National Labor Relations Board v. New Vista Nursing & Rehabilitation

dis- the school against claims stitutional changed, My position

trict. has in this case. hold the same today, I would dissent.1 I therefore RELATIONS LABOR NATIONAL BOARD, Petitioner Healthcare Workers United 1199 Seiu East, Region, Intervenor N.J.

v. AND NEW VISTA NURSING REHABILITATION,

Respondent. Rehabilitation, Nursing And New Vista LLC, Petitioner

v. Relations National Labor Board, Respondent. Healthcare Workers 1199 Seiu United East, Region, Intervenor. N.J. 12-1027, 12-1936. Nos. Appeals, United States Court Third Circuit. 19, 2013. Argued March May 2013. Filed: Fuentes, join. writ- in toto and My colleague, Judge has also dissent, agree I with opinion ten Brinkmann, [argued], Sarang V.

Beth S. Damle, Shultz, Benjamin Scott R. M. McIntosh, Patterson, Melissa N. United Justice, B. Department of Julie States Dreeben, Broido, Milakshmi V. Ra- Linda National Labor Rela- japaksem, [argued], Board, DC, Washington, for Petition- tions er. Gladstein, & Massey, Reif

William S. York, NY, New for Intervenor- Meginniss, Petitioner. Capozzi [argued], Capozzi &

Louis J. PA, Tuchman, Assoc., Harrisburg, Morris York, NY, Respondent. New Williams, University of Catholic Victor DC, America, for Amicus-Pe- Washington, titioner. SMITH, JR, GREENAWAY

Before: ANTWERPEN, Judges. Circuit and VAN

OPINION

SMITH, Judge. Circuit in the The Recess President provides “[t]he Constitution up fill all Vacancies have Power to shall may during the Recess of happen Senate, which by granting Commissions of their next Ses- expire at the End shall Const, II, 2,§ cl. 3. The art. sion.” U.S. is the mean- in this case question central Senate,” of “the Recess may president only time in which appoint officers. to recess use his (1) offered: have been Three definitions of the Senate between sessions breaks (2) breaks”); (i.e., these in- supervisors “intersession Vista’s LPNs were not tersession breaks as well as breaks within thus certified the union as well as ordered breaks”) (i.e., “intrasession an election. New appealed session Vista to the time, Board, non-negligible regional last for a which affirmed the di- break in business that makes the rector’s order. body provide unavailable to advice and majority The union won a in the president’s consent on the nominations. ensuing election. New Vista refused to question This is a difficult that has never union,1 bargain with the which then filed

been addressed our Court or the Su- charge of unfair practices against labor preme Court. hold that “the We Recess New Vista before the Board. On behalf of Appoint- the Senate” the Recess union, general the Board’s counsel ments Clause refers intersession summary judgment against moved for consequence, breaks. As a we conclude Vista, New opposed. which New Vista that the National Labor Relations Board unanimously The Board granted summary panel below the requisite lacked number judgment favor of the against Union and of members to exercise the Board’s au- New in a “decision and order” dated Vista thority panel because one member was August invalidly appointed during an intrasession This order was issued a three- break. will We therefore vacate the “delegee member group” of the Board. Board’s orders. The NLRA establishes that the Board is I composed members, upof to five appoint president ed and confirmed with operates New Vista a nursing and reha- the advice and consent of the Senate. 29 Newark, bilitative care center in New Jer- 153(a). 153(b) § U.S.C. Section authorizes 25, 2011, sey. January On a healthcare “delegate the Board to any group petitioned workers’ union the National La- three or more members or all of the (“the Board”) bor Relations Board cer- for. powers may which it itself exercise.” Id. tification as representative for New 153(b). § delegee groups These must (“LPN”). practical Vista’s licensed nurses membership “maintain a of three in order opposed New Vista this certification on the delegated exercise the authority of the grounds that its LPNs supervisors are Steel, Board.” New Process L.P. v. who cannot unionize under the National NLRB, 674, 2635, 2644, 560 U.S. 130 S.Ct. (“NLRA”), Labor Relations Act 29 U.S.C. (2010). 177 L.Ed.2d 162 152(3), § NLRB Kentucky See v. Care, Inc., 706, River Cmty. 709, Importantly, this three-member-compo- 1861, 121 S.Ct. 149 L.Ed.2d 939 requirement sition is distinct 153(b)’s (explaining that supervisors § do not fall quorum requirements. within the bargain- NLRA’s definition of a quorum requirements speak to the number unit). 9, 2011, On March the Board’s of present members who must be to exer- regional director determined that New powers cise the Board’s for either bargain 1. way judicial Refusal to is a representation common review of determina- judicial representation obtain review deter- tions is unavailable” but indirect review minations like may the Board’s by refusing bargain affirmation of the be obtained regional director's thereby inducing March 2011 decision for the Board to file an unfair NLRB, which direct labor’practice review is (citing unavailable. NLRB v. claim AFL v. Inc., Kentucky Cmty. River Care 532 U.S. at 84 L.Ed. 347 (1940))). (explaining 121 S.Ct. 1861 that "direct of the motion for reconsideration. This properly a constituted itself or Board more) (or functionally stay a proceed- acted as delegee group. three-member ings before us. (explaining that id. at 2642-43 two provision” “authorizes “group quorum 30, 2011, On December the Board denied group a ... of at least members to act as New motion for Vista’s reconsideration. not “authorize members” but does three First, New took two actions. it filed Vista delegee a valid members to constitute two a second motion for on reconsideration (defining see also id. at 2642 group”); motion, In January this the com- a number of members of quorum as “the pany argued that the three-member De- body participate for the larger must delegee group improperly cember 30 was business”). To have a valid transaction of constituted and thus without to is- delegee group must have quorum, panelists sue the order because one of the present two of three members least company was recused from the case. The of its must have at least three the Board argued also in a March 14 motion “further 153(b). § present. members 29 U.S.C. five for reconsideration” that the December 30 delegee group Reconsideration Order was contrast, three-member-composi- improperly constituted because one of the many to how requirement speaks tion panelists appointee whose delegee group for a required members are term concluded at the end of the Senate’s body that can properly to be a constituted 2011 session—which New Vista contended powers. These dif- exercise the Board’s 17, 2007, days was December thirteen be- related, certainly requirements ferent fore December 30 Reconsideration Or- turns on whether the simply but this case der was issued. August that issued the delegee group Second, 9, 2012, reconsideration subsequent January and the New Order Vista orders had three members. petition filed a for review of the December this Court. 30 Reconsideration Order with September New Vista filed On petition as a cross- We have treated with the Board to reconsider motion the Board’s petition opposing for review company argued August 26 Order. 26 petition August for enforcement of the act- delegee group that the three-member granted another Board Order. We also although because the order ed ultra vires filing of the abeyance motion to hold in day one August is dated 26—one before petitions administrative record for these member, Liebman, resigned Wilma —it until second motion for recon- New Vista’s until it was mailed was not issued This, func- again, resolved. sideration was mean, This would August the week of tionally stay proceedings acted as a of the Vista, had according panel to New before us. order was only two members when the 15, 2012, denied issued, March the Board thereby violating 29 U.S.C. On 153(d)’s motion for reconsider- three-member-composition re- New Vista’s second § not address the argued that ation. This order did quirement. company also argument March 14 that substantively company’s August 26 Order was on Decem- Meanwhile, panelist term of one had ended September incorrect. 22, 2012, New Vista 17. On March the Board filed with this Court ber motion for reconsideration. August filed a third for enforcement application company’s reiterated the an uncontested This motion granted 26 Order. We that the December 30 argument the March 14 abeyance filing to hold in motion improperly constituted delegee group was pending record resolution administrative 210 tion,, session had ended on but also

because Senate’s that of the lower courts in a eyen review,’ argued The motion also cause under though par- December 17. delegee group prepared (quoting that ties are to concede it” the three-member Maurer, 237, 244, Mitchell v. March 15 Reconsideration Or- 55 issued the (1934))). 162, 79 S.Ct. L.Ed. 338 In their der lacked three members because two of briefs, parties initial contended that invalidly appointed its members were delegee group subject-matter ju- had the Board under the Recess 160(a), § risdiction under 29 U.S.C. Clause while the Senate was not in “re- (and “empower[s]” the Board three- sum, argued cess.” In that if Vista New delegee groups) prevent member “to any the Senate’s session had ended when it person engaging labor sessions, began using pro then the unfair forma practice ... affecting commerce:” doWe panel December 30 had two members 160(a) § provides juris- doubt one because the term of one of its members requirement dictional for the Board to ad- expired. But if the Senate’s session did judicate a case. But that pre- does not time, not end at that then the March 15 clude inquired others. We have thus panel improperly constituted because 153(b)’s § whether 29 U.S.C. three-mem- president’s were ber-composition requirement jurisdic- invalidly made while the Senate was not in tional. We hold that it is. recess. The Board denied this motion on March 2012. The Board also filed the This previously Court has ex administrative record with this Court on plained authority that “the overall date, thereby stripping juris- itself of Board to hear case [a] under the NLRA” “ 160(e) § diction. (“Upon See 29 U.S.C. jurisdictional is a question ‘may ” filing jurisdiction with it the record at any raised time.’ NLRB Konig, v. of the court shall be exclusive and its (3d Cir.1996) F.3d (quoting NLRB final.”). judgment and decree shall be Stores, Inc., Peyton v. Fritton 336 F.2d (10th Cir.1964)); Polyne see 4, 2012, also April On New Vista filed a Center, NLRB, sian Cultural Inc. v. petition for review of the March 15 and (9th Cir.1978). F.2d Under March 27 Reconsideration Orders. We 153(b) Steel, § and New delegee Process granted New Vista’s request peti- that this groups of the Board do not statutory have tion be consolidated with New ear- Vista’s authority they to act if have fewer than petition lier purposes. review for all Steel, three members. New Process petitions These consolidated for review are 2644; S.Ct. at Teamsters Local Union No. collectively petition opposing a-cross NLRB, (10th 1321, 52S v. 624 F.3d 1322 petition Board’s for enforcement of the Cir.2010) (holding that a “two-member August 26 Order. group NLRB that issued the order in this ” statutory case lacked authority to act II added)). (emphasis The three-member- sponte consider sua whether We composition requirement jurisdic is thus delegee group that August issued the 26 goes tional because it to the Board’s au jurisdiction. Order had See Bender v. thority “to hear case [a] under Dist., Williamsport Area Sch. 475 U.S. Konig, NLRA.” 79 F.3d at 360. 534, 541, 1326, 106 S.Ct. 89 L.Ed.2d 501 (1986) (explaining that “every ap Nevertheless, federal Supreme pellate court has a special obligation to years Court “has endeavored in recent ‘satisfy itself not jurisdic- of its own ‘bring discipline’ some to the use of the

211 ” Thaler, by diction as is conferred on them stat Gonzalez v. ‘jurisdictional.’ term — ute.”). 641, 648, -, powers These are limited S.Ct. 181 132 U.S. (2012) scope jurisdictional statute in the (quoting Henderson v. L.Ed.2d 619 — 1197, -, way powers that a court’s 131 S.Ct. same federal U.S. Shinseki (2011)). by the and statute. 159 So limited Constitution 179 L.Ed.2d 2 Compare to believe that Ko- Am.Jur.2d Administrative may there be reason 282, § subsequent jurisdic- Corp. Law with Exxon Mobil v. nig’s analysis and the Servs., Inc., 546, 552, long- Allapattah no 545 U.S. tional conclusion for this case are (2005) 2611, Inc. v. 125 162 L.Ed.2d 502 Disposal, Lebanon Farms S.Ct. er valid. (“The Lebanon, 241, States, n. courts of the 538 F.3d district United Cnty. of Cir.2008) (3d times, many (explaining that inter- as we have said are ‘courts “[a]n jurisdiction. They Supreme possess only is a limited vening decision of Court prior power authorized Constitution and sufficient basis for us overrule ” (quoting statute.’ Kokkonen v. panel’s opinion referring without the case Guardian decision”). Am., 375, 377, 114 an en banc Our review of Ins. Co. for Life (1994))). 1673, clarification shows that S.Ct. 128 L.Ed.2d 391 the Court’s recent good law and that fact that this case deals with an adminis Konig remains requirement agency trative does not eliminate the re three-member-composition quirement delegee group satisfy that a all jurisdictional. explained The Court has adjudi jurisdictional requirements may court’s before it jurisdiction “refers to a Elsevier, powers. Inc. v. exercise the Board’s catory authority.” Reed Muchnick, 154, 1237, 559 U.S. 130 S.Ct. In Henderson v. Shinseki (2010) 1243, (quoting Kon 176 L.Ed.2d 18 Supreme Court stated that “a rule should 443, 455, 124 S.Ct. Ryan, trick v. 540 U.S. jurisdictional not be referred to as unless (2004)). Subject-mat 157 L.Ed.2d 867 governs adjudicatory capacity, a court’s courts’ stat jurisdiction ter “refers to ‘the is, ju subject-matter personal or adjudicate power to utory or constitutional noted, at 1202. risdiction.” 131 S.Ct. As ” (quoting case.’ Id. Steel Co. v. Citi “statutory subject-matter jurisdiction is Env’t, zens Better 523 U.S. adjudicate the constitutional 1003, 140 (empha S.Ct. L.Ed.2d 210 Co., 523 U.S. at 118 S.Ct. case.” Steel in original)). sis Furthermore, (emphasis original). Y H Arbaugh Corp., to in v. &

Although these statements refer (2006), courts, 163 L.Ed.2d 1097 jurisdictional III issues are Article “readily adju provided a just important Supreme for administrative Court as bright rule: “If the “It that an administrable line” dicative bodies. is well settled Legislature clearly III states that threshold agency,” administrative like an Article court, scope limitation on a statute’s shall count jurisdiction.” of limited “is tribunal Islands, jurisdictional, litigants courts and Pentheny Virgin v. Ltd. Gov’t then Cir.1966). (3d duly An instructed and will not be left ad will be 360 F.2d at wrestle with the issue.” Id. agency “may only exercise ministrative Congress does 126 1235. “But when powers granted by reposing the statute S.Ct. Id.; coverage statutory 2 not rank a limitation power in it.” see also Am.Jur.2d (2013) (“Ad treat jurisdictional, § as courts should Administrative Law 282 nonjurisdictional in charac- limit as agencies are tribunals of restriction ministrative 516, rule, 1235. “Con- Id. at 126 S.Ct. jurisdiction.... general As a ter.” ed course, magic words need not use adjudicatory juris- gress, of agencies have such clearly NLRA: speak point,” in order to on this so the Board cannot exercise its requirement that a context can show is power through delegee group if that Henderson, jurisdictional. S.Ct. group has fewer than three members. statutory juris This mandate is therefore 515, dictional. Arbaugh, See 546 U.S. at Supreme The Court’s recent decision in (explaining S.Ct. 1235 that “threshold 153(b)’s § that New Process Steel indicates scope” on a imposed limitation[s] statute’s three-member-composition requirement by Congress jurisdictional); are Teamsters case, jurisdictional. In that the Board had 523, Local Union No. 624 F.3d at 1322 delegated power to a three-member (holding group that a “two-member NLRB delegee group. days Three after the dele- effective, gation expired the term that became issued the order this case lacked ” for one of the three members of dele- statutory authority (emphasis to act add gated group only ed)). group. This left with By explaining that three members two at 2638-39. The members. 130 S.Ct. required “in order to exercise the dele 153(b)’s § Supreme Court held three- Board,” gated authority of the New Pro member-composition requirement meant Steel, Supreme cess 130 S.Ct. at remaining that the “two Board members Court has in essence declared that authority cannot exercise” three-member-composition requirement (“We Board. Id. thus hold goes directly to “power the board’s to hear delegation requires clause that a case,” exactly jurisdictional which is what delegee group maintain a membership of questions relate to. United States v. Cot three order to exercise the delegated ton, 625, 630, 535 U.S. 122 S.Ct. Board.”). authority presence (2002); L.Ed.2d 860 see also Noel Can delegee three Board members in a group NLRB, (D.C.Cir. ning v. 705 F.3d necessary is a condition for the Board to 2013) (“[T]he objections before us concern power adjudicate exercise its a matter ing lack quorum questions of a raise before it. go very of the Board to New Process Steel renders the three- act.”).2 member-composition requirement “a

threshold limitation” on the scope of the Board relies on three cases3 power delegated to the Board authority providing as that “a claim that a appears 2. The argues D.C. Circuit to have Agency conflated 3. The also Board that Vermont States, quorum requirement Natural with the Resources v. United three-mem- (2000), 146 L.Ed.2d 836 ber-composition requirement. generally nonju- describes the Clause as Canning, Noel (discussing 705 F.3d at 490 risdictional: Id. at 778 n. 120 S.Ct. 1858. challenge quorum as one based on the re- case, however, thing. That states no such In- quirement); (stating id. at 499 that New Pro- stead, very point it illustrates the we make cess Steel "holds that the Board cannot act question here. It describes the in which the quorum without a of three members” and arose, Ap- issue rather than the undisputed “[i]t is that the Board must have a itself, pointments nonjurisdictional. action”). quorum of three in order to take (stating validity qui Id. that "the tarn suits” semantics, Notwithstanding the the substance issue”). jurisdictional is not “a And because of the D.C. Circuit's conclusion was that question nonjurisdictional, ap- was purport when less than three members pointments question issue within the adjudicative authority exercise the jurisdictional. treated as See id. Our conclu- Board, questions go "raise[s] to the three-member-composi- sion in relation to the very power of the Board to act.” Id. at 497. requirement delegee groups tion is the agree. We opposite: jurisdictional. Accordingly, it is appointments issue here must be treated as

213 Richard Griffin and unconstitu whether Sharon appointed was officer federal challenge.” jurisdictional delegee a Block—who were members of the tionally is not 2013) (Feb. 28, (citing 2 group Ltr. Br. at that decided the March 15 and NLRB Rev Internal Freytag v. Commissioner 27 March Reconsideration Orders —were enue, 111 115 S.Ct. invalidly appointed because their (1991); Broad. Intercollegiate L.Ed.2d 764 January 2012 were made Bd., 574 Royalty Copyright Inc. v. Sys., holding so-called while Senate was (D.C.Cir.2009); Evans v. Ste F.3d 748 pro sessions.4 Member Becker forma (en (11th Cir.2004)) 1220 phens, 387 F.3d was appointed was not when Senate banc) cases original). These (emphasis but, instead, holding pro sessions forma challenges Appointments hold 27, 2010, appointed day on March one brought inde nonjurisdietional when “adjourn[ed]” after for two Freytag, 501 U.S. at pendently. Cong. (daily Rec. S2180 ed. weeks. 2631; Intercollegiate Broad. (statement 2010) of Sen. Kauf- Mar. Evans, 755-56; 387 F.3d 574 F.3d at Sys., man) (reporting Ted Senator Kaufman’s are not rele holdings 1222 n. 1. Those unanimous motion for and the Senate’s we jurisdictional conclusion vant to the body “adjourned un- being consent of the not hold that chal today. We do reach As Monday April p.m.”). til 2010 at or Recess Appointments under the lenges V, will be seen in Part this means jurisdictional. Clauses are Appointments ap- our consideration of Member Becker’s that the NLRA’s three- instead hold We pointment entails evaluation of at least juris- is member-composition requirement of “recess” than the one more definition must be met before dictional and and Block’s evaluation of Members Griffin power over a case. can exercise its Board delving into the appointments. Before jurisdictional, requirement is Because this defining difficult constitutional task delegee group which the any reason for “recess,” however, first we must address than three members— consists of fewer preliminary questions: two whether invalidly including whether one member August 26 delegee group that issued the Appointments under the Recess appointed a lacked three members as result Order by by party raised Clause—can resignation Liebman’s of Chairman as a any point litigation this Court at is a non- the definition of recess whether Henderson, jurisdictional defect. See justiciable question. political at 1202. S.Ct. three- jurisdictional nature Ill espe- member-composition requirement longstanding practice have a ‘We it in this case because cially important questions in avoiding constitutional analyze Craig whether requires us upon we can reach decision cases where delegee the three-member Becker—one of Witmer, v. grounds.” Egolf other August 26 Or- group that decided the Cir.2008). (3d practice That F.3d a valid under der—held non- to consider New Vista’s leads us first ques- Clause. This August argument that constitutional recess-appoint- tion is distinct from delegee group the Order was issued initially briefed question ments New Vista fewer than three members. address parties’ briefs parties. pro sessions are 4. The characteristics jurisdictional because is one reason forma in Part V. may described there not have been three members. insufficient, Airways, of the three members This is contends that one Braniff Bd., was The resigned the order issued. Inc. v. Civil Aeronautics 379 F.2d 453 before (D.C.Cir.1967), con- group why that issued the order that delegee demonstrates Liebman, case, Airways Member argued sisted of Chairman so. In that Braniff Becker, Hayes. The face of and Member that the Civil Aeronautics Board lacked a 26, August 2011. New the order is dated quorum because one of its members had Rehab., 357 N.L.R.B. No. Nursing & Vista resigned before the order was issued. Id. 2011). 26, The Board docket also (Aug. in that 459. The order case was issued 26, 2011 as the date that August reflects 1, day on the same the member in June Nursing New Vista the order was issued. question that resigned. The Court found Rehab., (Aug. 22-CA-029988 & NLRB No. quorum solely the Board had a on the 2011), 26, http://www.nlrb.gov/case/22-CA- basis that the order “on its face indicated August Liebman 029988. On Chairman signed that it was concurred in and on argues that resigned. New Vista the or- June 1965.” Id. The Court reached that actually after Liebman der was entered despite payroll conclusion with records mailed, resigned because the order “was accounts, conflicting one of which showed Regional Agent, received Board only payroll member was on the posted Summary on the Board’s was through May Notably, 1965. Id. August 2012.” Decisions Website on Court also discounted that the order “was Br. Pet’r’s at 31. The Board does not 2,” not served until June on the basis that dispute that the order was mailed to inter- it plain “[i]n [their] view is that once all parties August ested after 27 but contends members have voted on an award and August that the order issued on 26— it caused to be issued the order is not that on the face of the appears the date incapacity, nullified because of intervening order. service, the ministerial act of a before (em- quorum.” member needed for a Id. “Agency action is entitled to a added). phasis presumption regularity.” Frisby v. U.S. Dev., Dep’t Hous. & F.2d Urban reasoning equally D.C. Circuit’s (3d Cir.1985). “Acts done a persuasive only here. The evidence New public presuppose officer which the exis puts Vista forth is that the order was legally tence of other acts to make them it posted mailed after was dated and operative, presumptive proofs the docket. This falls short even of what Boston, latter.” R.H. Steams Co. Mass. Airways presented. Braniff It relied not States, 54, 63, v. United only delay on a in service but also on Here, 78 L.Ed. 647 the act payroll presents records. New Vista even August done was the issuance of the grounds to weaker doubt the order’s date Order, which presupposes the mem than Braniff offered the D.C. Circuit. having bers listed as made the decision did presump- New Vista cannot overcome the in fact make that decision. The issuance regularity. tion of presumption of the order creates a that all argues New Vista also is entitled three members listed on the order decided discovery to seek further into when the it. id. It is New Vista’s burden to August members voted on the 26 Order. presumption. rebut that however, company acknowledges, single may required New offers “the NLRB Vista enter time, piece place, of evidence in rebuttal: for the record the and content deliberations,” August order was not mailed until after 26. of their Pet’r’s Br. at

