National Labor Relations Board v. Canning (2014)

573 U.S._

Case Year: 2014

Case Ruling: 9-0, Affirmed

Opinion Justice: Breyer

FACTS

This case arises out of a labor dispute. The National Labor Relations Board (NLRB) found that Noel Canning, a Pepsi-Cola distributor, had unlawfully refused to execute a collective-bargaining agreement with a labor union. Noel Canning, in turn, asked the Court of Appeals for the District of Columbia Circuit to set the Board’s order aside. It claimed that the Board lacked a quorum because three of the five Board members had been invalidly appointed.

The three members in question were Sharon Block, Richard Griffin, and Terence Flynn. In 2011 President Obama had nominated each to the Board. As of January 2012, Flynn’s nomination had been pending in the Senate awaiting confirmation for approximately a year. The nominations the other two had been pending for a few weeks. On January 4, 2012, Obama, invoking the Recess Appointments Clause, appointed all three to the Board. The Recess Appointments Clause (Art. II, §2, cl. 3) gives the President the power “to fill up all Vacancies that may happen during the Recess of the Senate.”

Noel Canning contended that the appointments violated the Recess Appointments Clause. It noted that on December 17, 2011, the Senate had adopted a resolution providing that it would take a series of brief recesses beginning the following day. The Senate then proceeded to hold pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23, 2012. The President’s January 4 appointments were made between the January 3 and January 6. Noel Canning argued that because each pro forma session terminated the immediately preceding recess, the appointments were made during a three-day adjournment, which is not long enough to trigger the Recess Appointments Clause.

The U.S. Court of Appeals agreed that the appointments fell outside the scope of the Recess Clause, but for different reasons. 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.

 

JUSTICE BREYER DELIVERED THE OPINION OF THE COURT:

Ordinarily the President must obtain “the Advice and Consent of the Senate” before appointing an “Office[r] 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-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 session[s],” 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. . . .

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 discernment.” 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.” . . .

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, (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”). We seek to interpret the Clause 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, we put significant weight upon historical practice. For one thing, the interpretive questions before us concern the allocation of power between two elected branches of Government. . . .

We recognize, of course, that the separation of powers can serve to safeguard individual liberty, 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 (1803). But it is equally true that the longstanding “practice of the government” McCulloch, can inform our determination of “what the law is.” . . .

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.

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.” 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.” . . . . The Oxford English Dictionary (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 (4th ed. 1773) (hereinafter Johnson) (same). The Founders themselves used the word to refer to intra-session, as well as to inter-session, breaks. . . .

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.” Johnson. But the word can also refer “to a term used generically or universally.” OED. 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) . . . . 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.

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. . . .

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. And in each of those years the President made intra-session recess appointments.

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. 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. 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.”

We have found memoranda offering similar advice to President Eisenhower and to every President from Carter to the present. . . .

 

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.” . . . 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. . . .

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 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.

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. 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.”

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. That Clause says: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.”

We agree with the Solicitor General that a 3-day recess would be too short. 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. A Senate recess that is so short that it does not require the consent 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.” 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 appointment made during an intra-session recess that was shorter than 10 days. . . .

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. 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.” 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 initially occurs. . . . See 1 Johnson 913 (defining “happen” in relevant part as meaning “[t]o 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.” It “may mean ‘vacancies that may happen to be’ or ‘may happen to fall’ ” during a recess. . . .

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.’” The broader interpretation, he added, is “most accordant with” the Constitution’s “reason and spirit.”. . .

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. And the broader reading, we believe, is at least a permissible reading of a “‘doubtful’” phrase. 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. [T]he narrower interpretation would undermine this purpose. . . .

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. [Attorney General] 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.” . . .

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 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.”. . .

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.”

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. . . .

Common sense also suggests that many recess appointees filled vacancies that arose before the recess began. We have compared the list of intra-session recess appointments in the Solicitor General’s brief with the chart of congressional recesses. Where a specific date of appointment can be ascertained, more than half of those intra-session appointments were made within two weeks of the beginning of a recess. That short window strongly suggests that many of the vacancies initially arose prior to the recess. . . . Further, with research assistance from the Supreme Court Library, we have examined a random sample of the recess appointments made by our two most recent Presidents, and have found that almost all of those appointments filled pre-recess vacancies: Of a sample of 21 recess appointments, 18 filled pre-recess vacancies and only 1 filled a vacancy that arose during the recess in which he was appointed. The precise date on which 2 of the vacancies arose could not be determined. Taken together, we think it is a fair inference that a large proportion of the recess appointments in the history of the Nation have filled pre-existing vacancies.

