NATIONAL LABOR RELATIONS BOARD v. NOEL CANNING
The National Labor Relations Act (NLRA) established the National Labor Relations Board (Board) to decide labor disputes among employers, unions, and employees. Parties first file unfair labor practice allegations to a Regional Office, which then conducts an investigation and, if necessary, files a complaint. An Administrative Law Judge (ALJ) presides over the hearing on the complaint and issues a recommendation to the Board. Unless a party to the dispute files a timely appeal, the ALJ’s recommendation becomes the final order of the Board. To hear a case and issue a ruling, the Board must have at least three of its five members present. The NLRA allows parties to appeal a Board ruling to the U.S. Court of Appeals for the area where the alleged unfair labor practice occurred or to the U.S. Court of Appeals for the District of Columbia Circuit. Board members are appointed by the president and serve five-year terms.
In 2010, Noel Canning, a bottler and distributor of Pepsi-Cola products, was engaged in negotiations with its employee union, the International Brotherhood of Teamsters Local 760 (Union). During the final bargaining session that December, Noel Canning agreed to submit two wage and pension plans to a vote by the Union membership. The membership approved the union’s preferred proposal. However, Noel Canning argued that the discussions did not amount to a binding agreement and refused to incorporate the changes into a new collective bargaining agreement. The Union filed a complaint with the Board alleging that Noel Canning’s actions constituted an unfair labor practice in violation of the NLRA. An ALJ determined that the agreement was binding and ordered Noel Canning to sign the collective bargaining agreement. The Board affirmed the ruling against Noel Canning.
Noel Canning appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which held that the Board’s ruling was invalid because not enough members of the Board were present. The panel that heard the Noel Canning case consisted of one member who was appointed by President Barack Obama and confirmed by the Senate in 2010 and two members whom President Obama appointed without Senate confirmation in January 2012. Although the Recess Appointments Clause allows the president to fill vacancies that occur while Congress is in recess, between December 2011 and the end of January 2012, the Senate met in pro forma meetings every three business days. Therefore, the Court of Appeals determined that the Senate was not in recess on the days the Senate did not meet because, for the purpose of the Recess Appointments Clause, recess is defined as the time in between sessions of Congress.
1. Was the Senate “ in recess” under the Recess Appointments Clause when President Obama appointed three people to the Board on January 4, 2012?
2. Does the Recess Appointments Clause grant the President the power to fill only vacancies that occur during the official recess of the Senate?
ORAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument first this morning in Case 12-1281, the National Labor Relations Board v. Noel Canning.
Donald B. Verrilli Jr: Mr. Chief Justice, and may it please the Court:
The interpretation of the Recess Appointments Clause that Respondent urges would repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington, and going forward, it would diminish presidential authority in a way that is flatly at odds with the constitutional structure the Framers established.
Respondent simply has not advanced the compelling case that would be needed to strip presidents of their traditional authority to make appointments during intra-session recesses and to fill preexisting vacancies.
Chief Justice John G. Roberts: You say -- you say that it would repudiate the constitutionality of appointments.
You don't suggest that those -- the actions of those appointees would be invalid going back however far you want to go back, do you?
Donald B. Verrilli Jr: No, but they -- no, I don't, Mr. Chief Justice, but it certainly would repudiate the legitimacy of those appointments.
Justice Sonia Sotomayor: Why not?
Justice Ruth Bader Ginsburg: How did it -- how did it affect the -- how many board decisions will have to be redone, or how did -- how is the board coping with that problem?
Donald B. Verrilli Jr: Well, there are many dozens of board decisions and, perhaps, many hundreds of board decisions that are under a cloud as a result of the D.C. Circuit's ruling in this case.
And so, the board will have a considerable amount of work to do in -- if the D.C. Circuit's decisions were to be affirmed.
Now, there would be issues about waiver, there'll be issues about whether there -- there is authority sufficient to justify what the board did under other circumstances or apparent authority argument.
So that would all have to be sorted out with respect to the board's--
Justice Sonia Sotomayor: What would happen, under the reasoning of this case, what would happen to the decisions of recess-appointed judges?
Donald B. Verrilli Jr: --Well, I think that--
Justice Sonia Sotomayor: Of which there's been quite a few.
Donald B. Verrilli Jr: --I think that would be a very serious question, Justice Sotomayor, and I think it does point up the -- the difficulty with the position Respondent is urging.
Justice Antonin Scalia: Well, surely, you would -- you would argue the de facto officer doctrine.
Donald B. Verrilli Jr: Yes, we would.
Justice Antonin Scalia: Of course you would.
Donald B. Verrilli Jr: Yes, we would.
Justice Antonin Scalia: And we've applied that in innumerable cases.
You don't really think we're going to go back and rip out every decision made.
Donald B. Verrilli Jr: Well, I would certainly hope not, Your Honor, but it certainly casts a serious cloud over the legitimacy of all of those actions.
And it does point up the fact that the recess power, including appointments during intra-session recesses and to fill preexisting vacancies has been used to fill offices of great importance.
Justice Antonin Scalia: You started off by saying, you know, it would -- it would repudiate so many actions that have been taken.
I have a very, very stark question: Suppose I agree with the court of appeals that the only -- the only interpretation of -- of the Constitution is that the vacancy must have arisen during the recess, just by hypothesis.
I agree with that, okay?
What do you do when there is a practice that -- that flatly contradicts a clear text of the Constitution?
Which -- which of the two prevails?
Donald B. Verrilli Jr: Now, I think the practice has to prevail, Your Honor, but I do -- and I--
Justice Antonin Scalia: So if you ignore the Constitution--
Donald B. Verrilli Jr: --But I don't think--
Justice Antonin Scalia: --often enough, its meaning changes?
Donald B. Verrilli Jr: --But, Your Honor, of course, in this situation, the meaning of the clause with respect to the timing of -- of the vacancy has been a matter of contention since the first days of the Republic.
Justice Antonin Scalia: Now, you're -- you're questioning my hypothesis.
You have to accept my hypothesis.
Donald B. Verrilli Jr: Well, I think I've answered the question accepting your hypothesis, but I think--
Justice Antonin Scalia: Let's assume that the text is clearly against you.
Should I say, oh, yes, it -- it says something else, but the practice for over 200 years has been something different and it's the practice that must prevail.
Donald B. Verrilli Jr: --Well, the practice has started with George Washington, and it has worked through the--
Justice Antonin Scalia: Yes or no?
Donald B. Verrilli Jr: --I think -- I think I've already answered that.
Justice Antonin Scalia: Does the practice prevail over the clear text--
Donald B. Verrilli Jr: The practice gives meaning to the -- the practice gives meaning to the Constitution--
Justice Antonin Scalia: --You're questioning my -- my hypothesis again.
Donald B. Verrilli Jr: --No--
Justice Antonin Scalia: I am assuming a clear text of the Constitution and a practice that is -- is contrary to it.
Donald B. Verrilli Jr: --It's extremely unlikely that would arise if the text were so free of doubt.
Justice Antonin Scalia: You do not want to answer my hypothesis.
Donald B. Verrilli Jr: --No, I am -- I am answering.
I think I already answered it once, Justice Scalia, but I'll answer it again.
The answer is I think, given this -- a practice going back to the founding of the Republic, the practice should be -- the practice should govern, but we don't have that here.
This provision has been subject to contention as to its meaning since the first days of the Republic.
Justice Samuel Alito: Well, let me ask you about the premise.
A vacancy is something that begins at a particular point in time and then it continues for some period.
And I was trying to think of some other things that might fall into the same category.
One would be an appointment to a Federal office.
So you were appointed as Solicitor General at a particular point in time, and the appointment continues.
Another example might be a marriage.
It happens at a particular point in time, and it continues for a -- a period of time.
Now, would we say that your appointment as Solicitor General is happening today and will happen again tomorrow and happened yesterday?
Is that the way the English language is used?
Donald B. Verrilli Jr: But the word “ happens ” may not always be an apt phrase, the phrase “ may happen ”, the constitutional phrase, but it is a natural use.
And if I may, Justice Alito, I'll give you a counterexample.
If Congress had enacted a statute in the summer of 2008 that said the Federal Reserve is invested with all powers necessary to deal with any financial emergency that may happen in 2009, if that emergency first arose in November of 2008 I don't think anybody would interpret that statute as denying the Federal Reserve the authority that Congress conferred.
And that's because “ may happen ” -- “ may happen ” won't cover every situation of a persisting state, but it's certainly a natural reading of it that covers some.
And as Jefferson said, it's certain -- in this context, it's certainly susceptible of being interpreted to mean--
Justice Ruth Bader Ginsburg: General Verrilli, we've taken you off your starting point.
Your starting point was what is it -- what constitutes a recess.
And your position is that it can be an intra-session recess.
But if we look back historically, Congress met and they met continuously.
And then they went on horseback back home and they were away for 6 months, even 9 months.
Today, there's nothing like that.
The inter-session -- the inter-session recess could be -- could be an hour.
So what do we do with that?
There was the vision of a long recess running for months and today, the inter-session recess might be momentary.
Donald B. Verrilli Jr: --So I think I have two points to make in response to the question of what to do.
The first one is that, with respect to the original understanding, we do think that the term “ recess ” and the phrase “ the recess ” certainly at the time of the founding did encompass recesses that occurred during a session of Congress, during a session of the legislature, and not just in between sessions of the legislature.
I would point the Court to Jefferson's Manual of Parliamentary Procedure, which describes a recess by adjournment as occurring within a session.
I would point to the Adjournment Clause itself, which says if the -- one house of Congress wants to take a break of longer than 3 days during the session, it needs the consent of the other house, which indicates that the Framers contemplated the possibility of a break longer than 3 days.
I would point the Court to the parliamentary practice of the House of Commons, where the speaker of the House of Commons had authority to call elections when a member died during the recess.
Justice Anthony Kennedy: Well, of course, Justice Ginsburg's question points out that your argument is, it seems to me, in search of a limiting principle.
A lunch break, a one-day break -- you've -- you've thought about this -- a 3-day break, a 1-week break, a 1-month break; how do you resolve that problem for us?
Donald B. Verrilli Jr: I think the -- the way we resolve that problem is by looking to the Adjournment Clause.
