Citation. 573 U.S., 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014).
President Obama, pursuant to his powers under the Recess Appointments Clause, appointed three members to the NLRB during a 3-day recess, between the January 3 and January 6 pro forma sessions.
A recess of less than 10 days is “presumptively too short to fall within the [Recess Appointments] Clause.” However, the word “presumptively” leaves open the possibility that extreme circumstances (like a national catastrophe) could require a recess appointment during a shorter break.
President Obama had nominated three members to the NLRB, but two of the nominations had been pending for a few weeks and the other had been pending for a year. Instead of waiting any longer for Senate approval, the President exercised his authority under the Recess Appointments Clause and appointed all three. The appointments were made while the Senate was breaking between pro forma (no business) sessions. The break was merely three days, between the January 3 and January 6 pro forma sessions.
(1) Whether the Recess Appointments Clause authorizes appointments during both inter and intra-session recesses.
(2) Whether the phrase “vacancies that may happen” refers only to vacancies that occur during a recess, or whether it also includes vacancies that arise prior to a recess.
(3) Whether the Court should ignore pro forma sessions, thus calculating the recess as if the sessions did not occur.
JUSTICE BREYER holding: (1) Yes, the Clause applies to both inter and intra-session recesses.
(2) The Clause applies to vacancies that occur during and before a recess.
(3) No, the Court cannot ignore pro forma sessions, but a 3-day recess between sessions is too short to bring it within the scope of the Clause.
Justice Scalia argued that the majority erased the two checks that prevented the President from nullifying the Senate’s role in the appointment process. The text of the Constitution makes it clear that the President’s power under the Recess Appointments Clause is limited to “the intermission between two formal legislative sessions.” Further, the President may only fill vacancies that occur during a recess. Scalia rebuked the majority for justifying “atextual results on an adverse-possession theory of executive authority.” Just because the President had become accustomed to appointing officers in this way did not render it constitutional, nor did it rid the Court of its constitutional duty to “say what the law is.” While past practice may serve as a guide to an ambiguous provision, “past practice does not, by itself, create power.” Medellin v. Texas, 552 U.S. 491, 532 (2008).
In interpreting the Recess Appointments Clause, the Court provided some insight on what guided their decision. First, the Court noted that the Clause “sets forth a subsidiary, not a primary, method for appointing officers of the United States.” The “primary” power to appoint officers lies in Article II, Section 2, which mandates that the President “shall nominate, and by and with the Advice and Consent of Senate, shall appoint [officers].” To interpret the Recess Appointments Clause as the primary method of appointing officers would be to enable the President to routinely avoid Senate confirmation. Second, in interpreting the Clause, the Court put significant weight upon “historical practice.” The Court would be reluctant to upset a long settled and established practice.
The Court first addressed the scope of “the recess of the Senate.” Art. II, Sec. 2, cl. 3. While it was undisputed that the phrase covered inter-session recesses (the recess between the two formal 1-year sessions), it was up for debate whether it also applied to intra-session recesses (when the Senate and the House break during a session). Analyzing the text itself, the Court turned to founding-era dictionaries, finding that the word “recess” meant the same then as it does now: “a period of cessation from usual work.” This implied that both inter and intra-session recesses were included. The Court recognized that the word “the” before recess might suggest that it should be limited to the single break between formal sessions. Nonetheless, “the” does not always indicate a particular thing, it can also refer to a term more generically. Therefore, the Court found the text ambiguous. The Clause’s purpose, however, demanded that intra-session recesses be included within its scope. The Clause authorized the President to make recess appointments to ensure that the Federal Government would continue to function while the Senate was away. Further, there was historical support to conclude that intra-sessions were within the President’s power under the Clause. President Franklin Roosevelt, for example, commissioned Eisenhower as a permanent Major General during an intra-session recess, and Presidents Truman and Bush made similar appointments. The majority rejected the originalist argument that the Founders never considered intra-session recesses. The Court reasoned that it was irrelevant whether the Founders could have anticipated intra-session recesses. The proper question was whether they intended “a broader scope permitting the Clause to apply, where appropriate, to somewhat changed circumstances.” Finally, the Court agreed that 3 days was too short to be a recess within the meaning of the Clause. Historically, there was no evidence of an intra-session recess appointment during a recess shorter than 10 days.
Second, the Court concluded that the phrase “vacancies that may happen during the recess of the Senate” included vacancies that occur both during and before a recess. The Court admitted that the more natural reading would limit the phrase to only vacancies occurring during a recess. However, because a broader reading was “at least a permissible reading of a doubtful phrase,” the Court continued to the Clause’s purpose and historical practice. The purpose was to allow the President to obtain the assistance of officers while the Senate could not confirm appointees. Further, recent history strongly supported pre-recess appointees. In analyzing the last 21 recent recess appointments, 18 filled pre-recess vacancies, 1 filled a vacancy that occurred during the recess, and 2 could not be determined. Therefore, the purpose of the Clause and historical practice of appointing pre-recess commanded the broader reading.
Finally, pro forma sessions “count as sessions, not as periods of recess.” If the Court did not count the pro forma sessions as sessions, then the time between sessions would have been much longer than 3 days, effectively rendering the appointments constitutional. The Court determined that pro forma sessions count because, during these sessions, the Senate “retains the capacity to transact business.”