Did the Senate object? Early on, there was some sporadic disagreement with the broad interpretation. . . .

In any event, the Senate subsequently abandoned its hostility. . . .

In 1916 the Senate debated whether to pay a recess appointee who had filled a pre-recess vacancy and had not subsequently been confirmed. Both Senators to address the question—one on each side of the payment debate—agreed that the President had the constitutional power to make the appointment, and the Senate voted to pay the appointee for his service. . . .

Then in 1940 Congress amended the Pay Act to authorize salary payments (with some exceptions) where (1) the “vacancy arose within thirty days prior to the termination of the session,” (2) “at the termination of the session” a nomination was “pending,” or (3) a nominee was “rejected by the Senate within thirty days prior to the termination of the session.” All three circumstances concern a vacancy that did not initially occur during a recess but happened to exist during that recess. By paying salaries to this kind of recess appointee, the 1940 Senate (and later Senates) in effect supported the President’s interpretation of the Clause.

The upshot is that the President has consistently and frequently interpreted the Recess Appointments Clause to apply to vacancies that initially occur before, but continue to exist during, a recess of the Senate. The Senate as a body has not countered this practice for nearly three-quarters of a century, perhaps longer. The tradition is long enough to entitle the practice “to great regard in determining the true construction” of the constitutional provision. And we are 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.

In light of some linguistic ambiguity, the basic purpose of the Clause, and the historical practice we have described, we conclude that the phrase “all vacancies” includes vacancies that come into existence while the Senate is in session.

The third question concerns the calculation of the length of the Senate’s “recess.” On December 17, 2011, the Senate by unanimous consent adopted a resolution to convene “pro forma session[s]” only, with “no business . . . transacted,” on every Tuesday and Friday from December 20, 2011, through January 20, 2012. At the end of each pro forma session, the Senate would “adjourn until” the following pro forma session. Ibid. During that period, the Senate convened and adjourned as agreed. It held pro forma sessions on December 20, 23, 27, and 30, and on January 3, 6, 10, 13, 17, and 20; and at the end of each pro forma session, it adjourned until the time and date of the next.

The President made the recess appointments before us on January 4, 2012, in between the January 3 and the January 6 pro forma sessions. We must determine the significance of these sessions—that is, whether, for purposes of the Clause, we should treat them as periods when the Senate was in session or as periods when it was in recess. If the former, the period between January 3 and January 6 was a 3-day recess, which is too short to trigger the President’s recess-appointment power, see supra, at 19–21. If the latter, however, then the 3-day period was part of a much longer recess during which the President did have the power to make recess appointments.

The Solicitor General argues that we must treat the pro forma sessions as periods of recess. He says that these “sessions” were sessions in name only because the Senate was in recess as a functional matter. The Senate, he contends, remained in a single, unbroken recess from January 3, when the second session of the 112th Congress began by operation of the Twentieth Amendment, until January 23, when the Senate reconvened to do regular business.

In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here.

The standard we apply is consistent with the Constitution’s broad delegation of authority to the Senate to determine how and when to conduct its business. The Constitution explicitly empowers the Senate to “determine the Rules of its Proceedings.” Art. I, §5, cl. 2. . . .

In addition, the Constitution provides the Senate with extensive control over its schedule. There are only limited exceptions. See Amdt. 20, §2 (Congress must meet once a year on January 3, unless it specifies another day by law); Art. II, §3 (Senate must meet if the President calls it into special session); Art. I, §5, cl. 4 (neither House may adjourn for more than three days without consent of the other). See also Art. II, §3 (“[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper”). The Constitution thus gives the Senate wide latitude to determine whether and when to have a session, as well as how to conduct the session. This suggests that the Senate’s determination about what constitutes a session should merit great respect. . . .

But our deference to the Senate 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. (acknowledgment [during oral argument] by counsel for amici Senators that if the Senate had left the Capitol and “effectively given up . . . the business of legislating” then it might be in recess, even if it said it was not). In that circumstance, the Senate is not simply unlikely or unwilling to act upon nominations of the President. It is unable to do so. The purpose of the Clause is to ensure the continued functioning of the Federal Government while the Senate is unavailable. This purpose would count for little were we to treat the Senate as though it were in session even when it lacks the ability to provide its “advice and consent.” Accordingly, we conclude that when the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the Clause.

