home states. See The
Pocket Veto Case, 279 U.S. at 680 (holding that “the
determinative question in reference to an „adjournment‟ is not
whether it is a final adjournment of Congress or an interim
adjournment, such as an adjournment of the first session, but
whether it is one that „prevents‟ the President from returning
the bill to the House in which it originated within the time
allowed”).
Of course, providing advice and consent on nominees
likely requires more on the part of Congress than receiving a
bill from the President — unlike with the Pocket Veto Clause,
one person cannot generally provide advice and consent on
behalf of all 100 Senators. If this functional approach is used
to effect the purposes of the Recess Appointments Clause,
then the President must be able to make recess appointments
when the Senate cannot provide advice and consent, and it is
certainly possible for the Senate to lack that capacity to
provide advice and consent during intrasession recesses when
its members are not present in the Senate chamber to vote.
Pro forma sessions, if accepted as valid, undeniably
frustrate the purposes of the Recess Appointments Clause.
The pro forma sessions, and Congress‟s other attempts to
manipulate the appointments process, appear to be the type of
legislative overreaching chronicled by the Framers. See The
Federalist No. 48, at 309 (James Madison) (Clinton Rossiter
ed., 1961) (“The legislative department is everywhere
extending the sphere of its activity and drawing all power into
its impetuous vortex.”). From Madison‟s sentiments, it is
also evident that the legislature was not the “more feeble”
branch that would need a “more adequate defense” but,
rather, the branch that would enfeeble the other branches and
34
require that they be more adequately defended against such
machinations. See id.
Moreover, under a functional approach, pro forma
sessions cannot prevent the Senate from recessing for the
purposes of the Recess Appointments Clause. When a pro
forma session is held for approximately thirty seconds by a
single Senator, the Senate is not able to accomplish the
function of deliberating about and voting on the President‟s
nominees.21
Indeed, the Framers could have faced the same
dilemma faced by the President in 2010 and 2012 since it was
entirely possible for the Senate to take short intrasession
recesses early in our republic. In such an event, how would
the Framers have intended for the Recess Appointments
Clause to operate? They did not condition the Recess
Appointments Clause on how far away Senators were from
the Capitol when they recessed, or how long it would take
them to return to the Capitol — they simply and only
conditioned the Recess Appointments Clause on whether the
Senate was in a recess, breaking from its regular business,
and unable to provide advice and consent. Or what if the
21
For the exact lengths of the pro forma sessions, see 157
Cong. Rec. S8787 (daily ed. Dec. 20, 2011), 157 Cong. Rec.
S8789-90 (daily ed. Dec. 23, 2011), 157 Cong. Rec. S8791
(daily ed. Dec. 27, 2011), 157 Cong. Rec. S8793 (daily ed.
Dec. 30, 2011), 158 Cong. Rec. S1 (daily ed. Jan. 3, 2012),
158 Cong. Rec. S3 (daily ed. Jan. 6, 2012), 158 Cong. Rec.
S5 (daily ed. Jan. 10, 2012), 158 Cong. Rec. S7 (daily ed. Jan.
13, 2012), 158 Cong. Rec. S9 (daily ed. Jan. 17, 2012), 158
Cong. Rec. S11 (daily ed. Jan. 20, 2012).
35
Senate remained in pro forma sessions while it broke for six
to nine months, as was its routine at the time of ratification,
hoping that this would prevent the President from making
recess appointments?
In such scenarios, the Framers would have empowered
the President to make recess appointments. An empty office
is an empty office. It makes no sense that the Framers would
have differentiated between intrasession and intersession
recesses in effectuating the purpose of the Recess
Appointments Clause. See Evans, 387 F.3d at 1226 (“The
purpose of the Clause is no less satisfied during an
intrasession recess than during a recess of potentially even
shorter duration that comes as an intersession break.”). The
atrophy of agencies and other offices caused by the Senate‟s
absence did not then, and does not now, depend on whether
the Senate is unavailable due to an intersession recess or
intrasession recess — all that matters is the length of time that
the Senate is away from its usual business, unable to provide
advice and consent, while vacancies persist.22
22
The other purpose of the Recess Appointments Clause,
allowing the Senate to recess without leaving offices vacant,
is also diminished by the Majority‟s definition of “Recess”.
