Our Constitutional Law Scholars’ Amicus Brief on Recess Appointments

Yesterday, Michael McConnell and I filed an amicus brief in NLRB v. Noel Canning (the Supreme Court’s recess appointments case) on behalf of ourselves and a group of other constitutional law scholars, including co-conspirators Dale Carpenter, Eugene Kontorovich, and Nick Rosenkranz, as well as Nathan Chapman, Samuel Bray, John Eastman, Richard Epstein, Michael Greve, Joshua Hawley, Kurt Lash, and Sai Prakash. Now that the brief is done, I’ll likely blog some about the various amicus briefs and other developments in the case. But for now I thought I’d share ours. Here’s the introductory statement and summary of the argument:


Especially in the absence of judicial precedent, disputes about the Constitution’s meaning often reduce to disputes about interpretive methods. The interpretive tools are familiar: constitutional text, structure, historical context, early practice (which bears on original meaning), longstanding practice (which constitutes nonjudicial precedent), and pragmatic consequences. Disputes arise, however, over their relative force. For purposes of this brief, amici take no position on the relative weight or merit of these methodologies, except to say that the Court should: (1) take care to ensure that it relies on accurate and complete historical facts, (2) consider pragmatic consequences only as related to the purposes of the constitutional provision, and (3) apply the same methodology consistently to each of the sub-issues in the case.


Under any plausible method of interpretation, consistently pursued, the President’s recess appointments to the NLRB on January 4, 2012, are problematic.

1. The original meaning of the text of the Recess Appointments Clause, U.S. Const. art. II, § 2, cl. 3, empowered the President to fill vacancies only if they arise while the Senate is in recess. That clear original meaning is confirmed by the purpose of the Clause, and by both Presidential and Congressional practice during the Republic’s early years. After some Presidents began to depart from this practice, the Senate resisted for almost a century.

2. Although the ordinary meanings of the terms “recess” and “session” are ambiguous, the purpose and structure of the Clause and long practice confirm that the “recess” is the formal recess that occurs between formal “sessions” of the Senate, not including adjournments while a session is in progress. In any case, if one abandons that formal definition of “recess,” as has been common since 1905, consistency demands abandonment of the corresponding formal definition of “session,” resulting in recess appointments that last for weeks, not years.

3. The text arguably has little to say about the validity of the Senate’s “pro forma” sessions, although the Rules of Proceeding Clause, id. art. I, § 5, cl. 2 suggests that it is the Senate, not the President or this Court, that ought to judge their validity. In any case, longstanding modern practice treats pro forma sessions as valid for purposes of the Adjournments Clause, id., art. I, § 5, cl. 4, and the Assembling Clause, id., amend. XX, § 2, as well as to pass legislation. There is no logical reason to treat pro forma sessions as nullities only under the Recess Appointments Clause.

No consistent application of any of these methodologies supports the Solicitor General’s construction. If recent practice overrides original meaning and early practice, as would be necessary to reject the “arise” view, then there is no answer to consistent recent use of pro forma sessions for a variety of constitutional purposes, including avoiding a “recess” during which the President might make recess appointments. If “recess” is to be given a functional rather than a formal definition, so must “session.” If the Court consistently applies a theory of constitutional interpretation to the three questions presented in this case, then the appointments are unconstitutional.

The whole brief is here. Thanks to all of my co-authors and everybody else who helped us with this project!

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