215 and the Board has political question stated minutes when one of following exist, sought Resp. do not Br. at 29. Yet characteristics is “inextricable from the persists, asserting New Vista “that case”: agency- record of the time of their votes on textually a demonstrable constitutional actions under review is essential to deter- commitment of the issue to a coordinate validity mine” the of the August 26 Order. political department; or a judi- lack of Pet’r’s Br. at company 53. The fails to cially discoverable manageable and stan- explain why the date listed on the order it; dards for resolving or the impossibili- itself is not “of evidence the time of their ty of deciding without an policy initial

vote.” Absent a reason to doubt date determination of a clearly kind for non- listed, presumption of regularity re- judicial discretion; or the impossibility quires that we consider the date as the of a court’s undertaking independent delegee record of when the group caused resolution without expressing lack of the issued, opinion to be which presup- respect due coordinate gov- branches of poses they voted on or before that ernment; or an unusual need for un- date. Accordingly, New Vista has failed questioning adherence to political deci- show that one of the resigned members made; sion already potentiality prior to the issuance of August 26 embarrassment from multifarious pro- Order. nouncements departments various one question. IV Baker, 217, 369 U.S. 82 S.Ct. 691. Ami- argues amicus that we principal cus’s contentions are that should decline to define the word “recess” recess-appointments claim by New within the Vista is Appointments Recess Clause (1) nonjusticiable because it because “‘the nonjusticiable is a issue is political ques textually committed’ “Questions tion. to the justiciability president,” are dis Br. at 4 (quoting tinct from Amicus questions jurisdiction, Nixon v. United and a States, 224, 228, jurisdiction court with 506 U.S. over a claim 113 S.Ct. should (2) (1993)), adjudicate nonetheless decline L.Ed.2d 1 it if it there are is justiciable.” not “no ‘manageable Gross v. German standards’ to Found. solve the Initiative, (3d Indus. partisan argument 456 F.3d between the Executive Cir.2006) Carr, (citing Baker v. and Congress regarding dysfunctional ... 186, 198, 82 S.Ct. processes,” L.Ed.2d 663 Senate confirmation id.5 Nei- (1962)). presents An issue nonjusticiable argument persuasive. ther briefly The amicus also refers to two other aggran evaluation of whether one branch is concluding political ques- bases for dizing expense. this is at another’s (1) Clinton, -, resolving impossible tion: that Zivotosky the issue is v. -U.S. 132 S.Ct. " 1421, 1427-28, expressing 'without respect (2012); lack of the due 182 L.Ed.2d 423 see " government,' coordinate branches of Fitzgerald, id. at also Nixon v. 753- Baker, (quoting (1982) 369 U.S. at 82 S.Ct 73 L.Ed.2d 349 691), "the (explaining, discussing nation's extreme need for appropriate when ex finality president’s action, judicial ercise of review of executive practice,” "[wjhen (emphasis original). id. judicial Neither action is needed to persuasive. Defining public recess in the serve broad interest —as when the acts, Appointments express Clause does not derogation separa a lack Court not in respect govern- powers, for coordinate proper branches of tion of but to maintain their defining ment merely because jurisdiction word is an ... balance the exercise of has (citations judicial authority say omitted)). exercise of our "to what been warranted” Nor is is,” requires the law constitutionality president’s which sometimes recess- un- provide Finally, the Clause does of the Recess language in the

Nothing the Senate or the to either qualified power textually commits it suggest that would makes president defining “re the task of president the It limits to either. textual commitment that Pres “[t]he The Clause states cess.” recess-appointment power president’s the up fill all Vacan have Power to shall ident recess, be in by requiring that the Senate during the Recess of may happen cies that ordinary and it limits the Senate’s advice- Senate, by granting Commissions the that by eliminating power and-consent their next expire at the End of shall The is in recess. while the Senate Const, power II, 2,§ cl. 3. art. Session.” U.S. invariably cannot read to thus Clause explicit assign the language lacks This way in such a branch’s interests favor one branch, any such as power to one ment one a textual commitment to that makes in the assignment found Constitution’s at 111 Freytag, them. 501 U.S. Trial Clause which states Impeachment (“Because a limit- it articulates S.Ct. 2631 the sole Pow Senate shall have “[t]he that ing principle, Const. try Impeachments.” er to all U.S. in- always serve the Executive’s does Nixon, added); I, 3,§ (emphasis cl. 6 art. States, terests.”); 515 Ryder v. United (conclud 228-35, 732 506 at 113 S.Ct. U.S. 177, 182, 115 132 L.Ed.2d U.S. S.Ct. along explicit assignment, that (“The [Appointments] Clause 136 that drafting history indicating with aggrandizing against one branch bulwark intentional, meant that assignment was power expense at another try textu power impeachments to branch, it ‘preserves but it is more: anoth- Senate). The Re ally to the committed structural aspect er of the Constitution’s also does not Appointments Clause cess by preventing the diffusion of the integrity to imperative to branch either contain (quoting Freytag, appointment power.’” regarding meaning of re a rule craft 2631)); 111 S.Ct. or, broadly, presi more when cess— Hamilton) (Alexander No. 76 Federalist use his recess may dent rejection of the Constitution’s (explaining The Clause is also distin power. thus president unitary power either the guishable from the Naturalization Clause’s that in favor of one divides Senate authority to “es grant Congress to them). power between an uniform Rule of Naturalization.” tablish Const, I, 4; Jersey this, § art. cl. New disputes arguing U.S. The amicus (3d States, 463, 469 91 F.3d Cir. makes a textual commit v. United that the Clause 1996) represents president that “unilater (stating providing this Clause ment authority when the Congress).6 commitment to al a textual any immigration chal- question did not render appointments practice type over finality implicating authority nonjusticiable need for lenge an extreme to be a to that Baker, nonjusticiable. 919, 940-41, 369 would make it political question. 462 U.S. Cf. (discussing the need 82 S.Ct. 691 U.S. S.Ct. 77 L.Ed.2d 317 finality president’s for in the context of authority plenary explained "[t]he Court conflict). war to end a Congress to open over aliens ... is not alleged question” except it is when Congress’ plenary authority over im- Even " some other consti- 'offendfs] means chosen migration does and naturalization not render ” Congress. (quot- Id. tutional restriction’ judicial area its actions in this immune Valeo, 1, 132, ing Buckley S.Ct. v. political-question under the doctrine. review (1976)). L.Ed.2d Chadha, Supreme example, the In INS v. for Congress' plenary authority Court held its advisory [is] unavailable render con- use recess-appointments his power. The vote.” at 12. argu- sent Amicus Br. This parties present two different standards: tendency political- ment reveals the according Vista, any New time after question doctrine “to obscure need for both houses agreed have adjourn Gross, inquiry.” case case 456 F.3d at more than days, three 40-41, Pet’r’s Br. at Baker, (quoting 369 U.S. at and according Board, time the 691). against We have cautioned Senate is not available to regular conduct tendency, instructing that our inquiry business, Resp. Br. at 44. Zivotofsky, Cf. by any must “avoid ‘resolution semantic 132 S.Ct. at 1428-30 (relying on the “de- ” cataloguing,’ and must instead “under- tailed legal arguments” provided by the take a ‘discriminating inquiry pre- into the parties regarding whether the statute at facts and posture particular cise issue was constitutional to show the exis- ” Baker, case.’ Id. (quoting standards). tence of judicially manageable 691). 82 S.Ct. The argument amicus’s The D.C. Circuit provided has another: runs afoul of our instruction because it intersession breaks adjourn- that follow merges the present issue in this case ments sine die of Senate. the Noel Can- (when the president use can his recess- ning, 705 F.3d at 506-07. Of these stan- appointments power) with issue not in dards, provided those by the D.C. Circuit (how this case the president can use that and New judicially Vista are manageable power). The amicus’s characterization of they rely regular because procedures on power the speaks to both issues: it states employed in the Senate and found in the president the can how use his recess-ap- Senate’s record. Board’s open- The more (“unilateral pointment power authority”) ended definition might of recess very well and assumes the question answer to the unmanageable because it rely does not this case of when he can use that power particular procedure Senate and (“when the Senate [is] unavailable to ren- require would judicial “exploration] [of] vote”). der its advisory consent communications between Senate Mi- greater power president has nority and president” in addition to light recess does not shed on what the review “scheduling schemes of the word “recess” means who decides what Minority House Majority.” it does mean and thus does not provide a Amicus Br. at 20-24 (arguing, reject- after reason to conclude that the Clause makes ing Vista, the standard offered New a, textual commitment president. that the Board’s standard is unmanagea- Chadha, 919, 940-41, v. INS Cf. ble). But only against cautions select- (1983) (ex- L.Ed.2d ing the Board’s standard rather than plaining Congress’ plenary authority showing that judicially there are no man- immigration over does not immunize it ageable standards available. judicial from review for violations of other constitutional restrictions on its course, Of if question is framed —as committed while exercising authority). the amicus has—as a need to derive a judicially manageable standard “to regarding amicus’s concerns resolve judicially underlying cycles ] lack of manageable partisan [ standards for confir- defining payback “the Recess mation obstruction Senate” are which caused similarly vacancies,” unfounded. the NLRB There are several Amicus Br. at judicially manageable likely standards for defin- then there is judicially managea- no and, “the Evans, Recess of the Senate” corre- standard. See also ble 387 F.3d at spondingly, for president may when the (rejecting nonjusticiable an argu- V unconstitutionally- president

ment that the power be- recess-appointment used the Having determined previously had been appointee cause the justicia- Appointments question constitut- and thus rejected by the Senate ble, analysis of the begin our we now advice Senate’s ed a circumvention Beck issue. Member recess-appointment role). But that is not and consent group delegee member of the only er is the Instead, define we must we face. question who was August 26 Order that issued Senate,” “the Recess of the phrase one and thus appointed resolving distinct question which is As not question. is in whose confirmation ob- partisan “cycles ed, during an intrases appointed he was See id. payback.” struction began on March sion break intrases- recess to include (defining 12, 2010. This break April ended on holding politi- despite sion breaks days and the Senate lasted seventeen nonjusticiable). made was argument cal for business. His open indisputably invalid if the Recess appointment will be falls within the This task empower does not Appointments Clause “ depart duty judicial of the ‘province and appointments to make recess presidents ” Zivotosky, say what the law is.’ ment to types of breaks. during these Marbury v. (quoting at 1427-28 132 S.Ct. Crunch) (1 137, 177, Presi- Madison, provides “[t]he 2 The Clause (1803)). to fill all Vacan- up shall have Power “duty This will some dent L.Ed. 60 Recess of may happen during litigation cies times involve the ‘Resolution Senate, by authority granting Commissions constitutional challenging the branches,’ at the End of their next expire courts can which shall the three but one of Const, II, § cl. art. 3. merely ‘be Session.” U.S. responsibility their avoid president understood to allow the implica This is political cause the issues have ” Chadha, power only his recess (quoting at 462 to use tions.’ Id. 1428 Senate,” 2764) (alteration thereby of the “during in the Recess at U.S. recess, along Thus, rendering the definition of “the fact that the resolu original). reach, pivotal conse- temporal have with its tion the merits of a case would controversy now before us. quence overtones does not au ‘significant political 499-500; at Canning, Noel 705 F.3d political question tomatically invoke ” Evans, Gen., possible F.3d at Three Att’y v. doctrine.’ Khouzam (3d Cir.2008) The D.C. presented. have been (quoting definitions F.3d in- Chadha, 942-43, only to mean defines the term at 103 S.Ct. Circuit breaks, 2764). period which are “the here tersession presented That the issue of the Senate when the day is not between sessions political touches on events by definition not session presents a Senate is dispositive of whether this case Canning, therefore unavailable.” Noel question. Because there nonjusticiable end of a at 506. The standards and because the 705 F.3d manageable by partic- a typically session is demarcated not make a textual commit Clause does adjournment ad- type ular of Senate president, ment to the or the we —an proce- is the journment “the Re sine die—which interpreting phrase hold that session. Id. justiciable ques dure used to end Senate cess of the Senate” is peri- is the An intersession break 512-13.7 tion. understanding Consti- cally through practice automati- 7. Senate also ends sessions adjournment recess). od between sine die and meaning of All presidents, at the start of the next session. David EL least in practice, followed ten-day min- al., Serv., Carpenter Cong. et Research imum January al, until 2012. Carpenter et R42323, k, January President Obama’s supra, at 15 & n. 97 (stating that presi- no Appointments: Legal Issues until dents appoint- made 4 n. 23 ment during an intrasession break shorter definition, than days). A ten Accordingly, second one which the Elev- the second adopted, enth Circuit has is that recess definition includes those intrasession includes intersession breaks as well as breaks that significant duration, last for a breaks, some “intrasession” which are which historically has days been ten breaks in Senate business a ses- more.8 Evans, sion. F.3d 1224. An intra- possible third and final definition is break is session demarked a Senate vintage. more recent In January adjournment type than ad- —other President Barack Obama made several re-

journment sine die—and lasts until the cess while the Senate was convenes, next time the Senate which is holding pro sessions every three or forma See, adjourn. set the motion to e.g., days. four These sessions are considered 2010) Cong. (daily Rec. S2180 ed. Mar. recesses under the third definition. Pro (statement Kaufman) of Sen. (reporting sessions are formal meetings of the forma Senator Kaufman’s March 2010 motion Senate which usually only one Senator for and the Senate’s unanimous consent of present to body convene the briefly be- body being “adjourned Monday until fore adjourning it until pro the next forma 12, 2 April p.m.”). 2010 at From 1921 2; also, session. at e.g., Id. see Cong. 157 recently, until there awas consensus that 2011) (state- (daily 20, Rec. S8787 ed. Dec. an intrasession break was not “the Recess Warner) ment of Sen. (recording Senator of the Senate” unless the break lasted for Mark convening adjourn- Warner’s non-negligible a days. number of The first ment of span the Senate in a thirty-five of attorney general adopt to this sug- view seconds). held, Before such sessions are gested that the minimum duration was ten the Senate agrees by unanimous consent days. 20, Op. Att’y 33 U.S. Gen. 24-25 that there will be “no business conducted” (rejecting proposition that “an except that adjournment previously agreed business for 5 or days even 10 can be to, said to such as a convening constitute the new session of by recess intended Constitution,” See, but advising presi- e.g., Senate. 157 Cong. Rec. S8783-84 2011) (statement dent that a break of days 17, is within the (daily ed. Dec. of Sen. See, requirement they Hartnett, tution’s e.g., "shall assemble ate.” Edward A. every year” at meeting least once in in a Judges: Article III Three Con- of begins day January.” "at noon on the 3d of Questions, 377, stitutional 26 Cardozo L.Rev. practice, U.S. Const. Amend. XX. Under if This number is drawn from Congress a session of has not ended noon Clause, Adjournments requires which January given year, 3 of a then the session any Senate and the House to concur on ad- automatically begins ends and another journment lasting longer days. than three Jefferson, day. noon of that See Thomas A Const, I, 5,§ argument art. cl. 4. The Parliamentary Manual Practice: For Use intrasession break of less than three (2d the Senate the United States 166 days adequate de is minimis and thus not to ed.1812). "the Recess constitute Senate.” Hart- nett, supra, at 419-20. argued three-day 8. Others have a break is sufficient to constitute "the Recess of the Sen- conduct open is not “the Senate pro when (recording the schedule Wyden) for- “pro- unavailable to and thus business” between December to be held sessions ma 2012). on nominations.” However, advice and consent vid[e] January 2011 and argues that 44. The Board can, Resp. Br. at and have agreements consent these Attorney Gen- follows from this definition initial- been, altered allow subsequently opinion, Harry Daugherty’s eral including pass- ly unplanned business— def- functionalist adopted partially which proa ses- legislation' during forma — Recess of the Senate”: inition of “the See, (daily e.g., Cong. Rec. S8789 sion. Reid) 2011) (statement me, of Sen. it inquiry, ed. Dec. seems essential [T]he consent that bill (obtaining adjournment unanimous of such dura- Is the is this: times and read three owe considered of the Senate “be tion that the members passed version is if an identical Is its chamber passed” duty of attendance? no House, subsequently the House which absent so that Is the Senate empty? session); did, see also proa receive communications can not [sic] forma al., supra, at 18 & n. 108. Carpenter et as a participate President or from the prevent sessions Importantly, these body making appointments? adjourned for more being Att’y at 25. The Board Op. Gen. time, days at a than three or four wheth- that these criteria decide contends never reaches the adjournment means to conduct business open er the Senate is See, above. ten-day minimum discussed provide its advice and available (daily Dec. Cong. Rec. ed. e.g., 157 S8784 Attorney Daugh- General consent. Unlike (re- 2011) (statement Wyden) of Sen. to con- erty’s appears the Board opinion, motion, and Wyden’s Ron cording Senator controlling them- sider these criteria concurrence there- the Senate’s unanimous selves, requirement that there is no such until with, “adjourned that the Senate minimum, period of non-negligible a.m.”); December Tuesday, to be in order for the Senate pass time to (daily ed. Dec. Cong. Rec. S8787 in recess.9 Id. Warner) (record- 2011) (statement of Sen. criteria, the Board con- on these Based “until Fri- adjournment ing the Senate’s periods in which the Senate tends that a.m.”). day, December at 9:30 only constitute a pro sessions holds forma recess, during is these ses- definition of is because The third recess. This Board, sions, body doing neither business president allows the offered advice and provide while the available to make recess nor means, the third defini- per sessions. consent. This holding proforma these tion, interrupt that these sessions do that a recess occurs argues The Board suggested at its briefs and was not that ses- sent from 9. The Board does note if pro fonna days ignored, limiting prin- arguments then more than ten sions are oral when asked presi- passed the break in which the ciples Resp. Br. at 43-45 to its definition. appointed two Board members terms), dent recess (defining only recess in functionalist delegee 15 and 27 who sat on the March three-day re- (rejecting the relevance of a 58 (noting twenty Resp. group. Br. at Adjournment quirement from the derived days passed the second session between when nothing relat- shows that it is Clause because January was convened on of the Senate Clause); Oral ed to the Recess its first non- and when the Senate held (explaining that Arg. Tr. at 48:11 to 50:1 session). might suggest pro This forma provide “unavailability advice of the Senate greater period of time the Board believes limiting principle on the consent” is the non-pro days between sessions than ten forma recess). definition of functionalist ab- required, but such a contention is is still what voters; would otherwise be intrasession understood its words and begins adjournment with the break phrases were used their normal and proforma before the first session and lasts ordinary distinguished as from technical ” until convening the next of the Senate in a meaning.’ Heller, District Columbia v. -proforma non session. 570, 576, 554 U.S. 128 S.Ct. (2008) L.Ed.2d 637 (quoting United States sum, In parties argue that “the Re- v. Sprague, 716, 731, cess of the Senate” has one of three mean- (1931)). “[njormal 75 L.Ed. 640 (1) (2) ings: breaks; intersession interses- meaning may of course include an idiomat- sion and intrasession breaks that last ic meaning, but it excludes secret or tech- non-negligible period, which has historical- nical meanings that would not have been ly days been ten (“long intrasession ordinary known to citizens in founding hereinafter); breaks” any time in generation.” Id. at 128 S.Ct. 2783. which the Senate is not open for business and is provide unavailable to its advice and The word “recess” lacks a natural consent.10 We hold that “the Recess of the meaning that clearly identifies whether it breaks, means only Senate” intersession includes intersession breaks or also and so we conclude that Member Becker’s breaks, includes intrasession whether they appointment was invalid. be of a certain period duration or a unavailability. Dictionaries from the time A. Recess of “[T]he the Senate” provide ratification definitions that can 1. The Meaning Literal of Recess support be read to any of these defini- When interpreting the Consti tions. Samuel dictionary Johnson’s de- tution, begin “we City with its text.” “[rjetirement; fines recess to mean re- Flores, 507, 519, Boerne v. treat; withdrawing; secession” as well as “[rjemoval S.Ct. 138 L.Ed.2d 624 “[djeparture” and to distance.” so, doing guided by Johnson, “we are the principle Samuel 2 A Dictionary (6th Constitution English ed.1785).11 ‘[t]he was written to be Language 469 disagree 10. We with dissent that the sec glosses important break definition over histor- ond and third definitions of recess should be ical differences between the two. combined into one "intrasession defi recess” Second, shown, as will be the unavailable-for- Dissenting Op. nition. at 244-45. Distin significantly sup- business definition has less guishing provides between these definitions port long-intrasession-break than the defini- First, necessary analysis. nuance to the meaning tion from the historical of "recess” discussed, has been these two definitions have purpose Appoint- as well as the of the Recess starkly pedigrees: different historical Until Accordingly, reject ments Clause. we each 2012, presidents attorneys general and their definition for somewhat different reasons. always have tied intrasession breaks to a non- See, negligible period e.g., of time. 33 U.S. 11. The entire definition found in Johnson’s fact, Op. Att’y Gen. at 25. the Office of dictionary is: Legal Counsel’s 2012 memorandum on Presi Retirement; retreat; withdrawing; 1. appointments during dent Obama's se- pro Departure. begins cession. 2. 3. Place of by emphasizing retire- sessions forma ment; place secrecy; private period of -pro between the abode. 4. non sessions forma Perhaps proceedings length was of an abstract of the Op. sufficient to be a of recess. 36 (Jan. 6, 2012). imperial Departure privacy. availability: O.L.C. *4-9 an diet. 5. into The reject any suspension proce- based definitions of Remission or recess that of days Privacy; need for a fixed of dure. 7. pass number thus Removal to distance. 8. represent significant departure secrecy past part. of abode. from 9. Secret Johnson, practice. Combining Dictionary English the unavailable-for- 2 A Lan- of long-intrasession- guage business definition with the at 469. of Recess 2. The Historical Use con- some contain All of definitions these least, or, at lon- permanence notation of the Constitution though, Importantly, “Secession,” example, means gevity. Rather, only “Recess.” say does act of “[t]he or departing” act of “[t]he recess-appointments president’s limits actions.” or withdrawing from councils the Senate.” to the “Recess of 589; also see Merriam-Webster’s Id. some con- provide the Senate” words “of ed.2003) (11th Dictionary 1121 Collegiate proce- analysis: parliamentary for our text “formal to mean “secession” (defining Deal v. the time of ratification. dure at organization”). an And from withdrawal States, United by Johnson to is defined “departure” (“[T]he mean- 124 L.Ed.2d “[djeath; ... away,” the going “[a] mean cannot be determined ing of a word state of leaving present of the act isolation, the con- but must be drawn from abandoning.” Samuel existence,” “an used.”). in which it is text English Johnson, Dictionary 1 A of (6th ed.1785); also see Language 568 and the legislatures colonial American (defining “de- Memamr-Webster’s parlia- their largely derived first Senate “the or an instance parture” to mean act procedures mentary procedures from (on a new setting “a out departing,” of English Parliament. used Blackstone, course)”); 1 Commen- William al., III, et Robert’s Henry M. Robert method (defining one of *187-88 taries xxxiv-xxxv Newly Revised Rules Order: of business, terminating parliamentary (11th ed.2011) of (recounting migration dissolution, par- “the civil as death colo- procedures to American English liament”). permanence of implication Jefferson, nies); Manual Thomas A of understanding of recess to supports an Parliamentary Practice: For the Use of only intersession breaks because mean (2d the United States the Senate of adjournment sine followed these are ed.1812) heavily English prece- (relying .die, adjournments without set which rules for the providing procedural dents reconvening. implication And the date for Senate). proce- English parliamentary the idea that recess longevity supports types of the time had three dure at long intrasession breaks. includes were “con- adjournments, which breaks: implications is consis- of these Neither day one tinuances of the session from the Board’s unavailable-for-busi- tent with fortnight or another ... and sometimes a recess, other ness definition but entries which together”; prorogations, a month sup- some dictionary provide in Johnson’s parliament were “continuances Johnson’s defini- port for that definition. by the one session to another” initiated “[rjemission includes tion of recess dissolutions, were termi- king; Johnson, any procedure.” suspension by the of a Parliament initiated nations English Language Dictiona'i’y A order, death, time length or a king’s his And, course, words such at 469. before an- new elections necessitated im- “departure” permanent also have less could be other Parliament convened. Johnson, 1 A than Dic- plications death. Blackstone, *186- Commentaries William at tionary English Language of Jefferson, 89; § 51 at 164- supra, see also going as (defining “departure” “[a] 65; Original Rappaport, B. Michael “recess,” itself, by away”). The term Meaning meaning that unam- a literal thus lacks of 1487, Clause, L.Rev. 52 U.C.L.A. one of the three defi- biguously supports had three The Parliament thus nitions. adjournments for breaks: intrasession Senators all and members of the House. Const, prorogations breaks as well as dissolu- I, 2, 1; I, § U.S. art. 3,§ cl. id. art. tions intersession breaks. els. 1-2. These dissolutions end a session and, elections, following begin another ses- blush, At first types these three sion in a Congress, Jefferson, new see appear correspond breaks to with the (“A § supra, 51 at 166 dissolution certainly three mechanisms for breaks referred to in session; closes one meeting and the of the “Adjournment,” our Constitution. or its Congress new begins “adjourn,” another.”) just verbal form phrase is the same — dissolution, king’s Constitution uses to denote or the day-to-day by dissolution longer passage time, breaks within sessions of either English did for the Const, I, Parliament, § chamber. U.S. art. cl. 1 Blackstone, 1 William Com- (allowing a minority of members to “ad- mentaries *189.