We think if it's a break that is sufficiently short, that it wouldn't require the -- wouldn't require the one House to get the consent of the other, but that's a de minimis recess and that's not a recess in which the President would have authority--
Justice Sonia Sotomayor: Is that 3 days?
Justice Anthony Kennedy: And what about the pro forma sessions, then?
They don't -- or correct me if I'm wrong.
They don't require the consent of the other house.
Donald B. Verrilli Jr: --Well, but the problem with the pro forma sessions, I think, Justice Kennedy, is in thinking about the length of the recess.
The recess, we would submit, and this is based on the formal dictionary definition of “ recess ” at the time of the founding and now, which is “ a suspension of business ”, the recess was from January 3 when the session started until January 23.
And the reason I think that--
Justice Anthony Kennedy: So -- so you think there's no recess during pro forma sessions?
Donald B. Verrilli Jr: --There is a recess.
And the reason is because the Senate has issued a formal order that no business shall be conducted and that's a formal--
Chief Justice John G. Roberts: Well, let's just talk -- let's focus on that.
What if, instead of saying “ No business shall be conducted ”, the order said,
"It is not anticipated that any business will be conducted. "
Does that suffice to eliminate that period as a recess?
Donald B. Verrilli Jr: --I think that it's a -- that's a different case and I think, concededly, a significantly harder case for the Executive because here--
Chief Justice John G. Roberts: Yeah.
Well, it's difficult and harder, but it also suggests that you're just talking about a couple of magic words that the Senate can just change at the drop of a hat.
So maybe the point is not that significant.
Donald B. Verrilli Jr: --Well, I think it is significant, Mr. Chief Justice.
It's a formal action by the Senate by rule saying that no business shall be conducted.
And then in addition, there are other formal actions that the Senate took during this period that are confirming indicia.
The Senate passed -- the Senate passed a resolution that gave committees the authority to submit reports and report bills.
They passed a resolution giving the -- the President Pro Tempore the power to sign enrolled bills.
Justice Elena Kagan: General, I think you're -- you're not answering the real thrust of the Chief Justice's question, which is that we could just be back here if we -- if we said, well, they didn't phrase this in the right way.
Well, they'll phrase it differently and we would be back here with the same essential problem, that you're asking us to peg this on a formality that the Senate could easily evade, and that suggests that it really is the Senate's job to determine whether they're in recess or whether they're not.
Donald B. Verrilli Jr: --I think there has to be a limit to that point, Justice Kagan, because, after all, what we're talking about here is a power that the Constitution gives to the President, the power in Article II.
And the President has got to make the determination of when there's a recess.
Justice Sonia Sotomayor: But why?
You're making an assumption, which is that the Senate has to take a recess.
But the Senate could choose, if it wanted to, and I think there might be some citizens that would encourage it to, to never recess.
Donald B. Verrilli Jr: Sure.
Of course, it could.
Justice Sonia Sotomayor: And -- and to work every day, which--
Donald B. Verrilli Jr: That's true.
Justice Sonia Sotomayor: --lots of people do.
Donald B. Verrilli Jr: That's true.
They could -- they could decide not to take a recess.
Justice Sonia Sotomayor: So--
Donald B. Verrilli Jr: That's absolutely true.
But -- but it seems to me that that is the choice that the Constitution puts--
Justice Stephen G. Breyer: So what do you say about the Twentieth Amendment, which says that that January 3rd was a meeting?
Are you saying they violated the Twentieth Amendment?
This says the Congress of the United States shall meet on January 3rd every year, unless they appoint a different day.
Donald B. Verrilli Jr: --Yes.
Justice Stephen G. Breyer: And they haven't.
And, therefore, they met in pro forma session.
Or do you think it wasn't a meeting?
And what do you think about the other part of the Constitution which says they can't adjourn for more than 3 days without the approval of the House, which they didn't have.
So are you saying that the Senate violated those other two amendments of -- the two parts of the Constitution, or are you saying that they have different meanings in the three parts?
Donald B. Verrilli Jr: I think our view is that it's hard to see how the -- what the -- what the Senate did with pro forma sessions complies with either and--
Justice Stephen G. Breyer: Okay.
So you're saying they violated.
But if that -- if they have pro forma sessions on January 3rd, they violate the Twentieth Amendment to the Constitution.
You are saying that if they had a pro forma session on January 3rd, that since their meeting -- their recess was still on and lasted more than 3 days, it was a violation of that Adjournment Clause of the Constitution.
Now, that's one way to interpret it.
Over a long period of time, they have apparently met pro forma on those days.
Or we could try to make them mean the same thing, which would mean it was up to the Senate.
They consider that a meeting, it's a meeting.
What do we do?
Donald B. Verrilli Jr: --Or there is another option, Justice Breyer.
Justice Stephen G. Breyer: Would you write that opinion, saying the Senate of the United States has violated two -- two provisions of the Constitution?
Donald B. Verrilli Jr: No, no.
I don't think you need -- I don't think you need to write that opinion.
Justice Stephen G. Breyer: All right.
Donald B. Verrilli Jr: Because you might, perhaps, give the Senate some deference with respect to requirements that apply only internally to the Congress.
But when what you're talking about is the Senate's use of pro forma sessions in a manner that deprives the President of authority that Article II would otherwise give--
Justice Stephen G. Breyer: Would it -- would it -- I mean, that's my basic question really.
Why is this an important case?
I see what you're saying on this one.
That's fine for an answer.
Donald B. Verrilli Jr: --So why--
Justice Stephen G. Breyer: What my really basic question is why is this an important case, in your opinion?
Now, you've said, oh, because there are thousands of recess appointments.
Not on the happen clause.
You've listed 7600 or so, really, on the recess part, but on the happen clause, you've only been able to find 102.
And moreover, we've had an example of -- where this Court, for better or for worse, said that two members of the board is not a quorum, and we got some more members, they dealt with the problem.
They ratified all those opinions, they dealt with it.
It didn't take them too much time.
So -- and we have different political parties taking absolutely opposite sides, it seems to me, or some members thereof, depending on the political party of the President.
And we have a clause that had to do with the Constitution and the problem of intra -- inter-session recesses when they were 7 months and nobody could meet.
Okay, that isn't true anymore.
So, explain to me.
I'm not saying you're wrong.
I just want to hear from your mouth why this is an important case?
Donald B. Verrilli Jr: --So it's important for multiple reasons with respect to practicalities and fundamental questions of constitutional structure.
Let me start with practicalities and with the happens point, the “ may happen ” point, that our appendix doesn't purport to be comprehensive or anything like comprehensive.
Part of the reason why it can't be comprehensive is that there really aren't records of when the vacancy first arose with respect to huge numbers of recess appointments, and that's because, I submit, it wasn't considered material.
But second, I can -- there are -- there are numerous practical examples in our history of when it made a very great deal of difference that the President had the authority to make an appointment to a vacancy that preexisted the recess.
We have mentioned the 1948 example; the secretary of labor dies on the verge of a very extended intra-session recess by the -- by the Senate.
They're going to be out for a month, back for 12 days, and then out all the way from June -- they go out in June, they're out for a month, they are back for 12 days, and then they're out all the way until December 31st.
The secretary of labor dies just in advance of them going out in June, and this is -- remember, 1948 is a period of significant labor unrest.
We needed a secretary of labor in place.
Justice Elena Kagan: General, would you agree that this clause now is not mostly used to deal with emergencies arising from congressional absence?
That most modern Presidents -- and I say this sort of going -- going back to President Reagan, Presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved?
You know, absence in this day and age -- this is not the horse and buggy era anymore.
There's no real -- there's no such thing truly as congressional absence anymore.
And that makes me wonder whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.
Donald B. Verrilli Jr: Well, two answers.
I don't think its original purpose has disappeared.
I mean, the NLRB was going to go dark.
It was going to lose its quorum.
Justice Elena Kagan: Yes, as a result of congressional refusal, not as a result of congressional action.
Donald B. Verrilli Jr: And that gets to the second point, which is that it may be true as a matter of raw power that the Senate has the ability to sit on nominations for months and years at a time, but that is 100 miles from what the Framers would have expected.
If you look at what Hamilton said in Federalist 76 about the advice and consent role of the Senate, he said he thought it would be a power that was rarely exercised and would operate, if at all, invisibly or silently.
And in the early days of the Republic, it was -- advice and consent was a matter of days.
Justice Samuel Alito: But you are making a very, very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the Senate is in session or not.
You're just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the President must be able to fill those -- fill those positions.
That's what you're arguing.
I don't see what that has to do with whether the Senate is in session.
Donald B. Verrilli Jr: Well, I do -- I think this -- I think the recess power may now act as a safety valve given that intransigence, and that is actually quite consistent--
Justice Ruth Bader Ginsburg: But it isn't -- it isn't tied then to the availability of the Congress, availability of the Senate.
I think you said throughout your brief that the rationale for the recess power is the President must be able to have the government functioning and staffed even though -- although the Senate isn't -- isn't around.
But now the -- you seem in your answers to be departing from the Senate not available and making quite another justification for this.
The Senate, I think to be candid, the Senate is always available.
They can be called back on very short notice.
So what is it that's the constitutional flaw here?
It isn't -- it isn't that the Senate isn't available.
The Senate is available.
It can easily be convened.
Donald B. Verrilli Jr: --So let me take a half a step back, if I could, Justice Ginsburg, and answer that question in this way.
You know, perhaps it sounds like this is an aggressive assertion of executive authority, but I'd ask the Court to think back to Federalist 51.
And what the Framers were most concerned about was that Congress, in the separation of powers calculus, was going to amass authority and drain authority and energy from the Executive, and therefore, the Executive needed to be fortified against those actions by Congress.
And one specific way in which the Framers decided to fortify the Executive was by rejecting the notion that the appointment power should reside with the Senate.
The Framers considered that and they rejected it.
And the reason they rejected it, as this Court noted in its Edmund opinion, was -- was to protect the Executive against encroachment by the legislature.
Chief Justice John G. Roberts: But the compromise they settled on in moving away from that is that the President will nominate and the Senate, if it so chooses, can confirm a nominee.
You spoke of the intransigence of the Senate.
Well, they have an absolute right not to confirm nominees that the President submits.
And it seems to me, following up on Justice Kagan's point, you're latching on to the Recess Appointment Clause as a way to combat that intransigence rather than to deal with the happenstance that the Senate is not in session when a vacancy becomes open.
