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Saturday, July 5, 2014

U.S. Supreme Court Rules in NLRB v Noel Canning That The US President Does Not Have The Power To Appoint Government Officials Without Senate Approval During Congressional Recesses

On June 26, 2014,  the U.S. Supreme Court released its decision in National Labor Relations Board v. Noel Canning, a case that piqued the interest of many constitutional scholars by questioning whether the president can legally appoint government officials without Senate approval during congressional recesses—even when the Senate is meeting in “pro forma” sessions where a few senators gavel in for only a few minutes. The answer to the question, according to all nine justices, is “no.” Although the decision’s impact on executive appointments will be significant, it will also have practical impacts on the National Labor Relations Board—and by extension the labor and employment laws affecting U.S. employers—because the appointments in question were for three NLRB members who issued decisions for 18 months.
U.S. Supreme Court
No. 12-1281
June 26, 2014

(Bench Opinion)OCTOBER TERM, 20131

No. 12-1281. Argued January 13, 2014-Decided June 26, 2014

Respondent Noel Canning, a Pepsi-Cola distributor, asked the D. C. Circuit to set aside an order of the National Labor Relations Board, claiming that the Board lacked a quorum because three of the five Board members had been invalidly appointed. The nominations of the three members in question were pending in the Senate when it passed a December 17, 2011, resolution providing for a series of "pro forma sessions," with "no business . . . transacted," every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923. Invoking the Recess Appointments Clause-which gives the President the power "to fill up all Vacancies that may happen during the Recess of the Senate," Art. II, §2, cl. 3-the President appointed the three members in question between the January 3 and January 6 pro forma sessions. Noel Canning argued primarily that the appointments were invalid because the 3-day adjournment between those two sessions was not long enough to trigger the Recess Appointments Clause. The D. C. Circuit agreed that the appointments fell outside the scope of the Clause, but on different grounds. It held that the phrase "the recess," as used in the Clause, does not include intra-session recesses, and that the phrase "vacancies that may happen during the recess" applies only to vacancies that first come into existence during a recess.


1. The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess-intra-session or inter-session-of sufficient length. Pp. 5-33.

(a) Two background considerations are relevant to the questions here. First, the Recess Appointments Clause is a subsidiary method for appointing officers of the United States. The Founders intended the norm to be the method of appointment in Article II, §2, cl. 2, which requires Senate approval of Presidential nominations, at least for principal officers. The Recess Appointments Clause reflects the tension between the President's continuous need for "the assistance of subordinates," Myers v. United States, 272 U.S. 52 , 117, and the Senate's early practice of meeting for a single brief session each year. The Clause should be interpreted as granting the President the power to make appointments during a recess but not offering the President the authority routinely to avoid the need for Senate confirmation.

Second, in interpreting the Clause, the Court puts significant weight upon historical practice. The longstanding "practice of the government," McCulloch v. Maryland, 4 Wheat. 316, 401, can inform this Court's determination of "what the law is" in a separation-of-powers case, Marbury v. Madison, 1 Cranch 137, 176. See also, e.g., Mistretta v. United States, 488 U.S. 361 , 401; The Pocket Veto Case, 279 U.S. 655 , 689-690. There is a great deal of history to consider here, for Presidents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senate and President (*2) have recognized that such appointments can be both necessary and appropriate in certain circumstances. The Court, in interpreting the Clause for the first time, must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached. Pp. 5-9.

(b) The phrase "the recess of the Senate" applies to both inter-session recess (i.e., breaks between formal sessions of the Senate) and intra-session recesses (i.e., breaks in the midst of a formal session) of substantial length. The constitutional text is ambiguous. Founding-era dictionaries and usages show that the phrase "the recess" can encompass intra-session breaks. And this broader interpretation is demanded by the purpose of the Clause, which is to allow the President to make appointments so as to ensure the continued functioning of the Government while the Senate is away. The Senate is equally away and unavailable to participate in the appointments process during both an inter-session and an intra-session recess. History offers further support for this interpretation. From the founding until the Great Depression, every time the Senate took a substantial, non-holiday intra-session recess, the President made recess appointments. President Andrew Johnson made the first documented intra-session recess appointments in 1867 and 1868, and Presidents made similar appointments in 1921 and 1929. Since 1929, and particularly since the end of World War II, Congress has shortened its inter-session breaks and taken longer and more frequent intra-session breaks; Presidents accordingly have made more intra-session recess appointments. Meanwhile, the Senate has never taken any formal action to deny the validity of intra-session recess appointments. In 1905, the Senate Judiciary Committee defined "the recess" as "the period of time when the Senate" is absent and cannot "participate as a body in making appointments," S. Rep. No. 4389, 58th Cong., 3d Sess., p. 2, and that functional definition encompasses both intra-session and inter-session recesses. A 1940 law regulating the payment of recess appointees has also been interpreted functionally by the Comptroller General (an officer of the Legislative Branch). In sum, Presidents have made intra-session recess appointments for a century and a half, and the Senate has never taken formal action to oppose them. That practice is long enough to entitle it to "great weight in a proper interpretation" of the constitutional provision. The Pocket Veto Case, supra, at 689.

The Clause does not say how long a recess must be in order to fall within the Clause, but even the Solicitor General concedes that a 3-day recess would be too short. The Adjournments Clause, Art. I, §5, cl. 4, reflects the fact that a 3-day break is not a significant interruption of legislative business. A Senate recess that is so short that it does not require the consent of the House under that Clause is not long enough to trigger the President's recess-appointment power. Moreover, the Court has not found a single example of a recess appointment (*3) made during an intra-session recess that was shorter than 10 days. There are a few examples of inter-session recess appointments made during recesses of less than 10 days, but these are anomalies. In light of historical practice, a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. The word "presumptively" leaves open the possibility that a very unusual circumstance could demand the exercise of the recess-appointment power during a shorter break. Pp. 9-21.

(c) The phrase "vacancies that may happen during the recess of the Senate," Art. II, §2, cl. 3, applies both to vacancies that first come into existence during a recess and to vacancies that initially occur before a recess but continue to exist during the recess. Again, the text is ambiguous. As Thomas Jefferson observed, the Clause is "certainly susceptible of two constructions." Letter to Wilson Cary Nicholas (Jan. 26, 1802), in 36 Papers of Thomas Jefferson 433. It "may mean 'vacancies that may happen to be' or 'may happen to fall' " during a recess. Ibid. And, as Attorney General Wirt wrote in 1821, the broader reading is more consonant with the "reason and spirit" of the Clause. 1 Op. Atty. Gen. 632. The purpose of the Clause is to permit the President, who is always acting to execute the law, to obtain the assistance of subordinate officers while the Senate, which acts only in intervals, is unavailable to confirm them. If a vacancy arises too late in the session for the President and Senate to have an opportunity to select a replacement, the narrower reading could paralyze important functions of the Federal Government, particularly at the time of the founding. The broader interpretation ensures that offices needing to be filled can be filled. It does raise a danger that the President may attempt to use the recess-appointment power to circumvent the Senate's advice and consent role. But the narrower interpretation risks undermining constitutionally conferred powers more seriously and more often. It would prevent a President from making any recess appointment to fill a vacancy that arose before a recess, no matter who the official, how dire the need, how uncontroversial the appointment, and how late in the session the office fell vacant.

Historical practice also strongly favors the broader interpretation. The tradition of applying the Clause to pre-recess vacancies dates at least to President Madison. Nearly every Attorney General to consider the question has approved the practice, and every President since James Buchanan has made recess appointments to pre-existing vacancies. It is a fair inference from the historical data that a large proportion of recess appointments over our Nation's history have filled pre-recess vacancies. The Senate Judiciary Committee in 1863 did issue a report disagreeing with the broader interpretation, and Congress passed a law known as the Pay Act prohibiting payment of recess appointments to pre-recess vacancies soon after. However, the Senate subsequently abandoned its hostility. In 1940, (*4) the Senate amended the Pay Act to permit payment of recess appointees in circumstances that would be unconstitutional under the narrower interpretation. In short, Presidents have made recess appointments to preexisting vacancies for two centuries, and the Senate as a body has not countered this practice for nearly three-quarters of a century, perhaps longer. The Court is reluctant to upset this traditional practice where doing so would seriously shrink the authority that Presidents have believed existed and have exercised for so long. Pp. 21-33.

2. For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.

This standard is consistent with the Constitution's broad delegation of authority to the Senate to determine how and when to conduct its business, as recognized by this Court's precedents. See Art. I, §5, cl. 2; Marshall Field & Co. v. Clark, 143 U. S. 649 , 672; United States v. Ballin, 144 U. S. 1 , 5, 9. Although the Senate's own determination of when it is and is not in session should be given great weight, the Court's deference cannot be absolute. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares.