journ day I, day”); § from to art. id. cl. light parallels, of these it is tempting 4 (requiring concurrence between both say that “Recess of the Senate” corre- if, “during chambers the session of Con- sponds with prorogations and thus must gress,” they “adjourn are to for more than refer to terminations of sessions and days”).12 three The word “dissolution” the intersession breaks that follow them. Constitution, appear does not in the proba- argument But this proves too much. Even bly because the president does not have though the “adjourn- Constitution uses power Congress. to dissolve See id at ment” to session, mean breaks within a it II, § art. 3 (providing president, also uses the term to mean breaks be- most, “may adjourn [Congress] to such tween sessions. Supreme Court held time as he proper” shall think if they Case, in the Pocket Veto agree cannot on adjourn- “the time of (1929), S.Ct. 73 L.Ed. 894 (Alexander “ad- ment”); The Federalist No. 69 journment” I, 7,§ in Article Hamilton) clause (explaining powers any Constitution is in break business president and how they are less than those prevents “that the President king re- governor and even the of New turning the bill to the York House which it contrasting president’s power “only adjourn originated within the time allowed.” legislature” national Id. (internal quotation with the “British 49 S.Ct. 463 marks monarche[’s]” Const, omitted); I, “prorogue § or even see also art. dissolve the Parlia- U.S. ment”). But cl. 2 concept (providing that a bill passed by dissolution is Con- present still gress the Constitution: becomes law Congress days after ten after automatically any ongo- presentment dissolved—and president to the “unless the every session years by Congress by adjournment two prevent their ended — return”). termination of the terms of one-third of This definition does not distin- adjourn adjournment 12. The words appear Representatives of the Senate and House of six times in five clauses of the Constitution. may necessary (except question on a Const, I, ("If § art. 2cl. bill shall adjournment) presented shall be to the Presi- not be returned the President within ten States”); II, § id. at art. dent United days (Sundays excepted) after shall have ("[The may, extraordinary President] occa- him, presented been the same shall be a sions, Houses, convene both or either of law, it, signed in like manner as if he had them, disagreement and in case of between Congress by adjournment pre- unless the their them, respect adjourn- with to the time of return, vent its in which case it shall not be a ment, may adjourn he them to such time as I, law.”); 7, order, id. at § (“Every art. cl. 3 proper.”). he shall think resolution, or vote to which the concurrence in “session” legislature the on whether within sessions and breaks between guish Const, 1780, 2, pt. id.; Mass. of “in or recess.” See accord sessions. between those Const, pt. 1, V; of 2, § N.H. (explain- ch. art. 1551 n. 198 at supra, Rappaport, in “ses- 2, legislatures were § term ‘ad- L. the the When Framers used that “the power either sion,” than had the meaning governors the a broader journment’ with law”). See, e.g., adjourn them. English or to traditionally prorogue under to had Const, (“The 1780, 2, 2, § 1 not ch. pt. does the Constitution Mass. of This means and power as it was “adjournment” used ... shall have full adopt Governor simply sug- the correspondingly of Gener- authority, during and the session in Parliament legisla- is [i.e., “Recess of the Senate” the Massachusetts gests al Court name. by same to ture], prorogue another the simply prorogation adjourn to desire”). Houses shall two any time the between Understanding the differences recess,” “in were legislatures But when the helpful, adjournment and prorogation pro- to only power had the governors however, of ratification-era make sense to terms, or, simpler extend in rogue of these con- them — Eight state constitutions.13 recess, see of the intersession the duration Six con- the word “recess.” stitutions use English Johnson, Dictionary A in the ambiguity found fed- of tain same as “to (defining “prorogue” Language 412 “recess” in The word eral Constitution.14 to a dis- parliament withhold session Hampshire and New the Massachusetts Const, time.”). See, e.g., Mass. tant however, constitutions, only includes inter- 2, gover- § 1 1780, (providing pt.2, ch supra, at Rappaport, session breaks. Court,” the nor, “in the recess of said similar constitutions have 1552. These time to prorogue “to same power respective their provided provisions time”). make sense provisions These powers depending different governors with one. Noel modeled the North Carolina argues discussion of after that our 13. The dissent Car- Canning, at 501. The North 705 F.3d early prac- American constitutions state power gives governor olina Constitution of recess into a our tice definition transforms of offi- “grant[] temporary commission[s]” Dissenting Op. at 251-53 & n. technical one. however, appointment[s] [were] [the are, cers “whose frequently These sources 11. vested in the Constitution Carolina] North Supreme to decide the Court relied on Assembly their recess.” Heller, ... See, General e.g., meaning Constitution. Const, 1776, 2, pt. art. XX. Recess N.C. 2793-94; Youngblood, Collins v. S.Ct. essentially same manner used 2715, here 111 L.Ed.2d 30 constitution, which federal that it is too,We, (1990). reliance consider such recess-appointment to “the limits average likely citizen appropriate because constitutions Recess of the Senate.” Both Constitution in would understood the have ambiguity. the same thus contain prac- to the state constitutions reference ambigui- concluded that this The D.C. Circuit time. tices North constitu- ty is for the Carolina clarified deci- Supreme Court by a Carolina tion North Const, Const, 7; art. Md. of 1776 14. See Del. implicitly argues Circuit sion that the D.C. Const, XIII; pt. N.C. of 1776 art. and recess. distinguishes between session Const, XVIII-XX; pt. Pa. of 1776 pt. arts. disagree. We Canning, 705 F.3d at Noel Const, IX, XVIII, 20; arts. § of 1778 S.C. Supreme opinion is Court North Carolina Const, II, XXXV; §§ XVII- of 1777 ch. Vt. ar- the Board because-—as not informative XVIII. was not the gues in the case question —the a recess- meaning but whether Carolina Con- "recess” provisions, these North Of jurisdiction to appointed judge’s court had Appointments Clause has stitution’s appoint- properly he was determine whether argued be the most relevant been Cameron, 3 Mur. 7 N.C. Beard v. Appointments Clause because ed. federal Recess by some to be thought clause is the federal

225 Const, Const, legislature if the not in 1777, 2, “session” when it XVIII; § ch. Pa. Otherwise, is “in recess.” provisions the 1776, 2, pt. § 20. Governors of both conflict, stating governors imposed embargoes states during intrases- both had and did not have power to breaks,16 sion which suggests they under- adjourn the legislature during intrasession stood that such breaks were included breaks. These two constitutions thus used the meaning of recess. recess to mean only.15 intersession breaks Jersey governor New acted similar- are, however, There examples of state ly. He relied on the Senate Vacancies assuming executives that a constitutional Clause in the federal Constitution to ap- recess includes intrasession breaks. Ver- point a 19, senator on December 1798. 8 mont Pennsylvania’s former constitu- of Cong. Annals 2197 tions, Prior to example, provided their respec- Twentieth power Amendment, tive executives to “lay embargoes this Clause al- ... in the only.” recess of the house Vt. lowed state executives to make temporary intersession-breaks-only 15. definition of Assembly's "adjourn[ment] the Vermont until recess is way. also seen in a second 16, As ex- Wednesday the second April of June” on plained, governors only power 1781); had the to 2 Records of the Governor and Coun- prorogue respective legislatures when their (E.P. ed., cil of the State of Vt. 164 Walton recess”; they were “in power 1874) but had the to (recording May imposition 1781 adjourn prorogue legis- both as well toas embargo by executive). This was an they latures when were in session. See Mass. intrasession break legislature because the had Const, 1780, 2, 2, 1, V; pt. § ch art. N.H. adjourned day, not they without often did Const, pt. § of 1792 telling L. This is be- See, meeting to end year. the last e.g., cause if recess included intrasession breaks as Proceedings 3 J. & of the General Assemb. of breaks, well power as intersession then the (adjourning the State of Vt. at 31 on June adjourn ought to also be included. Recall Excellency 1778 "until his the Governor com- adjourn- that one central difference between meet”), mands them (adjourning 73 "with- prorogations ments is that the former do 4, 1779); day” out June (adjourning on 123 end all business such that it need be 16, 1780); day” (ad- "without on March 271 legislature started anew when the reconvenes journing 1781). day” “without on June Jefferson, while the latter do end business. Pennsylvania For the example, see J. & Min- constitutions, supra, at 164-65. So in these (1778) (record- Assembly utes of the Pa. 212 session, legislatures while the were in Pennsylvania Representa- House of governors option had the ending of either adjournment May tives’ on 1778 "to meet or, through prorogation through business ad- day September on the 9th next” and journment, merely ending meetings their but subsequent reconvening August ending without their business. There is no pursuant "vice-presi- to the summons of the obvious reason that if recess included intra- council”); [sjupreme dent and executive session breaks—after which business that was Supreme Minutes of the Exec. Council of Pa. ongoing before the break would continue— (Theo Co., 1852) (recording Fenn & governors power would lose their to end August imposition embargo of an plausible explana- that business. The most executive). by the The Board has stated that differing powers tion of the in each situation September this intrasession break lasted until recesses were constituted of inter- 9, 1778. This does not take into account the recesses, session unnecessary which made it Pennsylvania Representative's being House of provide governors adjourn August discrep- recalled on however. This legislatures because there was no business ancy general does not undermine the Board’s that could be continued. The Massachusetts point embargo was set the execu- and New Hampshire constitutions thus used tive an intrasession break because the only. recess to mean intersession recesses May adjournment adjournment was not an example, 16. For the Vermont August embargo see 3 J. & Pro- sine imposition die and the ceedings of the General Assemb. Assembly's August reconvening State is before the (P.H. 1924) (recording of Vt. 235 Gobia Press date. 226 affirmatively re record Re- in the historical “during the of Senators of understanding purposes jects their of State.” Legislature [that] of the

cess Const, But Constitution.18 neither I, 3, appoint- 2. His federal § cl. art. 1798, affirmatively establishing anything there on of a December ment senator in of recess adopted it this definition to include recess that he construed shows in the Massa the definition found lieu of New Jer- breaks because intrasession Hampshire and New constitu intrases- chusetts Assembly was an sey General alone, “Recess of the Sen Standing until tions. from November break sion v. A.H. ambiguous. thus Edwards ate” is 16,1799.17 January (3d Son, Inc., 217, 222 F.3d & 610 Cornell had at history shows This Cir.2010) (“Words ambig provisions or are ratifica- at the time of meanings two least reasonably susceptible ‘they when are uous only' breaks either intersession tion: ” (quoting Do interpretations.’ of different long intrasession plus breaks intersession (3d Phelan, 419 F.3d 263 Cir. brek v. favor the The state constitutions breaks. 2005))). favor former, actions governors’ while of these though, neither sure, Importantly, executive’s To be latter. to the skepti- possibilities is similar unavailable- viewed with some actions should by put forth of definition expansive an definition for-business because cism thus far Every example discussed self-inter- Board. their institutional served First, two common characteristics. See Ste- has by powers. their expanding est Prakash, period lasted for a considerable B. each break & Saikrishna ven Calabresi G. time. The intrasession breaks in to Execute the of President’s Power Pennsylva- Laws, governors of Vermont 104 Yale L.J. days, were 57 and by powers nia used their actions (explaining post-enactment swpra note 10. And the respectively. cau- See Congress must be viewed the first in which the New Jer- inter- break of their institutional intrasession tiously because a senator was 69 sey governor appointed But limiting president’s power). est 11. As as we reject days. supra un- note far their be erroneous would aware, break Nothing the shortest referred basis alone. derstanding on this Congress Twenty- That Proceedings of the Continental 17. Votes N.J., suggests 1st date adjournment General Assemb. of State was until a fixed Third (1798-99) adjourn- sitting, (recording ought period after to have been Assembly); Jersey J. the New General ment it was an ad- intrasession break because Legis. of the Proceedings of the Council die, journment be denoted sine which would N.J., Sess., (1798- sitting 20 State of 23d 1st reconvening date. of a fixed the absence 99) (recording adjournment of the New however, Subsequent proceedings, call this Council). Jersey Legislative understanding question because the Con- into Congress’s journal record tinental does not practice, the Board state-executive 18. Besides reconvening on October 30 but instead their Congress’s un- points to the Continental also convening when the shows Articles them derstanding meaning as revealed required they again, 28 J. meet Confederation & n. 3. Under practices. NLRB Ltr. Br. at 6 (1784) (con- Congress 639-41 of Continental Confederation, Congress the Articles of vening "[pjursuant Confed- to the Articles of convene a could “Committee eration,” prior pursuant rather than Congress.” during Ar- "the recess of States” IX, having adjournment), which is consistent with para. art. ticles of Confederation X, 5; rely para. adjourned We decline to on this id. art. Such a committee sine die. 1. period followed the way practice convened one or another because Congress’s adjournment June Continental 3, uncertainty. 27 J. of 1784 until October days, short, recess lasted A Documen- the natural meaning of recess tary History English Colonies in help does not us decide between interses- (Peter Force, ed., North America 1346-48 sion breaks and intrasession breaks of a 1839), conforms which with the modern duration, fixed but the relevant context practice equating recess with breaks last- does undermine the posi- Board’s' current ing days. least These durations sug- tion.19 To resolve the remaining ambigui- gest that a recess was more than the day- ty, might one argue that the Constitution to-day adjournment legislature of a and uses a definitive article: “the Recess of the likely held the connotation long dura- Senate.” The word “the” might mean that contrary tion. This is to the Board’s cur- phrase specific refers to a thing, possi- rent view that breaks in business need not bly suggesting that recess refers to the any particular be of duration to constitute one recess that every session, follows a recess. intersession break. See Canning, Noel 705 F.3d at 499-500. But “the” also can The second notable trait of these particular denote a class of something as each, beginning breaks is was Indeed, well. that is how the D.C. Circuit solely by determined when the legislature ultimately Recess,” interpreted “the hold- adjourned by than some function- —rather ing that it means all intersession breaks. alist body definition of when the un- Id. But even conceding that “the” is meant available for business. The Board has specific denote a class of something, pointed examples to no of the word “re- there is nothing in the word “the” itself turning cess” on factors such as whether that necessarily requires that class to be attend, required members were intersession breaks. “[T]he Recess” legislative chamber was empty, and the might, for example, simply refer to body times could receive messages. The exam- in which the Senate ples is a recess. instead show that recess was tied to Evans, 387 F.3d at type, possibly duration, 1224-25. There legislature’s nothing that shows what adjournment. self-defined “the” means in Jefferson, (ex- Accord supra, Appointments Clause, at 51 at especial- plaining ly that Senate may “Committees because the Constitution be uses “the” in Const, appointed See, to sit during by a recess ad- several manners. e.g., U.S. journment, by I, but not prorogation”). 3,§ art. cl. 4 (providing that “[t]he Vice 19. The dissent refers to our reliance meaning on state was intended in the Constitu- tion. contemporary interpreta- constitutions and do, however, practices These historical tions of recess as a “dubious” method cast doubt on the unavailable-for-business defini- interpretation. Dissenting Op. at 253-54. To Board, argued by tion a version of clear, examples these historical demon- adopted by which is the dissent. This is not strate that the use of recess at the time of practices so much because of what the were ratification was consistent with either in- they Namely, but what were not. the Board tersession-break definition of recess or the point single and the dissent cannot ato exam- intersession-plus-long-intrasession-break defi- ple period from the of ratification in which a nition. We discuss these to show the legislative body or executive defined recess ordinary meanings of the word "recess” for exclusively using a functionalist definition founding generation, as demonstrated availability. based If such a definition Heller, usage. their 554 U.S. at ordinary” recess were a "normal and mean- S.Ct. 2783. We do not use them as conclu- Heller, "founding generation,” for the sive evidence that recess means intersession ought U.S. at there to be only, breaks which cannot be done because example at least one of its use from that there is not sufficient period. historical evidence on any limita- II, 2,§ lacks cl. 2. The Clause ... shall be President

President operative power tion on when Senate”); I, (providing § cl. art. —the to fill va- always has president pro president select shall the Senate and advice through nomination cancies Presi- of the Vice “in the Absence tempore (“[The id. of the Senate. See and consent dent”). we are convinced Accordingly, nominate, with shall President] uninformative. We “the” is that use of Senate, and Consent of the Advice textual look to the broader must therefore ”).20 perpetual pow- appoint ... This shall the Sen- “the of in Recess context which power to the to given in contrast er stands ratified. ate” was Appointments in the Recess president the fill Clause, to explicitly allows him which Textual B. Context Re- unilaterally only “during the vacancies and the Un- Context 1. Constitutional II, 2,§ cl. at art. Id. cess of the Senate.” Definition available-for-Business thus reveal constitutional 3. The clauses ap- over the power hu for divided “If, imperfection preference the of is deviated from process, which pointments serious there should be language, man only specified in situations.21 any given the extent of respecting doubts rule, that the settled it is a well power, this under- Hamilton echoed Alexander [i.e., which it was purpose] the for objects He ex- standing of the Constitution. great have influence given ... should Appoint- 67 that the plained in Federalist Ogden, Gibbons v. the construction.” general mode “declares the ments Clause 6 L.Ed. 23 9 Wheat. U.S. of the United of officers appointing Ap of the Recess purpose The (Alexan- No. 67 The Federalist States.” in its is most pointments Hamilton). Clause evident Appointments The Recess der Clause. The Appointments to the however, relation Clause, “nothing more than dem text and structure Constitution Appointments to the supplement [the Appointments Clause], the Recess an purpose establishing onstrate that of for the secondary, exceptional, or cases auxiliary appointment, method of in Clause officers, the while method inade- appointing general of to the method which “ordinary provides pri Accordingly, the Appointments quate.” Clause Id. to the appointment. method of of is confined mary, general, power or can jointly, the Senate president and and Appointments provides The during the ses- officers therefore be exercised appointing rule for general (emphasis orig- in Senate.” Id. nomination and sena sion through presidential Const, recess,” inal). ] “in Senate’s [the art. But and consent. U.S. advice torial Officers, they prop- inferior think in full: such Appointments 20. The Clause states alone, er, in the in the President Courts Power, by the Ad- have with shall and He Law, Departments. in the Heads of or Senate, to make and Consent vice Const, II, § cl. 2. U.S. art. Treaties, provided two of the Sena- thirds nominate, concur; present and he tors shall exception found 21. Besides by the Advice Consent of and with and Clause, Appointments Ambassadors, Senate, appoint oth- shall exception for "inferior Clause also creates Consuls, Judges of public Ministers and er appointed can be These officers Officers.” Court, supreme and all Officers of other or, through ordinary process if States, either Appointments are United whose statute, unilaterally Presi- for, specified by provided otherwise herein dent, courts, department heads. by Law: but the shall be established Const, II, § cl. 2. Appointment Congress may Law vest art. “President, singly,” has to make most powerful insidious and weapon of ” temporary appointments. (emphasis Id. in eighteenth century despotism.’ Freytag, original). This deviation is necessary, 501 U.S. at 111 S.Ct. 2631 (quoting argues, Hamilton “improper because it is Wood, Gordon The Creation the Ameri- oblige body continually (1969)). can Republic 1776-1787 79 But session” and because “it might be neces- skepticism framers’ concerning unilat- sary for public service fill without eral power was not limited to the execu- delay.” Id. They tive. rejected also unilateral legisla- tive control out of concern purpose” “main of the Recess “diversity views, feelings, and inter- Appointments Clause, therefore, is not—as ests, which frequently distract and warp the Eleventh Circuit held and the Board the resolutions of a body.” argues only “to collective enable the President — (Alexander Hamilton). Federalist No. fill vacancies to proper assure the function As a ing Evans, consequence of our of government.” concerns, these the F.3d at sought framers This formulation to leaves out a “ensure that those who crucial aspect of the wielded purpose: [appointments Clause’s powers] to were ac- preserve the political Senate’s advice-and-consent countable to force and the will of power by limiting president’s the people” unilateral the by limiting power the of appointment power. Accord Can person Noel one or body. They so did divid- ning, 705 F.3d (explaining at 505 ing that power between the executive and Eleventh Circuit’s statement of legislative branches. Freytag, 501 purpose Clause’s a “omits crucial element 883-84, 111 2631; S.Ct. see also Ryder, Clause, of the which president enables the (“The 515 U.S. at [Ap- to fill vacancies when the Senate is pointments] Clause ais against bulwark provide unable to advice and consent” one aggrandizing branch power its at the (emphasis in original)). expense branch, another of it but is more: preserves it importance aspect another of this the Consti- aspect of the tution’s purpose integrity by Clause’s is structural preventing difficult to understate. ratification, At the time of diffusion of skepticism appointment power.”). executive To appointments power ignore unilateral this power division of is to ne- “ firmly power glect established. a principle ‘[T]he central that underlies the appointments to offices’ was Appointments deemed ‘the two Clauses.22 22. The dissent principle understands this suggests to the historical record that it is intend- mean that one purpose Ap- of the Recess type pressure ed to be a valve for when the pointments provide Clause is "to a check consent, president cannot obtain the Senate's the Senate’s over the control dys- whether that be because it become has by sharing power officers of confirmation rejects president’s functional because it a with the Dissenting Op. executive.” at 257. (Al- nominations. The Federalist No. 67 Cf. agree While we Clause is to intended Hamilton) (explaining exander preserve power the balance of in the struck “improper Clause needed it is because is to Clause, Appointments disagree we it oblige body continually to this be in session” by limiting does this the Senate’s might necessary or because "it for the provide its advice and consent. The Recess public delay” service to fill without rather Appointments preserves Clause the balance of necessary than a because tool to check power by limiting the instances in which power). the Senate’s president authority appoint has unilateral officers, disagreement explicit dissenting is illustrated its Our with our col- league limitation of that power to "the of the is rooted in a difference understand- Senate.” in the Nothing text of the president's Clause or respec- and the Senate’s the rule Clause would swallow pointments implausibility therein lies