Donald B. Verrilli Jr: Well, but those things -- there are often situations in which the Senate is not in session when a vacancy becomes open or needs to be filled, I guess would be the more accurate way to say it.
The examples -- I'll give you another example, if I could, from the 1940s.
Taft-Hartley gets enacted in 1947 in the summer.
One requirement of Taft-Hartley is that the general counsel of the NLRB must enforce the ban on secondary boycotts within a fixed period of time, 30 or 60 days.
Well, it turns out there is no general counsel of the NLRB at that time, so President Truman--
Chief Justice John G. Roberts: Well, if the Senate has -- the Congress and the Executive have come together to address those sorts of problems in a vast number of cases by providing that there can be an acting general counsel of the NLRB to deal with that situation.
Donald B. Verrilli Jr: --Well, actually, Mr. Chief Justice, with respect to multi-member boards, the Vacancy Act doesn't cover them.
That's one reason we have the problem here.
But beyond that, the Framers made a judgment that this wasn't going to be left to congressional largesse.
That's why there is a Recess Appointment Clause, and it's not left to the Congress.
Justice Antonin Scalia: Well, let's -- let's go to that 1948 emergency, the secretary of labor.
There was a vacancy in -- in that post.
The President has the authority to convene Congress.
And whatever was the case in 1948 or -- or in 1789, Congress can be back here in one day.
Article II, Section 3 says,
"He may, on extraordinary occasions, convene both houses. "
Donald B. Verrilli Jr: That's true, Justice Scalia.
Justice Antonin Scalia: So what's the problem?
If there is indeed this, you know, this terrible emergency you're talking about, the President has the power to call them back.
Donald B. Verrilli Jr: --Well, I think it seems to me the Framers made a different judgment, because they gave the President both the power to call back in extraordinary circumstances and the recess appointment power.
And if the Framers had intended the power to call back to be the way to deal with vacancies during absences of the Senate, then--
Justice Antonin Scalia: Yes, but my only point is what -- what the recess appointment power consists of cannot be determined on the basis that, well, there are going to be terrible emergencies, so it must enable the President to do this or that.
Extraordinary emergencies are handled in the Constitution.
You don't have to expand the -- the vacancy appointment power in order to handle those.
Donald B. Verrilli Jr: --So, what I would say about this, and also to your point, Mr. Chief Justice, is we have, I would submit, a stable equilibrium that has emerged over the course of this country's history between the two branches.
After all, what we are advocating for here is the status quo.
It is the equilibrium that has emerged since Congress -- since the Senate started taking lengthy intra-session recesses, Presidents started making recess appointments during those recesses.
That began in the Civil War days.
It's continued to the present.
Justice Elena Kagan: General, I think that's a really strong argument, but I have to say I'm not sure it applies consistently throughout each of the three claims that you make.
Because if you are going to rely on history and on the development of an equilibrium with respect to what “ happens ” means, and if you are going to do that again with respect to whether intra-session recesses are included, then it seems to me you also have to look to history and the development of an equilibrium with respect to Congress's definition of its own power to determine whether they are in recess or not.
In other words, your third argument about pro forma sessions, the history is entirely on the Senate's side, not on your side.
And if we're going to take a kind of continuing practice and the development of equilibrium seriously, you might win on questions 1 and 2 and then lose on question 3.
Donald B. Verrilli Jr: --Well, winning on questions 1 and 2 would be of great importance to the Executive, but we also should win on question 3, and here's why: There isn't a long history reflecting equilibrium with respect to the use of pro forma sessions in order to restrict the President's ability to use the recess appointment power.
There really is no history before 2007 of this daisy chaining of one pro forma session after another after another in conjunction with an order that no business shall be conducted.
Justice Samuel Alito: Well, there's no practice -- there is no long practice of doing it.
There is also no long practice of rejecting it.
But if I could take you back to that, you said that the pro forma sessions may violate the Adjournment Clause in the Twentieth Amendment.
Would you also say that they violate the Presentment Clause, because the Senate has passed legislation during these pro forma sessions and the President has signed that legislation.
Donald B. Verrilli Jr: No, we don't.
I think the right way to think about that is the same way that you would think about if the Senate declares that it's in recess from August 1st until September 15th and then comes back early because an emergency has happened, for example, with Hurricane Katrina.
Once they are back in doing business, they are doing business.
Now, what the Senate did with respect to the legislation Your Honor identified was they came out of pro forma session, they passed legislation, and then went back in to -- they went back in under the order of pro forma session.
So they take that action--
Justice Anthony Kennedy: But it seems -- it seems to me that we're searching here for a proper interpretation of the word “ session ”, which, after all, is in the provision that we are looking at.
It talks about “ next session ”.
And we have a long tradition of Congress defining what that session is.
They have the first -- this is, what, the 113th Congress?
I think something like that.
And they have the first and second session.
That's how their records are based.
This is a considered judgment by both houses of the Legislative Branch as to what “ session ” means, and it seems to me that that has very powerful bearing on the question of inter and intra-session appointments that we are arguing, forget the -- when the vacancy happens to arise.
And so why don't -- why don't we defer to Congress as to what the term “ session ” means and say that this gives us guidance as to when the -- there is a recess.
There is a recess between those sessions.
Donald B. Verrilli Jr: --I don't think that that's an interpretation that really can be squared with the body of contemporaneous evidence from the time of the framing.
And I would start with the text of the Constitution itself and the Adjournment Clause, which is at page 91a of the appendix to our brief.
And it -- one thing it says is that
"Neither house during the session of the Congress shall, without consent of the other, adjourn for more than 3 days. "
It seems clear from that language that “ the session of the Congress ” is referring to the period that commences on the constitutionally prescribed date and continues until the Congress adjourns sine die, because otherwise these recesses wouldn't be during the session of the Congress.
It's also clear from this language that the framers at least contemplated the possibility of breaks longer than 3 days within sessions because they provided a mechanism to get permission to do it.
Justice Samuel Alito: But where does this 3-day rule--
Justice Anthony Kennedy: But you are relying on adjournment.
That -- that -- that does not have the word “ recess ”.
Donald B. Verrilli Jr: No, that's right.
But I'm going back now to think about what “ session ” means in the Recess Appointment Clause where “ the session ” is also used.
I would submit, Your Honor, that it means the same thing as it means here, which is the full session of the Congress.
Justice Sonia Sotomayor: --If it means the same thing, then you are tying the two together, which actually might have some validity.
But wouldn't that require the definition of a recess to be a period in which both houses have chosen to consent to an adjournment?
Donald B. Verrilli Jr: No, I don't think so, because the dictionary definition then and now of recess is a suspension of business.
And you could have recesses of that kind, suspensions of business within sessions.
That's -- Jefferson's parliamentary manual refers to recess by adjournment--
Justice Sonia Sotomayor: Can you have an adjournment without a suspension of business?
Aren't the two the same?
Donald B. Verrilli Jr: --Well, I'm just talking now, Justice Sotomayor, if I may, about the intra-session recess point.
Justice Sonia Sotomayor: But I'm talking about tying the two together.
Donald B. Verrilli Jr: Right, but with respect to -- putting the pro forma issue aside for a second, with respect to intra-session recesses, the meaning of the “ session ”, it seems to me, is the session, the full session, because you can have -- you can have recesses by adjournment, as Jefferson's parliamentary manual said.
And as I think I said earlier, there is quite substantial evidence that the term “ the recess ” at the time of the framing could refer to a break during a session and not just breaks between sessions.
So I just don't think there is contemporaneous evidence from the framing generation that would lead you to conclude that intra-session recesses are not within the meaning of the word “ recess ”.
Justice Anthony Kennedy: Well, where is this--
Justice Stephen G. Breyer: The most surprising thing to me that you have said, and it's important, is not just the view of language at the time of the framing, but what the purpose of this clause was.
I mean, this is a very well-briefed case, and I have looked at them.
I have read them, actually.
Donald B. Verrilli Jr: Okay.
Justice Stephen G. Breyer: I cannot find anything, so far, and I may have missed it -- I'm asking -- I can't find anything that says the purpose of this clause has anything at all to do with political fights between Congress and the President.
To the contrary, Hamilton says that the way we're going to appoint people in this country is Congress and the President have to agree.
Now, that's a political problem, not a constitutional problem, that agreement.
And it was just as much true of President George Bush, who made six appointments that happened previously, as it is with President Obama, who's made four.
So -- so where -- and he says this clause is a supplement, a supplement, to the basic clause to take care of the timing problem.
So, what have I missed?
Where is it in the history of this clause, in its origination, that it has as a purpose to allow the President to try to overcome political disagreement?
Donald B. Verrilli Jr: I don't -- I don't think that that's -- I don't think that that -- I don't think that's its purpose, but it is in the Constitution.
The President has the authority to make appointments--
Justice Stephen G. Breyer: Well, if it isn't a purpose, can you give me an example where the language, particularly that word “ happen ” -- I mean, your example is a good one but I don't think it applies, but that's a different matter.
I can't -- the language is over here.
The number of appointments on “ happen ” is few.
If you are worried about James Tobin, Congress has passed a law that can be taken as looking at a vacancy occurring when it occurs within 30 days of the beginning of the recess, which would have taken care of Tobin.
So look at the language difficulty.
Look at the comparatively small practice in that area.
Look at the other ways to get around the problem, and then give me another example in the Constitution where you have both language and purpose pointing one place and yet this Court because of practice has come to the opposite conclusion.
Donald B. Verrilli Jr: --Well, I don't think that language points unambiguously in one direction.
Justice Stephen G. Breyer: “ Happen ”?
Of course battles happen.
That's because battles occur over time.
Give me an example with the word “ vacancy ”, where that word “ vacancy ” is used with the word “ is ” but not “ occurred ”.
Donald B. Verrilli Jr: A vacancy is an enduring state, and from the perspective of the--
Justice Stephen G. Breyer: But just give me an English example from its natural--
Donald B. Verrilli Jr: --I tried with my statutory example before, but from--
Justice Stephen G. Breyer: --Your statutory example has to do with a battle, not a vacancy.
Donald B. Verrilli Jr: --No, it was about an emergency.
It was the statutory example about a financial emergency that may happen, which is state, just like the vacancy.