Applying this standard, we find that the pro forma sessions were sessions for purposes of the Clause. First, the Senate said it was in session. The Journal of the Senate and the Congressional Record indicate that the Senate convened for a series of twice-weekly “sessions” from December 20 through January 20. 2011. And these reports of the Senate “must be assumed to speak the truth.”

Second, the Senate’s rules make clear that during its pro forma sessions, despite its resolution that it would conduct no business, the Senate retained the power to conduct business. During any pro forma session, the Senate could have conducted business simply by passing a unanimous consent agreement. The Senate in fact conducts much of its business through unanimous consent. Senate rules presume that a quorum is present unless a present Senator questions it. And when the Senate has a quorum, an agreement is unanimously passed if, upon its proposal, no present Senator objects. It is consequently unsurprising that the Senate has enacted legislation during pro forma sessions even when it has said that no business will be transacted. Indeed, the Senate passed a bill by unanimous consent during the second pro forma session after its December 17 adjournment. And that bill quickly became law. . . .

By way of contrast, we do not see how the Senate could conduct business during a recess. It could terminate the recess and then, when in session, pass a bill. But in that case, of course, the Senate would no longer be in recess. It would be in session. And that is the crucial point. Senate rules make clear that, once in session, the Senate can act even if it has earlier said that it would not. . . .

The Recess Appointments Clause responds to a structural difference between the Executive and Legislative Branches: The Executive Branch is perpetually in operation, while the Legislature only acts in intervals separated by recesses. The purpose of the Clause is to allow the Executive to continue operating while the Senate is unavailable. We believe that the Clause’s text, standing alone, is ambiguous. It does not resolve whether the President may make appointments during intra-session recesses, or whether he may fill pre-recess vacancies. But the broader reading better serves the Clause’s structural function. Moreover, that broader reading is reinforced by centuries of history, which we are hesitant to disturb. We thus hold that the Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.

Justice Scalia would render illegitimate thousands of recess appointments reaching all the way back to the founding era. More than that: Calling the Clause an “anachronism,” he would basically read it out of the Constitution. He performs this act of judicial excision in the name of liberty. We fail to see how excising the Recess Appointments Clause preserves freedom. . . . [T]he Framers included the Recess Appointments Clause to preserve the “vigour of government” at times when an important organ of Government, the United States Senate, is in recess. Justice Scalia’s interpretation of the Clause would defeat the power of the Clause to achieve that objective.

The foregoing discussion should refute Justice Scalia’s claim that we have “embrace[d]” an “adverse-possession theory of executive power.” Instead, as in all cases, we interpret the Constitution in light of its text, purposes, and “our whole experience” as a Nation. And we look to the actual practice of Government to inform our interpretation.

Given our answer to the last question before us, we conclude that the Recess Appointments Clause does not give the President the constitutional authority to make the appointments here at issue. Because the Court of Appeals reached the same ultimate conclusion (though for reasons we reject), its judgment is affirmed.

It is so ordered.

JUSTICE SCALIA, WITH WHOM THE CHIEF JUSTICE, JUSTICE THOMAS, AND JUSTICE ALITO JOIN, CONCURRING IN THE JUDGMENT:

The first question presented is whether “the Recess of the Senate,” during which the President’s recess-appointment power is active, is (a) the period between two of the Senate’s formal sessions, or (b) any break in the Senate’s proceedings. I would hold that “the Recess” is the gap between sessions and that the appointments at issue here are invalid because they undisputedly were made during the Senate’s session. The Court’s contrary conclusion—that “the Recess” includes “breaks in the midst of a session,”—is inconsistent with the Constitution’s text and structure, and it requires judicial fabrication of vague, unadministrable limits on the recess-appointment power (thus defined) that overstep the judicial role. And although the majority relies heavily on “historical practice,” no practice worthy of our deference supports the majority’s conclusion on this issue.

A sensible interpretation of the Recess Appointments Clause should start by recognizing that the Clause uses the term “Recess” in contradistinction to the term “Session.”. . .