Under the standard set forth here, the Senate was in session during the pro forma sessions at issue. It said it was in session, and Senate rules make clear that the Senate retained the power to conduct business. The Senate could have conducted business simply by passing a unanimous consent agreement. In fact, it did so; it passed a bill by unanimous consent during its pro forma session on December 23, 2011. See 2011 S. J. 924; Pub. L. 112-78 . The Court will not, as the Solicitor General urges, engage in an in-depth factual appraisal of what the Senate actually did during its pro forma sessions in order to determine whether it was in recess or in session for purposes of the Recess Appointments Clause.

Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments. Pp. 33-41.

705 F. 3d 490 , affirmed.

BREYER, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined.

Opinion of the Court
JUSTICE BREYER delivered the opinion of the Court.


Ordinarily the President must obtain "the Advice and Consent of the Senate" before appointing an "Officer of the United States." U.S. Const., Art. II, §2, cl. 2 . But the Recess Appointments Clause creates an exception. It gives the President alone the 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." Art. II, §2, cl. 3 . We here consider three questions about the application of this Clause.

The first concerns the scope of the words "recess of the Senate." Does that phrase refer only to an inter-(*5) session recess (i.e., a break between formal sessions of Congress), or does it also include an intra-session recess, such as a summer recess in the midst of a session? We conclude that the Clause applies to both kinds of recess.

The second question concerns the scope of the words "vacancies that may happen." Does that phrase refer only to vacancies that first come into existence during a recess, or does it also include vacancies that arise prior to a recess but continue to exist during the recess? We conclude that the Clause applies to both kinds of vacancy.

The third question concerns calculation of the length of a "recess." The President made the appointments here at issue on January 4, 2012. At that time the Senate was in recess pursuant to a December 17, 2011, resolution providing for a series of brief recesses punctuated by "pro forma sessions," with "no business . . . transacted," every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923 (2011) (hereinafter 2011 S. J.). In calculating the length of a recess are we to ignore the pro forma sessions, thereby treating the series of brief recesses as a single, month-long recess? We conclude that we cannot ignore these pro forma sessions.

Our answer to the third question means that, when the appointments before us took place, the Senate was in the midst of a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause. Thus we conclude that the President lacked the power to make the recess appointments here at issue.

The case before us arises out of a labor dispute. The National Labor Relations Board (NLRB) found that a Pepsi-Cola distributor, Noel Canning, had unlawfully refused to reduce to writing and execute a collective-bargaining agreement with a labor union. The Board ordered the distributor to execute the agreement and to make employees whole for any losses. Noel Canning, 358 N. L. R. B. No. 4 (2012).

The Pepsi-Cola distributor subsequently asked the Court of Appeals for the District of Columbia Circuit to set the Board's order aside. It claimed that three of the five Board members had been invalidly appointed, leaving the Board without the three lawfully appointed members necessary for it to act. See 29 U.S.C. §160(f) (providing for judicial review); §153(a) (providing for a 5-member Board); §153(b) (providing for a 3-member quorum); New Process Steel, L. P. v. NLRB, 560 U.S. 674 , 687-688 (2010) (in the absence of a lawfully appointed quorum, the Board cannot exercise its powers).

The three members in question were Sharon Block, Richard Griffin, and Terence Flynn. In 2011 the President had nominated each of them to the Board. As of January 2012, Flynn's nomination had been pending in the Senate awaiting confirmation for approximately a year. The nominations of each of the other two had been pending for a few weeks. On January 4, 2012, the President, invoking the Recess Appointments Clause, appointed all three to the Board.

The distributor argued that the Recess Appointments Clause did not authorize those appointments. It pointed out that on December 17, 2011, the Senate, by unanimous consent, had adopted a resolution providing that it would (*6) take a series of brief recesses beginning the following day. See 2011 S. J. 923. Pursuant to that resolution, the Senate held pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23, 2012. Ibid.; 158 Cong. Rec. S1-S11 (Jan. 3-20, 2012). The President's January 4 appointments were made between the January 3 and January 6 pro forma sessions. In the distributor's view, each pro forma session terminated the immediately preceding recess. Accordingly, the appointments were made during a 3-day adjournment, which is not long enough to trigger the Recess Appointments Clause.

The Court of Appeals agreed that the appointments fell outside the scope of the Clause. But the court set forth different reasons. It held that the Clause's words "the recess of the Senate" do not include recesses that occur within a formal session of Congress, i.e., intra-session recesses. Rather those words apply only to recesses between those formal sessions, i.e., inter-session recesses. Since the second session of the 112th Congress began on January 3, 2012, the day before the President's appointments, those appointments occurred during an intra-session recess, and the appointments consequently fell outside the scope of the Clause. 705 F. 3d 490 , 499-507 (CADC 2013).

The Court of Appeals added that, in any event, the phrase "vacancies that may happen during the recess" applies only to vacancies that come into existence during a recess. Id., at 507-512 . The vacancies that Members Block, Griffin, and Flynn were appointed to fill had arisen before the beginning of the recess during which they were appointed. For this reason too the President's appointments were invalid. And, because the Board lacked a quorum of validly appointed members when it issued its order, the order was invalid. 29 U.S.C. §153(b) ; New Process Steel, supra .

We granted the Solicitor General's petition for certio-rari. We asked the parties to address not only the Court of Appeals' interpretation of the Clause but also the distributor's initial argument, namely, "[w]hether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions." 570 U.S. ___ (2013).

We shall answer all three questions presented. We recognize that the President has nominated others to fill the positions once occupied by Members Block, Griffin, and Flynn, and that the Senate has confirmed these successors. But, as the parties recognize, the fact that the Board now unquestionably has a quorum does not moot the controversy about the validity of the previously entered Board order. And there are pending before us petitions from decisions in other cases involving challenges to the appointment of Board Member Craig Becker. The President appointed Member Becker during an intra-session recess that was not punctuated by pro forma ses-sions, and the vacancy Becker filled had come into existence prior to the recess. See Congressional Research Service, H. Hogue, M. Carey, M. Greene, & M. Bearden, The Noel Canning Decision and Recess Appointments Made from 1981-2013, p. 28 (Feb. 4, 2013) (hereinafter (*7) The Noel Canning Decision); NLRB, Members of the NLRB since 1935, online at who-we-are/board/members-nlrb-1935 (all Internet materials as visited June 24, 2014, and available in Clerk of Court's case file). Other cases involving similar challenges are also pending in the Courts of Appeals. E.g., NLRB v. New Vista Nursing & Rehabilitation, No. 11-3440 etc. (CA3). Thus, we believe it is important to answer all three questions that this case presents.

Before turning to the specific questions presented, we shall mention two background considerations that we find relevant to all three. First, the Recess Appointments Clause sets forth a subsidiary, not a primary, method for appointing officers of the United States. The immediately preceding Clause-Article II, Section 2, Clause 2 -provides the primary method of appointment. It says that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States" (emphasis added).

The Federalist Papers make clear that the Founders intended this method of appointment, requiring Senate approval, to be the norm (at least for principal officers). Alexander Hamilton wrote that the Constitution vests the power of nomination in the President alone because "one man of discernment is better fitted to analise and estimate the peculiar qualities adapted to particular offices, than a body of men of equal, or perhaps even of superior dis-cernment." The Federalist No. 76, p. 510 (J. Cooke ed. 1961). At the same time, the need to secure Senate approval provides "an excellent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity." Id., at 513. Hamilton further explained that the

"ordinary power of appointment is confided to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers; and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorise the President singly to make temporary appointments." Id., No. 67, at 455.

Thus the Recess Appointments Clause reflects the tension between, on the one hand, the President's continuous need for "the assistance of subordinates," Myers v. United States, 272 U.S. 52 , 117 (1926), and, on the other, the Senate's practice, particularly during the Republic's early years, of meeting for a single brief session each year, see Art. I, §4, cl. 2 ; Amdt. 20, §2 (requiring the Senate to "assemble" only "once in every year"); 3 J. Story, Commentaries on the Constitution of the United States §1551, p. 410 (1833) (it would be "burthensome to the senate, and expensive to the public" to require the Senate to be "perpetually in session"). We seek to interpret the Clause as granting the President the power to make appointments during (*8) a recess but not offering the President the author-ity routinely to avoid the need for Senate confirmation.

Second, in interpreting the Clause, we put significant weight upon historical practice. For one thing, the inter-pretive questions before us concern the allocation of power between two elected branches of Government. Long ago Chief Justice Marshall wrote that

"a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice." McCulloch v. Maryland, 4 Wheat. 316 , 401 (1819).