And Clause. ex-As definition. unavailable-for-business argues that above, Board plained dif- recognize appears The Board any time members recess occurs Arg. Tr. at definition. Oral ficulty with its attend, duty to have a do not Senate executive (stating “[t]he 48:6-9 the Senate empty, and chamber is Senate make authority to has not claimed branch communications to receive unavailable lunch”). Ac- appointments at 44- Resp. Br. president. from the that there is argues the Board cordingly, 21-22, 25. 45; Att’y open-for- three Op. Gen. in addition to the limitation unavailability provide criteria: is that business this definition problem The1 with Tr. at Arg. and consent. Oral advice whenever fulfills these criteria clearly does not But the Board 49:15-18. weekend, go home for the members leave unavailability way in a that distin- define or even take break evening, for the discussion of it from the Board’s guishes instances, these each of lunch. At open for business. the Senate is when attend, duty to the Sen- have no senators times, require- treats the two its brief cannot body and the empty, chamber is ate (“[T]he Br. at 44 Resp. one. ments as president. messages from receive when the authorizes open to conduct business and is not Senate way evis- in this would Defining recess and consent on providing advice thus framework the divided-powers cerate nominations.”). If Clauses establish. two president’s refused confirm the Senate indication of what Perhaps best nominees, circum- president then the could by unavailability is its reli- Board means simply constitutional role vent the Senate’s unanimous-consent ance on the Senate’s for the go until senators home by waiting that established the schedule agreement from December pro sessions Ap- for evening. exception The forma (Alexander Hamil- president, not. See Federalist No. Regarding the powers. tive ton). interpret we contends that must dissent Regarding the Senate's advice-and-consent broadly recess-appointment power president's analogizes presi- it to the power, the dissent "evisceratfe] do otherwise would because to Dissenting Op. power. at 254-55 veto dent's may prerogative” he so that his analogy inaccurate. 14-15. This is & nn. people himself with the "be able to surround rejected an of the Constitution The drafters help him fulfill his believed best fit to he approval proposed Madison mechanism Op. presi- duty.” Dissenting at 255. But the power to veto gave the Senate that prerog- "appointments dent does not have an majority by a vote in presidential nominees right to surround consent.” The Rec- ative” or the constitutional favor of “advice and of 1787 at 80- ords of the Federal Convention are "best fit to with those he believes himself ed., 1911); (Max see also Matthew Farrand exactly help.” what the drafters re- That is Appoint Stephenson, Can the President C. they rejected appoint- jected unilateral when a Senate Principal Executive without Officers presi- authority The in the executive. ments Vote?, L.J. 122 Yale Confirmation prerogative to nominate whomever dent has a no reason to This means there is likes, prerogative to and the Senate has the he powers created the balance of think president reject whomever the or confirm through provisions of the advice-and-consent Appoint- the Recess nominates. To construe anything presi- like to the Senate is providing presidents these ments Clause as explained, the power. veto As we have dent’s auxiliary ap- rights promote it from an is to equitable between balance is much more one, ability pointments provides device to an additional to ne- each the branches gate role of the other. exactly what it is we know from Hamilton 20, 2011, through January (statement 2012. This Reid). S8789 of Sen. That resolution provided that there would be day, same the Senate “agree[d] also to the “no business during conducted” the ses- request for a conference” from the House (statement sions. 157 Cong. Rec. S8783 in relation to related passed bills by both Wyden). of Sen. This resolution might be chambers. Id. If the Senate pass could understood to mean that during pro bill agree request to a from the House sessions the Senate open to create a conference for bill, forma another business but provide unavailable to advice then the likely could have provided and consent on nominations because of the its advice and consent but chose not to —as body’s prior agreement. they are entitled under the Appoint- ments Clause.23 problem first with argument this that the Senate’s actions under the resolu- Besides this factual difficulty, tion reveal provided could have Board’s limiting principle another, has advice and consent pro these larger problem: it still does not foreclose forma sessions if it had desired to do so. On day-to-day adjournments from constituting 23, 2011, December during one pro recesses. important feature of the sessions stipulated in the unani- Senate’s scheduling agreement forma mous-consent agreement, Senate Board emphasizes is the provision that passed a bill provided “a 2-month there would be “no business conducted.” extension of tax, the reduced payroll un- Resp. 45-47; Br. at Oral Arg. Tr. at 49:21- employment insurance, TANF, and the This, however, is indistinguishable payment Medicare fix.” 157 Cong. Rec. at from a daily adjournment. At the end of rejects 23. The dissent yields conclusion on the the advice and consent envisioned ground that if the Senate is available time the Framers.” Id. at 257-58. Underlying it could act on nominations it "if had the this is the assertion that advice and consent so,” desire[ to do then the requires Senate would a vote the Senate’s members. Id. logically always be available. Dissenting Op. at complicated 247. This is question. a See White, 267-68. This misses one Adam J. central feature of Toward the Under- Framers’ pro standing sessions: Senate has convened. "Adviceand Consent”: A forma Histori- of We do not hold that cal and Inquiry, the Senate Textual is available 29 Harv. J.L. & Pub 103, 107-08, Pol’y (2005) time when could it confirm (collecting nominations Instead, if it arguing wanted to. we sources pointing are the Senate required out is to act on distinguish analyzing Board cannot nominations before pro the text and forma convention ordinary sessions from debates to conclude sessions on the that Sen- basis ate obligation has no presidential to act availability Senate's on during pro because nominees). We are express reluctant sessions to an the Senate convenes in a man- forma it, opinion especially because it ner that has not allows it to consent to nominations if been briefed. it desires to. This is evidenced the Sen- Assuming required that vote provide is to passing ate’s legislation of during these ses- consent, however, the Senate's advice and it Holding sions. that the Senate is unavailable is also the case that the Senate must vote to during requires these sessions a definition of “pass” Chadha, a bill. See 462 U.S. at 980- availability that allows the counterintuitive (equating vote). 103 S.Ct. pass with situation in which the Senate is available to Why agreements unanimous-consent are suffi- legislation enact while simultaneously un- pass legislation, cient to and thus constitute a provide available to its advice and consent. vote, yet inadequate are to constitute vote suggests The dissent possibility, one which is for the purpose of advice and consent is un- that the Senate provide is not available to clear. The dissent's definition thus suffers advice during pro consent sessions from the same flaw as the Board's: it cannot forma because "business via provide unanimous consent a principled defining method of avail- agreement ... type not the is ability. business that in- breaks). had Thus, if the framers repre- adjourns, which the Senate day, able be president for the tended no busi- it do that will agreement sents an intrasession officers appoint day. the next it reconvenes until ness breaks, Appointments Recess then adjourn, agrees to fact, the Senate when differently, worded have been could recog- Clause be can even no senator agrees “during the allowing recess Riddick’s floor. See on the speak nized to Noel of the Senate.” Adjournment Prac- Precedents Procedure: Be- 505-06. F.3d at Canning, 705 101-28, Adjournment tices, Doc. No. S. instead uses Constitution cause the (“Once (1992) has announced Chair presume that adjournment, we adjournment, stands the Senate adjournment. from meaning different has a to the Sena- available recourse is no there Connecticut, London, New City v. Kelo the Senate until seeking recognition tor 125 S.Ct. reconvenes.”). is for- 545 U.S. only distinction (“When interpreting L.Ed.2d 439 adjournments day-to-day malistic — unre- Constitution, begin with (that we adjourn in motion embodied every word to) presumption a markable than agreed rather unanimously often meaning, independent has the document there agreement consent unanimous —but used, or unnecessarily no word was ‘that makes an to believe no reason ”) Wright v. (quoting needlessly added.’ ap- the Board’s under actual difference 583, 588, States, United Therefore, limiting Board’s proach. (1938)). 82 L.Ed. meaning of re- to limit fails principle rejected prevent and must cess meanings, words have different That the exception Clause’s Appointment Recess necessarily tell us what however, does not power. swallowing rule of divided they and whether meanings are those and D.C. Eleventh overlap. The might “the established what that we have Now possibilities. different mean, provide two we Circuits does not of the Senate” Recess mean hand, adjournment could theOn one mean. The it does what must establish business) (i.e., ending adjourning act preserva- Clause’s time, could while recess any period advice-and-consent the Senate’s tion of that follows of time period to the refer between the help us decide power does Evans, at 1225. 387 F.3d adjournment. the re- possibilities because remaining two hand, adjournment could the other On break last a intrasession that an quirement any for adjourning the act of mean excep- again prevent duration would certain refer time, might while period of must We swallowing rule. tion from nature —whether a more limited breaks of the Consti- to provisions look therefore by the duration limited that be tution. Noel Can- of break. type or the break appear provisions constitutional Several instances, at 500. both F.3d ning, 705 those that analysis, such as to our relevant different and recess have adjournment Noel “adjournment.” See use the word dichotomy nothing about the but meanings Adjournment, at 500. Canning, 705 F.3d meaning us words tells between in which above, anis instance as discussed was intended. takes a of its chambers or one Congress considered See, possibilities these e.g., When length. type or any break Ap- of the Recess purpose light in Case, S.Ct. Veto Pocket however, Clause, the dichoto- pointments in the “adjournment” (interpreting in results adjournment my types must both to include Clause Pocket Veto more than breaks recess does. If the definition and the intersession-plus-long- Eleventh intrasession-breaks Circuit is correct that definition. sole using reason for adjourn- recess instead of 2. Constitutional Context and the Re- recognize ment was difference be- maining Definitions adjourning tween the act of period and the We resolve uncertainty by first not follows, then recess any would mean ing what is absent in the Constitution: a break regardless business link between “the Recess of the Senate” length. break’s This ais definition broad any particular length of time. Attor one, Board, that no including the adopts ney General Daugherty, who first suggest because it would result exception aed minimum duration of days, ten did swallowing the rule. dichotomy So the not tie this duration to any constitutional does reveal that recess must mean some- provision. See Op. Att’y U.S. Gen. at thing narrower than break that follows (“Nor 24-25 do I think adjournment an for adjournment. days even 10 can be said to constitute the recess Constitution.”). intended But what this narrower is can- definition Some have tried to tie the duration to the not be derived from the dichotomy be- Adjournment Clause, which requires ei adjournment tween and recess alone. ther chamber of Congress to obtain the Nothing about the words tells us whether consent of adjourn other for more recess is limited the duration of the Const, than days, I, three 5,§ U.S. art. cl. (as does) break the intrasession definition See, e.g., 4.24 Op. Att’y gen. at 24- (as byor type of break the intersession 25 (invoking Adjournment Clause to does). definition Contra Canning, Noel reject the days idea that two may consti 705 F.3d at 505-06 (using the dichoto- recess); tute a Hartnett, Edward A. Re my plus the fact that recess preceded by Appointments cess Article III Judges: “the” as support its conclusion that Three Questions, Constitutional 26 Cardo “the Recess” must mean intersession zo L.Rev. argu only). breaks The dichotomy between ad- ment is that Adjournment pro Clause journment and recess leaves therefore us vides measure of what constitutes a de in the same place as the Appoint- Recess minimis break —one that should be read ments purpose: Clause’s rejecting an all into the

inclusive definition of recess without a but prevent the exception from swallowing the basis to decide between the Hartnett, intersession rule. See supra, at 419-21.25 24. The Clause states: problematic for the intersession definition be- cause, argument goes, as the it inserts the House, during Neither the session of Con- appointments process House into the even shall, gress, without the consent oth- though the purposely Constitution it excludes er, adjourn days, for more than three nor to process. from the any place other than that in which the two eliminated, however, sitting. problem Houses be shall is Arti- Const, I, II, 5,§ § U.S. art. cl. 4. cle 3 of the provision Constitution. This president “adjourn allows the Hous- both Adjournment 25. The may thought Clause be only es” agree “if the two Houses cannot on a problem to create a for the defini- II, intersession adjournment.” date of U.S. Const. Art. Namely, by requiring tion of recess. that § the Assuming Supreme the that Court would Congress agree two of any chambers on ad- interpret adjourn to be the form verbal of journment lasting longer days, than adjournment, the three it has said constitutes prevent breaks, Clause the enables House to the Sen- both inter- and intra-session Pocket Case, ate adjourning from sine die. This would be Veto 279 U.S. at 49 S.Ct. this RS21308, Serv., Appoint- Recess howev Research argument, in this error

The central Questions & Asked Frequently of either ments: in the text er, “[n]othing that is of offi- expiration these structure, n. 5 Clause, its the Constitution’s the next end of session terms the cers’ the Claus a link between history suggests were made 504; appointments that their implies Canning, 705 F.3d Noel es.” cf. sessions. States, period between Dyers v. United & Atl. Cleaners U.S. the reason follows from implication This (1932) (demonstrating that the L.Ed. expire at appointments making for impor is provisions of individual context dis- of the “next Session.” As the end meaning of them deciding the tant cussed, Appointment Clause the Recess the same words the that explaining “auxiliary” appoint- method of an provides meanings different often have Constitution (Alex- No. 67 Federalist ing officers. The context). Absent some on their depending Hamilton) the (explaining that ander connection, reason believe there is no supple- than a “nothing more Clause is duration Adjournment Clause’s the that that [Appointments Clause]” ment to the meaning the controls requirement ap- method auxiliary an “establish[es] beyond And Appointment Clause. general the in cases to which pointment, Clause, nothing Adjournment the The durational inadequate”). method necessary establishes Constitution by limiting this maintains provision intrasession break would length of an time to last for appointees’ terms This is the most a recess.26 constitute and the Senate president needed for the long-break in- significant weakness of undergo nor- opportunity to have the argument. trasession Story ex- Joseph mal As Justice process. the presi- authorizes plained, constitutional Although there is no basis temporary appointments “to make limit on dent what for sort of durational recess, expire, which should Recess,” Ap- during the Recess “the constitutes op- have had an the senate should temporal when contain a Clause does pointments Joseph subject.” to act portunity on Appointment the Recess characteristic: on the Constitution Story, recess-appoint- Commentaries specification Clause’s § 1551 at 410 States at the the United expire End officers’ terms “shall ed added). Limiting the duration (emphasis Session.” Senate’s] next [the Const, from the opportunity follows II, single to a § A session art. cl. 3. all, auxiliary nature of Clause. After Senate, begins at everyone agrees, a nomi- not to act on decision the Senate’s convening and ends either first Senate’s rejection effectively auto- nation adjourns sine die or the Senate when nomination, by the evidenced Senate’s January 3 in matically expires at noon of nomina- president return to the Cong. routine Henry Hogue, B. any given year. adjournment prevent return." U.S. prevent their president to provision allows the Const, I, ten-day-duration § cl. 2. The art. interfering in the from House might drawn requirement prevents Senate from ad- process if three-day-dura- reason fails for same journing either inter- or intra-session Ad- requirement in relation to the tion fails break. Namely, the context journment Clause. significantly differ- of a durational Veto Clause is possible the Pocket Another source Clause, Appoint- Recess Pocket Veto ent from the context on recess is the limitation Clause, is no by Congress means there reason passed ments which provides that a bill which interpretation controls no to believe the former if the takes action becomes a law President Congress by of the latter. days the ten on it for "unless tions who have not been acted on. Stand- dent’s selection. Once the begins Senate XXXI, Rules of the its para. by Senate “next Session” reconvening, pri- (“Nominations mary appointments neither process confirmed nor re- becomes avail- able jected during and —because they the session at which the Constitution re- joint quires appointment upon authority made shall not acted suc- be —must undertaken the Senate ceeding being pres- session without and the again made However, ident. President.”). to allow the fact, operation to the Senate government continue, the Senate has system in which Senate silence would until the end of this session to consider the allow for the appointment of officers was president’s selection and confirm deny explicitly rejected at the drafting conven- it. body And if the does not act or denies tion. The Records of the Federal Con- appointment, then the recess appoint- (Max ed., vention of 1787 at 80-88 Farrand ment ends because the constitutional re- 1911); White, see also Adam J. Toward quirement joint agreement has not been Understanding Framers’ “Advice reached. Through process, Ap- and Consent”: A Historical and Textual pointments Clause retains its primacy as Inquiry, 29 Harv. J.L. & Pub Pol’y preferred constitutional method of ap- 117-19 (explaining the re- drafters’ officers, pointing while the Ap- Recess jection system of a only the Sen- pointments Clause retains its auxiliary role nominations); ate had the to veto president allows positions fill Matthew C. Stephenson, Can the Presi- when ordinary process is unavailable. Appoint dent Principal Executive Officers Under an definition, intrasession Vote?, without a Senate Confirmation longer would no auxiliary have an Yale L.J. The Clause’s president role. The would make the re- function is thus fulfilled an opportuni- once appointment cess during a break within a ty for the Senate to act has come and Senate session. But the Senate’s recon- gone. vening and subsequent first adjourn- if breaks, So recess includes intrasession ment —whether that be for long intrases- then we expect would the recess-appoint- sion break or for the intersession break— ment term only until last the end would have no immediate effect on the session. This is because once the Senate recess appointment because appoint- returned from break there would be an ment lasts until Session,” the “next opportunity to undergo pro- normal by adjournments demarked sine die. The cess. Yet the provides Constitution appointment expire would not until the the term would last until the end of the reconvened, adjourned die, sine re- next suggests session. This that the dura- convened, adjourned and then sine die a provision tional contemplates meaning Thus, second time. that means intersession breaks would though continue even opportuni- only. ty to undergo the ordinary, preferred pro- This is best process seen of recess gone. cess had come and This shows that appointments that results under each defi- when the intrasession definition nition of recess. Under the intersession- with provision, combined the durational definition, president would amake a fundamentally different relationship be- recess appointment between sessions of tween the clauses created: the intrases- Senate, which ensures the continued sion definition makes the Appoint- operation government though even ments Clause an additional rather than the Senate has not considered the presi- auxiliary appointing method of officers. the That Clause must act.28 legislature thus indi provision durational

The “next than rather “next Session” reading the uses natural the most that cates contem- that recess shows Meeting” intersession thus to mean recess defines Clause And, in type of break. Weinberger Hynson, v. plates particular only. breaks Cf. 609, Inc., operations 412 U.S. the competing Dunning, light of the & Westcott 2469, L.Ed.2d 207 intersession definitions, type is the that 93 S.Ct. (“It that our task (1973) well established is break. of a provisions separate interpreting

in charac- disagrees with The Board Act the most the give single Act is the duration argues It that terization. meaning possi harmonious, comprehensive intrasession with an conforms provision policy and legislative light in ble ap- if recess recess because definition (internal marks omit quotation purpose.” until not the tenures did extend pointees’ Inc., 513 U.S. Alloyd, ted)); v. Gustafson session, the then Senate the next end of 1061, L.Ed.2d 1 115 S.Ct. consider opportunity to lack an would (“[A] company the known word is intrasession when an appointee recess to avoid rely upon we This rule keeps. it end of a session. with the break coincides meaning so broad one word ascribing to all, if After Br. at 12-13. NLRB Ltr. accompany with that it is inconsistent the end of lasted until appointment words”). by the supported fact This is session, intrasession and the Senate’s Vacancies original Senate appointed he was lasted break which provision: “the durational a different used session, then the of that until the end Const, I, § cl. art. Meeting.” U.S. next expire at the end term would appointee’s Amend. XVII.27 id. superseded, would not the Senate that break and the duration that shows original language appointment. consider the a chance to have in the Recess provision al Board, fixing the du- So, according to the man in a phrased have been Clause could might ensure next session ration to the the Senate have allowed ner would pro- opportunity has an that the Senate to un only opportunity one president and consent. vide its advice in ordinary process if recess dergo for two unpersuasive argument This By breaks. intrasession stead included First, arises if problem reasons. Meeting,” to the “next setting duration definition of adopts an intrasession one of break type irrelevant what it becomes to intersession If is limited recess. once it con legislature took because any breaks, never be doubt then there will venes, expires case, unlikely was used in it is stated full: Vacancies Clause 27. Vacancies Clause in the Senate same manner happen by Senate] [I]f [in Vacancies otherwise, Appointments Clause. the Recess Re- is in Resignation, or State, have different Legislature in the Constitution Some words cess temporary Ap- may "according make meanings Executive thereof connection in Meeting of the pointments until the next employed” and "the charac- [they are] Va- Legislature, fill such which shall then the word is function” in which ter of the cancies. Dyers v. United Cleaners & found. Atlantic Const, I, by id. superseded § cl. art. 427, 433-34, States, XVII. Amend. meanings of The different L.Ed. 1204 necessary ac- likely here to recess would mean that the Correspondingly, this could may varying procedures state count for meeting i.e., “the Recess break before — similar may have had sessions formal not necessarily Legislature” have —did to the Senate. If this break. to be intersession

237 single that the Senate will have its chance natural reading of the Clause’s duration it weigh in: once reconvenes for its next provision supports this definition. In- Avoiding this an- problem yet session. stead, it tends to opposite. show the We other reason to define recess to in- mean doubt the phrase “next Session” is breaks, tersession Am. Tobacco v.Co. intended to address unusual Cf. situation— Patterson, 63, 71, 1534, one that the drafters’ of the Constitution 71 (explaining L.Ed.2d 748 unlikely were to contemplate. An intra- interpreted should “[statutes to avoid session break has extended until the end of untenable distinctions and unreasonable one of the completed Senate’s 296 sessions possible”). results whenever once, (And in 1992. even if we were

Second, acknowledge adopt we the dura- Board’s pro contention that provision tional can consistently be read sessions constitute a recess —which forma with an intrasession definition. But the we do not —then the number increases to point times, 2011).29 Board’s does not show that the most three in 2008 and In other 3, Congressional Directory 1992). 29. The January there, Official ment rec- until Even Congress however, ords fourteen sessions of that have the Senate still convened before the day ended within a Constitution’s auto- session ended opportunity and had the Congressional matic termination date. See conduct business if it had wanted to. For Directory Congress for the 112th 522-38 example, messages presi- received from the directory completed This before nominations, regarding though dent it did not Congress, the end of the 2011 session of so anyone adjourning confirm before sine die. the inclusion of the session that ended on Cong. See 137 Rec. at 36364. 3, 2012, January brings the total to fifteen. A preceded by pro Two were a series of forma automatically Monday session ended the first Cong. Senate sessions. See 157 Rec. S8783- of December until the Twentieth Amendment Dec., 17, 2011) (daily 84 (recording ed. Const, changed January it to 3 in 1933. U.S. agreement unanimous consent to a schedule I, 4, 2; § art. cl. Amend. XX. These are the session); pro Cong. 154 Rec. 24802- forma only relevant terminations of Senate sessions (Dec. 12, 2008; 12, 2008; 16, OS Dec. Dec. because if the Senate ends their session 2008; 19, 2008; 23, 2008; 26, Dec. Dec. Dec. die, convening adjourning and then sine then 2008; 30, 2008; 2, 2009) (holding Dec. Jan. the Senate has a chance to consider nomina- pro series of sessions from Dec. forma they example, tions while are convened. For 2, 2009). through 2008 Jan. the Senate had an intrasession break preceded by Eleven were the Senate conduct- that lasted from November 25 until December ing Cong. business. See 158 Rec. S8637-68 (Nov. 25, 2003) Cong. 9. 149 Rec. 31985 2, 2013) (daily (confirming presiden- ed. Jan. (statement McConnell). of Sen. On Decem- completing tial nominees business from 9, they adjourned ber convened and sine die. days immediately prior adjourning before (Dec. 2003) (state- Cong. 149 Rec. 32404 Constitution); pursuant Cong. to the 141 Rec. Frist). points ment of Sen. The Board to this 29, 1995; (Dec. 30, 1995; 38549-38608 Dec. example ending as one of a session before the 2, 1996; 3, 1996); Jan. Cong. Jan. 116 Rec. presi- Senate has the chance to consider a 43999-44129, 30, 1970; (Dec. 44346-44597 appointments. dent’s recess NLRB Ltr. Br. 31, 1970; 2, 1971) (adjourning Dec. Jan. sine But, though at 12-13. even the recess ended day die one before the constitutional did, deadline day on the same the session when the business); January completing 3 after adjourn 96 they Senate convened to sine die con- (Jan. 1951) Cong. quite Rec. 17022-17121 including ducted a bit of business— (same); (Dec. 26, Cong. fifty-two Rec. people confirmation of 10138-10143 officers of 1941; 30, 1941; 2, 1942) (same); Cong. the United States. 149 Rec. at 32404- Dec. Jan. 13997-14000, 14003-07, OS. Cong. Rec. 14011-46, 26, 1940; (Dec. Only 14058-59 Dec. instance one has an intrasession 1940; 2, 1941; 1941) (conducting Jan. Jan. break ended at the same time that a Senate days Cong. session has. See 137 business several the session termi- Rec. 36362-64 before (Nov. 27, 3, 1992) (record- through Jan. nated function of the Constitution on Janu- 3, 1941); adjourn- aiy Cong. the Senate's November Rec. likely simply reinforce was most written until the Sen- words, fixing the duration if (rather Appoint- the Recess auxiliary than the end of nature of the session next ate’s session) the only to ensure limiting appointees’ meant by that ment Clause its advice provide a chance has only long necessary as Senate to last terms its effect on regard to without consent and to un- opportunity one afford the Senate framework, the duration then the broader ordinary process. the dergo im- only become has purpose provision’s that the thus shows The Constitution this even time. And one portant of recess —that more limited definition be- instance, convened the Senate recent of the Recess by purpose the necessitated dead- constitutionally imposed their fore adjourn- the and Appointments Clause nominations considered could have line and only in- dichotomy ment-recess —includes Cong. 137 do so. See they if had chosen to the Nothing within tersession breaks. 1992). (Jan. 3, complete Rec. 36364 sup- the Constitution broader context of by the described problem of the absence As for the definition. ports the Board’s that years suggests 225 in the last Board defini- intersession-plus-long-intrasession likely was not writ- most the Constitution tion, with the although it could conform in mind. problem ten with such Cf. Clauses, there is relationship between States, F.2d 852 v. United Marozsan defining “long” no constitutional basis Cir.1988) banc) (Easterbrook, (7th (en 1498 by unsupported the definition is and (“The extreme J., terror of dissenting) provisions.30 law.”). other relevant constitutional much bad produces hypotheticals Appoint- relationship between provision the durational implies This Ap- 1922; 4, 1922) application (conducting usage, of the (Dec. torical Dec. December, analysis purpose, and pointment Clause’s Monday of the first business on context, we it, hold the relevant constitutional adjourning days preceding before and the ordinary meanings, the Constitu- Constitution); 50 required sine die as intersession definition of recess. (Nov. tion uses the 6030-37, 6041-44, Cong. 6050-53 Rec. short, read "intersession'' into we do not 29, 1913; 1913) 26, 1913; Dec. Nov. the word is used the Constitution because—as 529-31; 520-25; (same); Cong. 542- 37 Rec. only means inter- in the document —"recess” 1903; 5, 1903; 1903) (Dec. Dec. Dec. breaks. session 764-98, 799-805, (same); Cong. 816— Rec. 1877; 30, 1877; (Nov. Dec. Dec. seen in the dissent's rea- This method is also Globe, 1877) (same); Cong., Cong. 40th mean soning, recess to when which defines 802, 810-11, (Nov. 1st Sess. provide its advice the Senate is unavailable 29, 1867; 27, 1867; 26, 1867; Nov. Nov. Id. at 245. Per dissent’s and consent. 2, 1867) (same). Greenaway’s Dec. logic, Judge definition would Congress's And one of these terminations "the Recess of the the Clause to be read by the provide business session was due to continued cannot its advice Senate which it [in House, adjourned though Senate had illustrated even is best consent].” and This Cong. acknowledgement Rec. 37605-06 See 125 Senate sine die earlier. dissent’s 20, 1979) (Dec. (recording goes the Senate's sine to lunch but that these recesses when it 20, 1979). “Recess” as it is within adjournment die on December recesses do fall Id. at 248-49. in the Constitution. meant interpretation argues provide that our Adding The dissent it cannot its advice "in which we "intersession” is not what of recess reads modifier consent” to and Instead, Constitution, contrary to the Su- our to do. into the understand dissent doing means mo- preme colleague argues to avoid so. recess itself Court’s admonition provide cannot Dissenting Op. at This misunder- ments in which 249-50. shown, disagree While we with reasoning. we have As advice consent. stands our conclusion, opinion majority support any meaning both ordinary could asserted, engaged same in the task—(cid:127) including the inter- the dissent of the definitions defining the word "recess.” Through analysis of his- session definition. Clauses, See, Evans, ap- the duration of recess short as two weeks. e.g., ments pointments, and the Constitution’s use F.3d at 1221 (describing President George adjournment elsewhere all show that “the W. Bush’s recess Judge includes breaks Recess of Senate” Pryor William to the Eleventh Circuit dur- between sessions Senate. break). eleven-day intrasession