Under the Majority‟s limited reading, the Senate might feel
obliged not to take intrasession recesses when nominations
are pending, and not feel at liberty to break, as Hamilton and
the Framers desired, lest it cause a vacancy to remain open
for the duration of its recess. This would have been traumatic
during the era of the Framers: Imagine Senators packed and
ready for their long journeys to their home states, only to find
out that a cabinet secretary has suddenly resigned office.
Rather than leaving the office of a secretary vacant for six to
36
Accordingly, the lack of an exact limiting principle,
such as a day limit, does not provide sufficient reason to
exclude intrasession recesses from “the Recess”. First of all,
any limit would be arbitrary. The ten-day limit proposed by
Attorney General Daugherty, who issued the 1921 opinion in
support of intrasession recess appointments, was not based on
any identifiable principle; such a hard limit could be tied to
the Pocket Veto Clause but there is no proof of a relationship
between it and the Recess Appointments Clause and the
processes of each are different, as conceived by the Framers
and in the Constitution. The only day limit that might not be
arbitrary is the three-day limit based on the Adjournments
Clause but, as discussed, there is no real connection between
nine months, the Senators might very well feel compelled to
remain in the Capitol to provide advice and consent for the
new appointment, a process which could take weeks or
months. Surely, this is not what the Framers envisioned, nor
intended. This would also put undue pressure on the Senate
to rush in making its appointment decisions when the Framers
clearly intended that officers be appointed with careful
deliberation.
Even with a less extreme example, we can imagine the
same imposition on the Senate. As mentioned, it is no secret
that the advice and consent process is a lengthy and strenuous
process. See Noel Canning, 705 F.3d at 508 (calling the
advice and consent process “cumbersome”); United States v.
Allocco, 305 F.2d 704, 710 (2d Cir. 1962) (noting that the
appointments process is onerous because of the “difficult task
of securing a competent replacement”).
37
the Adjournments Clause and the Recess Appointments
Clause.
An alternative explanation for such a three-day limit
would be that a recess of two days, over a weekend, should
not constitute a recess sufficient to take the Senate away from
its business. See Edward A. Hartnett, Recess Appointments of
Article III Judges: Three Constitutional Questions, 26
Cardozo L. Rev. 377, 419-20 (2005). This would also
prevent the extreme situation of lunchtime appointments and
overnight appointments between daily sessions, which no
party, and no court, has suggested is reasonable.
Due to this lack of a limiting principle, the Majority
blithely asserts that intrasession recesses would betray the
purpose of the Recess Appointments Clause because it would
allow the President to make recess appointments any time the
Senate breaks from its usual business, such as when it
recesses for lunch or adjourns at the end of a daily session.
The Majority is mistaken because there is no evidence that
the Framers intended for the Recess Appointments Clause to
be used this way and there is no evidence that any President
ever has. It is beyond contention that the President cannot
use his recess appointment power during the Senate‟s lunch
break, when it adjourns nightly between daily sessions, or
when it adjourns for the weekend. See Noel Canning, 705
F.3d at 500 (determining that “the Framers intended
something specific by the term „the Recess,‟ and that it was
something different than a generic break in proceedings”).
All of these recesses are regular breaks of the Senate, which
do not impede its normal business. It would be preposterous
to suggest that the Framers intended for the Senate to be held
hostage in its chamber in order to retain its power to provide
advice and consent.
38
The Majority‟s concern about the “temporal reach”
and duration of intrasession recesses also overlooks the
reality that there is little difference between the temporality of
intersession recesses and intrasession recesses in theory or in
practice. If the concern is that intrasession recesses may be
too short, then one must also recognize that intersession
recesses can be just as short or shorter than intrasession
recesses. Similarly, if the concern is that “the Recess” must
last a “non-negligible” number of days, then one must
recognize that either an intersession or intrasession recess can
last a “negligible” number of days. Consequently, it is
indisputable that intersession recess appointments are
vulnerable to the same uncertainties and lack of limiting
principles as intrasession recess appointments. This
conclusion cannot be saved by the magic words — the Senate
“adjourned sine die”.