And we later confirmed that "long settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions" regulating the relationship between Congress and the President. The Pocket Veto Case, 279 U.S. 655 , 689 (1929); see also id., at 690 "A practice of at least twenty years duration 'on the part of the executive department, acquiesced in by the legislative department, . . . is entitled to great regard in determining the true construction of a constitutional provision the phraseology of which is in any respect of doubtful meaning' " (quoting State v. South Norwalk, 77 Conn. 257 , 264 , 58 A. 759, 761 (1904))).

We recognize, of course, that the separation of powers can serve to safeguard individual liberty, Clinton v. City of New York, 524 U.S. 417 , 449-450 (1998) (KENNEDY, J., concurring), and that it is the "duty of the judicial department"-in a separation-of-powers case as in any other-"to say what the law is," Marbury v. Madison, 1 Cranch 137 , 177 (1803). But it is equally true that the longstanding "practice of the government," McCulloch, supra, at 401 , can inform our determination of "what the law is," Marbury, supra, at 177 .

That principle is neither new nor controversial. As James Madison wrote, it "was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate & settle the meaning of some of them." Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908). And our cases have continually confirmed Madison's view. E.g., Mistretta v. United States, 488 U.S. 361 , 401 (1989); Dames & Moore v. Regan, 453 U.S. 654 , 686 (1981); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 , 610-611 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, supra, at 689-690 ; Ex parte Grossman, 267 U.S. 87 , 118-119 (1925); United States v. Mid west Oil Co., 236 U.S. 459 , 472-474 (1915); McPherson v. Blacker, 146 U.S. 1 , 27 (1892); McCulloch, supra ; Stuart v. Laird, 1 Cranch 299 (1803).

These precedents show that this Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era. See Mistretta, supra, 400-401 ("While these [practices] spawned spirited discussion and frequent criticism, . . . 'traditional ways of conducting government . . . give meaning' to the Constitution" (quoting Youngstown, supra, at 610 ) (Frankfurter, J., concurring)); Regan, supra, at 684 ("Even if the pre-1952 (practice) should be disregarded, (*9) congressional acquiescence in (a practice) since that time supports the President's power to act here"); The Pocket Veto Case, supra, at 689-690 (postfounding practice is entitled to "great weight"); Grossman, supra, at 118-119 (postfounding practice "strongly sustains" a "construction" of the Constitution).

There is a great deal of history to consider here. Presidents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senate and President have recognized that recess appointments can be both necessary and appropriate in certain circumstances. We have not previously interpreted the Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.

The first question concerns the scope of the phrase "the recess of the Senate." Art. II, §2, cl. 3 (emphasis added). The Constitution provides for congressional elections every two years. And the 2-year life of each elected Congress typically consists of two formal 1-year sessions, each separated from the next by an "inter-session recess." Congressional Research Service, H. Hogue, Recess Appointments: Frequently Asked Questions 2 (2013). The Senate or the House of Representatives announces an inter-session recess by approving a resolution stating that it will "adjourn sine die," i.e., without specifying a date to return (in which case Congress will reconvene when the next formal session is scheduled to begin).

The Senate and the House also take breaks in the midst of a session. The Senate or the House announces any such "intra-session recess" by adopting a resolution stating that it will "adjourn" to a fixed date, a few days or weeks or even months later. All agree that the phrase "the recess of the Senate" covers inter-session recesses. The question is whether it includes intra-session recesses as well.

In our view, the phrase "the recess" includes an intra-session recess of substantial length. Its words taken literally can refer to both types of recess. Founding-era dictionaries define the word "recess," much as we do today, simply as "a period of cessation from usual work." 13 The Oxford English Dictionary 322-323 (2d ed. 1989) (hereinafter OED) (citing 18th- and 19th-century sources for that definition of "recess"); 2 N. Webster, An American Dictionary of the English Language (1828) ("[r]emission or suspension of business or procedure"); 2 S. Johnson, A Dictionary of the English Language 1602-1603 (4th ed. 1773) (hereinafter Johnson) (same). The Founders themselves used the word to refer to intra-session, as well as to inter-session, breaks. See, e.g., 3 Records of the Federal Convention of 1787, p. 76 (M. Farrand rev. 1966) (hereinafter Farrand) (letter from George Washington to John Jay using "the recess" to refer to an intra-session break of the Constitutional Convention); id., at 191 (speech of Luther Martin with a similar usage); 1 T. Jefferson, A Manual of Parliamentary Practice §LI, p. 165 (2d ed. 1812) (describing a "recess by adjournment" which did not end a session).(*10)

We recognize that the word "the" in "the recess" might suggest that the phrase refers to the single break separating formal sessions of Congress. That is because the word "the" frequently (but not always) indicates "a particular thing." 2 Johnson 2003. But the word can also refer "to a term used generically or universally." 17 OED 879. The Constitution, for example, directs the Senate to choose a President pro tempore "in the Absence of the Vice-President." Art. I, §3, cl. 5 (emphasis added). And the Federalist Papers refer to the chief magistrate of an ancient Achaean league who "administered the government in the recess of the Senate." The Federalist No. 18, at 113 (J. Madison) (emphasis added). Reading "the" generically in this way, there is no linguistic problem applying the Clause's phrase to both kinds of recess. And, in fact, the phrase "the recess" was used to refer to intra-session recesses at the time of the founding. See, e.g., 3 Farrand 76 (letter from Washington to Jay); New Jersey Legislative-Council Journal, 5th Sess., 1st Sitting 70, 2d Sitting 9 (1781) (twice referring to a 4-month, intra-session break as "the Recess"); see also Brief for Petitioner 14-16 (listing examples).

The constitutional text is thus ambiguous. And we believe the Clause's purpose demands the broader interpretation. The Clause gives the President authority to make appointments during "the recess of the Senate" so that the President can ensure the continued functioning of the Federal Government when the Senate is away. The Senate is equally away during both an inter-session and an intra-session recess, and its capacity to participate in the appointments process has nothing to do with the words it uses to signal its departure.

History also offers strong support for the broad interpretation. We concede that pre-Civil War history is not helpful. But it shows only that Congress generally took long breaks between sessions, while taking no significant intra-session breaks at all (five times it took a break of a week or so at Christmas). See Appendix A, infra. Obviously, if there are no significant intra-session recesses, there will be no intra-session recess appointments. In 1867 and 1868, Congress for the first time took substantial, nonholiday intra-session breaks, and President Andrew Johnson made dozens of recess appointments. The Federal Court of Claims upheld one of those specific appointments, writing "we have no doubt that a vacancy occurring while the Senate was thus temporarily adjourned" during the "first session of the Fortieth Congress" was "legally filled by appointment of the President alone." Gould v. United States, 19 Ct. Cl. 593, 595-596 (1884) (emphasis added). Attorney General Evarts also issued three opinions concerning the constitutionality of President Johnson's appointments, and it apparently did not occur to him that the distinction between intra-session and inter-session recesses was significant. See 12 Op. Atty. Gen. 449 (1868); 12 Op. Atty. Gen. 455 (1868); 12 Op. Atty. Gen. 469 (1868). Similarly, though the 40th Congress impeached President Johnson on charges relating to his appointment power, he was not (*11) accused of violating the Constitution by making intra-session recess appointments. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 Cardozo L. Rev. 377, 409 (2005).

In all, between the founding and the Great Depression, Congress took substantial intra-session breaks (other than holiday breaks) in four years: 1867, 1868, 1921, and 1929. Appendix A, infra. And in each of those years the President made intra-session recess appointments. See App. to Brief for Petitioner 1a-11a.

Since 1929, and particularly since the end of World War II, Congress has shortened its inter-session breaks as it has taken longer and more frequent intra-session breaks; Presidents have correspondingly made more intra-session recess appointments. Indeed, if we include military appointments, Presidents have made thousands of intra-session recess appointments. Id., at 11a-64a. President Franklin Roosevelt, for example, commissioned Dwight Eisenhower as a permanent Major General during an intra-session recess; President Truman made Dean Acheson Under Secretary of State; and President George H. W. Bush reappointed Alan Greenspan as Chairman of the Federal Reserve Board. Id., at 11a, 12a, 40a. JUSTICE SCALIA does not dispute any of these facts.

Not surprisingly, the publicly available opinions of Presidential legal advisers that we have found are nearly unanimous in determining that the Clause authorizes these appointments. In 1921, for example, Attorney General Daugherty advised President Harding that he could make intra-session recess appointments. He reasoned:

"If the President's power of appointment is to be defeated because the Senate takes an adjournment to a specified date, the painful and inevitable result will be measurably to prevent the exercise of governmental functions. I can not bring myself to believe that the framers of the Constitution ever intended such a catastrophe to happen." 33 Op. Atty. Gen. 20, 23.

