Constitutional Law Scholars’ Noel Canning Amicus, Part II: “Recess” and “Session”

The second issue addressed in our amicus brief is what the Recess Appointments Clause means by “recess” and “session.” Our brief discusses the original meanings of these terms, as well as the structure, purpose, and history that clarify the meanings of those terms in context. Most importantly, we argue that the Senate cannot be in “recess” and in “session” at the same time.

Several of these points were made very well a few years ago in several amicus briefs filed by Senator Ted Kennedy (with Laurence Tribe and Marty Lederman serving as his counsel), as well as more recently in a series of excellent blog posts by Michael Stern, at Point of Order. Others are made in a forthcoming article (not online yet) by Mike Rappaport.

Here’s how we put the argument in the brief:

II. The Text Implies, and Long Practice Confirms, That Recesses Occur Between Sessions, Not During Them

The recent lower court decisions addressing the merits all conclude that Presidents may not use recess appointments to fill vacancies during so-called “intrasession recesses,” regardless of how one interprets the word “happen.” We acknowledge that the text of the Recess Appointment Clause standing alone does not explicitly preclude the concept of “intrasession recesses.” Nonetheless, it is best read—in light of parliamentary practice and the purpose of the Clause—to implicitly foreclose such appointments. That this is the most natural meaning of the text is confirmed by long practice. If, however, the Court abandons the formal definition of “recess,” it should likewise abandon a formal definition of “session,” meaning that recess appointments will generally last for weeks, not years.