The need to exclude recess appointments during the
Senate‟s adjournments for lunch, the night, and the weekend
would explain why the Framers chose to use the limited term
“Recess” rather than the all-encompassing term
“Adjournment” in the Recess Appointments Clause.
“Recess” allows the Senate some leeway to take brief
adjournments without recessing in a way that permits the
President to make appointments without its advice and
consent. As the Majority itself contends, “the dichotomy
[between the use of „Adjournment‟ and „Recess‟] must be that
adjournment results in more breaks than recess does.”
(Majority Op. at 71.)
Further, it would appear unconstitutional for the
President to use his recess appointment power to make
appointments during those routine breaks of the Senate. As
detailed below, by sitting on his nominations and sabotaging
39
the Senate in such a way, the President would not be using the
advice and consent of the Senate as his primary means of
appointing officers, in contravention of the plain structure and
clear intent of the Framers.
The Majority also suggests that the purpose would be
betrayed by allowing intrasession recess appointments
because they are subject to variable lengths: An intrasession
recess appointment made at the beginning of a regular session
would last two regular sessions, while an intrasession recess
appointment made at the end of a session would only last one
regular session. But nothing in the text of the Constitution,
the intent of the Framers, or the purpose of the Recess
Appointments Clause provides evidence that such variability
is violative. Firstly, variable lengths are not inherently
forbidden by the Constitution. The check on the Recess
Appointments Clause, by the plain language of the text of the
Constitution, is that recess appointments have a fixed end, not
necessarily a fixed length. There is no language to intuit that
the Framers had intended otherwise. Secondly, intersession
recess appointments are also prone to variable lengths: An
intersession recess appointment made at the beginning of a
three-month recess will last three months longer than an
appointment made at the end of that intersession recess. Of
course, post-ratification, when intersession recesses routinely
lasted six months or longer, the lengths of recess
appointments could have been even more disparate.
The Majority claims that the “End of their next
Session” language in the Constitution also excludes
intrasession recesses from the definition of “the Recess”
because that language allows the Senate only a “single
chance” to weigh in on appointments. (Majority Op. at 75-
81.) But nothing in the language of the Constitution or the
40
intent of the Framers limits the Senate to a “single chance” at
providing advice and consent. Even in the passage quoted by
the Majority, Justice Story only requires that the Senate have
“an opportunity” to act, rather than a “single opportunity”.
(Majority Op. at 76.) What if an appointment is pending
during one regular session and the President does not make
any recess appointments during the ensuing intersession
recess — is the Senate no longer able to provide advice and
consent in the next regular session because it has already had
a “single chance” to provide advice and consent?
In this manner, including both intersession and
intrasession recesses within the scope of the recess
appointment power best realizes the purpose of the Recess
Appointments Clause, i.e., to keep offices filled and allow the
Senate to break from its regular business.
C. The Branches’ Historical Tradition and Practice
The historical tradition and practice of the branches of
government is also very persuasive evidence of the meaning
of the Constitution and endorses the propriety of including
intrasession recesses in “the Recess”. See Mistretta v. United
States, 488 U.S. 361, 401 (1989); The Pocket Veto Case, 279
U.S. at 688-89; Freytag v. Comm’r of Internal Revenue, 501
U.S. 868, 890 (1991) (faulting an interpretation of the
Constitution that “would undermine longstanding practice”);
Youngstown, 343 U.S. at 610 (Frankfurter, J., concurring)
(“Deeply embedded traditional ways of conducting
government cannot supplant the Constitution or legislation,
but they give meaning to the words of a text or supply
them.”). But see INS v. Chadha, 462 U.S. 919, 944-45 (1983)
41
(noting that the long-term practice of the one-house
legislative veto could not save it from being held
unconstitutional). Moreover, as I have, the Supreme Court
found its more expansive reading of the Pocket Veto Clause
corroborated by the “[l]ong settled and established practice”
of the President, which it said is to be accorded “great weight
in a proper interpretation of constitutional provisions of this
character.” The Pocket Veto Case, 279 U.S. at 689.