We have found memoranda offering similar advice to President Eisenhower and to every President from Carter to the present. See 36 Opinion of Office of Legal Counsel (Op. OLC) ___, ___ (2012), online at olc/opiniondocslpro-forma-sessions-opinion.pdf; 25 Op. OLC 182 (2001); 20 Op. OLC 124, 161 (1996); 16 Op. OLC 15 (1992); 13 Op. OLC 271 (1989); 6 Op. OLC 585, 586 (1982); 3 Op. OLC 314, 316 (1979); 41 Op. Atty. Gen. 463, 466 (1960).

We must note one contrary opinion authored by President Theodore Roosevelt's Attorney General Philander Knox. Knox advised the President that the Clause did not cover a 19-day intra-session Christmas recess. 23 Op. Atty. Gen. 599 (1901). But in doing so he relied heavily upon the use of the word "the," a linguistic point that we do not find determinative. See supra, at 10. And Knox all but confessed that his interpretation ran contrary to the basic purpose of the Clause. For it would permit the Senate to adjourn for "several months," to a fixed date, and thereby "seriously curtail the President's power of making recess appointments." 23 Op. Atty. Gen., at 603. Moreover, only three days before Knox gave his opinion, the Solicitor (*12) of the Treasury came to the opposite conclusion. Reply Brief 7, n. 5. We therefore do not think Knox's isolated opinion can disturb the consensus advice within the Executive Branch taking the opposite position.

What about the Senate? Since Presidents began making intra-session recess appointments, individual Senators have taken differing views about the proper definition of "the recess." See, e.g., 130 Cong. Rec. 23234 (1984) (resolution introduced by Senator Byrd urging limits on the length of applicable intra-session recesses); Brief for Sen. Mitch McConnell et al. as Amici Curiae 26 (an intra-session adjournment does not count as "the recess"); Brief for Sen. Edward M. Kennedy as Amicus Curiae in Franklin v. United States, O. T. 2004, No. 04-5858, p. 5 (same). But neither the Senate considered as a body nor its committees, despite opportunities to express opposition to the practice of intra-session recess appointments, has done so. Rather, to the extent that the Senate or a Senate committee has expressed a view, that view has favored a functional definition of "recess," and a functional definition encompasses intra-session recesses.

Most notably, in 1905 the Senate Committee on the Judiciary objected strongly to President Theodore Roosevelt's use of the Clause to make more than 160 recess appointments during a "fictitious" inter-session recess. S. Rep. No. 4389, 58th Cong., 3d Sess., p. 2 (hereinafter 1905 Senate Report). At noon on December 7, 1903, the Senate President pro tempore had "declared" a formal, "extraordinary session" of the Senate "adjourned without day," and the next formal Senate session began immediately afterwards. 37 Cong. Rec. 544 (1903). President Roosevelt made over 160 recess appointments during the instantaneous inter-session interval. The Judiciary Committee, when stating its strong objection, defined "recess" in functional terms as

"the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress . . . ; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments." 1905 Senate Report, at 2 (emphasis deleted).

That functional definition encompasses intra-session, as well as inter-session, recesses. JUSTICE SCALIA is right that the 1905 Report did not specifically address the dis-tinction between inter-session and intra-session recesses. But the animating principle of the Report-that "recess" should be practically construed to mean a time when the Senate is unavailable to participate in the appointments process-is inconsistent with the formalistic approach that JUSTICE SCALIA endorses.

Similarly, in 1940 the Senate helped to enact a law regulating the payment of recess appointees, and the Comptroller General of the United States has interpreted that law functionally. An earlier 1863 statute had denied pay to individuals appointed to fill up vacancies first arising prior to the beginning of a recess. The Senate Judiciary Committee then believed that those vacancies (*13) fell outside the scope of the Clause. See infra, at 30. In 1940, however, the Senate amended the law to permit many of those recess appointees to be paid. Act of July 11, 54 Stat. 751 . Interpreting the amendments in 1948, the Comptroller General-who, unlike the Attorney General, is an "officer of the Legislative Branch," Bowsher v. Synar, 478 U.S. 714 , 731 (1986)-wrote:

"I think it is clear that (the Pay Act amendments) primary purpose was to relieve 'recess appointees' of the burden of serving without compensation during periods when the Senate is not actually sitting and is not available to give its advice and consent in respect to the appointment, irrespective of whether the recess of the Senate is attributable to a final adjournment sine die or to an adjournment to a specified date." 28 Comp. Gen. 30, 37.

We recognize that the Senate cannot easily register opposition as a body to every governmental action that many, perhaps most, Senators oppose. But the Senate has not been silent or passive regarding the meaning of the Clause: A Senate Committee did register opposition to President Theodore Roosevelt's use of the Clause, and the Senate as a whole has legislated in an effort to discourage certain kinds of recess appointments. And yet we are not aware of any formal action it has taken to call into question the broad and functional definition of "recess" first set out in the 1905 Senate Report and followed by the Executive Branch since at least 1921. Nor has JUSTICE SCALIA identified any. All the while, the President has made countless recess appointments during intra-session recesses.

The upshot is that restricting the Clause to inter-session recesses would frustrate its purpose. It would make the President's recess-appointment power dependent on a formalistic distinction of Senate procedure. Moreover, the President has consistently and frequently interpreted the word "recess" to apply to intra-session recesses, and has acted on that interpretation. The Senate as a body has done nothing to deny the validity of this practice for at least three-quarters of a century. And three-quarters of a century of settled practice is long enough to entitle a practice to "great weight in a proper interpretation" of the constitutional provision. The Pocket Veto Case, 279 U.S., at 689 .

We are aware of, but we are not persuaded by, three important arguments to the contrary. First, some argue that the Founders would likely have intended the Clause to apply only to inter-session recesses, for they hardly knew any other. See, e.g., Brief for Originalist Scholars as Amici Curiae 27-29. Indeed, from the founding until the Civil War inter-session recesses were the only kind of significant recesses that Congress took. The problem with this argument, however, is that it does not fully describe the relevant founding intent. The question is not: Did the Founders at the time think about intra-session recesses? Perhaps they did not. The question is: Did the Founders intend to restrict the scope of the Clause to the form of congressional recess then prevalent, or did they intend a broader scope permitting the Clause (*14) to apply, where appropriate, to somewhat changed circumstances? The Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries. After all, a Constitution is "intended to endure for ages to come," and must adapt itself to a future that can only be "seen dimly," if at all. McCulloch, 4 Wheat., at 415 . We therefore think the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purposes, where doing so is consistent with the Clause's language.

Second, some argue that the intra-session interpretation permits the President to make "illogically" long recess appointments. Brief for Respondent Noel Canning 13; post, at 10 (SCALIA, J., concurring in judgment). A recess appointment made between Congress' annual sessions would permit the appointee to serve for about a year, i.e., until the "end" of the "next" Senate "session." Art. II, §2, cl. 3 . But an intra-session appointment made at the beginning or in the middle of a formal session could permit the appointee to serve for 1½ or almost 2 years (until the end of the following formal session).

We agree that the intra-session interpretation permits somewhat longer recess appointments, but we do not agree that this consequence is "illogical." A President who makes a recess appointment will often also seek to make a regular appointment, nominating the appointee and securing ordinary Senate confirmation. And the Clause ensures that the President and Senate always have at least a full session to go through the nomination and confirmation process. That process may take several months. See O'Connell, Vacant Offices: Delays in Staffing Top Agency Positions, 82 S. Cal. L. Rev. 913, 967 (2009) (from 1987 to 2005 the nomination and confirmation process took an average of 236 days for noncabinet agency heads). A recess appointment that lasts somewhat longer than a year will ensure the President the continued assistance of subordinates that the Clause permits him to obtain while he and the Senate select a regular appointee. An appointment should last until the Senate has "an opportunity to act on the subject," Story, §1551, at 410, and the Clause embodies a determination that a full session is needed to select and vet a replacement.

Third, the Court of Appeals believed that application of the Clause to intra-session recesses would introduce "vagueness" into a Clause that was otherwise clear. 705 F. 3d, at 504 . One can find problems of uncertainty, however, either way. In 1867, for example, President Andrew Johnson called a special session of Congress, which took place during a lengthy intra-session recess. Consider the period of time that fell just after the conclusion of that special session. Did that period remain an intra-session recess, or did it become an inter-session recess? Historians disagree about the answer. Compare Hartnett, 26 Cardozo L. Rev., at 408-409, with Brief for Constitutional Law Scholars as Amici Curiae 23-24.