That presidents did not assert power this C. Historical Practice for over 100 years despite this interest— — suggests not, fact, they that do in have this supported by early

Our conclusion is States, power. Prints v. United 521 practice. From ratification until historical Cf. 898, 907-08, U.S. 117 rough there that S.Ct. 138 was consensus L.Ed.2d 914 only (explaining recess could be made that an ab- Rappa intersession breaks. See examples sence of “im- Congress port, supra, at 1572-73. Before no pressing] the state executive into its ser- appointment made a president recess dur ... suggests vice an assumed absence of ing intrasession break the Senate. power” such (emphasis original)); in see Id.; Hartnett, supra, at 408-10. Canning, also Noel at F.3d 502. President Andrew Johnson made practice Executive changed in 1921 appointments during several recess intra- when Harding President Warren made an Hartnett, session breaks of the Senate. intrasession appointment. recess Michael at supra, appoint 408-10. His use Carrier, Note, A. When is the Senate in however, powers, ments was cause of Purposes Recess Appoint- for significant turmoil at the time it Clause?, ments 92 Mich. L.Rev. a not in insignificant served role his even (1994). above, explained As this act was 409; impeachment. tual Rappaport, Id. supported by Attorney U.S. General supra, Accordingly, at 1572. it is unclear Daugherty, opinion who reversed the of- whether President Johnson’s actions were by Attorney fered General Knox a mere based on a consensus view of the Constitu twenty years Op. Att’y earlier. 33 U.S. tion. There is that it evidence was not. Attorney Gen. at 21-22. Daugh- General Attorney General Philander Knox— erty attorney general directly explained the first that “whether the Senate ad meaning adjourned dress of recess—advised has or recessed ... is whether President Theodore Roosevelt that he practical in a sense Senate is ses- could not make a recess dur sion so that its advice and consent can be Op. Att’y intrasession breaks. 23 U.S. obtained.” Id. This conclusion was based Gen. For over one-hun on a Judiciary report, Committee ratification, years following dred recess argued that practical considerations generally understood to mean inter prevent president should using from his only. session breaks recess-appointment power during interses- sion breaks last mere seconds. Id. at sure, practice To be this arose when 24. report, prac- From this he drew the generally intrasession breaks were no tical urges considerations the Board than longer Rappaport, supra, two weeks. adopt today, us to 1572; Hartnett, explaining that Sen- supra, at 410. But that ate is not session when its members is no reason to practice. discount the As shown, attend, duty have no the chamber is practice modern has it is some- -in the presidents empty, times interest of to make and the Senate cannot receive com- appointments during breaks as munications. Id. 141; President Barack Obama Daugher- Bush made Attorney General

Importantly, January im- Id. at “all recesses” made 26 as of rejected the ty explicitly al, 2214-15; recognized Henry Hogue Cong. B. et test. He of this plication Serv., Canning Deci- identified The Noel practical considerations Research to use their Made and Recess presidents could allow sion (2013). Thus, 2 instead of only for been adjournment “an *4 has 1981-2013 2 days the idea that rejected thirty years presi- days” but over the last a recess with- heavily to constitute on such began relying were sufficient so dents Id. at of the Constitution. meaning in the appointments. “unhesitatingly” that two (answering Notably, relatively practice recent recess). He amount to a days did not supports only an intrasession definition days 10 can be that not “even explained long duration. It that is associated with a by intended the recess said to constitute the Board’s functionalist support does not Id. at 25. As discussed the Constitution.” The executive has maintained definition. above, days of ten though, suggestion this 2012, in practice, until at least from 1921 in any text the Constitu- is not linked to days pass that a certain number of must tion. appointment an could before intrasession Attorney General Since issuance al., Carpenter supra, et at be made. See the executive has Daugherty’s opinion, (“The may length of the recess be 15 authority appoint to recess claimed the appears that no great importance, as it Be- during intrasession breaks. officers era, President, in the modern has at least however, II, the power fore World War made intrasession Carrier, time. only one other was used days.”); less than 10 see during recess of II, After supra, at 2211-12. World War (Jan. 2012) (“This 6, *1 Op. 36 O.L.C. also appointments remained rela- intrasession consistently that a re- Office has advised time: Har- tively rare for some President Senate, at cess a session of twenty, Truman made President ry length, can least if it is sufficient nine, President ” Dwight Eisenhower made (citation quotation internal ‘Recess.’ and eight, Richard made and President Nixon omitted)). The Board now seeks to marks seventeen; Presi- Jimmy Carter made but limitation, complete- which is abandon this Johnson, Kennedy, Lyndon dents John ly unsupported by practice. modern at 2212- Ford made none. Id. and Gerald however, dramatically important, More re practice grew under 13. The practices cent cannot alter the structural Reagan, Ronald who made 73 President Elev framework of the Constitution. The appointments, intrasession and has seen presumption on a since: President enth Circuit relied significant use ever 37, constitutional. president Bill actions George Bush made President H.W. Evans, 53, at 1222.31 doubt that George President 387 F.3d We Clinton made W. Allocco, turn, relies on implicitly F.3d at 1222. in 31. The Eleventh Circuit also derives practice Youngstown to executive re- presumption ex- to defer from framework garding meaning "happens” the Re- Youngstown plained Justice Jackson in F.2d at 713- Company Sawyer, v. 343 U.S. cess Clause. 305 Sheet & Tube Youngs- Specifically, Allocco relied 72 S.Ct. 96 L.Ed. 1153 Evans, by using support interpreta- it as for its F.3d at 1222. Evans does not town 387 "happen” the Second Circuit Youngstown, tion of since discuss but it cites United States " Allocco, Cir.1962), (2d interpretation systematic, its as 'a F.2d 713 believed v. unbroken, Evans, practice, long pursued to support presumption. executive for the applies separation-of- The lack of presumption deference to executive legislative judgments on these issues v. New York powers cases. Clinton follows from the fact “separation-of- 2091, 141 City, 524 118 S.Ct. powers jurisprudence generally focuses on (1998), example-, L.Ed.2d 393 Su danger of one aggrandizing branch’s preme analyzed constitutionality Court power its expense of another express line-item ever veto without Freytag, branch.” 501 U.S. at ing the need to defer to the other branch S.Ct. 2631. Giving deference to either judgments. es’ constitutional And in Mor branch is inconsistent with this concern Olson, ris on v. 487 U.S. presumption because a prevent could us (1988), 101 L.Ed.2d 569 Justice Sca- from stopping one branch “aggran lia noted in his dissent that one could “not dizing power expense at the of another anywhere find in the opinion Court’s branch,” or ensuring carefully that “the usual, formulary almost caution that we defined limits on the of each great Congress’ owe deference to view eroded, Chadha, Branch” are not what it has done is constitutional.” Id. at 957-58, 103 S.Ct. 2764. Our role as the (Scalia, J., S.Ct. dissent “ultimate interpreter of the Constitution” ing). The absence deference is also requires that we ensure its structural safe in Supreme found Court’s most recent Baker, guards preserved. 369 U.S. at case, separation-of-powers Free Enterprise 211, 82 S.Ct. 691. It is a role that cannot Fund v. Company Accounting Public be shared with any the other branches — Board, U.S.-, Oversight 130 S.Ct. president more than the can share his veto (2010). There, 177 L.Ed.2d 706 power Congress can share its power to pointedly explained sepa Court that “the override vetoes. See v. United States Nix on, 683, 704-05, powers depend ration of does not 418 U.S. 41 S.Ct. (1974). Presidents, “requires L.Ed.2d 1039 This views individual nor on interpret on occasion [we] Constitution encroached-upon whether ‘the ap branch ” in a manner at variance with the construc proves the encroachment.’ Id. at 3155 given by tion the document another States, (quoting New York v. United McCormack, branch.” Powell v. 395 U.S. 182, 112 U.S. S.Ct. 120 L.Ed.2d 486, 549, 89 S.Ct. 23 L.Ed.2d 491 (1992)). This is because Consti “[t]he among tution’s division of the three branches is violated where one in branch Supreme Court has stated another, territory vades the whether or respect as much in to the encroached-upon not the approves branch provisions of the Constitution. In Frey- York, the encroachment.” New 505 U.S. tag, Supreme explained Court that the 182, 112 Appointments represents S.Ct. 2408. Clause an inde- discussed, knowledge Congress practice and never be- As. the modem executive is ” “ questioned,’ ‘may fore be treated as contrary practice to executive before 1921 gloss on 'Executive Power’ vested in the commonly and has become used in the ” by (quoting § President 1 of Art. II.’ Id. Furthermore, past thirty years. Congress has Youngstown, 343 U.S. at 72 S.Ct. questioned presidents’ practices by, for exam- 863). While we are exec- unsure whether the ple, holding pro sessions in an effort forma practice utive before the Allocco Court re- stop it. We consider the Eleventh Circuit's garding meaning "happen” actually is support presump- reliance on Allocco as for "unbroken,” "systematic” and we are sure constitutionality separation-of-pow- tion of practice regarding executive unpersuasive. er cases meaning of "the Recess of the Senate” is not. by Supreme Court’s direction ported branches —one on both pendent restraint exclusively serve either powers that does separation that “the doctrine of 880, 111 501 U.S. at interests. branch’s which has as safeguard” is a structural true for the equally 2631. This S.Ct. major the “estab one of “its feature[s]” just as Clause: Appointments clear distinc high walls and lish[ment] [of] protected by the interests structural “[t]he vague tions because low walls and distinc are not those of in the judicially will not be defensible tions en- but of the one branch of Government of interbranch conflict.” Plaut v. heat id., protec- the structural Republic,” tire Farm, Inc., 211, 239, Spendthrift Appointments Clause tions of the Recess L.Ed.2d 328 115 S.Ct. Accordingly, belong single to no branch. original). This bolsters our (emphasis a bill the Executive to assent of “[t]he rejection of the Board’s definition because contrary to the provision which contains criteria are al the unavailable-for-business judi- it from does not shield Constitution a “low wall” that contain most definition Chadha, (quoting cial review.” Id. distinctions” which will make them 2764). “vague n. This at 942 president and the legislature’s to the assent difficult for the Senate applies equally practice. Any acquiescence to executive vagueness predictably apply. subject to the branches remains between perhaps cap the Board’s definition is best by the Constitu- imposed the constraints argument tured tion. There is “no statute limitations during pro not available for business for- enforcing the Consti- interpreting though ma sessions even there are docu Evans, (Barkett, at 1237 tution.” 387 F.3d examples conducting mented of the Senate J., dissenting). during sessions. Its defini business such Furthermore, analysis our of recent containing tion thus falls far short of rather than blunted practice “sharpened “major separation-of-powers feature” of in practice question the fact that [the safeguards. structural increasing frequency.” appearing with is] Chadha, 462 U.S. at is also true the intrasession This for defining analysis Our has shown that re- long that limits recess to definition breaks. long intra- plus cess to mean intersession “judicially definition is not defensible” This incompatible session breaks is with the whatever duration is selected as because Although this definition is Constitution. something other long would be based on possible meaning one consistent with Maryland than the Constitution. See v. isolation, unsupported by in it is “recess” Shatzer, 98, 118-20, 130 S.Ct. The Consti- the rest of the Constitution. (2010) 1213, 1228, 175 L.Ed.2d 1045 “long” of a provides tution no measure (Thomas, J., in concurring part, dissenting of recess duration and limits the duration part) (explaining in that “an otherwise ar- in a manner that indi- appointees’ terms bitrary justifiable merely rule is not be- This intersession-only cates an definition. instruction”). clear Further- gives cause practice contrary means that the current more, although arbitrary an number of set out in the to the structural framework days high first seems to erect a wall and at unconstitu- Constitution and must be held distinction, further review reveals clear tional. fraught ambiguity. that it is also with For D. Additional Considerations that an intra- example, if we were to hold days constitutes session break of over ten in

Our conclusion that recess recess, point at which sup- breaks is it is unclear cludes intersession high into a recess. As- walls and clear adjournment evolves distinctions rooted in adjourn initially agrees to sume the Senate the text of the constitution. majority days provides but

for twelve argues Board nevertheless earlier, body recall the leader the today rule we adopt powerful creates too See, e.g., H. Res. as it often does. Con. opportunity mischief the Sen- Cong. 111th (providing ate.32 The intersession definition allows Representative’s concurrence House prevent the Senate to the president that the latter from with the Senate would take in month-long starting August exercising recess-appointment his powers September 2010 that ended on 2010 by manipulating timing types Majority unless Leader of the Sen- “[t]he adjournments. of its See NLRB Ltr. Br. ..., ate after consultation with the Minori- at 10-11. This is true. But the opportuni- Senate, notify shall ty Leader of ty for present any possible abuse is under Members of the Senate to reassemble definition of recess. Under the Board’s if, place may designate such and time as he definition, might being avoid in opinion, public interest shall his by stopping practice of agreeing it”). adjournment warrant Does be- by unanimous consent that no business will come a recess the moment the Senate sessions; be done during pro or it forma adjournment votes for the or must ten might alter procedures to allow mes- former, days If the then elapse? first sessions, sages to be received such majority assume the leader reconvenes the thus making itself available for business adjournment. body eight days after definition, Resp. under the Board’s see Br. point, At this would a recess at 44. And under the other intrasession day adjournment on the first made definition, very adopt the Senate could well become invalid because it was not made scheduling prevent orders that a break during “the Recess” of the Senate? The lasting longer than whatever duration provides Constitution no clear answer to as, fact, pro courts ses- selected — questions. long-intra- these difficult forma sions designed poten- do. Yet the break definition lacks the session thus Senate, tial for abuse is not limited to the required by Supreme clear distinctions Court, presidents may as also abuse defini- which means that the intersession provides given definition is the one that tion to recess. Under the interses- (Jan. 20, argument day, Cong. 32. a The dissent makes form of this that see 158 Rec. Sil well, arguing 2012) as that the intersession-break (adjourning Monday, January until "unworkable,” ju- definition of recess is "not 2012); January but be invalid if made on dicially manageable,” impracticable, and because the Senate became available Dissenting Op. leads to absurd results. session, convening -pro for a non forma disagree 268-69. We that the definition is 23, 2012). Cong. (daily Rec. ed. Jan. S13 unworkable, unmanageable, impracticable; Absurdity clearly is also not shown from the a break is or not whether intersession is intersession-break definition’s allowance of simple reviewing matter of how the Senate appointments during recess intersession re- disagree adjourned. We has also that vety periods. cesses that last Id. at short 54. president’s result of a recess be- rejected only by It is a that been result has absurd, day valid one and not the next is 110-year-old Report— one Senate Committee id. necessary because this is a court, president, rejected no or scholar has defining result of recess. The dissent’s own Hartnett, possibility. supra, at 406 definition, example, for would have this ef- Cf. (“All agree ... that recesses between sessions presidential appointment pre- fect: recess 22, 2012, give appoint- rise to the sumably January President’s would be valid on power.”). because Senate did not convene at all on ment 2010 intrasession break. This means definition, example, presi- a final sion (and fewer than three delegee group had indeed appoint dents still could August when it issued the members during inter- officers appointed33) have so delegee group Consequently, Order. negligible periods last session breaks jurisdic- without and lacked acted of a constitutional basis time—the lack holding it order. tion when issued the Our defining in long duration selecting unnecessary interpret makes just as absent intrasession breaks Appoint- in the Recess “happen” word breaks. define intersession Canning, ments Accord Noel Clause. say potential All this is to (Griffith, J., concurring).34 at 515 F.3d lies not subsequent gridlock for abuse and Furthermore, we need not address wheth- in the Constitu recess means but what er the Board’s substantive decision was powers. A of divided tion’s framework delegee groups correct or whether the demonstrates powers division of or- subsequent decided the reconsideration efficiency and are not the “[c]onvenience Dir., properly composed. ders were Office objectives the hallmarks —of primary —or Compensation Programs v. Workers’ Chadha, 462 government.” democratic (3d Inc., Ship, 150 F.3d Sun We, 944, 103 as federal U.S. at S.Ct. Cir.1998). of the reconsideration Review empowered regulate, judges, are unnecessary they orders is also because recommend, the two or comment how were based on consideration of an invalid government the federal other branches of therefore vacate the order. We will the Constitution powers should use the Board’s orders. them —not because we allocates between can-but-chose-not-to, but because we lack GREENAWAY, JR., Judge, Circuit record, tools, factual institutional and dissenting. authority to evaluate which constitutional of our The tension between branches likely is more or less to abuse the branch government reflects the brilliance and can, however, given to them. We powers Founding Fathers and is prescience our must, powers and indeed we decide what democracy. the foundation of our nation’s they may and when use each branch has may power, exercise and under what Who emphatically “[i]t them because circumstances, dependent is often on our judicial province duty depart wording interpretation branches’ say Marbury v. ment to what the law is.” meaning of the Constitution. (1 Cranch) Madison, 137, 177, 2 matter, the Recess today. That is all we do L.Ed. 60 My colleagues of Article II is at issue. Majority have determined that the re- the

VI Craig of Becker appointment cess Member 27, and, invalidly on 2010 is invalid for the ap- Member Becker was recess March reasons, during presumably the March same would find pointed to the Board Allocco, (2d Hartnett, (de- v. 305 F.2d 709-12 supra, 33. at 416 & nn. 176-77 States Cir.1962) scribing Roosevelt’s (defining "happen” President Theodore re- "to to mean ex during appointment of 160 officers ist”); cess Woodley, United v. 751 F.2d States seconds). that lasted intersession break mere Evans, (9th Cir.1985) (same); Canning, 705 387 F.3d at with Noel Accordingly, we do not have address (defining "happen” to mean F.3d at 507-14 Second, Ninth, and Elev- conflict between occur”). "to enth Circuits and the D.C. Circuit over “happen.” Compare United definition of of Members Shar- of the Recess appointments Appointments the recess Clause is in- Block, Flynn, Terence and Robert Grif- complete without consideration of the ex- January 2012 are likewise invalid. fin on power ecutive system and the of separa- Majority’s ap- undoes an The rationale Framers, of powers tion devised successfully that has pointments process and such consideration leads prag- to the operated separation powers within our of matic conclusion that the President must regime years. for over 220 be able to make appointments dur- ing intrasession recesses. Since the Ap- of the Recess defining scope March appointment 2010 recess Clause, critical pointments issue is Member Becker January and the straightforward Majority more than the Block, The issue whether “the Re- Members suggests: Flynn, only and Griffin were all made during cess” includes intersession recesses (those recesses, regular between two sessions of intrasession I would hold that recesses and in- Congress) intersession each awas valid exercise of (those regular trasession recesses within the executive granted to the Presi- Congress).1 Majority’s session of The dent in the Appointments Recess can possible three definitions of “Recess” II Article of the Constitution.2 I respect- question: be distilled into one Are intra- fully dissent.3 recesses included within the ambit session I

of “the Recess”? would hold “the I. “The Recess” Recess” refers to both intrasession and A. The Text of the Constitution intersession' recesses because the Senate provide can be unavailable to advice and Our examination of the Appoint- Recess availability consent both. The dependent ments Clause is on the inter- provide advice and consent is pretation of two words: “the Recess”. Appointments the crux of the Recess begs This then inquiries: examination two operation depends Clause because its on 1) meaning of “Recess” within the complementary interplay Ap- with the 2) Clause and Clause, pointments requires that “the”, article, significance of a definite aas provide Senate be available to advice and general modifier. Recesses fall into two consent. intrasession, categories, intersession and unraveling meaning and so of “Recess” plain meaning and structure of the Constitution, begins resolving and ends with the inter- text the intent Framers, dynamic. Majori- session-intrasession purpose Ap- of the Recess Clause, ty posits dichotomy contemplates that this pointments and the tradition and intersession breaks and intrasession practice government branches of our Any interpretation all demand this result. breaks are both recesses the Senate (what Majority party argues I refers to as the 1. No that “the Recess” should be believe recesses, limited to intrasession and nei- requirement) “three-member-composition” ther do I. Steel, jurisdictional. In New L.P. v. Process NLRB, procedural posture appeal 2. the and Given (2010), Supreme L.Ed.2d 162 the Court does Majority’s holding, resolving the the merits of "jurisdictional”, not use the word vari- whether New Vista’s Licensed Practical Nurs- thereof, ant and did not characterize the (LPNs) supervisors unnecessary es are 153(b) requirement jurisdictional. § this time. disagree Majority’s 3.I also with the conclu- group quorum requirement sion that the States, Wright on the Presi- this conclusion. v. United contrasting effects

that have 583, 589, 82 L.Ed. appointments. make recess S.Ct. ability dent’s (1938) (“Plainly taking the of such a disagree. I adjourn [by one is not an house] point defining a “re- starting As a Congress. ment the The ‘Session of cess”, helpful it is to define “session” continues.”); Congress’ see also Evans v. the terms are related. There since two (11th Stephens, 387 F.3d Cir. sessions, including the types are various of 2004) (en banc). this, possible From it is Congress, during of which “daily sessions” for one house to recess while the session of business, day-to-day as well it conducts its Congress, joint body, the as a continues.5 sessions”, are the “regular as its which periods during Congress which conducts begin analysis, To our textual the Re- regular its business on a basis. addi- must read in Appointments cess Clause sessions, tion to these there are also “ex- conjunction Appointments with the Clause. traordinary Congress sessions” of that can Majority While the also these two reads by the President under Article be called it together, shortsighted clauses takes a Const, II, And, § II.4 U.S. art. 3. since the Majority view of their interrelation. The required House and Senate are not that Appointments contends Clause schedules, match the session or recess of gives “perpetual” the President body may than that of one be different seek the advice and consent of the Senate. other. 58-59.) (Majority Op. Majority a regular Appointments