Justice Stephen G. Breyer: A financial emergency, correct.
I'm asking you for an example with the word “ vacancy ”.
That's what I am having trouble with.
Donald B. Verrilli Jr: Well, a vacancy is an enduring state.
From the perspective of the--
Justice Stephen G. Breyer: I'm not talking about -- I just say, could you find an example, and I'm gathering from my answer you couldn't.
Donald B. Verrilli Jr: --Well, I think--
Justice Stephen G. Breyer: And -- and I couldn't either.
Donald B. Verrilli Jr: --Your Honor, maybe this statutory -- maybe the language in the Constitution looks unambiguous to you now, but it has been the subject of contention, it has been thought to be ambiguous from the time of George Washington to the president -- to the present.
And with respect to the question of the practice and there being -- I don't think it's correct to assume that because there are a certain number of identified examples of preexisting vacancies being filled in our appendix, that that's the sum total.
I think this is far, far less than the sum total.
Justice Antonin Scalia: Let me -- it's been assumed to be -- it's been assumed to be ambiguous by self-interested presidents.
Death is an enduring state.
But if someone dies in 1941, you don't say he died in 1945.
He's still dead.
Donald B. Verrilli Jr: The fact -- the fact that -- the fact it happens--
Justice Antonin Scalia: But his death happened in 1941.
Donald B. Verrilli Jr: --But the fact that “ may happen ” is a phrase that isn't always apt to describe an enduring state.
It doesn't mean it's never apt to describe an enduring state.
It's what Jefferson thought.
It's what -- it's -- it has been the understanding since the framing that there is ambiguity here and there--
Chief Justice John G. Roberts: Your -- it's your argument -- your friend on the other side says one flaw with your argument is that it makes the words “ it may happen ” or “ happen during ” superfluous, that the clause would mean exactly what you say it means if you took those words out.
And your response, the only one I could see on the reply -- your reply brief, page 13, is that those words were put in there to quote,
"Confine the President to filling vacancies that actually exist at the time of appointment. "
Now, is that -- did you really think that they put that language in there because they were afraid the President would fill appointments that don't exist?
Donald B. Verrilli Jr: --I don't know why they put the language in there, Mr. Chief Justice, but it doesn't -- it isn't superfluous because it does serve that function, whatever their intent.
Justice Stephen G. Breyer: One reason they could have put the language in is because they were afraid otherwise the president would have the power, simply, when somebody died two or three years before and they've had a big fight in Congress to save up all the controversial nominations and then put them through as recess appointments.
That could be one thing they didn't want to happen.
I don't know.
You see, it's the same problem.
Justice Ruth Bader Ginsburg: You do have -- you do have the one that you relied on in your brief, and this understanding goes back at least to 1823, and the -- the Wirt letter, Attorney General Wirt said, on the wording -- maybe on the wording, the case is not strong.
But the purpose, he said, you would be honoring the letter and defying the spirit.
That was the -- on the question of the -- when the vacancy--
Donald B. Verrilli Jr: And we don't disagree with that.
We think it's just what Wirt said.
It's -- does no violence to the language and is consistent with the purpose of the -- of the clause.
And from the -- from the perspective of the purpose of the clause, the office is equally vacant, whether that vacancy arose the day before or the day after the Senate went into recess.
The Senate is equally unavailable to act because they're dispersed, whether the vacancy arose the day before or the day after.
And the public's need that the office be filled so that the laws can be faithfully executed is the same whether the vacancy arose the day before or the day after.
Justice Ruth Bader Ginsburg: --Before you -- before you--
Donald B. Verrilli Jr: And so we do have that very established practice that is completely in accord with the purpose and the structure.
Justice Ruth Bader Ginsburg: --The -- we sort of drifted away from the new -- the new practice, the pro forma session.
And you were asked, suppose there was nothing in the resolution about they would conduct no business.
It was an informal understanding that they wouldn't.
But there is no express agreement that they're not going to conduct business.
Then do you lose on that part of the case?
Donald B. Verrilli Jr: I think that's a way harder case for us.
I would agree with that, Justice Ginsburg, and -- but they're two things.
One is that formalities do matter; and two, going back to the point you made earlier, Justice Kagan, I think it's not an accident that there's a no-business order in place.
It's because that's what gives the Senators the protection to know that they can leave town without somebody else going to the court and saying to conduct business.
Justice Elena Kagan: Suppose it was -- suppose it was the exact same no-business order, but the single senator who was there got up and asked for unanimous consent to name a post office, and every three days, he got up and said unanimous consent to name a post office.
The post office is named.
So they can do, you know, trivial business in each of these sessions.
Would that make a constitutional difference?
Donald B. Verrilli Jr: Well, I think if they did business each of the three days, then you wouldn't have a situation in which no business was conducted and you wouldn't meet the definition of a recess.
But that's a different case than this one.
Justice Elena Kagan: But that, again, suggests that the rule that you're asking us to establish is -- is so easy to evade that why bother establishing it at all.
The fact that it's so easy to evade suggests that this really is -- the question of how to define a recess really does belong to the Senate.
Donald B. Verrilli Jr: No, I think the problem with looking at it that way, Justice Kagan, is that that's the end of the recess appointment power.
You write it out of the Constitution, if you look at it that way, because all the Senate needs to do is stay in pro forma session until 11:59 a.m. on January 3rd when that term ends and the next term starts and then there are no intercession recesses--
Justice Elena Kagan: I totally take your point on that.
But what I'm suggesting is they can just come back, and by naming post offices, have the same effect, that they would write it out of the -- of the Constitution as much as you say this does.
Donald B. Verrilli Jr: --Well, this does.
And whether something else might or might not, I guess we could try to fight that out if the Senate were ever to do it.
But I assume, if this Court were to hold that pro forma sessions of this kind are not real and they don't defeat the President's recess appointment power, that maybe the Senate would think twice before doing something like that.
Justice Samuel Alito: --Well, what is significant is whether they're available to confirm nominees; isn't that right?
Donald B. Verrilli Jr: Yes.
Justice Samuel Alito: So suppose they say, instead of no business will be conducted, no nominations will be considered.
Donald B. Verrilli Jr: That would be a different case because they would be--
Justice Samuel Alito: Well, I know it would be a different case, but--
Donald B. Verrilli Jr: --they would be there -- they would be here.
You know, they're not -- they're in business for something.
Justice Samuel Alito: --So what?
The point of the question is whether they're available to consider nominations.
So if they say, we'll do other business, but no nominations will be considered, why isn't it exactly the same for purposes of the Recess Appointments Clause?
Donald B. Verrilli Jr: It's not, because the recess -- or the definition of recess is when no business shall be conducted.
And that's exactly what the Senate said.
If I may reserve the balance of my time.
Chief Justice John G. Roberts: Thank you, General.
ORAL ARGUMENT OF NOEL J. FRANCISCO ON BEHALF OF THE RESPONDENTS
Noel J. Francisco: Mr. Chief Justice, and may it please the Court:
The Advice and Consent Clause imposes an important check on executive power.
Each of our three arguments preserves that check, and provides a separate and independent basis for affirming the court below.
The government's position, in contrast, would eviscerate that check, creating a unilateral appointment power available for every vacancy at virtually any time with advice and consent to be used only when convenient to the President.
Justice Ruth Bader Ginsburg: But your argument would destroy the recess clause.
There would be -- under your argument, it is totally -- totally within the hands of the Senate to abolish any and all recess appointments.
Noel J. Francisco: Yes, Your Honor.
And that reflects the fact that the recess appointment power is a contingent one.
It arises only when the Senate chooses to trigger it by ending its session and beginning its recess.
So the Senate always has the power to prevent recess appointments.
The Constitution, however, gives the President corresponding powers.
If the President thinks that the Senate is being derelict in its duties, he can convene an emergency session, and he can force the Senate to consider his nominees.
And if they refuse, he can subject them to withering criticism for being derelict in their responsibilities.
But one -- the one thing that the President may not do is force the Senate to act against its will, nor should the President be permitted to do -- and run around the Senate's refusal to act, because that conception of the Recess Appointments Clause is at war with advice and consent itself.
Justice Samuel Alito: Can I ask you a variant of the question that Justice Scalia asked General Verrilli.
Suppose we think that the language in the Constitution is perfectly clear in some respect, but that there is a 200-year-old consistent practice, agreement by the President, going back to Washington and by the Senate that the language actually means something else.
What would we do in that situation?
Noel J. Francisco: Your Honor, I think that the language has to govern.
And I would like to address the issue about the consequences of a ruling in our favor in this case.
Of course, if you were to rule on the third question presented, it wouldn't call into question any past recess appointments at all, given the unprecedented nature of the appointments at issue in this case.
But, frankly, if you ruled on the first two questions, I don't think it would be particularly disruptive in terms of calling it a question, the decisions of past appointees.
Justice Sotomayor, to take the Article III courts, for example, since 1960, there have only been four potentially improper appointments to the Article III court's recess appointments.
Each of them served approximately a year or less.
Three were to the court of appeals, one to a Federal district court judge in 1981.
Justice Elena Kagan: Mr. Francisco, I'm sorry, but could we go back to Justice Alito's question, because I really have the same issue with your argument.
You know, suppose that on one -- let's say the “ happens ” argument, that yours is at least the most natural reading of the statute, at least the way we understand the word “ happen ” today, and maybe a compelled reading, but the history points so much in the other direction; and that that history brings with it a whole set of practices and traditions and ways of dealing with each other that has grown around a certain interpretation of what “ happens ” means, right?
The idea that we would wake up one fine morning and chuck all of that because all of a sudden we happened to read the clause, I mean, that at least needs to be defended.
Noel J. Francisco: Yes, Your Honor, and I believe that the relevant history actually supports us, that is the history at the time of the founding.
Justice Elena Kagan: I know, but now, you're -- you're again -- I mean, assume that there is a 200-year-old established practice, everybody has agreed to it, but the text, when you really look at it, points the other way.
Noel J. Francisco: Yes, Your Honor.
I would dispute the premises, but I will accept the premises for the purposes of the question.
The political branches of the government have no authority to give or take away the structural protections of the Constitution.
They don't exist to protect the Senate from the President or the President from the Senate.
These are liberty-protecting provisions that protect the people from the government as a whole.