Or suppose that Congress adjourns sine die, but it does so conditionally, so that the leadership can call (*15) the members back into session when "the public interest shall warrant it." E.g., 155 Cong. Rec. 33429 (2009); 152 Cong. Rec. 23731-23732 (2006); 150 Cong. Rec. 25925-25926 (2004). If the Senate Majority Leader were to reconvene the Senate, how would we characterize the preceding recess? Is it still inter-session? On the narrower interpretation the label matters; on the broader it does not.

The greater interpretive problem is determining how long a recess must be in order to fall within the Clause. Is a break of a week, or a day, or an hour too short to count as a "recess"? The Clause itself does not say. And JUSTICE SCALIA claims that this silence itself shows that the Framers intended the Clause to apply only to an inter-session recess. Post, at 12-13.

We disagree. For one thing, the most likely reason the Framers did not place a textual floor underneath the word "recess" is that they did not foresee the need for one. They might have expected that the Senate would meet for a single session lasting at most half a year. The Federalist No. 84, at 596 (A. Hamilton). And they might not have anticipated that intra-session recesses would become lengthier and more significant than inter-session ones. The Framers' lack of clairvoyance on that point is not dispositive. Unlike JUSTICE SCALIA, we think it most consistent with our constitutional structure to presume that the Framers would have allowed intra-session recess appointments where there was a long history of such practice.

Moreover, the lack of a textual floor raises a problem that plagues both interpretations-JUSTICE SCALIA's and ours. Today a brief inter-session recess is just as possible as a brief intra-session recess. And though JUSTICE SCALIA says that the "notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting," he must immediately concede (in a footnote) that the President "can make recess appointments during any break between sessions, no matter how short." Post, at 11, 15, n. 4 (emphasis added).

Even the Solicitor General, arguing for a broader interpretation, acknowledges that there is a lower limit applicable to both kinds of recess. He argues that the lower limit should be three days by analogy to the Adjournments Clause of the Constitution. Tr. of Oral Arg. 11. That Clause says: "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days." Art. I, §5, cl. 4 .

We agree with the Solicitor General that a 3-day recess would be too short. (Under Senate practice, "Sunday is generally not considered a day," and so is not counted for purposes of the Adjournments Clause. S. Doc. No. 101-28, F. Riddick & A. Frumin, Riddick's Senate Procedure: Precedents and Practices 1265 (hereinafter Riddick's).) The Adjournments Clause reflects the fact that a 3-day break is not a significant interruption of legislative business. As the Solicitor General says, it is constitutionally de minimis. Brief for Petitioner 18. A Senate recess that is so short that it does not require the consent (*16) of the House is not long enough to trigger the President's recess-appointment power.

That is not to say that the President may make recess appointments during any recess that is "more than three days." Art. I, §5, cl. 4 . The Recess Appointments Clause seeks to permit the Executive Branch to function smoothly when Congress is unavailable. And though Congress has taken short breaks for almost 200 years, and there have been many thousands of recess appointments in that time, we have not found a single example of a recess ap-pointment made during an intra-session recess that was shorter than 10 days. Nor has the Solicitor General. Reply Brief 23. Indeed, the Office of Legal Counsel once informally advised against making a recess appointment during a 6-day intra-session recess. 3 Op. OLC, at 315-316. The lack of examples suggests that the recess-appointment power is not needed in that context. (The length of a recess is "ordinarily calculated by counting the calendar days running from the day after the recess begins and including the day the recess ends." 36 Op. OLC, at ___, n. 1 (citation omitted).)

There are a few historical examples of recess appointments made during inter-session recesses shorter than 10 days. We have already discussed President Theodore Roosevelt's appointments during the instantaneous, "fictitious" recess. President Truman also made a recess appointment to the Civil Aeronautics Board during a 3-day inter-session recess. Hogue, Recess Appointments: Fre-quently Asked Questions, at 5-6. President Taft made a few appointments during a 9-day recess following his inauguration, and President Lyndon Johnson made sev-eral appointments during an 8-day recess several weeks after assuming office. Hogue, The Law: Recess Appointments to Article III Courts, 34 Presidential Studies Q. 656, 671 (2004); 106 S. Exec. J. 2 (1964); 40 S. Exec. J. 12 (1909). There may be others of which we are unaware. But when considered against 200 years of settled practice, we regard these few scattered examples as anomalies. We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. We add the word "presumptively" to leave open the possibility that some very unusual circumstance-a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response-could demand the exercise of the recess-appointment power during a shorter break. (It should go without saying-except that JUSTICE SCALIA compels us to say it-that political opposition in the Senate would not qualify as an unusual circumstance.)

In sum, we conclude that the phrase "the recess" applies to both intra-session and inter-session recesses. If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, §5, cl. 4 . And a recess lasting less than 10 days is presumptively too short as well.

The second question concerns the scope of the phrase "vacancies that may happen during the recess of the Senate." (*17) Art. II, §2, cl. 3 (emphasis added). All agree that the phrase applies to vacancies that initially occur during a recess. But does it also apply to vacancies that initially occur before a recess and continue to exist during the recess? In our view the phrase applies to both kinds of vacancy.

We believe that the Clause's language, read literally, permits, though it does not naturally favor, our broader interpretation. We concede that the most natural meaning of "happens" as applied to a "vacancy" (at least to a modern ear) is that the vacancy "happens" when it ini-tially occurs. See 1 Johnson 913 (defining "happen" in relevant part as meaning "to fall out; to chance; to come to pass"). But that is not the only possible way to use the word.

Thomas Jefferson wrote that the Clause is "certainly susceptible of (two) constructions." Letter to Wilson Cary Nicholas (Jan. 26, 1802), in 36 Papers of Thomas Jefferson 433 (B. Oberg ed., 2009). It "may mean 'vacancies that may happen to be' or 'may happen to fall' " during a recess. Ibid. Jefferson used the phrase in the first sense when he wrote to a job seeker that a particular position was unavailable, but that he (Jefferson) was "happy that another vacancy happens wherein I can . . . avail the public of your integrity & talents," for "the office of Treasurer of the US. is vacant by the resignation of mr Meredith." Letter to Thomas Tudor Tucker (Oct. 31, 1801), in 35 id., at 530 (B. Oberg ed. 2008) (emphasis added). See also Laws Passed by the Legislature of Florida, No. 31, An Act to Organize and Regulate the Militia of the Territory of Florida §13, H. R. Exec. Doc. No. 72, 27th Cong., 3d Sess., 22 (1842) ("When any vacancy shall take place in the office of any lieutenant colonel, it shall be the duty of the colonel of the regiment in which such vacancy may happen to order an election to be held at the several precincts in the battalion in which such vacancy may happen" (emphasis added)).

Similarly, when Attorney General William Wirt advised President Monroe to follow the broader interpretation, he wrote that the "expression seems not perfectly clear. It may mean 'happen to take place:' that is, 'to originate,' " or it "may mean, also, without violence to the sense, 'happen to exist.' " 1 Op. Atty. Gen. 631, 631-632 (1823). The broader interpretation, he added, is "most accordant with" the Constitution's "reason and spirit." Id., at 632.

We can still understand this earlier use of "happen" if we think of it used together with another word that, like "vacancy," can refer to a continuing state, say, a financial crisis. A statute that gives the President authority to act in respect to "any financial crisis that may happen during his term" can easily be interpreted to include crises that arise before, and continue during, that term. Perhaps that is why the Oxford English Dictionary defines "happen" in part as "chance to be," rather than "chance to occur." 6 OED 1096 (emphasis added); see also 19 OED 383 (defining "vacancy" as the "condition of an office or post being . . . vacant").

In any event, the linguistic question here is not whether the phrase can be, but whether it must be, read more narrowly. The question is whether the Clause is ambiguous. The Pocket Veto Case (*18) , 279 U.S., at 690 . And the broader reading, we believe, is at least a permissible reading of a " 'doubtful' " phrase. Ibid. We consequently go on to consider the Clause's purpose and historical practice.

The Clause's purpose strongly supports the broader interpretation. That purpose is to permit the President to obtain the assistance of subordinate officers when the Senate, due to its recess, cannot confirm them. Attorney General Wirt clearly described how the narrower interpretation would undermine this purpose:

"Put the case of a vacancy occurring in an office, held in a distant part of the country, on the last day of the Senate's session. Before the vacancy is made known to the President, the Senate rises. The office may be an important one; the vacancy may paralyze a whole line of action in some essential branch of our internal police; the public interests may imperiously demand that it shall be immediately filled. But the vacancy happened to occur during the session of the Senate; and if the President's power is to be limited to such vacancies only as happen to occur during the recess of the Senate, the vacancy in the case put must continue, however ruinous the consequences may be to the public." 1 Op. Atty. Gen., at 632.