Based on the definition of also contends session, can suggests preference recesses be divided into Clause for “divided breaks, categories power” appointments mentioned I process. two inter- agree Majority session recesses and intrasession recesses. could not more with the every appointments pro- Intersession recesses are those breaks of facet of the regular separation pow- the Senate that occur between two cess must reinforce the Senate; ers, they generally Majority’s sessions of the but the view is too narrow. adjournment Appointments initiated sine die. See While the Recess Clause Serv., Henry Hogue, Cong. gives B. authority Research the President sole to make Appointments: Frequently appointments during Recess Asked “Recess” of (Jan. 2012). Questions Senate, 1-2 Appointments Intrasession the Recess separation powers recesses are breaks that occur a maintains the within regular larger It session Senate. had been framework of the suggested Congress process. cannot be in a In The Federalist No. regular Majority upon recess and in a session concurrent- relies for point, ly, Supreme rejected emphasized but the Court has Alexander Hamilton Majority’s Congress (showing definition of an intersession 112th preceding recess also includes recesses and the dates of intrasession recesses occur within following extraordinary special sessions spanning convening the dates date and Congress, holding beyond but such a adjournment regular date of sessions of the Hartnett, Edward A. facts our case. See another, Senate). For the House and the Judges: Article III Senate, Congress, generally as one share the Questions, Three Constitutional 26 Cardozo regular same session and the recess of one L.Rev. 408 n. Senate, body, interrupt such as the does not regular Congress one, session of House regular 5. For session of the Senate as a whole. does not end when takes an intrasession generally Congressional Directory recess. See power only sup- appointment appointment means must be used or the plement power to the and consent advice Thus, other. it can be adduced that The Federalist No. Senate. meaning of “the Recess” is the converse of Hamilton) (Clinton (Alexander Rossi- when the Senate can provide advice and 1961). ed., Majority The misinterprets ter consent to the Senate: The Senate is na- point. supplemental Hamilton’s The “the Recess” when it is not available Appointments ture of the Recess Clause provide advice and consent. See Noel helps separation powers to maintain the NLRB, Canning v. 705 F.3d by preventing holding the President (D.C.Cir.2013) (observing that “a there is appoint the entire in his hands. crucial element of the Appoint- [Recess Appointments provides Clause Clause, ments] enables Presi- may only a nominee presented by be dent to fill only vacancies when the Senate but, hand, President may only the other provide is unable to advice and consent” be confirmed to office with the advice and (emphasis in original)). Since the Senate consent of the Ap- Senate. The Recess can be unavailable to provide advice and pointments provides Clause thereafter an during consent either an intrasession re- confirming alternate means of nominees recess, or cess an intersession “the Re- when the Appointments Clause cannot be naturally cess” encompasses types both implemented, namely when the Senate consent, provide recesses. To advice and cannot provide advice and consent to the the Senate must be able to offer a confir- all, Appointments President. After nominees, mation vote on it up Clause and be Appointments Recess Clause operate simultaneously cannot both down.6 —one segues imprimatur This to an inherent in re- weakness of the House under the Ad- all, stricting journments "the Recess” to intersession recesses. purpose Clause. After largely responsible pro Adjournments The House was for the Clause is to make sure that Congress forma sessions because it refused to let one house of cannot abandon longer legislative process, Senate take a recess due the Ad- other in the and the House journments requirement legislate Clause’s cannot with the Senate if it is not in Hartnett, body’s Ap- House and Senate have the other con- session. See Edward A. Recess "adjourn days.” pointments Judges: sent to for more three than Article III Three Consti- Const, I, 4; Questions, Legal § art. cl. Office of tutional 26 Cardozo L.Rev. Counsel, (2005). Appointments Appointments Recess If the Recess Lawfulness of During Notwithstanding only triggered a Recess the Senate Clause was when the Senate Sessions, session, Op. regular Periodic Pro ap- Forma O.L.C. ended a then a recess doubt, pointment Without the Framers did made an intersession recess single-handedly not intend for the days effectively House to of at least three would appointments process. plain subject approval stall the to the of the House. The Appointments simply deny and uncontestable text of the House could the Senate leave to only adjourn Clause makes it clear that the President in order to thwart the President’s appoint- ability appointments. and the Senate are to consult on make thirty years, Nowhere in the ments. least the last the President has appointment, is the House mentioned. If "Recess” were never made a recess of either recesses, limited variety, during to intersession because that the intersession or intrasession days. Henry is the time when the Senate is not in a a recess of less than ten B. session, Serv., regular always Hogue, Cong. Appoint- and the Senate is Research Questions (Jan. provide Frequently available to advice and consent when ments: Asked session, data, 2012). regular empirical in a then the House would be Based on that it is that, inject appoint- highly improbable allowed to its whims into the under these circum- stances, process by limiting ments even the duration the President would make a recess ap- needing of the intersession recess. This because without the House’s adjournment days requires proval. of more than three This cannot be what the Framers day a and will con- not had occasion to ment to time certain courts have

While and con- legislative day a standard for advice of one articulate clude business sent, through plain meaning it is clear Floyd M. Riddick & Alan until the next. provision “advice and consent” of Furman, Procedure: S. Riddick’s Senate perfuncto- cannot be advice and consent Practice, S. Doc. No. 101— Precedents and require ry. only It is reasonable (1992) (hereinafter at “Riddick’s (“ad- process there must be a deliberative Procedure”). will also The Senate vice”), (“consent”), quorum and a a vote See, adjourn by recessing. e.g., for lunch actually in the Senate present Senators (daily Cong. Rec. S1249 ed. Mar. Rybicki, Cong. chamber. See Elizabeth 2013) (“Under order, the Sen- previous Serv., Research Senate Consideration of p.m. in until 2 There- ate stands Nominations: Committee Presidential Senate, upon, p.m., 12:30 recessed (“A 2003) (July and Floor Procedure p.m. until 2 when called and reassembled majority present voting, and of Senators Officer....”). by Presiding to order quorum being present, required ap- nomination.”). It is no secret that prove a telling It is that the Framers chose to process long and consent is a advice “Adjournment” times use the term several Canning, and arduous ordeal. See Noel According- elsewhere in the Constitution. (calling 705 F.3d at 508 the advice ly, why must be some reason there “cumbersome”). process consent Various in “Adjournment” Framers did not use frequently forms of “vote” are used else- Appointments Recess Clause and did not Constitution, where in the so the Framers “Adjournment” ap- use “Recess” where would not have used “Advice and Consent” pears. plain explana- apparent if they intended nominees to be terminology tion for this distinction in by confirmed a vote.7 that, Constitution, elsewhere “Ad- “Recess”, doubt, no is a malleable term journment” to a certain species refers types of breaks that because the several Congress spe- breaks of different from the the Senate takes. As far as a recess is cies of breaks referred to the “Recess” Senate, a break of the all re- considered Appointments in the See Recess Clause. generally cesses can be classified as ad- (determin- Canning, Noel 705 F.3d journments, they sense that are something that “the Framers intended suspensions in the business of the Senate Recess,’ specific by the term ‘the and that Adjournments, until a further date. something generic it was different than An though, species. come in different ad- proceedings”). break in journment usually signifies sine die illustrate, To the scenarios embodied regular Congress. end of a session “Adjournment” Serv., employ the clauses that Henry Hogue, Cong. B. Research apply adjournments could between two Appointments: Recess Frequently Asked (Jan. 2012). Questions adjourn- daily Congress perhaps An sessions of — presence requirement, "presence” Canning, intended. See Noel 705 F.3d at 504 As for ("Without Appointments in the is not mentioned indicating [the evidence explicitly requirement but it is mentioned as a Adjourn- Clause and Treaty advice and in the Clause. consent related, we cannot read Clause] ments Const, II, ("[The § President] art. cl. governing one as the other. We will not do Power, by have and with the Advice and shall by ignoring violence to the Constitution Treaties, Senate, pro- make Consent of words.”). Framers’ choice of present vided two thirds of the Senators con- added)). (emphasis ...” cur. plated by week- the adjournment Appointments that occurs regular Congress— encompass session of Clause. To “the Recess” with- ends of a adjournment in apply contemplated by “Recess” would not to such whereas Adjournments the Senate was still adjournment if Clause would submit provide advice and consent. appointment power available to President’s recess Majority Supreme observes that the The of the House whims because House “Adjournment”, in Court held that as used provide must if consent the Senate is to Clause, any the Pocket Veto could refer to adjourn days. for more than three This is 223.) (Majority Op. at break business. clearly a result antithetical to the text It that “Recess” encompasses is true the Constitution and the intent of the subcategory of breaks than “Ad- narrower admonished, Framers. As Hamilton (“So journment”. (Majority Op. at 233 ap- House was not to interfere with the dichotomy does reveal recess must pointments process body because so “[a] something narrower than break mean fluctuating and at the same time so numer- But, adjournment.”).) that follows an un- proper ous can never be deemed for the Majority, I like the do not understand this appointments]. exercise of that [of meaningless. (Majority to be distinction appear Its unfitness will manifest to all (“But Op. at 233 what this narrower defini- century when it is recollected that in half a derived from the dichoto- tion is cannot be may it consist of three or four hundred adjournment my between and recess persons.” The Federalist No. at 463 alone.”).) (Alexander Hamilton) (Clinton Rossiter 1961). ed., than species As a narrower of breaks

“Adjournment”, “Recess” cannot reason- analysis by Our must also be educated every type of ad- ably be read to include provident Supreme lesson of the Court journment, such as the breaks the Senate Case, in The Pocket Veto lunch, night daily for the between takes for (1929), S.Ct. 73 L.Ed. 894 since sessions, weekends. and over the See 3 mechanism Pocket and construction of the The Debates in the Several State Conven- closely parallels Veto Clause the Recess Adoption tions on the Federal Con- ways.8 striking Clause in by stitution as Recommended the General Majority relies on The Pocket Veto Philadelphia at Convention at analysis in its misses the true Case but (Jonathan ed.1836) ed., Elliott 2d analysis. (Majority import of case’s (hereinafter Debates”) (state- “Elliott’s 231-32.) Op. at Both the Pocket Veto Virginia Madison at the ment James and the Recess Appointments Clause convention) (“There not will be occasion provide Congress a check on when for the continual residence of the senators perform it unavailable to one of its It government.... at the seat of is ob- by placing procedural limit on functions President, served that the when vacancies case, power. of its In that exercise Senate, happen during the recess of the Days” Court considered whether the “ten meets.”). may fill them till language the Pocket Clause includ- Veto Clause, days just “legislative” days. all Adjournments In the case of the ed “legis- refused to read the modifier adjournment contemplated there is Court Clause, favor- than contem- lative” the Pocket Veto also different “the Recess” into certainly provide insight and Wright, like both counsel The Pocket Veto Case other an anal- aspects power, about how we should resolve what is cases on other of the executive wholly applicable ogous are not to our decision but issue. reading meaning inserting ‘legisla- the word expansive a more adjective.”); qualifying 49 S.Ct. 463. The tive’ as a id. Clause. Id. (“The ‘adjourn- dichotomy faced a similar to 49 S.Ct. 463 word Court then ‘final’; word qualified our divide: ment’ is intersession-intrasession in “Adjournment” nothing in the and there is the context which the use of Whether only warrants insertion of such a limita- applied Pocket Clause Veto final tion.”). adjourn- interim adjournments or also to 680-81, at 49 S.Ct. 463. The ments. Id. Appointments The Recess Clause does reading again rejected a constricted Court and distinguish not between intersession a execu- of the Clause and favored broader Evans, recesses. See intrasession “adjournment” holding that power, tive Accordingly, F.3d at 1224-25. we should adjournment apply type could to either such limitation onto the execu- not read a upon thus conferred power because “[t]he power directly where one has not been tive or cut the President cannot be narrowed by Myers v. conferred the Framers. Cf. by Congress, down nor the time within States, 52, 118, 47 United S.Ct. lessened, which it is to be exercised direct- (reasoning 71 L.Ed. 160 ly indirectly.” at Id. S.Ct. power by is direct ex- executive “limited 463. needed, limitation pressions where was Majority why express focuses on “the and the fact that no limit While the only placed power to intersession recess- on the of removal Recess” refers es, deficiency a in ar- convincing there is bald these executive was indication that intended”). Majority’s limi- guments. Ap- intersession none was The Recess pointments exceptions tation modifiers into the Recess sets forth no reads Clause Appointments plainly defining type may Clause that are not of recesses that excluded, part provided of the text.9 These modifiers re- whereas the Framers exceptions write the Constitution for the Framers. elsewhere the Constitution. imperative only set in The “the” Pocket Veto The modifier of “Recess” is and Case, parties attempted certainly synonymous to read “the” where is with Evans, Constitution, similar modifiers into the “intersession”. 387 F.3d readily “a against limiting appoint- interpreted chides the recess Nor is “the” sin- of’, inserting gle type ment a modifier like which would need to be the if sup- reading only singu- “intersession” before “Recess” and “Recess” is to refer ports including multiple types larly of recesses to intersession recesses. Even the meaning Majority, Canning, within the of “the Recess”. unlike Noel concedes (“There necessary is that “the” specification S.Ct. 463 lacks the nothing justify changing type whatever to to limit “Recess” to one of recess.10 I, too, Majority attempts jority 9. The to show that limits the word "Recess” with another (the modifier). opposed word As to the modi- Ap- reading am a modifier into Recess Majority fier that the tion, reads into Constitu- pointments by turning Clause "the Recess” Appointments already Clause exists into "the in which the Recess Senate cannot modify in the Constitution and is meant to provide Advice and But there Consent”. Appointments my Recess Clause. Under defi- my approaches. distinction between our If nition, any type of recess—be it intersession modifier, definition can be considered Recess”, or intrasession —is considered "the Appointments reflects how the Clause I do not read a new modifier onto "the so Appointments modifies the Recess Clause. Recess” itself. operation While I limit the of the Recess Clause, whole, Appointments as a with Majority attempts anoth- 10. The also to extract a (the Clause), "longevity” Appointments "permanence” er clause the Ma- sense of definite, refers to that “Recess” (observing phasize that “there at 227 (Majority Op. adjournments. class of As circumscribed ‘the’ in the word itself nothing assured, there is “obvious Hamilton ... intersession necessarily requires breaks”).) meaning Ap- terms” the Recess The Federalist pointments Clause. No. differently, if the text Framed (Clinton (Alexander Hamilton) 67, at 409 was meant to 1961). ed., Rossiter intra- between intersession distinguish recesses, have point reading the Framers would about modifiers This same session cryp- modifier not as applies equal other with employed some into the Constitution “the”. If that had pedestrian length as the of “the vigor arguments tic or that intent, cer- the Framers were to a been their Recess” should be limited certain inserted enough to have tainly deliberate In to the days. of relation dura- number that “the Re- to indicate some modifier intrasession and tional limits of interses- recess between only refers to the recesses, day cess” express use of limits sion the Wright, Congress. sessions of regular suggests elsewhere in the Constitution (establishing at 58 S.Ct. 302 U.S. deliberately chose not to that the Framers that, tenet of an essential constitutional as Ap- in such a modifier the include “ respect must ‘the courts interpretation, Pocket In the Veto pointments Clause. talent, caution, foresight and the high Clause, deliberately added Framers [the illustrious men who framed (rather simply saying than day limitation “ ” ‘[e]very word that such Constitution]’ law if it that a bill would not become could weighed been with appears to have in to the house which it not be returned ” v. (quoting Holmes deliberation’ utmost the Framers shows that originated). This Jennison, 540, 571, 39 U.S. Pet. day limitation a similar could have crafted (1840))); v. United States L.Ed. 579 Appointments Clause if into the Recess 716, 732, 51 S.Ct. 282 U.S. Sprague, addition, there they so had desired. (1931) (describing the Consti- 75 L.Ed. 640 Appoint- no time constraints drawn with such as an “instrument tution Majority itself. As ments Clause well by and men who so care meticulous out, Clause “lacks Appointments points fit their language make understood how to opera- power when this any limitation on thought”). always president has tive” such “the through that, vacancies nomina- despite to fill telling it is

Consequently, and consent tion and the advice include they chose possibility, (emphasis (Majority Op. at 228 one of the most Senate.” modifier and chose such a But, Recess Ap- since the original).) in English language. in modifiers bland when the depends on Also, pointments use of with the Framers’ congruent and operative is not Appointments Clause a broader cate- “Adjournment” to refer to limitation, there any explicit “Recess”, similarly lacks plausi- it is than gory breaks a hard time consistency reading to em- is no as a modifier serves ble that “the” permanence of a longevity and at the time recesses. The dictionary of “recess” definitions less ratification, thirty-day. recess is no than vague lack intrasession such terms but 40-41.) recess. More- thirty-day intersession that of a (Majority Op. at real substance. over, similarly Majority about a admits "perma- Majority’s qualifications, if the Even constitutional vague descriptor, "there is no persuasive, "longevity”, were nence” defining Tong’ definition is and the basis for support appointments dur- they would by constitu- unsupported the other relevant prohibit long intrasession recesses and 238.) Op. (Majority provisions.” tional short intersession Appointments limit into the Recess Clause breaks also includes intrasession reading 221.) one into the without (Majority Op. logi- breaks.” The Clause. Majority’s cal inference from the assess- ment is that “Recess” lacks a natural limi- Majority’s premise

The other flaw the Thus, specification. tation or natural restricted to intersession “Recess” is only way to delimit “Recess” to interses- it relies on a technical recesses is sion recesses would be to shroud it in an rather than a plain definition of “recess” meaning, unnatural which would not lend ordinary definition “recess”. See Case, ordinary meaning 279 U.S. at 49 an obvious or to the Pocket Veto (“The used in the S.Ct. 463 words Consti word.11