So if the Constitution is quite clear as to what those structural protections are, but the political branches, assuming for the sake of argument, have conspired to deplete them, that is illegitimate, and it should be rejected by this Court.
Justice Sonia Sotomayor: But that -- but that assumes something, which is--
Noel J. Francisco: Yes, Your Honor.
Justice Sonia Sotomayor: --let's go back to the “ happenings ” words -- that is so unambiguous, that they knew it was unambiguous, but 200-year history, starting with President Washington, who filled two vacancies that occurred before the Senate broke, to every -- almost every President thereafter has done the same.
So why should we conclude that today's understanding is the same as the understanding of the Founding Fathers?
Why don't we take their unbroken practice as giving us that definition?
Noel J. Francisco: Yes, Your Honor, a couple of different responses.
First of all, we dispute the government's historical account of President Washington's and the first four Presidents' position -- actions.
But even putting that aside here, everyone who actually spoke to and addressed the issue at the time agreed that the text means precisely what it says, including President Madison, who refused to make a recess appointment to Andrew Jackson, the hero of the War of 1812, precisely because the vacancy had arisen during the Senate's session and in its recess.
Second, we also don't have an unbroken and never contested practice.
Indeed, the Senate has regularly resisted.
In 1863, the Senate passed the Pay Act, which prohibited pay to any appointee to a preexisting vacancy.
So you don't have a kind of uniform -- uniformly-held practice.
Justice Anthony Kennedy: Let me ask you this.
Suppose that we were to conclude that the history is simply too overwhelming to rule in your favor on the “ happens ” problem.
Could we still use history to say that -- or overlook history to rule for you on the inter/intra-session point?
Noel J. Francisco: Yes, Your Honor.
Justice Anthony Kennedy: How do we do that?
Noel J. Francisco: From the time of the founding--
Justice Anthony Kennedy: Is it because of the 80 years or?
Noel J. Francisco: --I think it's longer than that.
From the time of the founding until, I would say, 1948, there was a uniform understanding that the recess and the session as used in the clause were interchanging periods.
You were either in recess or you were in session.
And so an appointment made during the recess lasted until the end of the next session.
Now, in 1921 Attorney General Doherty's opinion kind of muddled things a bit because he assumed that if you took a long break in the midst of a long session, it broke that break into two recesses for the purposes of the Recess Appointments Clause.
But you still had that dichotomous view subject to the arguable and quite ambiguous exception of President Andrew Johnson.
So what you see is from the time of the founding until 1921 there were some 63 mid-session breaks, all longer than 3 days, so all recesses under the government's definition.
Yet during that entire period, with the arguable exception of Andrew Johnson, no President ever attempted to make a recess appointment.
Justice Elena Kagan: Mr. Francisco, tell me if I am wrong about this, but it seems to me that intra-session recesses really only arose in the 1940s or so, right?
There is the period with Andrew Johnson and Andrew Johnson used intra-recess -- intra-session recesses to make a lot of appointments.
Other than that, intra-session recesses of more than 3 days that are not Christmas simply do not exist.
So that assume that as intra-session recesses came to be Presidents started making appointments in them.
Noel J. Francisco: Let me address it this way.
I'm not sure I agree with the factual understanding, Your Honor.
There were intra-session recesses longer than 3 days prior to 1867.
I think there were some 10 of them prior to 1867, including 7 that were longer than 10 days.
And bear in mind, yes, they were Christmas recesses, but so were the ones at issue in this case.
They were Christmas recess appointments.
But I do take your point that intra-session recess appointments did not become very common, or I should say it this way: Intra-session recess appointments did not become very common until -- really they started with Truman, but then they broke off for a long time with three Presidents, Johnson, Kennedy, and Ford, making no mid-session recess appointments.
Then beginning in the Carter and the Reagan Administrations is when they became very common and particularly a very common way to do an end-run around advice and consent.
Justice Stephen G. Breyer: What happened in that period at around 1970 is that's about the first time that you have intra-session -- an intra-session recess that's longer than an inter-session recess.
And so now if we look from 1970 on, that's fairly common.
And so all that's happening is that the Presidents are appointing recess appointees during periods where they are out for a longer time.
Now, how are we supposed to go and say that this thing -- thousands of people on the recess part -- is unconstitutional?
I mean, it isn't unheard of.
What about the Due Process Clause?
Does that easily cover the language?
Substantive due process?
What about the Interstate Commerce Clause and the doctrine of, you know, the Implicit Clause there?
I mean, it isn't unheard of that over time language in the Constitution takes on a somewhat different meaning.
Noel J. Francisco: Yes, Your Honor.
Justice Stephen G. Breyer: How do we -- I mean, probably different judges have different approaches.
But if I'm concerned about the basic practicality and the basic objective here, why would I agree with you?
Noel J. Francisco: Yes, Your Honor.
I certainly am not going to attempt to purport to resolve this Court's differences on those issues, but on--
--unless you are not going to let me off the hook, Your Honor.
Justice Antonin Scalia: The two examples that Justice Breyer gives are examples where we gave it a meaning that was different from what it said.
We don't have a case involving this particular issue yet.
Noel J. Francisco: That's precisely correct, Your Honor.
And it reflects the fact that the Recess Appointments Clause and the Appointments Clause and all of the structural protections, again, are not meant to protect the branches against one another.
Justice Stephen G. Breyer: What if I do place more weight on this?
Should we -- I mean, I do believe and agree with you on this point that this is basically a matter of politics for other branches basically.
That doesn't help me resolve this.
But it does lead over to this possibility.
Congress did pass the No Pay Act.
Then it passed the Pay Act.
And in that Pay Act on this “ happen ” part, which I think is the strongest -- very strong for your side, but it defines the vacancy in terms of 30 days prior to the recess.
That would take care of most of these.
You see, if vacancy could be defined as something that stretches, because Congress says it stretches in terms of pay for 30 days.
Noel J. Francisco: Right.
Justice Stephen G. Breyer: What do you think of that?
And I would love to know what the SG thinks of that.
Noel J. Francisco: Yes, Your Honor.
A couple of different responses.
First, of course, the third question calls into question no past recess appointees, the third question.
Justice Stephen G. Breyer: The third question, by the way, and I just put in your mind, if you digress in your answer, put in your mind what would have happened in 1830 if someone, when they had a 9-month recess, close to 10 months, someone had the bright idea, well, you live near Washington; go show up at wherever we are holding our sessions and sit there for 5 minutes, and we'll stop President Andrew Jackson from making recess appointments.
What would we be saying then?
Noel J. Francisco: Sure.
Well, I will put my finger on that question and answer your first question first as to the Pay Act in 1940.
The Pay Act of 1940, in our view, clearly repudiates the government's inter-session view for the reason you put your finger on.
It ties pay to appointments being made either right before or after the session ends.
So most mid-session recess appointees can't get paid under the Pay Act.
With respect to the second question presented, at best it creates three exceptions to the general rule against any pay to any preexisting appointees, so you have got somewhat of a compromise.
I would say that is no more Senate acquiescence in the President's position than the President's acquiescence in the Senate's position when he signed that law.
So to me that's a jump ball.
Coming back to your historical example, I think it reflects the fact that the Recess Appointments Clause is not about timing, it's not a temporal issue; it's about procedure.
What it does is it creates a contingent power that arises when the Senate decides to trigger it.
Back at the time of the founding, the senators wanted to trigger that power.
It was important to trigger that power, because when they were gone, the president needed to be able to act unilaterally, unless they wanted to be subject to a recall in emergency sessions every time he needed to confirm nominees.
They obviously didn't want that.
Today, the situation has changed; not the principle, but the historical context.
And today, the Senators can get back to Washington, D.C. very easily.
They are there for much less--
Justice Ruth Bader Ginsburg: Suppose -- suppose we have an inter-session break.
It's three days.
On your reading of the Recess Clause, in that three days, the president can fill up vacancies.
Noel J. Francisco: --Yes, Your Honor, because under the second question presented, there would not be very many vacancies in that context, because the vacancy would have to--
Justice Ruth Bader Ginsburg: Well, leave out this second question.
Just on -- on the first question, because it seems to me if the rationale was when Congress was out of town for 6, 9 months, of course, the president has to be able to make the government work.
But now you're saying that in that time, it's only three days, they are going to be there available very soon to confirm.
And let's say somebody -- somebody dies on day 1.
The president puts in -- makes an appointment on day 2.
You would say that's okay?
Noel J. Francisco: --Yes, Your Honor, but I -- first of all, I'd say I don't think you can really separate it from the second question presented because that's why -- it explains why it wouldn't have been much of a problem.
Very few vacancies would arise during a 3-day break, and so there wouldn't be that much of an opportunity to make those kinds of appointments.
Let's put that aside.
Let me assume you reject my argument on the second question presented.
Then you're really in the world of the 1905 Senate report when they were dealing with President Roosevelt's midnight recess appointments, where he made them in-between gavel drops.
If you reject their argument on the second question, then I do think that you may need to confront the notion that an inter-session recess is too short to make recess appointments.
Not at issue in this case, because here the appointments came on January 4th, the day after Congress commenced the second session.
So by anyone's definition, this was an intra-session recess appointment, not an inter-session recess appointment.
And all of this really reflects the fact that the Recess Appointments Clause is a contingent power that arises only when the Senate triggers it, which is what gives the Senate the power to prevent the president from making recess appointments.
If I could turn back to the consequences--
Chief Justice John G. Roberts: Well, before you do so, I mean, is the Senate's power, in your view, so comprehensive that if they passed an order saying, we're actually never in recess, people can be reached, you know, we can call people back.
So for purposes of the Recess Clause, we are never in recess.
Noel J. Francisco: --Your Honor, under the first question presented, I think the answer is, yes, they could do that, because it really is the Senate's ability to trigger the power.
It's -- in a sense, the Recess Appointments Clause is of a piece with the Inferior Officer's Clause.
The Senate always has the power of advice and consent, but what the president can do -- what the Senate can do is authorize the president to act unilaterally in certain circumstances.
It can authorize the president to act unilaterally with respect to inferior officers and it can authorize the president to act unilaterally in certain time periods where it ends its session and begins its recess.
So it's always within the Senate's power.
And that's precisely why advice and consent serves as an important check.
On the third question presented, I think -- where you're deciding whether or not a session is a real session, then, no, I don't think the Senate could do that.