Further, in reviewing the tradition and practice of the
President, presidential actions are entitled to a presumption of
constitutionality.23 The Majority rejects any such notion that
presidential actions deserve special regard, but the Supreme
Court has repeatedly embraced such a principle. United
States v. Nixon, 418 U.S. 683, 703, 710 (1974) (recognizing
that “courts have traditionally shown the utmost deference to
Presidential responsibilities”); Chadha, 462 U.S. at 951
(“When any Branch acts, it is presumptively exercising the
23
Moreover, the early dearth of intrasession recess
appointments does not provide convincing proof of their
unconstitutionality. The President does not lose his
constitutional powers because he does not use them. See
Freytag, 501 U.S. at 880 (affirming that the President cannot
“waive” his executive powers which provide the structural
protections of the Constitution); New York v. United States,
505 U.S. 144, 182 (1992) (determining that the branches of
government cannot cede their constitutional powers even if
they voluntarily consent to do so and have done so for a
substantial period of time). Constitutional powers do not
become unconstitutional simply because they go unused.
42
power the Constitution has delegated to it. When the
Executive acts, it presumptively acts in an executive or
administrative capacity as defined in Art. II.” (citing J.W.
Hampton & Co. v. United States, 276 U.S. 394, 406 (1928)));
see also Evans, 387 F.3d at 1222 (“And when the President is
acting under the color of express authority of the United
States Constitution, we start with a presumption that his acts
are constitutional. . . . Just to show that plausible
interpretations of the pertinent constitutional clause exist
other than that advanced by the President is not enough.”);
United States v. Allocco, 305 F.2d 704, 713-14 (2d Cir.
1962). Not only does the President take an oath of fealty to
the Constitution, and not only is his most important
constitutional duty to “take Care that the Laws be faithfully
executed,” but such a presumption is integral to the operation
of the executive branch. See Youngstown, 343 U.S. at 610-11
(Frankfurter, J., concurring) (establishing that a practice
“engaged in by Presidents who have also sworn to uphold the
Constitution . . . may be treated as a gloss on „executive
Power‟”).
The Majority carves out its own exception, suggesting
that, in particular, no such presumption applies in separation
of powers cases, but this presumption should apply with the
most force in such cases. In executing the duties of his office,
the President must not be hindered because the
constitutionality of his actions is held in doubt. See Baker v.
Carr, 369 U.S. 186, 210-11 (1962) (emphasizing the
importance of respecting the finality of the actions of the
political branches); Nixon v. United States, 506 U.S. 224, 236
(1993) (same). For a host of self-evident reasons, the
judiciary should avoid upending longstanding practices of the
other branches unless they are plainly unconstitutional. See
43
Noel Canning, 705 F.3d at 515 (Griffith, J., concurring);
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345-48
(1936) (Brandeis, J., concurring) (acknowledging principles
of judicial restraint regarding constitutional questions).
1. The Tradition and Practice of the President
The tradition and practice of the President, especially
since 1947, unequivocally shows that intrasession recess
appointments have been continuously accepted as a
constitutional use of the executive power. Since 1947,
Presidents have made nearly 400 intrasession recess
appointments without significant rebuke or controversy. See
Henry B. Hogue et al., Cong. Research Serv., The Noel
Canning Decision and Recess Appointments Made from 1981-
2013, at 4 (Feb. 4, 2013). As it stands, intrasession recess
appointments have been made as often as intersession recess
appointments. Id. In addition, intrasession recess
appointments have been condoned by the executive branch
since at least 1921, even if they did not come into more
common use until the 1940s. Despite this historical
precedent, the Majority concludes that each of these
Presidents has misinterpreted the Constitution.