tution are to taken in their natural and narrowing the term “Recess” sense....”); obvious see also District of Majority belies the broad latitude of Heller, 570, 576-77, Columbia v. plain meaning of the word used 2783, 171 L.Ed.2d 637 modify Framers. The Framers did not (“Normal meaning may of course include by describing the term it as “the interses- meaning, idiomatic but it excludes se sion Recess” or “the Recess between Ses- cret or that meanings technical would not they deliberately quali- used a less sions”— ordinary have been known to citizens and, duly, fied broader interpret term. To generation.”). a founding As docu the text otherwise plausi- also seems less people ment written for the and meant to ble since it is far-fetched to suppose that citizen, every accessible to we must expected Ap- Framers for the Recess assume that the Framers intended for pointments interpreted Clause to be by ordinary, words to be understood their through hopscotch the textual technical, needed to rather than their definition. See Heller, arrive at the intersession interpretation. 554 U.S. at 128 S.Ct. 2783. patchy guesswork Such a Majority conjure The admits that “Recess” does not “lacks meaning clearly a natural that meaning” by identifies “obvious described Ham- (Al- only whether it includes intersession ilton.12 The Federalist No. at 409 addition, Majority’s 11. The even singular definition is more the Framers used the practices technical since it intertwines the of plural “Recess” rather than the "Recesses” hodgepodge of state and constitutions state but this distinction reveals little. Given the governors' practices. highly unlikely It is recesses, multiple multiple intersession early that would have made citizens such recesses, during intrasession and between the correlation; words, strained in other it would regular Congress, singular sessions of average not have been "obvious” to an citizen literally single "Recess” cannot refer to a constitutions, to look to state let alone to (for instance, single recess of the Senate know which two of the twelve constitutions of happens regular Recess that between the last Heller, ratifying analyze. states to Congress regular session of one and the first ("In interpreting 128 S.Ct. 2783 following Congress). session of the text, guided by principle we are Constitution, other use of "Recess” in the '[t]he Constitution written to be under- I, appears voters; in Article Section Clause phrases stood its words and ordinary literally single type were also does not used in their normal and refer to a ” distinguished meaning.’ from technical recess. Used the context of "the Recess (quoting 716, 731, Sprague, United States v. State”, Legislature any I Article (1931))). 75 L.Ed. particular "Recess” does not refer a may expect average It be reasonable to generically since it was used to refer collec- knowledge citizen have of the words in a tively every legisla- to the recesses state's dictionary, very expecta- but it is a different ture. they tion to assume that would be able to reference state constitutions. Constitution.”). (Clinton ed., Hamilton) the North Fur- Rossiter Carolina exander ther, reliance, Majority’s it 1961). despite the unclear that the Massachusetts and New togeth- thread Majority attempts to have connec- Hampshire constitutions reasoning for lines of divergent er several except tion to “the Recess” for the fact be limited to Recess” should why “the from those states rati- representatives recesses, each of these but intersession fied the Constitution. with, there easily. begin To frays lines too of a Finally, analysis based on its smat- the Framers based the no evidence tering early practices state and state on Jeffer- used in the Constitution terms constitutions, Majority concludes that Parliamentary Prac- A son’s Manual of refer to a of a “con- readily “Recess” must break Majority admits tice and the of time” and must be period siderable the Constitution’s the correlation between adjourns. is marked when the Senate treatise terminology and Jefferson’s 223.) no flaw in point This fares better. One (Majority Op. at rather tenuous. characteristics is that a “consid- to these two Further, may be reasonable while limiting prin- time” period of erable lacks Framers were aware that the assume a relative by ciple since “considerable” is described procedures parliamentary Majority finds (Unsurprisingly, term. Parliamentary in A Manual Jefferson proble- Practice, limiting principle such a lack of a to assume it is less reasonable recesses.) I matic for intrasession While intentionally based their Framers to the agree that “Recess” does not refer in the “adjournment” use of “recess” day-to-day daily recesses between sessions used in particular terms Constitution (or for lunch and of the Senate its breaks any without refer- treatise Jefferson’s weekend), Majority’s method of the ence.13 From a mere interpretation is dubious. early of state Majority’s discussion by breaks three instances of intrasession similarly off the mark. is constitutions governors years ago, over 200 three state Majority’s Noticeably absent this characteris- Majority extrapolates any is refer- constitutions analysis of state 226.) But three (Majority Op. tic. at Carolina, of North ence to the constitution thin governors state is actions different as a model generally accepted which interpret our Constitu- upon ice which Re- drafting in used the Framers tion. Clause. See Noel Can- Appointments cess 501; Legal at Office of ning, 705 F.3d and the The Intent of the Framers B. Counsel, Recess Appoint- of Lawfulness Appoint- Purpose the Recess Not- a Recess the Senate During ments ments Clause Forma Ses- withstanding Periodic Pro starting point, textual sions, proper 10 n. While Op. O.L.C. Clause, Appointments the Recess (“The interpretation of Appointments] [Recess the Constitu- is nettlesome because by a North Carolina Clause proposed which was with a definition not written considered to have tion was delegate, generally in difficulty in With such then terms section. provision on a similar been based they were phrase to attempts significance used that indicate Majority to draw 13. The language might but relying from the "of the Senate” as it be defined on the "recess” (Majority Op. plainer. phrase could not be Parliamentary A Manual in Jefferson’s 222.) says exactly and there It means what is Practice. whatsoever, indication, Framers is no sources, interpretation, textual other In The Federalist No. Hamilton es- Framers, namely intent of the tablished that ap- President’s recess purpose of the Constitution and its Recess pointment power is than “nothing more Clause, and the tradition supplement” “auxiliary and an method of practice of the President and the Sen- appointment” to be used when gener- “the ate, arriving in at an pivotal intelligent al seeking [of method the Senate’s advice and sensible definition of “the Recess”. inadequate.” consent] The Fed- (Alexander Hamilton) eralist No. at 409 1. The Intent Framers’ (Clinton 1961). ed., Beyond Rossiter these purpose creating The Framers’ in sentiments, few the Recess Appointments separation powers sys- was to devise a fully Clause cannot be understood in iso- take, tem of equal give and so that the lation but within the spirit fabric and Senate, President and the while not behol- of the Constitution as a whole. Other other, den to each would be forced to work papers, Federalist sep- describe the with each other and reach compromise.14 government’s aration of our powers, in- By protecting governmental architec- struct that the power must ture that Framers inscribed be coordinated so that no branch “pos- can Constitution, the inclusion of intrasession sess, directly or indirectly, overruling recesses in “the Recess” is most faithful to influence over the others.” The Federalist intent Majority’s of the Framers. The (James Madison) (Clinton No. definition of essentially tips “the Recess” 1961). ed., Rossiter The wisdom of this and, that balance in favor of the Senate structuring is borne out in appoint- therefore, upsets the applecart of the bal- process ments because the appoint- powers. Majority ance of states that ment and the advice and consent significant the “most weakness” of the in- power, check, well-defined are not trasession recess definition is that it lacks absolute, cabined, but design. their day a discrete nothing limit. But in the While it cannot function as an absolute Constitution or the intent of the Framers negative, the suggests appointment power recess day such a finite limit is provide must necessary to some balance to the definition of the the Senate’s Recess power Appointments fragile provide Clause. to or balance withhold advice and power of underlying 73, the consent. The appoint- recess Federalist No. at 442 (Alexander Hamilton) (Clinton ments process is with specific inconsistent Rossiter 1961) (“From ed., time strictures and neither the Constitu- these clear and indubita- tion nor the contemplated principles Framers such ble legislative [of re- overreach] exactitude. propriety sults the of a negative, either intent, 14. To Appointments discern the Framers' one reli Appoint- Clause and the Papers. able source is The Federalist See edification, ments Clause are sources of useful 654, 659, Regan, Dames & Moore v. 453 U.S. helpful papers but also are those Federalist 2972, (1981); 101 S.Ct. 69 L.Ed.2d 918 Buck philosophy that articulate principles the Valeo, 1, 129, 612, ley v. 424 U.S. 96 S.Ct. 46 guiding operation the of the Constitution as a (1976); Heller, e.g., L.Ed.2d 659 see 554 U.S. whole, particularly concerning sepa- those the 595, 598, 2783; at 128 S.Ct. United States v. powers system ration of and the of checks and 549, 552, 576-77, Lopez, 514 U.S. 115 S.Ct. Youngstown balances. See Sheet & Tube Co. 1624, (1995); 131 L.Ed.2d 626 INS v. Cha 579, 610, 863, Sawyer, v. 343 U.S. 72 S.Ct. dha, 919, 947, 950, 955 n. (1952) (Frankfurter, J., L.Ed. 1153 concur- S.Ct. 77 L.Ed.2d 317 The Fed ring). Papers directly eralist comment on the greater checks be afforded upon President in the executive the qualified, absolute branches.”). Congress the coercion of guard against legislative the acts of the recog- weak- inherently Hamilton is the Madison and the executive James since Both legislature the zealousness of The Federalist government. branch of nized er establishing Madison) (Clin- checks (James of importance and the at 322-23 No. overruling influence. (“As 1961) counteract ed., weight Rossiter ton (James Mad- No. at 322 The Federalist authority requires that legislative 1961) ison) (Clinton ed., (explain- Rossiter divided, thus the weakness be should that, predominates the executive while may require, on the other executive govern- monarchy, republican “[i]n in a fortified.”). hand, that it should be necessarily ment, authority legislative check of the Recess many ways, a counter- such Without predominates”). also resembles balance, and consent the Senate’s advice I, in Article Section Pocket Veto Clause an absolute degenerate into could power Story re- Joseph Interestingly, Justice the Presi- undermine that would negative pocket veto that without marked along appointment power, dent’s ... the due exer- “[C]ongress might defeat process.15 appointments the entire with qualified negative President’s] [the cise at 309-10 No. See The Federalist session, (James by a termination of the (James Madison), at 322 No. 1961). Madison) (Clinton ed., for the Presi- impossible render it Rossiter would Story, Joseph to return the bill.” dent separation Consequently, protect § Constitution Commentaries must President powers, and balance (1833). Likewise, intra- without enough to countermand formidable Majori- appointments, session the Senate prevent Congress for the impossible ty’s position makes it prerogative eviscerating his influence necessary to exert President his advice and consent. through its use of officers of his executive Myers, easily wrest too the Senate could since (“The in the Con- debates Constitutional through procedural from him power to create a indicated intention vention ”). It that machinations.16 is critical strong executive.... department legislative "propensity and consent respect, the advice

15. In this rights, and to absorb upon the intrude the veto power of the Senate mimics departments [which] has qualified powers, of the other they are both since President suggested.” pow- already than once more inherent been negatives on the other branch’s 73, (Alexander 120, at 442 47 S.Ct. 21 Federalist No. Myers, 272 U.S. at The er. ed., 1961). Hamilton) (Clinton Ham- power “the (calling advice and consent Rossiter the ap- giving the President power of the President’s ilton also believed that veto on Senate’s Congress would not power strong cannot checks as veto pointment”). Just the such check, power. He surmised advice and consent abuse a the lead him to his without exist that, powerful and so magistrate a so exist without a power "[i]f of the Senate cannot monarch would as a British well fortified check. [veto scruples exercise have about the may be greater caution power], how much appoint- power, the recess Like the veto 16. a President reasonably expected in President power a is check ment States, period Senate, the for short clothed both are United against such that exerts authority of a years with executive governmen- four shaped by principles of the same republican?” wholly purely Further, government motivation design. the Framers’ tal rule,” wrote, a Hamilton at 444. "[A]s Id. power veto under- creating the President's is better fitted to "one man of discernment given the Presi- the other checks has lies qualities peculiar analyze and estimate Primarily, that motivation dent. mind, With these in considerations keep to his branch government, and the as carefully courts must proceed whole, in constru Therefore, running. ensuring power the executive narrowly. The that the Senate does unduly encroach high stakes are too consequences upon the President’s role in appoint- too dire if the power unduly executive process integral ments ensuring constricted. See Marshall & Field Co. v. the President is able to faithfully execute Clark, 649, 670, 143 U.S. S.Ct. 117-18, his duties. Id. 47 S.Ct. 21 L.Ed. 294 (assessing the severe con (“[The President’s] selection of administra- sequences of judiciary interceding in tive officers is essential to the execution of the actions of the other gov branches of ”). by him.... laws ernment); Carr, v. Baker 369 U.S. (1962); S.Ct. 7 L.Ed.2d 663 Purpose Appoint- of the Recess Youngstown Sheet & Tube Co. Sawyer, v. ments Clause 579, 640, 96 L.Ed. purpose of the Recess Appoint- (1952) (Jackson, J., concurring) Clause, ments which is much more ascer- (“However, because President does not tainable than the interpretation textual enjoy powers unmentioned does not mean Recess”, “the offers guidance further in the mentioned ones be nar should this construction of the Appoint- Recess construction.”). rowed a niggardly ments Clause and meaning that should Ultimately, the power executive must be be ascribed to “the In The Recess”. Fed- strong enough to allow the President eralist No. pinpointed Hamilton “take Care that faithfully Laws be dual purposes of the Appointments Recess executed” and “Commission all the Offi- 1) Clause, which are to allow the Senate to Const, cers of the States.” United 2) take breaks and to keep offices filled II, 3,§ art. cl. 1. The central role of the (since might “it necessary for the public in President appointing the officers serv- to fill service delay”).17 [vacancies] without ing his government branch of was devised (Alexander The Federalist No. at 410 by the great Framers with purpose. See Hamilton) (Clinton ed., 1961). Rossiter To

Myers, 272 U.S. at 21. By S.Ct. Madison, this meant that the Senate would having in choosing hand the officers be recessed for purposes of the Recess branch, serving his the President would Appointments Clause when Senators were be able to surround himself peo- with the not in “continual residence” the Capitol. ple he believed best fit to help him fulfill (statement 3 Elliott’s Debates 409-10 duty his to faithfully execute the laws un- James Madison at the Virginia conven- der the Take Care Clause. See id. Not tion). only does he need to input have in the chosen, officers but the Thus, President needs imagined Framers, keep offices occupied in order Clause had two- offices, adapted particular body than a representa- consent on was that equal men of perhaps superior even of tives of the smaller states were worried that legislature discernment” since the is more larger the states ap- would be favored in the easily captured by private interests. The Fed- pointments process. Myers, See 272 U.S. at (Alexander eralist No. at 455-56 Hamil- 119-20, purpose S.Ct. 21. This is ton) (Clinton ed., 1961). Rossiter any by served more or less intrasession recess appointments ap- than intersession recess addition, 17. In contemporaneous other writ- pointments. ings reveal why that the reason Senate the given was providing the check of and advice control on the Senate’s a check provide to to break the Senate to allow purpose: part by shar- of officers appointment and, in ab- over usual business with the of confirmation the power filled to be sence, vacant offices to allow and Allowing the advice branch. govern- executive machinery keep the to order Evans, as an absolute to F.3d at consent of Senate act running. See ment nominations President’s (“[W]hat negative to be the on the we understand the dual check would defeat Appointments Recess without a of the purpose main Appointments fill to va- of the Recess purposes President enable the Clause—to to functioning of and consent” allow “advice proper and to assure Clause cancies reading both and or- into the “mandate aggrandized government supports be our — Myers, re- intersession and recesses of the Senate. intrasession der” scope (characterizing the Sen- the correct as within cesses Clause.”). ] consent as a advice and ate’s “limitationf the executive grant general upon pur- a “crucial” Majority claims ], such, being [a] and as power, limitationf is Clause Appointments Recess pose beyond the words enlarged be should not and con- advice the Senate’s to preserve used”). uni- limiting the President’s by power sent (Majority Op. appointment power. lateral check, Appoint- Recess though, a As 228-29.) intent of the This misses absolute. is no means ments Clause Re- indisputable It to Framers. President Thus, allowing the although Presi- gives the Appointments cess in- appointments recess make intrasession why so would power, dent additional pro- in the his clout creases power limit the President’s Framers appoint- cess, to make recess power his no There is power? him additional giving First, embedded limitations. ments has limitations written that there are dispute only can be power the recess Clause, but Appointments the Recess into If the when the Senate recessed. used appoint- powers separate all the use curb the President’s wants to despite be- have limitations process ments simply re- can appointments, it of recess a branch enhanced give to ing drafted and con- advice provide main available Further, contempo- in the nothing power. rely sent, thereby forcing President The Federalist writings, especially raneous making ap- and consent on its advice was a “crucial” this Papers, claims Second, appoint- pointments.18 Appointments the Recess purpose of since temporary duration ments have Clause, purpose. alone other let Sen- [the “the End only last until they most, this allows At Session.” next Story, pur- ate’s] of Justice the words last the appointee a recess term of Appointments Clause the Recess pose of (under cur- action, regular of two sessions length “convenience, promptitude equates to practices, Story, rent Senate Joseph security.” 3 general years). two approximately maximum of § on the Constitution Commentaries structure Third, by the evidenced (1833). Moreover, with consistent at 410 appoint- II, Article Section underlying principles the Framers’ secondary can ment purpose of republic, the of our framework and can never officers appointing means of also Clause was provide its advice course, for the Senate portunity to advice consent reference 18. Of point be elaborated will This pro and consent. not include forma this context does in sessions, op- further clearly provide do not infra. be used as a primary doing means of pers, so as the structure of the of gov branches long as the ernment, Senate is provide available to as by Constitution, conceived advice and give consent. the President very strong interest in maintaining the favor of the Senate and Nevertheless, the Majority concludes stoking its ire. No. Federalist intrasession recess appointments (Alexander Hamilton) (Clinton at 459 Ros would allow the President to circumvent 1961) ed., (“[A] siter new President would the Senate’s role in the appointments pro be restrained from attempting a change in cess; however, protection against such favor person of a agreeable more to him circumvention is built into the Recess Ap by the apprehension that a discountenance pointments By Clause. these three limit might Senate frustrate the attempt, alone, principles, pays President bring degree some upon discredit steep price for using his recess appoint himself.”). Secondly, the President is be power. ment See United v. States Wood public holden opinion. See The Feder ley, (9th Cir.1985) (en 751 F.2d (Alexander alist No. Hamilton) at 444 banc) (observing that a recess-appointed (Clinton ed., 1961); Rossiter 3 Joseph Sto Article III judge “lacks life tenure and is ry, Commentaries on the Constitution not protected salary diminution” § (“He at 375 will be com such that the “[recess appointment] power pelled to public consult opinion in the most is not ... unfettered but subject to its important appointments.... If he should own limitations safeguards”). Indeed, otherwise, act and surrender the public these strictures on the President’s recess patronage into the hands of profligate appointment power prevent him from men, or adventurers, low it will be impossi usurping the power Senate’s provide ble for long him public favour.”); retain advice and Moreover, consent. use of the Myers, 272 U.S. at 47 S.Ct. 21. Be appointment recess power during intrases cause public opinion, the President sion recesses does not undermine the rea ineentivized to use his recess appointment why son granted Framers the Senate power sparingly, public perceive lest the the power of consent, advice and which that trying he is to thwart the advice and was preventing larger states from having consent of the Senators that they have a disproportionate influence on appoint office, elected to or lest the public lack ments, any more than use recess faith in his appointees they because have appointment power during intersession re not been by vetted the Senators they Myers, cesses. See 272 U.S. at 47 have elected to Thirdly, office. far as as S.Ct. 21. strictures, With these the Ma mechanics, the can check the Presi jority’s concern about the President mak dent’s of his appointment use recess power ing unannounced recess “by during intrasession recesses controlling waiting until [the go Senators] home for when it recesses and long how it stays in the evening” is not fathomable. (Majority regular result, sessions. As a it can con 230.) Op. at if trol the President is able to use his recess appointment power at all But these and how not the limiting prin- long his recess appointees will ciples remain in cabining the President’s ap- office. pointment power. In addition to these

express checks, there are implicit checks What Majority overlooks is the fol- on the use of his lowing: problem with limiting the Re- that were recognized the Framers. cess Clause to intersession Firstly, explained in The Federalist Pa- recesses is that such an interpretation di- Therefore, President must be able to that the Presi- checks reciprocal sarms power appointment recess exercise his While on the Senate. to have needs dent to is not available whenever the Senate for fore- steep price a pays President consent, including when and provide advice the Sen- consent of and the advice going sessions, holding pro forma is Senate relatively price low ate, pays the Senate readily pres- to be it not available when is to power thwarting the President’s on nominees. and ent to vote deliberate example, by, for appointments make suggest to as it is incredulous Just negli- recesses to reducing its intersession can make recess President (for instance, one time gible periods lunch, equally it is during the Senate’s against safeguard Consequently, the day). Majority suggest to for the incredulous on the of the Senate the encroachment in provided consent can be that and advice is much weaker. President power every three thirty-second increments once may the Senate harm that great The (In fact, incredulous days. may it be more machinations, would as some engage thir- longer than presumably takes since sessions, pro forma the case argue is with to act on for 100 Senators ty seconds to nominees order voting on avoid to nomination.) Further, conducting busi- capitulating into strong-arm the President agreement, via consent ness unanimous to demands, forcing President its to 23, 2011, is did on December the Senate candi- preferred the Senate’s nominate yields the type of business that not the vacant, as Ham- offices or else leave dates by the consent advice and envisioned It is inconceivable expressly feared. ilton Framers.20 strong- such Framers intended Senate; possi- and equal, by the arming contemplate does not The Constitution the House’s involve- bly greater, ways. concern it both may the Senate have surely strong-arming, in the both unavailable ment cannot be The Senate Framers.19 its by the submit to not intended the President to yet force (James dynamic Mad- acts as at 322 This No. and consent. The Federalist advice (and (Alexander House ison), Hamil- on Senate coercion at 442-43 a check No. (Alexander coercion) because, in to take recess- order ton), Hamil- No. business, Hamilton) regular (Alexander from its es and breaks ton), 77, at 463 No. cooperate to 1961). will either have the Senate (Clinton ed., Rossiter Senate Majority assumes 20. The issue of the Majority suggests that the 19. pro- available to simply remained appoint- could have exerting over recess House influence agreeing to and consent ability vide advice by the President's remedied ments is pro during the forma business agree not conduct they cannot adjourn if both houses Const, II, 'altering] procedures to allow ' § sessions art. adjournment. U.S. date of during such ses- messages received to be mark. This This assertion misses First, 243.) it is a Op. (Majority sions.” not address issue President does messages receipt of suggest that the stretch creating pro ses- essentially forma the House providing ad- equates to President corrupt intersession-intrasession sions to respect, Senate In that vice consent. remedy is tanta- Majority's dynamic. The provide advice and available could can remain saying the President initiate mount to recesses even intersession consent an die to create interses- adjournment sine to receive agent of the leaving an days than three whenever recess of more sion Second, Majority identifies messages. he wishes utilize Moreover, “Recess”: definition of danger its own true. This is not Clause. manipulat- easily too procedures are of his Senate’s supplemental use clearly not be a would ed. power. 260 figure

with the and President out mutually sessions, Pro valid, forma if accepted as acceptable nominees or will yield have to undeniably frustrate the purposes of the its advice and consent to the Presi- Appointments Recess Clause. pro n dent’s appointment power. sessions, forma Congress’s other at- tempts to manipulate the appointments lines, Along these Supreme Court process, appear to be the type legisla- applied has a functional approach in deter- overreaching tive by chronicled mining scope powers. of executive It 48, Framers. See The No. Federalist did in determining so when the Senate is (James Madison) (Clinton 309 Rossiter available to receive a bill from the Presi- 1961) (“The ed., legislative department dent for the of the purposes Pocket Veto everywhere extending the sphere of its Clause, concluding having a secretary activity and drawing all power into its im- sufficient, the Senate present was even vortex.”). petuous From Madison’s senti- if the already members Senate had ments, it is also evident legisla- departed to their home states. See The ture was the “more feeble” branch Case, 680, Pocket Veto 279 U.S. at need would a “more adequate de- 463 (holding that “the determinative ques- but, rather, fense” the branch that would tion in to an ‘adjournment’ reference is not enfeeble the other branches and require whether it a final adjournment of Con- they be more adequately defended gress or an adjournment, interim such as against such machinations. See id. adjournment session, of the first but whether it is ‘prevents’ one that Moreover, the Presi- under a functional approach, dent from returning the bill to the pro House forma prevent sessions cannot in which originated it within the time al- Senate from recessing for the purposes of lowed”). Appointments Recess Clause. When a pro forma session is held approximate- course, Of providing advice and consent ly thirty Senator, seconds a single on likely nominees requires more on the Senate is not able to accomplish the func- part of Congress than receiving bill tion of deliberating voting about and on the President —unlike with the Pocket the President’s nominees.21 Clause, Veto person one cannot generally provide advice and consent on Indeed, behalf of all the Framers could have faced 100 Senators. If this approach functional the same dilemma faced the President is used to purposes effect the Re- 2010 and 2012 since it entirely Appointments Clause, cess then possible the Presi- for the Senate to take short intra- dent must be able make appoint- session early recesses republic. our ments when the provide Senate event, cannot such an how would the Framers consent, advice and certainly it is pos- have intended for the Recess Appoint- sible for the to lack capacity to ments Clause operate? They did not provide advice and consent during intra- condition the session when recesses its members are not away far how Senators were from the present in the Senate chamber to Capitol vote. they recessed, when long or how 21. For the lengths exact pro Cong. forma 2012), (daily Rec. SI ed. Jan. 158 sessions, Cong. see (daily 157 Rec. Cong. 6, 2012), S8787 ed. (daily Rec. S3 ed. Jan. 158 20, 2011), Dec. Cong. 157 Rec. Cong. S8789-90 (daily 2012), Rec. S5 ed. Jan. 158 (daily 2011), ed. Dec. Cong. Cong. 2012), Rec. (daily Rec. S7 ed. Jan. (daily 2011), S8791 ed. Dec. Cong. Cong. 17, 2012), (daily Rec. S9 ed. Jan. (daily 2011), Rec. S8793 ed. Dec. Cong. (daily 2012). Rec. Sll ed. Jan. business, to provide unable usual from its Capitol— to return take them would consent, per- vacancies while advice and the Re- only conditioned simply and they sist.22 the on whether Clause Appointments cess recess, breaking from its in a limiting of an exact Accordingly, the lack n provide business, unable to and

regular limit, not day a does such as principle, if the Senate Or what and consent. advice intra- reason to exclude sufficient provide it sessions while in forma pro remained First “the Recess”. recesses from session months, its as was nine for broke six arbitrary. The all, be any limit would of ratification, hoping at the time routine Attorney Gener- ten-day proposed limit President from the prevent that this would opinion 1921 who the Daugherty, al issued appointments? making recess appoint- recess of intrasession support ments, identifiable was not based scenarios, Framers would the In such be tied a hard limit could such principle; to make the President empowered have is no Clause but there the Veto Pocket office is empty An appointments. recess it the relationship between and of a proof no sense that It makes empty an office. pro- and the Clause Appointments Recess be- have differentiated Framers would different, as conceived each are cesses of recess- and intersession intrasession tween in the Constitution. by the Framers and of the Re- purpose effectuating es in might not arbi- day limit that only Evans, Clause. Appointments cess on the three-day limit based trary is (“The purpose 1226 F.3d at discussed, but, as Adjournments Clause during an intra- no less satisfied is Clause no real connection between there is po- recess of during a than session recess Ap- Adjournments and Recess that comes duration tentially even shorter Clause. pointments break.”). atrophy intersession as an a by the for such caused explanation offices An alternative and other agencies a then, be that three-day and limit not does would did absence Senate’s weekend, con- should not is over a days, the Senate now, two depend on whether to take the Sen- recess sufficient a stitute due to intersession unavailable See Edward away from its business. matters is ate recess—-all or intrasession Hartnett, Recess A. away Senate is of time that the length ofArti- process take a which could Appoint- appointment, new purpose of 22. The other Surely, Clause, this is not what allowing Senate to recess weeks or months. ments vacant, envisioned, This is also nor intended. leaving dimin- offices without Framers by Majority's pressure "Recess”. on the Senate put definition undue ished also would reading, the Majority’s Sen- limited making Under the decisions to rush obliged take intrasession might not to ate feel offi- clearly intended that the Framers when pending, and nominations recesses when appointed careful deliberation. with cers be break, and liberty as Hamilton not feel at example, we can with a less extreme Even desired, vacancy to lest cause a the Framers imposition on the Senate. imagine the same of its recess. open for duration remain mentioned, advice secret it is no As during the traumatic have been This would lengthy strenu- process and consent packed Imagine Senators era of the Framers: Canning, F.3d at process. See Noel ous journeys to long their ready their process and consent (calling the advice states, that a out cabinet to find home Allocco, “cumbersome”); v. States United suddenly resigned office. Rath- secretary has (2d Cir.1962) (noting that the F.2d secretary vacant leaving office er than because process is onerous appointments months, might Senators to nine for six competent securing a task of the "difficult compelled to remain in very well feel replacement”). and consent for provide advice Capitol to ele III Judges: Three just Constitutional as short or shorter than intrasession Questions, 26 Cardozo L.Rev. Similarly, recesses. if the concern is that (2005). This also prevent would the ex- “the Recess” must last a “non-negligible” treme situation of appointments lunchtime of days, number then one recognize must and overnight daily either an between intersession or intrasession sessions, party, court, which no and no recess can last “negligible” has number of suggested days. Consequently, reasonable. it is indisputable that intersession recess appointments are vul- Due to limiting this lack of a principle, nerable to the same uncertainties and lack the Majority blithely asserts that intrases- of limiting principles as intrasession recess sion betray recesses would the purpose of appointments. This conclusion cannot be the Appointments Recess Clause because by magic saved the words—the Senate it would allow the President to make re- “adjourned . sine die”. appointments cess any time the Senate The need to exclude appoint- recess breaks from business, its usual such as during ments the adjournments Senate’s when it recesses for lunch or adjourns at lunch, the night, and the the end of a weekend daily session. The Majority is explain why would the Framers mistaken chose to there is because no evidence that use the limited term “Recess” rather than Framers intended for the Ap- Recess the all-encompassing “Adjournment” term pointments to Clause be used way in the Recess Appointments Clause. there is no “Re- evidence that President cess” allows the Senate ever some beyond leeway has. It to contention take adjournments brief without recessing President cannot use his appoint- recess in way permits power ment to President the Senate’s lunch make appointments break, without its adjourns when it advice and nightly between As Majority consent. contends, itself daily sessions, adjourns or when it for the “the dichotomy [between the use weekend. of ‘Ad- See Noel Canning, 705 F.3d at journment’ and ‘Recess’] must be that ad- (determining “the in- Framers journment results in more tended breaks than something specific by the term ‘the 232-33.) recess does.” (Majority Recess,’ Op. at and that it was something differ- ent than a generic break in proceedings”). Further, it would appear unconstitution- All of these regular recesses are of breaks al for the President to use his ap- recess Senate, which do impede not its nor- pointment power to appointments make mal business. It preposterous would be to during those routine breaks the Senate. suggest that the Framers intended for the below, As detailed sitting on his nomi- Senate to be held hostage in its chamber nations and sabotaging Senate in such order to retain power provide its advice a way, the President would not be using and consent. the advice and consent of the Senate as his primary means officers, of appointing