I think that it's for the Court to look at the Senate's journal to see what the facts are, and those facts must be taken by this Court as undisputed.
So if those facts show that there was a Senator who actually gaveled them into session each day, and that during that period they were capable of conducting business, as they were here at every session that they held every three days, then this Court would have to take those facts as a given.
Justice Sonia Sotomayor: Could you -- could you tell -- let's go back to this.
What's your definition of a recess?
When the Senate actually says we're taking a recess--
Noel J. Francisco: Yes, Your Honor.
Justice Sonia Sotomayor: --whether it got the consent of the House or not?
Noel J. Francisco: It's when the Senate -- again, it depends on which question you're talking about.
On the first question presented, the recess of the Senate is the period between when the Senate says that it is ending its session through an adjournment sine die, and the period when it begins its next session, as the clause says.
Justice Sonia Sotomayor: Does it have to do that?
By what command does it have to do that?
Noel J. Francisco: Sine die?
Justice Sonia Sotomayor: Yes.
Noel J. Francisco: It does not--
Justice Sonia Sotomayor: No.
Sine die or any--
Noel J. Francisco: --It does not have to adjourn sine die.
That, though, in this country, is the way that the Senate has traditionally signaled to the president that it was ending its session.
And I think that's what it would have to do.
Justice Sonia Sotomayor: --Does it need the consent of the House to do that?
Noel J. Francisco: Yes, Your Honor, it does.
Justice Sonia Sotomayor: So -- so does it have to do that in between the two congressional sessions?
Noel J. Francisco: I don't -- I think -- no, I don't think it has to.
I think the Senate can adopt its own rules for determining how it ends its session and how it begins a new one.
I think the important point, though, is it has to communicate that to the president.
So, for example, during President Madison's time, the tradition was the Senate would dispatch a committee to the president to inform this president that it had ended its session.
So the president now knew that it was in recess and the powers that imbue upon the president during that recess had been triggered, the recess appointment power.
Here, ruling on our -- in our favor on the third question would, of course, call in the question no past appointees.
But I would like to--
Justice Samuel Alito: On the first question, does your argument depend on the fact that -- on the assumption that the -- the possibility of a lengthy intra-session break was never even contemplated by those who framed and -- and ratified the Constitution?
Because if they had thought about that, there's a real chance the Senate may take a two-month break--
Noel J. Francisco: --Right.
Justice Samuel Alito: --over Christmas.
Would there be any reason why they wouldn't have wanted the recess appointment power to apply there as well as at the end of the session?
Noel J. Francisco: Your Honor, our argument does not turn on that because to us, it is not a temporal question; it's a procedural one.
Back then, the Senate had the power not to trigger the recess; just like today, it has the power not to trigger the recess appointments power.
The difference is not in principle; it's in historical context.
At the time of the framing, they wanted to trigger the recess appointments power because when they left during long periods of time, they wanted the president to be able to act unilaterally since it was very difficult for them to get back.
And if they didn't trigger the power, the only way the president could act unilaterally would -- the only way the president could confirm nominees would be by convening an emergency session.
The historical facts today have changed.
Not the principle, but the surrounding facts.
And today, it is very easy for the senators to get back to Washington, D.C., and so they don't want to trigger a unilateral power.
They're perfectly willing to be hailed back if necessary.
Justice Samuel Alito: I'm -- I'm not sure I understand the answer.
If the purpose is to permit the president to fill vacancies when the Senate is unavailable to consider nominations and the country would be harmed by having these offices vacant for a period of time, why would that not apply to any lengthy break, whether it's at the end of the session or in the middle of the session?
And so if you're arguing that it only applies at the end of the session, doesn't that depend on the assumption that they never thought about the possibility that there would be a lengthy break in the middle of the session?
Noel J. Francisco: Your Honor, it is possible that they never thought about it.
But even if they had, I don't think it would matter, because I think that -- that the purpose that you've laid out is not quite the full purpose of the clause.
The purpose was also to ensure that the president could not easily do an end run around advice and consent, which after all is the principal method of appointment.
And so what they did, as they did with respect to inferior officers, is they vested with the Senate the power in certain circumstances to authorize the president to act unilaterally.
With respect to recesses, that authority was triggered when the Senate decided to end its session.
The Senate did, for example, take 7 mid session breaks of longer than 10 days prior to 1867.
It is inconceivable to me that the senators at that time believed that they were entering into a recess that would have empowered the president to make unilateral appointments during those 10-, 11-, or 12-day periods.
And that reflects the fact that the Recess Appointments Clause is a -- is a contingent one that arises when the Senate triggers it.
Justice Elena Kagan: Mr. Francisco, can I ask a question about the second question presented, the “ happens ” question?
Noel J. Francisco: Yes, Your Honor.
Justice Elena Kagan: And if you put aside all the history and you look only at the language and you look only at our own modern view of what happens, that surely seems to favor your position.
But if, you know, given all the statements in the founding period itself about how this is ambiguous and it might have two meanings, if you look at the dictionaries of that time -- so I went back and I looked at the Oxford English Dictionary, and one of the definitions of “ happens ” there is “ chance to be ”, essentially the exact same definition that Thomas Jefferson said made this ambiguous.
And we would never use “ happens ” in that way now.
If you look at the examples that the Oxford English gives, they're laughable.
Nobody would ever say that now.
But it just suggested to me that maybe what we think is pretty clear is only pretty clear because one meaning of happens has, you know, over 200 years--
Noel J. Francisco: Sure.
Justice Elena Kagan: --lapsed.
Noel J. Francisco: Well, Your Honor, I actually think the word “ happens ” had the same meaning then as it does now, which is why at the time of the framing everyone who actually studied the issue -- Madison, Hamilton, both of the first two attorneys general, Edmund Randolph and Charles Lee -- agreed that it meant what it said, as did even--
Justice Elena Kagan: No, I don't think so.
Essentially, Thomas Jefferson says it could mean one thing or the other, and the other thing that he said, which is “ happens to exist ”, is sort of exactly this old definition, which is “ happens ” means “ chance to be ”.
Noel J. Francisco: --And then Jefferson in his other letters conceded that the Recess Appointments Clause as it stood was going to frustrate his ability to make appointments.
And he therefore--
Justice Antonin Scalia: I -- I think “ happens ” continues to mean “ chances to be ”.
We still use it that way.
But we only use it that way when it is followed by an infinitive.
“ I happened to see him ”, it means a chance that I saw him.
Or -- you know, the 9/11, the destruction of the Twin Towers happened to occur on 9/11.
But you wouldn't say -- you wouldn't say it happened on -- on 9/13, simply because it continued to be destroyed.
I don't know what the OED examples that Justice Kagan referred to were, but I bet they -- they used “ happen ” followed by an infinitive, and I think we still use it that way.
Justice Elena Kagan: You know, I don't remember them exactly.
I just remember kind of laughing at them, as things that--
Justice Stephen G. Breyer: Actually, I think I remember what they were--
Justice Elena Kagan: --nobody would say--
Justice Stephen G. Breyer: --and they were 1483 and 1490-something, and then there was an asterisk that said “ obsolete ”.
And in fact -- in fact, I couldn't figure out what they were talking about.
Noel J. Francisco: --And, yes, Your Honor, but in addition, though, there -- there is not just the word “ happen ”.
It's preceded by three other words, that -- “ vacancies that may happen ”.
And the only purpose that those words serve is to constrain the universe of vacancies that are eligible for a recess appointment.
Justice Anthony Kennedy: Well, the Constitution as it -- as it first was has now been amended and it is no longer a part of the Constitution, with reference to appointment of Senate, uses the word “ vacancy ” in much the same way as the clause we're discussing here, and I think favors your position, because if a vacancy happens by resignation during the recess of the legislature then the governor can make the appointment.
And you certainly wouldn't think that that could happen over 3 days--
Noel J. Francisco: Exactly, Your Honor--
Justice Anthony Kennedy: --occur over -- I should say occur over 3 days.
Noel J. Francisco: --And -- and it's even better than that because at the time of the framing, a legislator -- a governor tried to appoint somebody to the Senate pursuant to the clause that had arisen -- where the vacancy had arisen during the legislative session rather than during the legislative recess, and the Senators actually refused to seat that individual.
So, yes, that further supports our position on that.
Justice Stephen G. Breyer: Do you want to say anything before the -- about the -- the language on the “ happen ”, I support you.
But the -- the practice, and in particular, the practicalities, because you say, well, the President can make an acting appointment, make a recess appointment even.
I mean, you know, they have much less authority, somebody appointed in that way, much less than a person who's been confirmed by the Senate.
So if the government won't grind to a halt, it still faces a problem.
Noel J. Francisco: And Your Honor--
Justice Stephen G. Breyer: What do you want to say about that?
Noel J. Francisco: --That's a consequence of advice and consent.
That problem arises not just when the Senate takes breaks, but when the Senate is in session.
The senate could show up every day for an hour, sit at their desks, and announce to the President: We're not going to do anything, no nominations, no legislation, because we don't like what you're doing.
And by the way, the only reason we're showing up here at our desks and sitting here for one hour a day is because we don't want you to be able to make recess appointments.
Nobody would claim that the Senate was in recess during those sessions.
Well, that is effectively what it was doing here.
I would, though, like to address the practicality issue.
I talked about how there have only been four recess appointments to the Article III courts that are potentially invalid since 1960.
I likewise don't think, if you were to rule in our favor on the first two questions, that it would be particularly disruptive to the Executive Branch either.
If you look at the government's appendix, I would hazard to say that most of those officials probably don't exercise much, if any, agency rule-making or adjudicatory power at all.
But as to those who do, going forward the government can solve the problem through agency ratification of past decisions.
Going backward, there are a variety of doctrines that would limit anybody's ability to actually challenge those past actions, including, for example, the APA's 6-year statute of limitations on challenging final agency action, various finality rules that would prohibit a party from raising an issue that they could have but failed to raise in an earlier proceeding, and various justiciability doctrines, like mootness, standing, and, Your Honor, the de facto officer doctrine, at least outside of the context of direct appeal.
I think this constellation of issues probably explains why this is the first time this issue has reached this Court in 225 years.
This is not to say that a ruling in our favor on the first two questions wouldn't have any past impact.
It would undoubtedly have some.