In the founding era, the terms “recess” and “session” had well-understood meanings in the marking-out of legislative time. The life of each elected Congress typically consisted (as it still does) of two or more formal sessions separated by adjournments “sine die,” that is, without a specified return date. The period between two sessions was known as “the recess.” By contrast, other provisions of the Constitution use the verb “adjourn” rather than “recess” to refer to the commencement of breaks during a formal legislative session. . . . See, e.g., Art. I, §5, cl. 1; id., §5, cl. 4. 2

To be sure, in colloquial usage both words, “recess” and “session,” could take on alternative, less precise meanings. A session could include any short period when a legislature’s members were “assembled for business,” and a recess could refer to any brief “suspension” of legislative “business.” . . . 2 N. Webster, American Dictionary of the English Language(1828). So the Continental Congress could complain of the noise from passing carriages disrupting its “daily Session,” . . . and the House could “take a recess” from 4 o’clock to 6 o’clock. . . . But as even the majority acknowledges, the Constitution’s use of “the word ‘the’ in ‘the [R]ecess’” tends to suggest “that the phrase refers to the single break separating formal sessions.”

More importantly, neither the Solicitor General nor the majority argues that the Clause uses “session” in its loose, colloquial sense. And if “the next Session” denotes a formal session, then “the Recess” must mean the break betweenformal sessions. As every commentator on the Clause until the 20th century seems to have understood, the “Recess” and the “Session” to which the Clause refers are mutually exclusive, alternating states. . . . It is linguistically implausible to suppose—as the majority does—that the Clause uses one of those terms (“Recess”) informally and the other (“Session”) formally in a single sentence, with the result that an event can occur during both the “Recess” and the “Session.”

Besides being linguistically unsound, the majority’s reading yields the strange result that an appointment made during a short break near the beginning of one official session will not terminate until the end of the following official session, enabling the appointment to last for up to two years. The majority justifies that result by observing that the process of confirming a nominee “may take several months.” But the average duration of the confirmation process is irrelevant. The Clause’s self-evident design is to have the President’s unilateral appointment last only until the Senate has “had an opportunity to act on the subject” (emphasis added).

 

One way to avoid the linguistic incongruity of the majority’s reading would be to read both “the Recess” and “the next Session” colloquially, so that the recess-appointment power would be activated during any temporary suspension of Senate proceedings, but appointments made pursuant to that power would last only until the beginning of the next suspension (which would end the next colloquial session). . . . That approach would be more linguistically defensible than the majority’s. But it would not cure the most fundamental problem with giving “Recess” its colloquial, rather than its formal, meaning: Doing so leaves the recess-appointment power without a textually grounded principle limiting the time of its exercise.

The dictionary definitions of “recess” on which the majority relies provide no such principle. On the contrary, they make clear that in colloquial usage, a recess could include any suspension of legislative business, no matter how short. . . . Webster even provides a stark illustration: “[T]he house of representatives had a recess of half an hour.” 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. But that, in the majority’s view, is what the text authorizes.

The boundlessness of the colloquial reading of “the Recess” thus refutes the majority’s assertion that the Clause’s “purpose” of “ensur[ing] the continued functioning of the Federal Government” demands that it apply to intra-session breaks as well as inter-session recesses. The majority disregards another self-evident purpose of the Clause: to preserve the Senate’s role in the appointment process—which the founding generation regarded as a critical protection against “‘despotism,’”—by clearly delineating the times when the President can appoint officers without the Senate’s consent. Today’s decision seriously undercuts that purpose. . . .

To avoid the absurd results that follow from its colloquial reading of “the Recess,” the majority is forced to declare that some intra-session breaks—though undisputedly within the phrase’s colloquial meaning—are simply “too short to trigger the Recess Appointments Clause.” But it identifies no textual basis whatsoever for limiting the length of “the Recess,” nor does it point to any clear standard for determining how short is too short. It is inconceivable that the Framers would have left the circumstances in which the President could exercise such a significant and potentially dangerous power so utterly indeterminate. Other structural provisions of the Constitution that turn on duration are quite specific: Neither House can adjourn “for more than three days” without the other’s consent. Art. I, §5, cl. 4. The President must return a passed bill to Congress “within ten Days (Sundays excepted),” lest it become a law. Yet on the majority’s view, when the first Senate considered taking a 1-month break, a 3-day weekend, or a half-hour siesta, it had no way of knowing whether the President would be constitutionally authorized to appoint officers in its absence. And any officers appointed in those circumstances would have served under a cloud, unable to determine with any degree of confidence whether their appointments were valid.