A. The Constitution’s Text and Purpose Imply that Recess Appointments Are Limited To Intersession Recesses

It is something of a misnomer to refer to “intrasession” and “intersession” recesses, as the parties have done during this and other litigation. The reason that the Clause is best read as limited to so-called “intersession” recesses is because breaks in Senate proceedings while the Senate remains in session are not really recesses at all.
A natural reading of the text is that “the Recess” of the Senate and “the Session” of the Senate are mutually exclusive. Rappaport, Original Meaning, supra, at 1550. The Senate is either in session or in recess—not both. Recesses occur between sessions, not during them. Although the ordinary language usage of “recess” can include breaks of any sort—such as a “recess” during the school day—the technical usage in Article II presumably comes from parliamentary practice. Parliament had the power to adjourn but not to end a session. The power to terminate a session, called “prorogation,” belonged to the King. The Constitution gives both the adjournment power and the prorogation power to Congress. When the Constitution refers to a break during the Senate’s session, it uses the word “adjourn.” U.S. Const. art I, § 5, cl. 1 (“a smaller Number may adjourn from day to day”); id. cl. 4. (“Neither House, during the session of Congress, shall, without the Consent of the other, adjourn for more than three days . . .”); Rappaport, Original Meaning, supra, at 1557. Although the term was sometimes used loosely, as a legal matter, the term “recess” was typically reserved for the period of time between sessions.
In his discussion of the Clause in The Federalist, Hamilton noted that “the ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate”; and explained that the Clause was needed “as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay.” The Federalist No. 67, supra, at 350 (Alexander Hamilton) (emphases added). Similarly, early statutes used the two terms exclusively. The First Congress passed a statute compensating a Senate clerk “two dollars per day during the session, with the like compensation to such clerk while he shall be necessarily employed in the recess.” Act of Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71. Another statute, dealing with duties inspectors, said that “if the appointment … shall not be made during the present session of Congress, the President may, and he is hereby empowered to make such appointments during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” Act of March 3, 1791, § 4, 1 Stat. 199, 200 (emphases added).
The Constitution’s structure and the Clause’s purpose reinforce the conclusion that the Clause’s authority was limited to “intersession” recesses. For many decades, the recess between sessions tended to last for several months; adjournments during the session of the Senate, by contrast, tended to be exceedingly brief. During the short adjournments, the Senate could “compel the Attendance of absent Members” to attend to deal with important business, U.S. Const. art. I, § 5, cl. 1; see also 2 Story, Commentaries, supra, at 297, § 834 (noting that this power may be used when there has been no “no legal dissolution of the body”).
Giving the President the power to make recess appointments during the long recesses, but not the short breaks, was a way of ensuring that offices could be filled “which it might be necessary for the public service to fill without delay,” The Federalist No. 67, supra, at 350 (Alexander Hamilton), without allowing undue circumvention of the advice-and-consent process, as Attorney General Randolph warned, 24 Papers of Thomas Jefferson 165. There was no good reason to dispense with advice and consent during short breaks.
Moreover, if the Recess Appointments Clause extends to breaks during the session, then the text contains no obvious limiting principle to stop the President from making a recess appointment during a three-day break, a weekend, or even overnight. To be sure, the executive branch currently represents that it has “agreed” not to do so. U.S. Br. 45. That is better than nothing. But see United States v. Stevens, 559 U.S. 460, 480 (2010) (“We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly”). But the executive branch has sometimes suggested that the text would permit it to make appointments during shorter breaks, see Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. __, 9 n. 13 (Jan. 6, 2012); Brief for the United States at 14-18, Mackie v. Clinton, No. 93-32 (D.D.C. 1993), and it is not clear why three days is the limit. In 1903 President Theodore Roosevelt made 173 recess appointments during a purely nominal break between sessions at noon on December 8. Special Session Is Merged into Regular, N.Y. Times, Dec. 8, 1903, at 1. This assertion of power was controversial and questionable, but at least it was limited to brief breaks between sessions, which serves as a limiting principle.
It seems unlikely that the Framers would have given the President power to make recess appointments during all breaks in Senate business without explicitly establishing any lower bound on the length of those breaks. It is thus far more probable that the Clause’s reference to “the Recess of the Senate,” excluded periods when the Senate was in session, especially given that the Clause was so understood by readers at the time of enactment.
One final incongruity that would be created by the Solicitor General’s view of the word “recess” is that “intrasession” recess appointments would last up to twice as long as traditional “intersession” appointments. Because the appointments last until “the end of the Senate’s next Session,” U.S. Const. art. II, § 2, cl. 3 (emphasis added), an appointment made during an intersession recess will last for one session, at most about a year. An appointment made during a session, by contrast, will last for the rest of that session, plus another whole session.
For example, if the President had made these appointments one day earlier, during the technical break between sessions, they would have lasted only one year, instead of the two that he achieved by timing the appointments for the day after the new session began. There is no apparent reason why the Framers would have wanted appointments made during intrasession breaks to last twice as long as those made when the Senate was out of session, and hence reason to doubt that an intrasession break can be a “recess” in the sense the term is used in the Clause.