But as this Court's decisions in cases like Chada and Booker and Blakeley make clear, this Court has never shied away from enforcing the strictures of the Constitution simply because it could have some impact on prior cases.
Here the structural protections of the Constitution exist to protect the liberty of the people.
They were clearly transgressed with these unprecedented appointments, and therefore we believe that the court below should be affirmed.
I am happy to answer any additional questions that Your Honors may have.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF MIGUEL ESTRADA, FOR SENATE REPUBLICAN LEADER MITCH MCCONNELL, ET AL., AS AMICI CURIAE, SUPPORTING THE RESPONDENTS
Miguel Estrada: Thank you, Mr. Chief Justice, and may it please the Court:
As Justice Kagan recognized earlier in the argument, this case fundamentally is about who gets to decide whether the Senate is in recess, the Senate or the President?
Our submission today is that the Senate gets to decide whether the Senate is in recess.
Justice Elena Kagan: Mr. Estrada, you said in your brief that that was true within wide limits.
What are the wide limits?
Miguel Estrada: This is -- this is all about how the Senate chooses to arrange its affairs, Justice Kagan, under the Rules of Proceedings Act.
And what the Court said in the Ballin case was that the exercise of rulemaking authority by Congress was almost absolute and beyond the challenge of any body or tribunal unless it usurped some independent constitutional authority.
The only possible offer here that the Solicitor General has as to how the Constitution could have been violated by the actions of the Senate in arranging its own affairs is the notion that this has invaded the purported recess appointments power of the President.
And the reason, as we say in our brief, why that is completely insubstantial is because, as the Solicitor General recognizes in the closing two pages of its brief, the Senate by the design of the Constitution, the Appointment Clause, the primary method of appointment, has an absolute veto over nominations.
The Framers could not have been more clear that the standard power of appointment was a joint power of appointment.
And therefore, the Solicitor General is forced to concede that this appointment power, this right that the President is asserting here as a stop on the exercise of the rulemaking authority, is a subsidiary power that only arises if the government -- if the Senate, excuse me, chooses to recess.
Justice Elena Kagan: Is the Chief Justice's example before, if the Senate just said, we're -- we're never in recess for purposes of appointments, would that be permissible.
Miguel Estrada: If the Senate says, we're never in recess, and the Senate then is not in recess so that it could exercise the duties of its office as it does here, yes, it would be.
If the Senate says, We're checking out and going to Hawaii, we'll never again be in Washington, Kona is very nice this time of year, that would not be permissible, because, A, the Adjournment Clause requires the consent of the House for the Senate to be not only gone for 3 days but to be in a different place.
And -- and second, you know, the Senate cannot leave, you know, the chamber, and -- other than with the -- with the consent of the House.
And maybe if the Senate has effectively given up, you know, the business of legislating, in that case, maybe the President could say that it is, quote, a “ recess ”.
Now, the fundamental problem with the President's position here is twofold.
We have Senate records.
There is -- the Journal Clause of the Constitution directs each house of the Congress to have a journal of its proceedings.
The Journal of the Senate, which is in relevant part printed in our appendix, shows that on each of the disputed dates the Senate was called to order and then adjourned.
It is an official record of the Senate.
It says the Senate was called to order and then adjourned.
It doesn't say: Two guys who happened to be Senators met at a bar and had a beer.
The official records of the Senate say: The Senate was called to order and adjourned.
And under the Rules of Proceedings Clause, that would be conclusive, full stop.
Justice Stephen G. Breyer: That's the end of it, exactly the same, if this all took place during the 9-month inter-session recess in 1835.
Miguel Estrada: It would be the same unless the Senate chooses to recess.
Justice Stephen G. Breyer: No, no, no.
Exactly, same facts.
Miguel Estrada: Right.
Justice Stephen G. Breyer: And, therefore, in your view, the clause, even if they were all scattered to the winds in 1835, there would have been not possible for President Andrew Jackson, if I have that right, to make the recess appointments.
Miguel Estrada: Justice Breyer, the executive at the time could have attempted to construct the same type of argument that the executive is trying to construct here--
Justice Stephen G. Breyer: Yes.
But your view would be that the Court should reject it.
Miguel Estrada: --Yes.
But -- but here, it is even a weaker argument because one of the oddities of the case is that as the Senate has -- and the country have all moved into the modern age, the rules of the Senate tend to provide for the Senate to be available at the drop of a hat.
If you look, for example, at Rule 9, you can always get, you know, the communications from Houses -- from the House or from the executive.
If you look at Rule 26 of the Senate, committees can meet whether or not the chamber is actually in session.
You know, the business of the Senate is ongoing; and therefore, in the modern world, it is even much, much, much different than even the hypothetical that you posited.
Justice Stephen G. Breyer: You can say anything that would -- on this, if you want to, that would turn it back to the practicalities.
Imagine, hypothetically, that I would have thought President Theodore Roosevelt acted unconstitutionally when he tried to make all of his appointments, dozens and dozens, during a two-second--
Miguel Estrada: In 1903.
Justice Stephen G. Breyer: --Yes, yes -- inter-session--
Miguel Estrada: Yes, constructive recess.
Justice Stephen G. Breyer: --Yes, yes.
Miguel Estrada: Well--
Justice Stephen G. Breyer: And by converse reasoning, the Congress would not have been able, in 1835, to prevent recess appointments simply by having a nearby senator show up for a -- for one second, once every 3 days, over a 9-month period.
It seems to me what goes around comes around in this -- in this--
Miguel Estrada: --Well, let me -- let me take that as an opportunity because I think it does raise, you know, the question to speak to the implication that the Solicitor General makes in his brief, that the Senate, as a body, doesn't have a view on whether it was in recess or in session.
For the reason that I started out by outlouding -- by outlining -- excuse me -- the Senate's official records do show that the Senate was in session on each date, and therefore, the Senate does have an official view.
But from the practical point of view, we do know that the Senate has a view on these things.
And how do we know?
The president's party controls the Senate.
If the Senate wanted to recess, Rule 22nd of the Senate says that's not a debatable proposition.
If a majority of the Senate wants to recess, even before the evolution of the filibuster, non-debatable proposition.
So the Senate says, which is controlled by the president's party, says, we want to recess, we want to go away, we don't care if the president has this power.
They vote for that.
House says no.
What happens then?
Article II, Section 3 of the Constitution, the fight goes to the president, and it is in that event that the president gets to adjourn them until such date as he shall see proper.
So if the Senate had any view that it wanted to recess, they could have had a vote, and the issue would have ended up in the White House, in the lap of the president.
He had plenary constitutional power to give himself an inter-session recess by terminating the session and have a real recess appointment power if he could find somebody whose vacancy had actually arisen at the time.
But this is the cockeyed way of going about the instruments of the Constitution.
There is no power in the Constitution to use the Recess Appointments Clause to overcome the opposition of the Senate to the president's nominees.
And for all that we hear about today, which has to do with how the heaven will fall, and the parade of horribles, there is no parade, and there is no horrible.
The only thing that will happen is that the president, heaven help us, will be forced to comply with the advice and consent that the appointments power -- excuse me -- the Appointments Clause actually calls for.
That was not viewed as an evil by the Framers.
That was what the Framers unanimously agreed was going to be the principal means for appointments for the principal officers of the union.
Justice Sonia Sotomayor: Mr. Estrada--
Justice Ruth Bader Ginsburg: If there is a 3-day recess between sessions, then your argument is that -- that is a recess and the president can make -- can make appointments in that time.
Miguel Estrada: Justice Ginsburg, that is a very interesting and somewhat difficult question.
On the facts of this case, there is a substantial question, which no one really has litigated, as to whether there was, in fact, an inter-session recess, whether the first session of the 112th Congress ended on the morning of January 3rd and therefore, we have the same Teddy Roosevelt situation, or whether by adjourning on December 30th and contemplating no further meetings until January 3rd, whether that in effect -- in effect was a sine die adjournment that ended the first session of the Congress.
If the president had the same view about the nature of the pro forma sessions, he could have taken the view about the sessions between December 17th and January 3rd and could have had a better legal argument in attempting to claim that between December 30th and January 3rd, there was at least an arguable inter-session recess.
And he did not do that.
Why didn't he?
Because by waiting until the convening of the first session -- of the second session of the 112th Congress, by making an appointment on January 4th instead of the morning of January 3rd, he gives an extra year to his appointees to serve.
That shows that this is, indeed, the bottom of the slippery slope on the Recess Appointments Clause.
It is a complete abuse of the process.
It is being used for no other purpose than to overcome the Senate opposition or the Senate disinclination to agree with the president's nominations.
What the Framers contemplated in coming up with a joint power of appointment was you have to act jointly.
You have to play nice.
And in a country of 300 million people, when the president wants a nominee and the Senate does not agree, it is always possible for the president to come up with another nominee who is even more qualified and acceptable to the Senate.
The key here is acceptable to the Senate.
He has to be able to proffer someone to the Senate that the Senate is willing to engage in a joint power of appointment for.
Justice Sonia Sotomayor: --Mr. Estrada, in your earlier example, you said that if the Senate decides to recess and the House doesn't approve, that the president can then do it.
Is it your belief that a recess is only something that both Houses have agreed to?
A break in business that both Houses have agreed to?
Miguel Estrada: I don't think so.
It is usually the case, Justice Sotomayor, but not necessarily.
The example I would give--
Justice Sonia Sotomayor: So what do you need -- why does the president have to adjourn the House in your example?
Miguel Estrada: --No, I don't--
Justice Sonia Sotomayor: If the Senate votes tomorrow to recess--
Miguel Estrada: --Yes.
Justice Sonia Sotomayor: --can the president appoint, at least in your view, any vacancy that occurs during that recess?
Miguel Estrada: If the Senate has been recessed without days so that the session of the Senate is over, even if the president, under Article II, chooses to leave the House in session--
Justice Sonia Sotomayor: Why do you need a date?
What -- what -- in what rule makes a recess defined as something without date?
Miguel Estrada: --This takes us back to the first argument, and I think the contemplation was that the recess would be the period of time that intervened between the ending of a session of the Congress and the beginning of the next.
Justice Sonia Sotomayor: It always had a date, because we knew January 3rd was a new session.
Miguel Estrada: --Well, that wasn't true until the 20th Amendment.
You know, the date was a much different date in the original Constitution.