Recess appointments have been used by Presidents
ever since the birth of our republic. President Washington,
himself, made several recess appointments. See Edward A.
Hartnett, Recess Appointments of Article III Judges: Three
Constitutional Questions, 26 Cardozo L. Rev. 377, 385, 387
(2005). The recess practices of the Senate have evolved,
though, which has caused recess appointment practices to
evolve in response. Early in our republic, the Senate did not
44
take intrasession recesses and took much longer intersession
recesses than it does currently. See Congressional Directory
for the 112th Congress 522-38 (2011).24 According to the
Congressional Directory, only five intrasession recesses were
taken before 1860 and, of those five, the two longest were
thirteen days. Id. After 1860, there was a surge in
intrasession recesses and, since the 37th Congress, there has
been at least one intrasession recess in each Congress, with
the exception of approximately five sessions of Congress (out
of approximately 150 regular sessions of Congress). Id.
Thus, intrasession recesses have been the norm since 1860.
Currently, the Senate takes between five and ten intrasession
recesses each Congress, meaning that intrasession recesses far
outnumber intersession recesses. See Henry B. Hogue, Cong.
Research Serv., Recess Appointments: Frequently Asked
Questions 2 (Jan. 9, 2012).
Despite the relatively early appearance of intrasession
recesses, intrasession recess appointments did not come into
vogue until the 1940s.25 As mentioned, Presidents have made
24
The Congressional Directory only lists recesses of “three or
more days, excluding Sundays,” so it is possible that the
Senate took brief intrasession recesses early on.
Congressional Directory for the 112th Congress 538 n.2
(2011). If so, then the dearth of early intrasession recess
appointments would serve to confirm that intrasession recess
appointments should not include intrasession recesses of less
than three days.
25
There is only an unexplained lack of intrasession recess
appointments for the eighty years between 1867 and 1947.
One possible reason for the near-absence of intrasession
recess appointments during that period may be that
45
nearly 400 intrasession recess appointments since then. See
Henry B. Hogue et al., Cong. Research Serv., The Noel
Canning Decision and Recess Appointments Made from 1981-
2013, at 4 (Feb. 4, 2013). Prior to 1947, there were only three
recorded intrasession recess appointments. Noel Canning,
705 F.3d at 502 (citing Michael A. Carrier, Note, When Is the
Senate in Recess for Purposes of the Recess Appointments
Clause?, 92 Mich. L. Rev. 2204, 2209-12, 2235 (1994)). The
intersession recesses 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.
Another possible explanation is that the passage of the
Twentieth Amendment in 1933 forever changed the practices
of Congress, especially the timing and length of their sessions
and recesses. Louis Fisher, Cong. Research Serv., The Pocket
Veto: Its Current Status 2-3 (Mar. 30, 2001). Before that
amendment, there was usually a long first session (often over
200 days) and a shorter second session (lasting between 80
and 90 days). Id. at 2. As a result, prior to 1934, “a new
Congress typically would not convene for regular business
until 13 months after being elected” but, since passage of the
amendment, “the time from the election to the beginning of
Congress‟s term as well as when it convened was reduced to
two months.” Congressional Directory for the 112th
Congress 522 (2011). In addition, as the Congressional
Directory notes, prior to the Twentieth Amendment, “special
sessions of the Senate were convened, principally for
confirming Cabinet and other executive nominations,” which
could have made intrasession recess appointments less
important. Id.
46
first is believed to have been made by President Andrew
Johnson in 1867, which coincides with the surge in
intrasession recesses that began in the 1860s. See Noel
Canning, 705 F.3d at 501. As such, there is no reasonable
inference that can be drawn about intrasession recesses except
that the practices of the Senate prior to the Twentieth
Amendment made the timing of recesses less of an issue than
is the case now.
In the modern day, intrasession recesses are not only
more frequent but also longer than they had been in the past.