Fumbling for some textually grounded standard, the majority seizes on the Adjournments Clause, which bars either House from adjourning for more than three days without the other’s consent. According to the majority, that clause establishes that a 3-day break is always “too short” to trigger the Recess Appointments Clause. It goes without saying that nothing in the constitutional text supports that disposition. If (as the majority concludes) “the Recess” means a recess in the colloquial sense, then it necessarily includes breaks shorter than three days. And the fact that the Constitution includes a 3-day limit in one clause but omits it from the other weighs strongly against finding such a limit to be implicit in the clause in which it does not appear. In all events, the dramatically different contexts in which the two clauses operate make importing the 3-day limit from the Adjournments Clause into the Recess Appointments Clause “both arbitrary and mistaken.”

And what about breaks longer than three days? The majority says that a break of four to nine days is “presumptively too short” but that the presumption may be rebutted in an “unusual circumstance,” such as a “national catastrophe . . . that renders the Senate unavailable but calls for an urgent response.” The majority must hope that the in terrorem effect of its “presumptively too short” pronouncement will deter future Presidents from making any recess appointments during 4- to 9-day breaks and thus save us from the absurd spectacle of unelected judges evaluating (after an evidentiary hearing?) whether an alleged “catastrophe” was sufficiently “urgent” to trigger the recess-appointment power.”. . .

As for breaks of 10 or more days: We are presumably to infer that such breaks do not trigger any “presumpt[ion]” against recess appointments, but does that mean the President has an utterly free hand? Or can litigants seek invalidation of an appointment made during a 10-day break by pointing to an absence of “unusual” or “urgent” circumstances necessitating an immediate appointment, albeit without the aid of a “presumpt[ion]” in their favor? Or, to put the question as it will present itself to lawyers in the Executive Branch: Can the President make an appointment during a 10-day break simply to overcome “political opposition in the Senate” despite the absence of any “national catastrophe,” even though it “go[es] without saying” that he cannot do so during a 9-day break? Who knows? The majority does not say, and neither does the Constitution. . . .

An interpretation that calls for this kind of judicial adventurism cannot be correct. Indeed, if the Clause really did use “Recess” in its colloquial sense, then there would be no “judicially discoverable and manageable standard for resolving” whether a particular break was long enough to trigger the recess-appointment power, making that a nonjusticiable political question. . . .

For the foregoing reasons, the Constitution’s text and structure unambiguously refute the majority’s freewheeling interpretation of “the Recess.” It is not plausible that the Constitution uses that term in a sense that authorizes the President to make unilateral appointments during any break in Senate proceedings, subject only to hazy, atextual limits crafted by this Court centuries after ratification. The majority, however, insists that history “offers strong support” for its interpretation. The historical practice of the political branches is, of course, irrelevant when the Constitution is clear. But even if the Constitution were thought ambiguous on this point, history does not support the majority’s interpretation. . . .

. . . . Intra-session recess appointments were virtually unheard of for the first 130 years of the Republic, were deemed unconstitutional by the first Attorney General to address them, were not openly defended by the Executive until 1921, were not made in significant numbers until after World War II, and have been repeatedly criticized as unconstitutional by Senators of both parties. It is astonishing for the majority to assert that this history lends “strong support” to its interpretation of the Recess Appointments Clause. And the majority’s contention that recent executive practice in this area merits deference because the Senate has not done more to oppose it is utterly divorced from our precedent. “The structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic,” and the Senate could not give away those protections even if it wanted to. . . .

The second question presented is whether vacancies that “happen during the Recess of the Senate,” which the President is empowered to fill with recess appointments, are (a) vacancies that arise during the recess, or (b) all vacancies that exist during the recess, regardless of when they arose. I would hold that the recess-appointment power is limited to vacancies that arise during the recess in which they are filled, and I would hold that the appointments at issue here—which undisputedly filled pre-recess vacancies—are invalid for that reason as well as for the reason that they were made during the session. The Court’s contrary conclusion is inconsistent with the Constitution’s text and structure, and it further undermines the balance the Framers struck between Presidential and Senatorial power. Historical practice also fails to support the majority’s conclusion on this issue.

A. Plain Meaning

As the majority concedes, “the most natural meaning of ‘happens’ as applied to a ‘vacancy’ . . . is that the vacancy ‘happens’ when it initially occurs.” The majority adds that this meaning is most natural “to a modern ear,” but it fails to show that founding-era ears heard it differently. “Happen” meant then, as it does now, “[t]o fall out; to chance; to come to pass.” 1 Johnson, Dictionary of the English Language 913. Thus, a vacancy that happened during the Recess was most reasonably understood as one that arose during the recess. It was, of course, possible in certain contexts for the word “happen” to mean “happen to be” rather than “happen to occur,” as in the idiom “it so happens.” But that meaning is not at all natural when the subject is a vacancy, a state of affairs that comes into existence at a particular moment in time.