Examples are not difficult to imagine: An ambassadorial post falls vacant too soon before the recess begins for the President to appoint a replacement; the Senate rejects a President's nominee just before a recess, too late to select another. Wirt explained that the "substantial purpose of the constitution was to keep these offices filled," and "if the President shall not have the power to fill a vacancy thus circumstanced, . . . the substance of the constitution will be sacrificed to a dubious construction of its letter." Ibid. Thus the broader construction, encompassing vacancies that initially occur before the beginning of a recess, is the "only construction of the constitution which is compatible with its spirit, reason, and purposes; while, at the same time, it offers no violence to its language." Id., at 633.

We do not agree with JUSTICE SCALIA's suggestion that the Framers would have accepted the catastrophe envisioned by Wirt because Congress can always provide for acting officers, see 5 U.S.C. §3345 , and the President can always convene a special session of Congress, see U.S. Const., Art. II, §3 . Acting officers may have less authority than Presidential appointments. 6 Op. OLC 119, 121 (1982). Moreover, to rely on acting officers would lessen the President's ability to staff the Executive Branch with people of his own choosing, and thereby limit the President's control and political accountability. Cf. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 , 497-498 (2010). Special sessions are burdensome (and would have been especially so at the time of the founding). The point of the Recess Appointments Clause was to avoid reliance on these inadequate expedients.

At the same time, we recognize one important purpose-related consideration that argues in the opposite direction. A broad interpretation might permit a President to avoid Senate confirmations as a matter of course. If the Clause gives the (*19) President the power to "fill up all vacancies" that occur before, and continue to exist during, the Senate's recess, a President might not submit any nominations to the Senate. He might simply wait for a recess and then provide all potential nominees with recess appointments. He might thereby routinely avoid the constitutional need to obtain the Senate's "advice and consent."

Wirt thought considerations of character and politics would prevent Presidents from abusing the Clause in this way. 1 Op. Atty. Gen., at 634. He might have added that such temptations should not often arise. It is often less desirable for a President to make a recess appointment. A recess appointee only serves a limited term. That, combined with the lack of Senate approval, may diminish the recess appointee's ability, as a practical matter, to get a controversial job done. And even where the President and Senate are at odds over politically sensitive appointments, compromise is normally possible. Indeed, the 1940 Pay Act amendments represent a general compromise, for they foresee payment of salaries to recess appointees where vacancies occur before the recess began but not too long before (namely, within 30 days before). 5 U.S.C. §5503(a)(1) ; see infra, at 32. Moreover, the Senate, like the President, has institutional "resources," including political resources, "available to protect and assert its interests." Goldwater v. Carter, 444 U.S. 996 , 1004 (1979) (Rehnquist, J., concurring in judgment). In an unusual instance, where a matter is important enough to the Sen-ate, that body can remain in session, preventing recess appointments by refusing to take a recess. See Part V, infra. In any event, the Executive Branch has adhered to the broader interpretation for two centuries, and Senate confirmation has always remained the norm for officers that require it.

While we concede that both interpretations carry with them some risk of undesirable consequences, we believe the narrower interpretation risks undermining constitutionally conferred powers more seriously and more often. It would prevent the President from making any recess appointment that arose before a recess, no matter who the official, no matter how dire the need, no matter how uncontroversial the appointment, and no matter how late in the session the office fell vacant. Overall, like Attorney General Wirt, we believe the broader interpretation more consistent with the Constitution's "reason and spirit." 1 Op. Atty. Gen., at 632.

Historical practice over the past 200 years strongly favors the broader interpretation. The tradition of applying the Clause to pre-recess vacancies dates at least to President James Madison. There is no undisputed record of Presidents George Washington, John Adams, or Thomas Jefferson making such an appointment, though the Solicitor General believes he has found records showing that Presidents Washington and Jefferson did so. We know that Edmund Randolph, Washington's Attorney General, favored a narrow reading of the Clause. Randolph believed that the "Spirit of the Constitution favors the participation of the Senate (*20) in all appointments," though he did not address-let alone answer-the powerful purposive and structural arguments subsequently made by Attorney General Wirt. See Edmund Randolph's Opinion on Recess Appointments (July 7, 1792), in 24 Papers of Thomas Jefferson 166 (J. Catanzariti ed. 1990).

President Adams seemed to endorse the broader view of the Clause in writing, though we are not aware of any appointments he made in keeping with that view. See Letter to J. McHenry (Apr. 16, 1799), in 8 Works of John Adams 632-633 (C. Adams ed. 1853). His Attorney General, Charles Lee, later informed Jefferson that, in the Adams administration, "whenever an office became vacant so short a time before Congress rose, as not to give an opportunity of enquiring for a proper character, they let it lie always till recess." 36 Papers of Thomas Jefferson 433. We know that President Jefferson thought that the broad interpretation was linguistically supportable, though his actual practice is not clear. But the evidence suggests that James Madison-as familiar as anyone with the workings of the Constitutional Convention-appointed Theodore Gaillard to replace a district judge who had left office before a recess began. Hartnett, 26 Cardozo L. Rev., at 400-401. It also appears that in 1815 Madison signed a bill that created two new offices prior to a recess which he then filled later during the recess. See Act of Mar. 3, ch. 95, 3 Stat. 235 ; S. J. 13th Cong., 3d Sess., 689-690 (1815); 3 S. Exec. J. 19 (1828) (for Monday, Jan. 8, 1816). He also made recess appointments to "territorial" United States attorney and marshal positions, both of which had been created when the Senate was in session more than two years before. Act of Feb. 27, 1813, ch. 35, 2 Stat. 806 ; 3 S. Exec. J. 19. JUSTICE SCALIA refers to "written evidence of Madison's own beliefs," post, at 36, but in fact we have no direct evidence of what President Madison believed. We only know that he declined to make one appointment to a pre-recess vacancy after his Secretary of War advised him that he lacked the power. On the other hand, he did apparently make at least five other appointments to pre-recess vacancies, as JUSTICE SCALIA does not dispute.

The next President, James Monroe, received and presumably acted upon Attorney General Wirt's advice, namely that "all vacancies which, from any casualty, happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President." 1 Op. Atty. Gen., at 633. Nearly every subsequent Attorney General to consider the question throughout the Nation's history has thought the same. E.g., 2 Op. Atty. Gen. 525, 528 (1832); 7 Op. Atty. Gen. 186, 223 (1855); 10 Op. Atty. Gen. 356, 356-357 (1862); 12 Op. Atty. Gen. 32, 33 (1866); 12 Op. Atty. Gen., at 452; 14 Op. Atty. Gen. 562, 564 (1875); 15 Op. Atty. Gen. 207 (1877); 16 Op. Atty. Gen. 522, 524 (1880); 17 Op. Atty. Gen. 521 (1883); 18 Op. Atty. Gen. 29, 29-30 (1884); 19 Op. Atty. Gen. 261, 262 (1889); 26 Op. Atty. Gen. 234, 234-235 (1907); 30 Op. Atty. Gen. 314, 315 (1914); 41 Op. Atty. Gen. 463, 465 (1960); 3 Op. OLC 314 (1979); 6 Op. OLC 585, 586 (1982); 20 Op. OLC 124, 161 (1996); 36 Op. OLC ___ (2012). Indeed, as early as 1862, Attorney General Bates advised President Lincoln that his power to fill pre-recess vacancies [*21] was "settled . . . as far . . . as a constitutional question can be settled," 10 Op. Atty. Gen., at 356, and a century later Acting Attorney General Walsh gave President Eisenhower the same advice "without any doubt," 41 Op. Atty. Gen., at 466.

This power is important. The Congressional Research Service is "unaware of any official source of information tracking the dates of vacancies in federal offices." The Noel Canning Decision 3, n. 6. Nonetheless, we have enough information to believe that the Presidents since Madison have made many recess appointments filling vacancies that initially occurred prior to a recess. As we have just said, nearly every 19th- and 20th-century Attorney General expressing a view on the matter has agreed with William Wirt, and Presidents tend to follow the legal advice of their chief legal officers. Moreover, the Solicitor General has compiled a list of 102 (mostly uncontested) recess appointments made by Presidents going back to the founding. App. to Brief for Petitioner 65a-89a. Given the difficulty of finding accurate information about vacancy dates, that list is undoubtedly far smaller than the actual number. No one disputes that every President since James Buchanan has made recess appointments to pre-existing vacancies.