In fact, they are sometimes longer than some intersession
recesses, which can be as short as a day.26 With the large
number of intrasession recesses taken, the net duration of
intrasession recesses during a session of the Senate will often
dwarf the net duration of intersession recesses, which means
that the Senate is on break more often during sessions than
between sessions.
As reflected earlier, given that recess appointments
have been made for over 220 years and that no intrasession
(or intersession) recess appointment has been made during a
26
A close inspection of the Congressional Directory reveals
that there have been approximately thirteen one-day
intersession recesses — while not frequent, they are not
unprecedented and are certainly not an abstract or
hypothetical possibility. See Congressional Directory for the
112th Congress 522 (2011). (This number excludes one-day
intersession recesses between a regular session of Congress
and a special session of Congress.) The last two one-day
intersession recesses occurred on January 3, 2012, during the
series of pro forma sessions, and January 3, 2013.
47
recess of less than ten days in at least the last thirty years,
critics are wanting to allege that the President would abuse
his executive power and make a recess appointment while the
Senate broke for lunch or the end of the day. In the history of
our republic, there has been no inkling that any President has
engaged in that practice and, so, there is no reason to think
that will happen now. See Allocco, 305 F.2d at 714 (“We
have not been directed to a single instance of behavior by any
President which might be termed an „abuse‟ of the recess
power.”).
2. The Tradition and Practice of the Senate
The tradition and practice of the Senate also affirms
that “the Recess” includes both intrasession and intersession
recesses. In 1903, President Roosevelt made 160 recess
appointments during what is literally described as a
momentary intersession recess between the 1st and 2nd
sessions of the 58th Congress. T.J. Halstead, Cong. Research
Serv., Recess Appointments: A Legal Overview 10 (July 26,
2005). In response to these recess appointments by President
Roosevelt, the Senate Judiciary Committee engaged in a
project to opine on whether such a “constructive recess” of
the Senate constituted “the Recess” of the Recess
Appointments Clause. The committee concluded that it did
not. Most telling was the 1905 report, which presented the
Senate‟s view of the meaning of “recess”, as used in the
Recess Appointments Clause. The 1905 Report determined
that “[t]he word „recess‟ is one of ordinary, not technical,
signification” and is used in the Recess Appointments Clause
“in its common and popular sense.” S. Rep. No. 58-4389, at
1 (1905) (emphasis added).
48
This report, if nothing else, endorses a broader, rather
than a narrower, reading of the term “Recess” in the Recess
Appointments Clause. Specifically, the 1905 Report
explained that “recess” was “evidently intended by the
[F]ramers of the Constitution that it should mean something
real, not something imaginary; something actual, not
something fictitious.” Id. at 2 (emphasis added). Very
pragmatically, the 1905 Report set forth four criteria for
qualifying a “recess”: 1) the Senate is “not sitting in regular
or extraordinary session as a branch of the Congress, or in
extraordinary session for the discharge of executive
functions,” such that 2) “its members owe no duty of
attendance,” 3) “its Chamber is empty,” and 4) “it can not
receive communications from the President or participate as a
body in making appointments” “because of its absence.” Id.
(emphasis in original).
In addition to the intent of the Framers and the
tradition and practice of the President, this definition from the
1905 Report forecloses the possibility of the President
making recess appointments when the Senate breaks for
lunch, for the night, and for the weekend. During those
breaks, the Senate‟s capacity to participate as a body in the
appointments process is not hampered any more than usual.
In the same way that one of these brief, routine breaks does
not make the Senate unavailable to provide advice and
consent, a brief session does not make the Senate available to
provide advice and consent, which is why the Senate cannot
possibly provide advice and consent during pro forma
sessions.
The 1905 Report also postulated that the Framers
intended for the Recess Appointments Clause to serve dual
purposes that could not be served if those criteria were met: to
49
prevent “grave inconvenience and harm to the public interest”
and to ensure that “at all times there should be, whether the
Senate was in session or not, an officer for every office,
entitled to discharge the duties thereof.” Id. at 2 (emphasis
added). This accords with the purposes established by
Hamilton in The Federalist No. 67.