In any event, no reasonable reader would have understood the Recess Appointments Clause to use the word “happen” in the majority’s “happen to be” sense, and thus to empower the President to fill all vacancies that might exist during a recess, regardless of when they arose. For one thing, the Clause’s language would have been a surpassingly odd way of giving the President that power. The Clause easily could have been written to convey that meaning clearly: It could have referred to “all Vacancies that may exist during the Recess,” or it could have omitted the qualifying phrase entirely and simply authorized the President to “fill up all Vacancies during the Recess.” Given those readily available alternative phrasings, the reasonable reader might have wondered, why would any intelligent drafter intending the majority’s reading have inserted the words “that may happen”—words that, as the majority admits, make the majority’s desired reading awkward and unnatural, and that must be effectively read out of the Clause to achieve that reading?

For another thing, the majority’s reading not only strains the Clause’s language but distorts its constitutional role, which was meant to be subordinate. . . . The Senate’s check on the President’s appointment power was seen as vital because “‘manipulation of official appointments’ had long been one of the American revolutionary generation’s greatest grievances against executive power.” The unilateral power conferred on the President by the Recess Appointments Clause was therefore understood to be “nothing more than a supplement” to the “general method” of advice and consent. The Federalist No. 67.

If, however, the Clause had allowed the President to fill all pre-existing vacancies during the recess by granting commissions that would last throughout the following session, it would have been impossible to regard it—as the Framers plainly did—as a mere codicil to the Constitution’s principal, power-sharing scheme for filling federal offices. On the majority’s reading, the President would have had no need ever to seek the Senate’s advice and consent for his appointments: Whenever there was a fair prospect of the Senate’s rejecting his preferred nominee, the President could have appointed that individual unilaterally during the recess, allowed the appointment to expire at the end of the next session, renewed the appointment the following day, and so on ad infinitum. (Circumvention would have been especially easy if, as the majority also concludes, the President was authorized to make such appointments during any intra-session break of more than a few days.) It is unthinkable that such an obvious means for the Executive to expand its power would have been overlooked during the ratification debates. . . .

For the reasons just given, it is clear that the Constitution authorizes the President to fill unilaterally only those vacancies that arise during a recess, not every vacancy that happens to exist during a recess. Again, however, the majority says “[h]istorical practice” requires the broader interpretation. And again the majority is mistaken. Even if the Constitution were wrongly thought to be ambiguous on this point, a fair recounting of the relevant history does not support the majority’s interpretation. . . .

. . . Washington’s and Adams’ Attorneys General read the Constitution to restrict recess appointments to vacancies arising during the recess, and there is no evidence that any of the first four Presidents consciously departed from that reading. The contrary reading was first defended by an executive official in 1823, was vehemently rejected by the Senate in 1863, was vigorously resisted by legislation in place from 1863 until 1940, and is arguably inconsistent with legislation in place from 1940 to the present. The Solicitor General has identified only about 100 appointments that have ever been made under the broader reading, and while it seems likely that a good deal more have been made in the last few decades, there is good reason to doubt that many were made before 1940 (since the appointees could not have been compensated). I can conceive of no sane constitutional theory under which this evidence of “historical practice”—which is actually evidence of a long-simmering inter-branch conflict—would require us to defer to the views of the Executive Branch.

What the majority needs to sustain its judgment is an ambiguous text and a clear historical practice. What it has is a clear text and an at-best-ambiguous historical practice. Even if the Executive could accumulate power through adverse possession by engaging in a consistent and unchallenged practice over a long period of time, the oft-disputed practices at issue here would not meet that standard. Nor have those practices created any justifiable expectations that could be disappointed by enforcing the Constitution’s original meaning. There is thus no ground for the majority’s deference to the unconstitutional recess-appointment practices of the Executive Branch. . . .

The real tragedy of today’s decision is not simply the abolition of the Constitution’s limits on the recess-appointment power and the substitution of a novel framework invented by this Court. It is the damage done to our separation-of-powers jurisprudence more generally. It is not every day that we encounter a proper case or controversy requiring interpretation of the Constitution’s structural provisions. Most of the time, the interpretation of those provisions is left to the political branches—which, in deciding how much respect to afford the constitutional text, often take their cues from this Court. We should therefore take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand. Sad, but true: The Court’s embrace of the adverse-possession theory of executive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.

I concur in the judgment only.