Common sense also suggests that many recess appointees filled vacancies that arose before the recess began. .......... SEE MORE


U.S. Supreme Court rules against the NLRB in recess appointments case

On Thursday, June 26, 2014, the United States Supreme Court ruled the three recess appointments President Obama made to the National Labor Relations Board (“NLRB” or “Board”) in January 2012 were invalid and unconstitutional. In NLRB v. Noel Canning, the Supreme Court unanimously ruled that President Obama exceeded his powers when he by-passed Congress and unilaterally appointed three Board members to the NLRB in January 2012. The issue turned on whether Congress was in “recess” at the time the appointments were made – as claimed by the President – or on an intra-session break as claimed by the employer group that filed the case.
All nine Supreme Court Justices ruled that the President exceeded his powers with the January 2012 appointments. However, five Justices (Breyer, Kennedy, Ginsburg, Sotomayer, and Kagan) joined in basing their decision on the fact the Senate break during which the President made these particular appointments was only three days in duration. The majority opinion written by Justice Breyer noted: “Ultimately, having examined the history, we find that to count as a ‘recess,’ a break—whether intersession or intra-session—must normally last for 10 days or more. That is a length sufficient to create a potential need for a presidential appointment.”
The other four Justices (Scalia, Roberts, Thomas, and Alito) joined in a concurring opinion that reads more like a dissent because of its attack on the majority opinion and call for a more literal application of the Constitution and the high court’s separation-of-powers. This opinion, written by Justice Scalia, asserts: “The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” and would likely “have the effect of aggrandizing the presidency beyond its constitutional bounds…well beyond the dispute at hand.”
The immediate fall-out from the Supreme Court’s decision will be dramatic. Over 100 cases involving challenges to the validity of decisions issued by the illegally-appointed Board members are currently pending in the federal court system. According to an NLRB spokesperson, the Board issued over 400 decisions in contested cases between Jan. 31, 2012, and July 16, 2013.  The validity of many of these decisions is now in question.
The NLRB does currently have a full five-member panel, all of whom were approved by the Senate.  Three of the current members are “Democratic” (considered to be pro-labor) appointees and two are “Republican” (pro-employer) appointees. So, many of the Board decisions and legal holdings rendered invalid by the Supreme Court’s decision could be rehabilitated by the current Board. However, for now, the only guidance the NLRB has provided is the following press release from current NLRB Chairman Pearce:
“The Supreme Court has today decided the Noel Canning case. We are analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated. Today, the National Labor Relations Board has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act. The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.”

Olivia Chapman's Resignation Letter as a Washington DC Teacher

Olivia Chapman
A DCPS Teacher Resigns
Rachel Levy’s blog, All Things Education

A few summers ago at the SOS March & National Call to Action, I met a young and enthusiastic, but independent-minded and healthily-skeptical DC Public School elementary teacher, named Olivia Chapman (on twitter: formerly @sedcteacher, now @NGCoachLiv). Olivia has done two guest posts for this blog thus far, one about lessons learned during her first year with DCPS and one about testing season in the same system. This is what I said about her in October 2011:

I was so impressed with Olivia (plus I'm always looking to feature the voices of teachers and education professionals who are on the ground) that I solicited a guest post from her. If she is symbolic of the young, smart, dedicated, and energetic teachers that neo-liberal reformers so often talk of attracting and keeping in the teaching profession, from Olivia's account below, they're not doing a very good job. Who, especially with all those qualities, lasts long in a stifling and absurd environment such as Olivia describes? For our nation's sake, I pray that Olivia and so many of the discouraged newer teachers I've talked to in recent years stick it out. We need you!

I am sad to announce that after five years of teaching in DC Public schools, Olivia has resigned and to start her own business with a like-minded friend and former teacher. Olivia received her Professional Coaching Certification and now coaches adults and teens to reach their personal, wellness and career goals. Still passionate about teaching, Olivia's company, Natural Greatness Coaching offers a character education workshop for young ladies in grades 5-10. 

Olivia wrote the following in response to DCPS's question on the "Declaration of Intent to Not Return Form for Resigning or Retiring Teachers" :

What could DCPS have done to retain you in the district?

I truly don't think that there is anything that you could have done to retain me in the district. Our educational philosophies do not align, specifically what those philosophies look like in action, not necessarily how they are written and presented. Although it would seem that your will and proclaimed dedication to educating all students and improving struggling schools are aligned to my own beliefs; stating your beliefs and acting on them can be extremely different.

In my opinion and based on five years of experience in a struggling school (which I believe you now call a "40-40" school), the actions that you have imposed that are supposed to be helping to educate all students and improve the education of underprivileged students are backfiring. I know some of your test scores are going up, but that means so little when morale decreases and discontent from the community, teachers and students increase. Additionally, student behavior continues to worsen as their teachers are "impacted out", the students are over-tested and the constant change in leadership causes students to lose faith in anyone sticking around long enough to invest in their successes. Your standards are higher while our resources are lower and the teachers are less effective because of constant turnover and poor training programs (Yes, I am referring to Teach for America and DC Teaching Fellows).

IMPACT and high stakes standardized testing are deteriorating education. I have enjoyed working with each and every one of my students, as challenging as some of them may be, but I can no longer participate in a system that is tearing them down, wasting their time and breaking their spirits. I can no longer participate in the rigid guidelines of IMPACT/Common Core/Standardized testing; it is not what my kids need or ever needed to be successful. Yes, they need quality teachers, learning standards and assessments-but the manner in which you have delivered these three essential components of education are not effective. I have been witness to this for five years. You can throw data and numbers at me all you want, but it is not working for my students nor my school, and I know I am not alone in stating this, especially in Ward 8. You have poured enormous amounts of money into IMPACT and testing and not nearly enough into professional development, technology or character education programs for students. We have lacked the supplies and trainings to properly implement Common Core for the last three years. Honestly, you can call the standards whatever you want, revise them, increase their "rigor", do whatever you please; but until communities, families, parents and students are held accountable for their participation in education, none of this matters.

I believe that every child can learn and has potential to do something great with their lives. Unfortunately, I do not believe that the testing regimen implemented by DCPS is a positive way to show off their potential, their greatness or even their basic intelligence. Also, I do not believe that all of them are cut out for college. I don't believe all children should go or need to go to college to be successful. I believe that what they need are supportive communities of people that help them to maximize their potential and turn their interests and passions into careers (which may or may not require a college degree).

DCPS' commitment to turning children from reds and yellows to greens and blues in reading and math, while simultaneously cutting extracurricular activities and special subjects are 100% contradictory to my moral and educational philosophies. A positive outcome for me at the end of the year is a student who has improved in all subject areas, including the arts, a sport, a hobby or a special interest. Of course, I also want them to improve their reading, as I believe that if a child can read they can do and learn ANYTHING, which is empowering in itself. I truly hope that they understand that as well.

More imperatively, my goal is that each student leaves my class with an increased desire to learn and a more directed focus in regards to what they are interested in, and how they can turn these subjects or passion-based interests into careers. To be honest, whether students score high on a standardized assessment means almost nothing to me. If I cared a little in the past, it was for selfish reasons like trying to stay in the district and not have myself be "impacted out". It wasn't because I actually thought it meant something for the child or their future.

I have battled with guilt over not caring more about test scores, as well as for disappointing my colleagues and school leaders because I refuse to buy into the hype of testing. I refuse to buy into spending hours on test-prep and practice sheets as well as the spirit week and the pep rally the week before DC-CAS begins. I have felt guilty that I may be a liability to my school because I believe that children should be allowed to go to the bathroom during testing, as well as be told that they are on the wrong page of the test booklet, or told to look over their work before they hand it in, or god-forbid, read a book when they have finished their test. I'm sure that by me not falling victim to the intended fear that they try to instill in teachers in regards to cheating and overall testing procedures have been a pain in the butt for my administrators. I just cannot take the whole testing mentality seriously. When I know what my students' real issues are and what the world that they actually face is like when they walk out of our school's doors it is just a reminder of why what you are doing is not really working for these kids.

At this point, I think you have a clear understanding of why I must leave DCPS; it would be a disservice for me to stay any longer pretending that I believe in what you are doing. I believe that the contradictory philosophies are confusing to my students, a pain for my administrators and a burden that I can no longer bear. I will miss the students because their potential has energized me. Their will to learn meaningful content as well as learn about themselves is what brought me back every year. This was a difficult choice to make, because I have really loved watching my students make progress and grow each year. I hope that I will see many of them again.

Thank you for employing me for the past five years, and for giving me the opportunity to educate hundreds of students in DC. Although we do not see eye to eye on what a quality and meaningful education looks like, I do hope that DCPS will one day find success in implementing a program that genuinely improves the education of all district students, especially the struggling schools in Ward 8, who deserve so much more than what they are given.