The Majority’s concern about the “tem- contravention of the plain structure and poral reach” and duration of intrasession clear intent of the Framers. recesses also overlooks the reality that there is little difference between the tem- Majority also suggests that the pur- porality of intersession recesses and intra- pose would betrayed by allowing intra- session recesses in theory or in practice. session recess they because If the concern is that intrasession subject recesses are lengths: variable An intra- may short, be too then one must also session recess appointment made at the recognize that intersession recesses can be beginning regular of a session would last pro- “single chance” had already has sessions, an intrasession while regular two and consent? vide advice the end made at appointment recess ses- regular one only last would session manner, including both interses- In this Con- in the text nothing But sion. within recesses and intrasession sion Framers, stitution, the intent scope Appointments Recess purpose the Recess purpose of realizes best varia- such evidence provides Clause, i.e., keep offices lengths Firstly, variable bility is violative. break from the Senate to and allow filled by the forbidden Consti- inherently business. regular Appoint- The check tution. Clause, language plain ments Tradition Historical The Branches’ C. ap- Constitution, is that text and Practice end, not necessari- fixed have a pointments practice of tradition and The historical to language no There is length. ly a fixed very also is government of the branches oth- intended had Framers intuit that meaning of the of the evidence persuasive ap- recess Secondly, intersession erwise. of propriety and endorses Constitution prone to variable also pointments Re- in “the recesses including intrasession appoint- An intersession lengths: States, 488 v. United Mistretta cess”. See a three- of beginning at the made ment 647, 401, 102 L.Ed.2d 361, 109 S.Ct. U.S. longer months will last three month Case, 279 (1989); Veto U.S. The Pocket 714 of at end made appointment than an 463; v. Freytag 688-89, 49 S.Ct. at course, post- recess. Of intersession 868, Revenue, 501 U.S. Internal Comm’r recesses of ratification, intersession when (1991) 2631, 764 115 L.Ed.2d 890, 111 S.Ct. longer, or months routinely lasted six the Constitu- interpretation (faulting an have could appointments of recess lengths longstanding undermine that “would tion disparate. more even been at U.S. 343 Youngstown, practice”); the “End Majority claims The (Frankfurter, J., concurring) 863 S.Ct. 72 in the Consti- language next Session” their ways of traditional embedded (“Deeply recesses intrasession excludes tution also supplant cannot government conducting because of “the Recess” from the definition they but legislation, or Constitution only a the Senate allows language or of a text words to the meaning give appoint- weigh in “single chance” Chadha, them.”). v. see INS But supply 234-36.) But (Majority Op. ments. 2764, 77 944-45, 103 S.Ct. U.S. 462 of the Constitution language in the nothing long- (1983) (noting that 317 L.Ed.2d limits the Framers the intent legislative the one-house practice term providing chance” at “single ato being held it not save could veto passage in the Even consent. advice and have, unconstitutional). Moreover, I Story only Majority, Justice quoted expan- its more found Court Supreme oppor- “an Senate have requires Pocket Veto of the reading sive “single op- act, rather than tunity” and “[l]ong settled by the 234.) corroborated What Op. at (Majority portunity”. President, practice” established during one pending if an “great accorded to be it said does and President regular session of consti- interpretation proper in a weight any recess make this character.” provisions of tutional the Senate recess—is ensuing intersession 689, 49 S.Ct. Case, 279 U.S. Veto con- Pocket advice provide longer able no it because session regular next in the sent

264

Further, in reviewing the tradition lishing practice “engaged in by practice President, presidential ac- Presidents have who also sworn uphold tions are entitled to a presumption of con- the Constitution ... may be treated as a stitutionality.23 The Majority rejects any gloss ”). on ‘executive Power’ such presidential notion that actions de- Majority carves out its own excep- special serve regard, Supreme but tion, that, suggesting particular, no such repeatedly Court has embraced such a presumption applies in separation pow- principle. Nixon, United v. States 418 cases, ers but this presumption ap- should 683, 703, 710, U.S. 94 S.Ct. ply with the most force in such cases. (1974) L.Ed.2d 1039 (recognizing that executing office, the duties of his the Pres- “courts have traditionally shown the ut- ident must not be hindered because the most deference to responsibil- Presidential constitutionality of his actions is held in ities”); Chadha, 462 U.S. at 103 S.Ct. Carr, doubt. See Baker v. 369 U.S. (“When acts, Branch pre- it is 82 S.Ct. 7 L.Ed.2d 663 sumptively exercising the Con- (emphasizing importance of respecting stitution delegated has to it. When the the finality of the actions political acts, Executive presumptively acts branches); States, Nixon v. United executive or capacity administrative as de- 224, 236, L.Ed.2d fined in (citing Art. II.” Hampton J.W. & (1993) (same). For a host of self-evident States, Co. v. 394, 406, United reasons, judiciary should upend- avoid 348, S.Ct. 72 (1928))); L.Ed. 624 see also ing longstanding practices of the other Evans, (“And 387 F.3d at 1222 when the branches they unless plainly unconsti- President is acting under the color of ex- tutional. Noel Canning, See 705 F.3d at press authority of the United States Con- (Griffith, J., 515 concurring); Ashwander stitution, start we with a presumption that Auth., v. Tenn. Valley 288, 297 U.S. 345- his acts are constitutional.... Just to 48, 466, 56 (1936) S.Ct. 80 L.Ed. 688 plausible show that interpretations of the (Brandéis, J., concurring) (acknowledging pertinent constitutional clause exist other principles judicial of restraint regarding than that advanced the President is not questions). constitutional enough.”); Allocco, United States v. 305 704, (2d Cir.1962). F.2d 713-14 Not only 1. The Tradition and Practice of the does the President take oath fealty of President Constitution, and only not is his most important The constitutional tradition duty practice “take Presi- dent, Care that the executed,” Laws be faithfully especially since unequivocally but such a presumption integral shows that intrasession appoint- recess operation of the executive branch. ments See have been continuously accepted as Youngstown, 610-11, 343 U.S. at 72 S.Ct. constitutional use of the power. executive (Frankfurter, J., (estab- 863 concurring) Since Presidents have nearly made Moreover, 23. early States, dearth of 144, 182, intrasession United. appointments recess provide does not con- 120 120 (determining L.Ed.2d vincing proof of their unconstitutionality. government branches of cannot cede The President does not lose his constitutional powers their they constitutional if even volun- powers because he does not use them. See tarily consent to do so and have done so for a Freytag, (af- 501 U.S. at 111 S.Ct. 2631 time). period substantial of Constitutional firming President cannot “waive” his powers do not become unconstitutional sim- powers executive provide which the structural ply they go because unused. protections Constitution); New York v. longer much intersession and Took cesses with- appointments recess intrasession currently. See Con- it does controversy. See recesses than rebuke significant out al., Directory Research for the 112th Con- Cong. Hogue gressional et Henry B. (2011).24 Re- Canning According Decision Serv., Noel gress Made intra- Appointments Directory, five cess Congressional 2013). stands, intrases- (Feb. 4, itAs at 4 were taken before recesses session made have been appointments sion recess five, and, longest two were those of appoint- recess as intersession as often was a After there days. Id. thirteen addition, recess intrasession Id. ments. and, since intrasession recesses surge in by the condoned been have appointments at least there has Congress, been the 37th 1921, even at least since branch executive Congress, recess in each intrasession one use into more common they if did come five approximately exception with historical Despite 1940s. until (out approximately Congress sessions of Majority concludes precedent, Congress). Id. regular sessions misinterpret- has these Presidents each been the Thus, recesses have intrasession ed the Constitution. Currently, Senate norm since used have been Recess and ten intrasession five takes between our re- the birth of since ever Presidents that in- meaning Congress, recesses each himself, Washington, President public. inter- outnumber far recesses trasession See appointments. made several Hogue, Henry B. session recesses. Hartnett, Recess A. Edward Serv., Appoint- Cong. Research Three Constitution- Judges: III Article Questions Asked Frequently ments: L.Rev. Questions, 26 Cardozo al 2012). (Jan. 9, practices early appearance relatively Despite the has evolved, though, have recesses, re- intrasession of intrasession appointment practices caused recess vogue into not come did appointments cess republic, in Early our response. in evolve mentioned, Presi- As the 1940s.25 re- until not take intrasession did the Senate forever in 1933 Amendment Twentieth Directory only lists re- Congressional 24. The Congress, especially excluding changed practices Sun- days, more of “three or cesses and length Senate took sessions possible timing of their days,” it is and so Congres- Fisher, early Cong. recesses on. Research brief intrasession recesses. Louis Congress n. 538 Directory the 112th for Serv., sional Current Status Veto: Its The Pocket so, early (2011). amendment, then the dearth If 2 2001). (Mar. that Before serve appointments would (often recess intrasession usually long first session there appoint- recess intrasession to confirm that session second days) a shorter 200 and over recess- include intrasession ments should not days). at 2. As Id. (lasting and 90 between 80 days. of less than three es result, Congress typi- "a new prior regular business convene for cally would not unexplained lack of intra- only an 25. There is but, being since elected” after 13 months until eighty appointments for recess session amendment, from "the time passage of the possible 1947. One 1867 and years between Congress's beginning of to the election intrasession near-absence of for reason was re- when it convened well term as may period during appointments recess Congressional Direc- to two months.” duced rather were still recesses that intersession In Congress 522 tory for the 112th months, spanning several lengthy, often Directory addition, Congressional as the ample to make time gave President which Amendment, notes, prior to the Twentieth re- appointments intersession recess were con- Senate of the “special sessions cesses, relatively dura- short compared to the vened, confirming Cabinet principally for Another early recesses. intrasession tion nominations,” could executive other of the explanation passage is that the possible dents nearly sion) have made 400 intrasession recess appointment has been made appointments recess since then. See Hen- during a recess of less than ten days in at ry al., B. Hogue Serv., Cong. et Research least last thirty years, critics want- Canning Noel Decision and Recess allege the President would Appointments Made at 4 abuse his executive make (Feb. 2013). Prior to there were recess appointment while the Senate broke only three recorded intrasession ap- recess for lunch the end day. In the pointments. Canning, Noel 705 F.3d at history of our republic, there has been no 502 (citing Note, Michael A. Carrier, When inkling engaged President has in Is the Senate in Recess Purposes practice and, so, there is no reason to ?, Recess 92 Mich. think that Allocco, will happen now. See 2204, 2209-12, (1994)). L.Rev. (“We at F.2d have not been direct- first is believed to have been made single ed to a instance of behavior by any President Andrew Johnson in which President which might be termed coincides with the surge in intrasession ‘abuse’ of the power.”). recesses that began the 1860s. See Canning, Noel 705 F.3d at such, 501. As 2. The Tradition and Practice of the there no reasonable inference that can Senate be drawn about intrasession recesses ex- cept that practices prior The tradition and practice of the Senate to the Twentieth Amendment made the also affirms that “the Recess” includes timing less of an recesses issue than is both intrasession and intersession recess- the case now. es. In President Roosevelt made

In the day, modern intrasession recesses during what are not more frequent longer but also literally described as a momentary inter- than they had past. fact, been session recess between the 1st and 2nd they are longer sometimes than some in- sessions of the 58th Congress. T.J. Hal- recesses, tersession which can be as short stead, Cong. Serv., Research Ap- day.26 as a large With the number of pointments: A Legal (July Overview taken, intrasession recesses the net dura- 2005). In response to these recess tion of intrasession recesses during a ses- appointments by Roosevelt, President sion of the Senate will often dwarf the net Senate Judiciary Committee in engaged a duration of recesses, intersession which project opine to on whether such a “con- means that the Senate is on break more structive recess” of the Senate constituted often during sessions than between ses- “the Recess” of the Recess Appointments sions. Clause. The committee that it concluded earlier, As reflected given did that not. Most telling recess was the report, 1905 appointments have been made for over presented which 220 the Senate’s view of the years (or and that no intrasession interses- meaning “recess”, of as used in the Recess have made appointments intrasession recess Directory Congress for the 112th 522 important. less Id. (This number one-day excludes intersession regular recesses between a session of Con- 26. A inspection close Congressional of the gress special and Congress.) session of The Directory reveals that ap- there have been one-day last two intersession recesses oc- proximately one-day thirteen intersession re- January curred on during the series frequent, cesses—while not they are not un- sessions, pro of forma January and precedented certainly and are not an abstract hypothetical or possibility. Congressional See

267 available make the Senate does not Report session Clause. Appointments consent, and advice provide one ‘recess’ is word that “[t]he determined provide possibly cannot why the Senate technical, signification” ordinary, not of forma ses- during pro and consent advice Appointments the Recess used in and is sions. popular and “in common Clause 58-4389, at 1 No. S.Rep.

sense.” postulated also Report The 1905 added). (emphasis Appoint- for the intended Recess Framers purposes to serve dual ments else, nothing endorses if report, This were if those criteria be served could not narrower, reading broader, than a rather and “grave inconvenience prevent met: Ap- Recess in the “Recess” the term of and to ensure public to the interest” harm the 1905 Specifically, Clause. pointments be, whether there should that “at all times was “evi- that “recess” explained Report not, an officer session or the Senate of the [FJramers dently intended office, discharge the every entitled for some- it should mean Constitution added). 2 (emphasis Id. at thereof.” duties real, imaginary; something thing not purposes established accords with This actual, something not something ficti- No. 67. in The Federalist by Hamilton added). Very (emphasis Id. tious.” Report set forth the 1905 officially changed pragmatically, not The Senate has 1) a “recess”: qualifying report. criteria for issuance of this four since the positions or regular sitting in Trade Corp. is “not v. Int’l Nippon the Senate Steel the Comm’n, a branch n. 13 as extraordinary F.Supp.2d session Carrier, (C.I.T.2002) session extraordinary (citing Michael A. Congress, or in for such junctions,” Note, the Senate in Recess discharge executive When Is for 2) at- duty no Purposes owe “its members (1994)). 3) Clause?, and L.Rev. 2204 tendance,” empty,” 92 Mich. “its Chamber 4) communications “it can not receive ac- legislative act of Additionally, in an body in participate President legisla- passed has Congress quiescence, its ab- “because making appointments” of intra- possibility that observes tion original). (emphasis Id. sence.” own By its appointments.27 recess session not since choice, and Congress passed, Framers has of the to the intent In addition Act, allows a statute that Pay Presi- repealed, practice and the tradition and does paid to be appointees Report dent, from the this definition in- intersession between President differentiate possibility forecloses 5 U.S.C. appointees. trasession when making recess 1226; Evans, F.3d 5503; see § lunch, night, and for the breaks at 1013. F.2d breaks, Woodley, 751 During those for the weekend. aas participate capacity

the Senate’s Validity 27, 2010 II. the March is not process appointments in the body Appoint- January Reoess and In the more than usual. hampered any ments brief, routine these way one of same my in analysis, foregoing the Based on unavail- make the Senate does not breaks appointments recess the consent, judgment, a brief and advice provide able to on votes confirmation to reconsider motions adopts a broader also Manual 27. The Senate thirty-day moot after a become nominees is condi- Recess” that understanding of "the break, Senate recess, adjournment or recess. it an be rather length of a tioned on Manual, at 58 No. S. Doc. or inter- intrasession it occurs than whether Senate”). Manual, ("Standing Rules According to the Senate session. Member Becker March adjournment and today usually resolutions au- Block, Flynn, Members Griffin on and Jan- thorize of each leaders chamber to call it uary 2012 are valid. Both ap- sets of back into session after the sine die ad- pointments were made during journment. intrasession If power exercised, recesses when the Senate was not avail- previous session resumes and continues provide able to advice and consent. The until adjournment the actual sine die President appropriately exercised determined, his dis- usually pursuant to another cretion, relying on the supplemental power concurrent adjournment.” resolution of added)). (emphasis keep those offices filled the sanctity Under Majority’s interpretation of public. The exclusion of intrasession “the recess, Recess” as an intersession recesses from the definition of “the Re- Recess Appointments Clause is essentially cess” him ability denies to fulfill his neutered and the ability President’s duty constitutional and leads to a number make recess would be evis- of absurd results. cerated. A Senate opposed to the Presi- Majority claims that the Senate was dent’s nominees would simply limit its in- available to provide and advice consent tersession less, recesses to a day, or and during the forma pro sessions because power use its provide advice and con- could have acted on the Members’ nomina- sent as an absolute negative to the Presi- “if tions it had desired to (Majori- do so.” power dent’s appointment. It could 231.) ty Op. at But this is an assumption then simply convert what would have been with dangerous logical extensions. recess, Under its intersession when Senators logic, Majority’s the Senate al- would depart would to their states home and not ways be provide available to advice business, conduct into an intrasession re- consent and the President would never Thus, cess. by this simple procedural able to make appointments. title, Even change in the Senate would strip the recesses, intersession the Senate President of this essential counterbalance could plausibly provide advice and consent exercise his executive “if it desired [ ] to” simply cutting upset power. balance of In a worst- intersession recess short. It is scenario, not as if case some offices could remain paralyzed Senate is while an inter- vacant for administration, an entire session recess. could be as long eight years. addi- tion, the Senate would have a dispropor- To demonstrate another result, absurd tionate amount of influence on the Presi- Riddick’s Senate Procedure documents nominees, dent’s since likely he would have that there is such a thing aas conditional to accede demands of the Senate’s sine adjournment, die which could allow absolute negative. Majority Senate leader to call the Sen- ate back session into on 24 hours’ notice to If anything, Majority’s test —that an resume the previous session—would such adjournment sine die marks an interses- conditional adjournment sine die to start sion recess—is judi- and not unworkable an intersession prevent cially manageable. Under the Majority’s from fulfilling its desire to provide rationale, advice the President could make a re- and consent? See Senate Riddick’s Proce- appointment cess during any intersession 18; dure Henry B. Hogue, Cong. recess, Research even if it only nanosecond, a lasted Serv., Appointments: Recess Frequently yet could not make a appointment recess (Jan. Questions 2012) 9, (“These Asked during a six-month intrasession recess.

269 discre- to the Senate’s pointments common and sense common This defies The manipulations. procedural that tion and recognizes Majority itself The logic. Majority’s standard of the impracticability same from the suffer recesses intersession 4, January by the fact as intra- shown limit is durational of an exact lack simply could have sug- issue appointments its recesses, undercuts which session had been appointments if recesses avoided the been intersession that gestion 3, earlier, January during of intra- on day to its criticism made immune somehow that, only Not (Majority Op. recess.28 intersession the recesses. session al- for would also Majority’s basis standard (“[T]he constitutional the lack of a but intra- an unlimited defining in to make the President duration low selecting long during the define appointments absent to of recess just as breaks is number session breaks.”).) ex- recess intersession type of “fictional” intersession in 1903. Roosevelt by President ploited dis- further undercuts Majority results, Majority’s the such absurd With and intrases- intersession between tinction clearly would artifice that is an standard reserva- stating, by without recesses sion integral powers separation the upset and abuse for tion, potential that “the process. appointments a sound re- in what subsequent gridlock lies in Constitution’s the means but cess standard, period the entire my Under (Majority powers.” framework divided pro forma held Senate during the 244.) prob- the admits that This Op. at until sessions, from December > technical, solution, in lies not the lem, and the would be treated January Senate’s of the classification procedural been Thus, would have the Senate same. separa- in adjournment, but whether consent advice and provide able to no more Thus, tying maintained. is powers tion of January than it was on January on availabili- “Recess” the definition of not be President would And 2012. advice provide' ty of the Senate Senate, as President thwart able focus. It proper achieves consent a hun- did, over by making well Roosevelt on basing the definition does so a fiction- appointments recess dred mechanism Senate’s presence dura- infinitesimal recess of intersession al powers maintaining separation tion. process —advice clas- procedural than the consent—rather III. Conclusion recess. sification sys- our role in Defining executive appoint- Worse, basing the recess is one balances of checks and tem procedure, the Senate’s power on ment republic of our challenging problems Ap- most has committed Majority January 22. I January 4 contend than or. displace the ab- attempts to Majority 28. my by showing that it techni- holding because surdity January only is different of its results, but the yields absurd January 4 standard also than cally a different has definition point My my point. Majority misses of those functionally, all January three 22— suggest a one- absurd to that it show Further, is noth- there days were the same. different is somehow day intersession 23 differ- treating January about absurd Thus, recess. long than a intrasession Sena- no January 22. There were ently than could holding the President Majority’s owed attendance tors who Januaiy on have made but, presumably, 100 January 22 on chamber January means Januaiy 4 or on but not January attendance on owed their Senators Janu- one-day intersession recess intrinsically different ary somehow and, consequently, not so easily resolved. of intrasession inclusion recesses in

the ambit of the interpretation

Clause is the most faithful Constitution, the text of the the intent Framers, purpose ap- pointments, tradition and practice

of both the President and the Senate. It is for Majority reason cannot impediment

articulate a constitutional recesses, inclusion intrasession make a constitutional case categori- for the

cal all exclusion of intrasession recesses.

Interpreting “the Recess” to include intra- session recesses best maintains the bal-

ance of integral to preserving the appointments process intended Framers. ABRAHAM,

Eleanor et al.

v. ST. CROIX GROUP, RENAISSANCE

L.L.L.P., Appellant.

No. 13-1725. United States Court Appeals,

Third Circuit. Argued April 2013. May Filed:

Case Details

Case Name: National Labor Relations Board v. New Vista Nursing & Rehabilitation

Court Name: Court of Appeals for the Third Circuit

Date Published: May 16, 2013

Citation: 719 F.3d 203

Docket Number: 11-3440, 12-1027, 12-1936

Court Abbreviation: 3rd Cir.