The Senate has not officially changed positions since
the issuance of this report. See Nippon Steel Corp. v. Int’l
Trade Comm’n, 239 F. Supp. 2d 1367, 1374 n.13 (Ct. Int‟l
Trade 2002) (citing Michael A. Carrier, Note, When Is the
Senate in Recess for Purposes of the Recess Appointments
Clause?, 92 Mich. L. Rev. 2204 (1994)).
Additionally, in an act of legislative acquiescence,
Congress has passed legislation that observes the possibility
of intrasession recess appointments.27 By its own choice,
Congress passed, and has not since repealed, the Pay Act, a
statute that allows recess appointees to be paid and does not
differentiate between intersession and intrasession recess
appointees. 5 U.S.C. § 5503; see Evans, 387 F.3d at 1226;
Woodley, 751 F.2d at 1013.
27
The Senate Manual also adopts a broader understanding of
“the Recess” that is conditioned only on the length of a
recess, rather than whether it occurs intrasession or
intersession. According to the Senate Manual, motions to
reconsider confirmation votes on nominees become moot
after a thirty-day break, be it an adjournment or recess.
Senate Manual, S. Doc. No. 112-1, at 58 (2012) (“Standing
Rules of the Senate”).
50
II. THE VALIDITY OF THE MARCH 27, 2010 AND JANUARY
4, 2012 RECESS APPOINTMENTS
Based on the foregoing analysis, in my judgment, the
recess appointments of Member Becker on March 27, 2010
and Members Block, Flynn, and Griffin on January 4, 2012
are valid. Both sets of appointments were made during
intrasession recesses when the Senate was not available to
provide advice and consent. The President appropriately
exercised his discretion, relying on the supplemental power of
the Recess Appointments Clause to keep those offices filled
for the sanctity of the public. The exclusion of intrasession
recesses from the definition of “the Recess” denies him the
ability to fulfill his constitutional duty and leads to a number
of absurd results.
The Majority claims that the Senate was available to
provide advice and consent during the pro forma sessions
because it could have acted on the Members‟ nominations “if
it had desired to do so.” (Majority Op. at 66.) But this is an
assumption with dangerous logical extensions. Under the
Majority‟s logic, the Senate would always be available to
provide advice and consent and the President would never be
able to make recess appointments. Even during intersession
recesses, the Senate could plausibly provide advice and
consent “if it [] desired to” by simply cutting its intersession
recess short. It is not as if the Senate is paralyzed while in an
intersession recess.
To demonstrate another absurd result, Riddick‟s
Senate Procedure documents that there is such a thing as a
conditional sine die adjournment, which could allow the
Senate Majority leader to call the Senate back into session on
24 hours‟ notice to resume the previous session — would
51
such a conditional sine die adjournment to start an
intersession recess prevent the Senate from fulfilling its desire
to provide advice and consent? See Riddick‟s Senate
Procedure 18; Henry B. Hogue, Cong. Research Serv., Recess
Appointments: Frequently Asked Questions 1-2 (Jan. 9, 2012)
(“These adjournment resolutions today usually authorize
leaders of each chamber to call it back into session after the
sine die adjournment. If this power is exercised, the previous
session resumes and continues until the actual sine die
adjournment is determined, usually pursuant to another
concurrent resolution of adjournment.” (emphasis added)).
Under the Majority‟s interpretation of “the Recess” as
an intersession recess, the Recess Appointments Clause is
essentially neutered and the President‟s ability to make recess
appointments would be eviscerated. A Senate opposed to the
President‟s nominees would simply limit its intersession
recesses to a day, or less, and use its power to provide advice
and consent as an absolute negative to the President‟s power
of appointment. It could then simply convert what would
have been its intersession recess, when Senators would depart
to their home states and not conduct business, into an
intrasession recess. Thus, by this simple procedural change in
title, the Senate would strip the President of this essential
counterbalance in the exercise of his executive power and
upset the balance of power. In a worst-case scenario, some
offices could remain vacant for an entire administration,
which could be as long as eight years. In addition, the Senate
would have a disproportionate amount of influence on the
President‟s nominees, since he would likely have to accede to
the demands of the Senate‟s absolute negative.
