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
NATIONAL LABOR RELATIONS BOARD v. NOEL CANNING ET
AL.No. 12-1281
June 26, 2014
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT
Syllabus
(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.
Held:
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.
54NLRB v.
CANNING
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.
I
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 http://www.nlrb.gov/
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.
II
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.
III
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 www.justice.gov/
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.
IV
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
EMPLOYER LAW REPORT
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.”