Posted by Rachel Levy at 9:00 AM 

NYC DOE Social Media Rules and Guidelines

If you are an employee of the NYC Department of Education it is wise to know what you can do with your DOE computer and email. You can be discontinued (if you have no tenure) or brought to 3020-a for any and all allegations of misconduct or violations of the social media guidelines. Common sense will rule. USE IT!

Betsy Combier


Staff Social Media Guidelines

The Staff Social Media Guidelines  recommend practices for professional social media communication between DOE employees, as well as social media communication between DOE employees and their students. The Staff Social Media Guidelines also address recommended practices for use of personal social media by DOE staff.

Teachers’ Guide to Student Social Media Guidelines

In an increasingly digital world, we want our students to have all the opportunities that multi-media learning can provide, which is why we allow and encourage the appropriate use of these powerful resources. The Teachers’ Guide to Student Social Media Guidelines  helps educators challenge our students with new methods of learning, while ensuring that we are using these tools responsibly.

The Student Social Media Guidelines and Infographics

The Student Social Media Guidelines, and the corresponding Infographics (linked below), focus on five areas:
Print out this flier to spread the word about social media guidelines to staff, students, and parents.

Other Resources

This Cyberbullying Presentation for Administrators  (log in with your DOE username and password) provides additional helpful information about cyberbullying and what to do to help students with online interactions.
The Internet Acceptable Use and Safety Policy  (IAUSP) further outlines what to do and not do.

The Student Bill of Rights and Discipline Code outlines the regulations that cover students.

Professional Development

Professional Development is available for school staff (log in with your DOE username and password). Schools can also contact their networks to schedule a professional development opportunity.  For more information, send an email to

Summer PD

This summer we are offering tech PD in partnership with Common Sense Media, Edmodo, Google, Microsoft, PBS, and SMART technologies. You can get more information about the programs (you'll need to log in with your DOE username and password) or go directly to the application.

Get Social

Use our hashtag on any of your favorite social media platforms.


Court holds employers not liable for employee defamatory online speech made using employer computers. Plaintiffs can’t take the money and run!

There seems to be a news story every day detailing employee misuse of social media. In fact, in a recent survey released by Proskauer Rose LLP, more than 70 percent of the 110 businesses surveyed reported they had to take disciplinary action against employees for misusing the technology.
Living in the U.S.A., we have grown accustomed to seeing corporate mis-tweets, where an employee accidently posts a personal tweet from a corporate account, and rogue employee cases, where an employee purposefully posts something inappropriate to a corporate social media account.
But now, introducing a new type of corporate social media mishap, where an employee posts defamatory remarks to an online forum anonymously … from the employee’s company computer … and the employer gets sued for defamation. I’ll pause while that sinks in.
Our cautionary tale comes from Miller v. Federal Express Corp., a case out of Indianapolis where the plaintiffs sued FedEx and 500 Festival for defamation and intentional infliction of emotional distress based solely on the fact that someone using their computers posted allegedly defamatory comments about the plaintiffs. While I can tell you that this cautionary tale has a [spoiler alert] happy ending for FedEx and 500 Festival, this case serves as a reminder to employers to tighten those social media policies and take action against employees who are discovered to be making such statements using the company’s computers.
Jeffrey Miller was a member of the Indiana business community and an employee of a non-profit organization. In the spring of 2008, he worked on a project between two non-profits (one he had worked for in the past and one he was then working for) to build a school. Construction on that project, however, was stopped two years later when the primary financial backer stopped payments allegedly due to defamatory statements by two co-defendants to the suit.
Later, a business magazine published an online article regarding the allegations and the controversy surrounding the school construction. The article itself was harmless enough. But then came the online comments, and some of them were bad … really bad.
One comment posted under the username “JA Fan” read in relevant part:
The new CEO has inherited a mess not of her doing. The former CEO [Miller] and finally –fired VP’s misuse (for their own personal gain) of funds that were dedicated to educating Indiana children are at the very least an embarrassment to the dedicated staff who have continued to push on, and most likely a criminal act. If you were a donor or sponsor in the last decade to these guys, an audit is definitely in order.
Another posted under the handle “Really?” read in relevant part:
Does this include paying the contractors? As the fundraiser and key money guy, probably has an eye on revenue and expenses. … “what is so depressing and unfair is that the subcontractors were never told the funds were suspended and [the non-profits] let them keep working.” … If they told JA, who did not own the building or sign the construction contracts, I’m pretty sure as a tenant with an interest in what’s happening to the building, they would notify the Landlord, President Miller (who did the deal to bring Ivy Tech to the building, who also took money to fund the construction, who was also the “project manager” responsible for day-to-day operations) that his project is going to be halted and his building left in a mess. Now a storied and critical organization is a mess in his wake. Was it the great philosopher, Steve Miller, who said, “Go on, take the money and run!”? Perhaps a relative?
Another posted under “Concernd” read: “these guys are crooks (Jeff Miller, Victor George and other parties) and have been robbing from our community using kids as there [sic] hook. I hope they go to jail!!!!?
This made the Millers (husband and wife sued) wonder, Who’s Been Talkin’?Discovery revealed that the first two comments were made by the vice president of corporate sponsorship at 500 Festival using a company computer located at 500 Festival’s offices. The third comment was made by an unknown person from an IP address assigned to FedEx and was not traceable to any specific user. Rather, it belonged to one of FedEx’s proxy servers that filtered internet traffic from thousands of FedEx users.
And Abracadabra, the Millers sued Federal Express, 500 Festival, and some individual defendants claiming defamation and intentional infliction of emotional distress. Federal Express and 500 Festival moved for summary judgment claiming immunity under the Communications Decency Act (CDA), which [here’s the happy ending] the trial court granted and the appeals court affirmed.
The Application of 230
The relevant, what-you-need-to-know, background about Section 230, which is the immunity provision of the CDA is that it protects companies that serve as intermediaries for online speech from liability for harmful content posted by third parties. Section 230 immunity protects online services, such as Google, Yahoo, and Microsoft, that host or republish third party content from liability based on what the third party says or does on the service. Holding otherwise would cripple internet speech.
Section 230 immunity requires a three-part showing:
  1. The entity seeking immunity is a provider or user of an interactive computer service (ICS).
  2. The plaintiff’s claim treats the entity seeking immunity as the publisher or speaker of the harmful information.
  3. The information at issue was provided by another content provider.
Satisfying those three elements immunizes the defendant from suit, although the author of the offensive content could still be held liable.
In Miller, the court determined 500 Festival and FedEx were both ICS providers because they enabled computer access for multiple users on their respective computer networks to access the Internet by means of the servers on each network.  In doing so, the court cited a few cases where employers were sued for online employee misconduct including: Delfino v. Agilent Technologies, Inc., 52 Cap.Rptr.3d 376 (Ca. Ct. App. 2006) (finding the employer was an ICS in suit against employer claiming an employee the employer claiming an employee sent them threatening emails and messages posted to online bulletin boards using the employer’s internet service connection); and Lansing v. Sw. Airlines Co., 980 N.E.2d 630, 631 (Ill. App. Co. 2012) (finding the employer was an ICS in suit for negligent supervision over an employee who sent threatening messages).
The next element provides that the CDA only protects an ICS provider from claims that seek to hold it liable as a publisher. The court found that the Millers were indeed seeking to hold 500 Festivals and FedEx liable as publishers of the defamatory content (as opposed to the Lansing case where the claim was for negligent supervision and not publication). The court found that in suing 500 Festival and FedEx for defamation and intentional infliction of emotional distress that the Millers were certainly seeking to hold both employers as the publishers of the allegedly defamatory posts.
Lastly, the CDA only protects an ICS provider from information provided by someone else. The evidence clearly established that the problematic online posts came from an unknown FedEx user and from an employee of 500 Festival.
Finding the employers satisfied all three elements of Section 230, the court affirmed the trial court’s summary judgment dismissal and sent a message to the Millers to Give It Up.
Employers can try, but they will never be able to control what employees say using the employer’s internet service. The good news for employers is that Section 230 provides immunity for employers for suits that grow out of defamatory online speech made through their computers. But, Don’t Cha Know, it is not a Perfect World, and even with Section 230 immunity, it is important for employers to make sure that their social media or computer usage policies provide sufficient guidance to employees as to what is acceptable online speech that may be made through their computers and what is not. Employers should also be wary of the Lansing opinion, which gives those harmed by defamatory speech a vehicle to go after employers who know their employees are making defamatory statements through use of their computers and do nothing to stop it. While I Want to Make the World Turn Around for employers on these types of liability issues, the law is what the law is. The best practice for an employer is to have proper social media and computer usage policies, train employees on them, and if an employee violates either one, proceed with proper responsive discipline.