If anything, the Majority‟s test — that an adjournment
sine die marks an intersession recess — is unworkable and
52
not judicially manageable. Under the Majority‟s rationale,
the President could make a recess appointment during any
intersession recess, even if it only lasted a nanosecond, yet
could not make a recess appointment during a six-month
intrasession recess. This defies common sense and common
logic. The Majority itself recognizes that intersession
recesses suffer from the same lack of an exact durational limit
as intrasession recesses, which undercuts its suggestion that
intersession recesses are somehow immune to its criticism of
intrasession recesses. (Majority Op. at 100 (“[T]he lack of a
constitutional basis for selecting a long duration in defining
intrasession breaks is just as absent to define intersession
breaks.”).)
The Majority further undercuts its distinction between
intersession and intrasession recesses by stating, without
reservation, that “the potential for abuse and subsequent
gridlock lies not in what recess means but in the
Constitution‟s framework of divided powers.” (Majority Op.
at 100.) This admits that the problem, and solution, lies not in
the technical, procedural classification of the Senate‟s
adjournment, but in whether the separation of powers is
maintained. Thus, tying the definition of “Recess” to the
availability of the Senate to provide advice and consent
achieves the proper focus. It does so by basing the definition
on the presence of the Senate‟s mechanism for maintaining
the separation of powers in the appointments process —
advice and consent — rather than the procedural
classification of the recess.
Worse, by basing the recess appointment power on the
Senate‟s procedure, the Majority has committed the Recess
Appointments Clause to the Senate‟s discretion and
procedural manipulations. The impracticability of the
53
Majority‟s standard is shown by the fact that the January 4,
2012 appointments issue could have simply been avoided if
the appointments had been made a day earlier, on January 3,
during the intersession recess.28 Not only that, but the
Majority‟s standard would also allow the President to make
an unlimited number of recess appointments during the type
of “fictional” intersession recess exploited by President
Roosevelt in 1903. With such absurd results, the Majority‟s
standard is an artifice that would clearly upset the separation
of powers integral to a sound appointments process.
Under my standard, the entire period during which the
Senate held pro forma sessions, from December 17, 2011
until January 23, 2012, would be treated the same. Thus, the
Senate would have been no more able to provide advice and
28
The Majority attempts to displace the absurdity of its
holding by showing that my standard also yields absurd
results, but the Majority misses my point. My point is only to
show that it is absurd to suggest that a one-day intersession
recess is somehow different than a long intrasession recess.
Thus, the Majority‟s holding that the President could have
made a recess appointment on January 3, but not on January 4
or January 22, means that the one-day intersession recess on
January 3 was somehow intrinsically different than January 4
or January 22. I contend that January 3 is only different
because it technically has a different definition than January 4
or January 22 — functionally, all three of those days were the
same. Further, there is nothing absurd about treating January
23 differently than January 22. There were no Senators who
owed attendance in the Senate chamber on January 22 but,
presumably, 100 Senators owed their attendance on January
23.
54
consent on January 4, 2012 than it was on January 3, 2012.
And the President would not be able thwart the Senate, as
President Roosevelt did, by making well over a hundred
recess appointments during a fictional intersession recess of
infinitesimal duration.
III. CONCLUSION
Defining the executive role in our system of checks
and balances is one of the most challenging problems of our
republic and, consequently, not so easily resolved. The
inclusion of intrasession recesses in the ambit of the Recess
Appointments Clause is the interpretation most faithful to the
text of the Constitution, the intent of the Framers, the purpose
of recess appointments, and the tradition and practice of both
the President and the Senate. It is for this reason that the
Majority cannot articulate a constitutional impediment to the
inclusion of intrasession recesses, or make a constitutional
case for the categorical exclusion of all intrasession recesses.
Interpreting “the Recess” to include intrasession recesses best
maintains the balance of power integral to preserving the
appointments process intended by the Framers.
55