But to answer your earlier question, it is usually the case that a recess is going to be longer than 3 days, but it needn't be.
If the Senate finished all of its legislative business, for example, in this year on December 30, 2011, and then voted to adjourn sine die, and did not again meet until the beginning of the second session of the Congress on January 3rd, that would be an intra-session recess even though it would not be one that would require consent of the House.
But in the usual case in which a recess is taken for an extended period of time, it would be the type of break that the Framers contemplated would need the consent of the House.
And the reason for that should be obvious.
We have a system of a bicameral legislation.
The houses two are supposed to work together to accomplish the business of the people.
If the House is working on something and the Senate wants to go away, or visa-versa, they need the consent of each other because they may need each other to frame out ongoing legislative projects.
And if the House in its own judgment thinks that the Senate is sufficiently available to the House in our bicameral system so that it -- so that has been is full compliance with the Adjournments Clause, it is very difficult to see how in the agreement of both houses of Congress that the Senate is in fact effectively available, that is there with its full power of unanimous consent every third day.
If the House thinks that that is adequate for the discharge of its constitutional functions and the constitutional functions of the Senate, it's very difficult to see how the president gets to second-guess that.
One final point that has to do with the Solicitor General's insistence on the no-business language.
Rules 5.1 of the Senate -- may I finish?
Chief Justice John G. Roberts: Yes.
Miguel Estrada: --makes very clear -- it's also in our appendix -- that any business may conducted -- be conducted at any time, without notice, by unanimous consent.
And so that effectively, what we have here is merely an announcement by the Senate that between December 17th and January 23rd, only unanimous consent business would be agreed to.
Chief Justice John G. Roberts: Thank you, counsel.
General Verrilli, 6 minutes.
REBUTTAL ARGUMENT OF DONALD B. VERRILLI, JR., ON BEHALF OF THE PETITIONER
Donald B. Verrilli Jr: Thank you, Mr. Chief Justice.
Let me begin with a couple of points on intra-session recesses.
With respect to the question that Justice Alito raised, it would have been perfectly familiar to the Framers that a legislative body could take an intra-session recess.
Jefferson's parliamentary manual written while he was Vice President and presiding over the Senate specifically refers to recesses by adjournment that occur within a session and the session resumes when they are over.
The adjournment clause itself contemplates the need for approval by the other branch for a period longer than three days during the session.
I think it's difficult to imagine that if, as Justice Alito's hypothetical suggested, that the Senate had in the first years under President Washington decided to take a two-month, intra-session break, that President Washington wouldn't have been able to staff the offices of the fledgling republic using the recess appointment power.
Justice Samuel Alito: Well, if we agree with you on the first question, then there either needs to either be a number or a functional test.
And I don't know where the number would come from and I don't know how the functional test would play out, so maybe you could say just a word about that.
Donald B. Verrilli Jr: We think the number should be -- should be the number in the Adjournments Clause, 3 days or less.
Now, presidents have exercised restraint and there haven't been recess appointments in periods below 10 days, but we think that would be the line.
Justice Samuel Alito: With respect to the presence of that in the Adjournments Clause but the absence of any number in the Recess Appointments Clause, how do you explain that?
Donald B. Verrilli Jr: --Well, I think that there isn't really a need for explanation.
A recess is a suspension of business, and what the Adjournment Clause says is if you are gone for 3 days or less you are not really suspending your business, but if you are gone for more than 3 days you are.
And I think that is quite consistent with the argument that my friends on the other side are making.
Now, with respect to the history on intra-session recess appointments, really if you look at the congressional directory, which is a document that we cite in our brief, and you look at the column that says intra-session recesses, you will see page after page of blank space until you get to the Civil War era when intra-session recesses become more frequent.
And intra-session recess appointments really just precisely parallel the increasing use by the Senate of intra-session recesses.
Chief Justice John G. Roberts: Can you argue that the Senate sort of acquiesced in that and everybody's come together, but what would expect a Senator to do?
Donald B. Verrilli Jr: Well, if they--
Chief Justice John G. Roberts: You know, the president appoints somebody during a recess contrary to the Respondent's view, what's the Senator who objects to that supposed to do?
Donald B. Verrilli Jr: --Well, a couple of things about that, Mr. Chief Justice.
The Pay Act, of course, was first enacted in this period, in the 1860s, when the first intra-session recess appointments occurred, in fact, even in its original form never said -- and since, never said anything about trying to restrict intra-session appointments.
If the Congress felt that these were improper, they could have done what they did in the Tenure Of Office Act and passed a statute of making it a crime for somebody to take one of these appointments.
But they didn't do anything like that.
Chief Justice John G. Roberts: Well, you would object to that, wouldn't you?
Donald B. Verrilli Jr: Of course.
Chief Justice John G. Roberts: On the same grounds that you're objecting here.
Donald B. Verrilli Jr: Well, we would.
But in terms of--
Chief Justice John G. Roberts: Well, then that's not something that is effective for the--
Donald B. Verrilli Jr: --But in terms of--
Chief Justice John G. Roberts: --you think it's unconstitutional.
Donald B. Verrilli Jr: --In terms of an expression of their disagreement as opposed to acquiescence it would certainly be a question of disagreement, and it didn't happen.
Chief Justice John G. Roberts: Well, the Senate says we don't agree with the recess appointment, and you say, well, it's too bad, the appointee is still in office.
Donald B. Verrilli Jr: But they didn't, I guess, would be, or the point being--
Chief Justice John G. Roberts: Well, some did -- Senator Byrd--
Donald B. Verrilli Jr: --senators--
Chief Justice John G. Roberts: --famously objected to the president's assertion of that power.
Donald B. Verrilli Jr: --Yeah, but he famously objected to it, Mr. Chief Justice, by saying that the intra-session recess ought to be 30 days or longer, not that intra-session recesses are inappropriate as a matter of constitutional power.
So I actually think that is just haggling about the length of the recess, not about the existence of the power.
Now, if I can move to the question of--
Chief Justice John G. Roberts: No, I just want to make sure I understand.
Your idea is the Senator who objects should do what?
Donald B. Verrilli Jr: --Well, the Senator who objects can say whatever the Senator wants, but we don't have a historical record of objection.
We have a historical record of acquiescence.
Chief Justice John G. Roberts: But suppose the Senator says, Look, I object to that, I think it's unconstitutional, but I'm not going to -- what can I do?
The only think you can do is impeach the president, right, for violating the Constitution.
And he says it's not worth it for the -- one of the offices--
Donald B. Verrilli Jr: Well, if the Congress as a body thought that these were inappropriate they could take legislative action to try to limit the president's authority, and they just, they never have.
Chief Justice John G. Roberts: --But would you say that action would be totally ineffective?
Donald B. Verrilli Jr: Well, we'd agree on the -- we'd certainly agree on the criminalizing point, but in terms of the Pay Act, for example, they just never in all their -- in their original consideration of the Pay Act and subsequently, they never tried to address this.
Now if I could turn to the--
Justice Elena Kagan: But people object all the time to things that in fact they can't do anything about, right?
Donald B. Verrilli Jr: --And, yes, Your Honor, and of course -- and that's an individual objecting and it's not the Senate objecting.
Justice Stephen G. Breyer: The question of reports.
There were reports, remember?
Sorry, I didn't mean to -- your six minutes couldn't be up already.
Chief Justice John G. Roberts: Take a few more minutes.
Donald B. Verrilli Jr: I was thinking the same thing, Your Honor.
There were a couple of committee reports but I believe those were on the “ happen ” issue, and let me turn to that, if I could.
Now Your Honor had pointed out the number of -- happens number of appointments.
As I said, don't take that chart comprehensive.
As we said in our brief, it's not; we think there are many more, and of course 39 presidents have made those appointments.
Now, for purposes of the clause as we discussed earlier, I think, are far better served by our reading than the other side's.
Jefferson gave a reasonable textual reading, and then Your Honor asked about the Pay Act.
The Pay Act of course says if the nomination -- if the vacancy arose within 30 days, but it says something else, too, which is if a nomination is pending--
Justice Stephen G. Breyer: Yeah, but I'm focusing on 30 days and the reason I'm doing that is this seems to me, hypothetically at least, a real matter for the political branches to resolve among themselves.
Now, we have to decide this, so I thought, well, why not look and see what Congress objects to the least?
And I got that 30-day thing from the Pay Act by analogy.
Donald B. Verrilli Jr: --I guess what I--
Justice Stephen G. Breyer: So I want to get your view on that.
Donald B. Verrilli Jr: --Yes, of course.
And what I would point out by analogy also is that there is another provision in the Pay Act, the very same statute, that says so long as a nomination is pending, even if the vacancy arose more than 30 days, that's the same expression of Congress's views about what's appropriate.
What they care about is the chance to exercise their advice against the--
Justice Antonin Scalia: Well, that was that Senate.
I mean, that's not the Senate that is sitting now.
You are attributing the views of one Senate to the Senate over -- over time.
Donald B. Verrilli Jr: --That is an expression of the law of the United States that the Congress enacted.
Justice Stephen G. Breyer: I'm really interested in how you think the 30-day idea, if practical, plays out in terms of your concerns.
Donald B. Verrilli Jr: Well, I think it, as I said, I think there is an equilibrium here and the 30 days doesn't fully capture it.
And let me just talk about that if I could.
Justice Stephen G. Breyer: Briefly.
Chief Justice John G. Roberts: Briefly.
Donald B. Verrilli Jr: Yes, thank you, Mr. Chief Justice, briefly.
The vast majority of appointees are submitted for advice and consent.
That was true historically; it's true now.
The vast majority of recess appointees are subsequently confirmed.
So it's just not the case that this is an end run around the advice and consent role of the Senate.
And there are powerful reasons, of course, why presidents do that.
They don't want to have temporary appointments that they have got to then deal with vacancies again, and they don't want to unnecessarily create interbranch friction.
The real problem, I would submit here, is that if you go with Respondents on the pro forma issue or under the -- on the two underlying issues, the D.C. Circuit ruling, you are really are writing the recess appointment power out of the Constitution, and that's antithetical to the liberty-enhancing properties of separation of powers that Madison described in Federals 51, because ambitions which counteract ambitions shouldn't disarm one side.
Chief Justice John G. Roberts: Thank you, General.
The case is submitted.