B. Long Practice Confirms That Recess Appointments Are Limited To Intersession Recesses

Whatever ambiguity may survive the textual and structural evidence of the original meaning of the word “recess,” in the Constitution, the intersession-only meaning of “recess” is confirmed by long practice, even by the executive branch. First, it is generally uncontested that there were no known intrasession recess appointments during the first 73 years under the Constitution. The Solicitor General claims that the absence of intrasession recess appointments does not reflect a constitutional consensus against such a power, but rather the fact that there were very few intrasession recesses exceeding three days. U.S. Br. 21-22. But the current “agreement” not to make recess appointments during three-day recesses had not been hatched at the time; so the Solicitor General does not fully explain the absence of any attempt to make any recess appointments during any of the thousands of short intrasession adjournments from the Founding until the Civil War.
The Solicitor General also overstates the extent of intrasession recess appointments starting with Andrew Johnson. The Solicitor General claims that Johnson made 57 intrasession recess appointments during 1867 and 1868. U.S. Br. 22. But most of these appointments can be explained under the traditional intersession view.
The confusion arises because of an unexpected special session of the Senate in 1867. In March of that year, Congress had been in session, and taken the unusual step of scheduling a mid-summer adjournment from March 30 until July 3 of that year. However, President Johnson called the Senate into special session the next day, on April 1, in a session that lasted until April 20. Congress then recessed until July 3. The Solicitor General takes the view that appointments made before July 3 are examples of “intrasession” recess appointments, presumably because Congress did not officially terminate its session on March 30. But it is more likely that “the end of the special session on April 20 constituted a genuine intersession recess that allowed recess appointments to be made under the intersession view. Under this view, the special session would have ended the ordinary session that had begun at the start of March.” Rappaport, Nonoriginalism, supra, at 27. This accords with Thomas Jefferson’s Senate Manual. See A Manual of Parliamentary Practice: For the Use of the Senate of the United States § LI (1812) (“The constitution authorizes the President ‘on extraordinary occasions, to convene both Houses or either of them.’ If convened by the President’s proclamation, this must begin a new session, and of course determine the preceding one to have been a session.”) (citation omitted). Similarly, there appears to be confusion about the break the Senate took in 1868 from July 27 to September 21, after acquitting President Johnson in his impeachment trial. The Solicitor General assumes that this was an “intrasession” recess, but the Congressional Globe indicates that “[t]he president pro tempore announced that the hour of twelve o’clock, fixed by the resolution of the two Houses for closing the present session of Congress by a recess, had arrived, and declared the Senate, in pursuance of the said resolution, adjourned until the third Monday in September next at twelve o’clock.” Cong. Globe, 40th Cong., 2d Sess. 4518 (July 27, 1868); Rappaport, Nonoriginalism, supra at 28.
We do not know that every single example in the Solicitor General’s brief can be similarly explained. But these examples are enough to show that the Solicitor General’s view of the historical record is overstated, and that the Court should be wary of inferring that a recess appointment broke historical tradition when there is no evidence that anybody at the time believed that to be happening.
When the executive branch did finally address the question of intrasession recess appointments in 1901, Attorney General Knox dismissed Johnson’s appointments, saying: “The public circumstances producing this state of affairs were unusual and involved results which should not be viewed as precedents.” 23 Op. Att’y Gen. 599, 603 (1901). Instead, Knox explained, “an adjournment during a session of Congress means a merely temporary suspension of business … whereas the recess means the period after the final adjournment of Congress for session, and before the next session begins.” Id. at 601 (emphasis in original). The latter period “is the recess during which the President has power to fill vacancies” through recess appointment, and “intermediate temporary adjournments” are not. Id. That position was later abandoned by the Senate in 1905 and the Attorney General in 1921, in favor of a view that is equally inconsistent with the Solicitor General’s current position.

C. Modern Practice Has Diverged From The Long Practice Under The Clause, But Not To The Extent The Government Claims

The Senate in 1905 and Attorney General Daugherty in 1921 concluded that it no longer made sense to interpret the term “recess” as referring to the period between the two formal “sessions” of a Congress. They agreed that “the recess” had to be a period long enough that the Senate was realistically unavailable to act on appointments. But the Senate and Attorney General did not abandon the fundamental concept that sessions and recesses are mutually exclusive. In adopting a functional definition of “recess,” they adopted a functional definition of “session” as well—meaning that any recess ends one session and precedes another. See Michael Stern, Burying the Multi-Session Recess Appointment Theory, Point of Order Blog (May 3, 2012), Professor Rappaport calls this the “modified intersession view.” Rappaport, Nonoriginalism, supra, at 29. By contrast, and without explanation, the Solicitor General insists on a functional definition of “recess” while retaining the formal definition of “session.”
The Solicitor General claims that Attorney General “Daugherty rejected Knox’s reasoning and concluded that intra-session recesses of sufficient length do trigger the Recess Appointments Clause.” U.S. Br. 24-25 (citing 33 Op. Att’y Gen. 20, 21, 25 (1921)). Daugherty did indeed adopt a practical approach to determining whether the Senate was in recess, rather than a formal one that deferred to the Senate’s nomenclature. But his opinion does not say that the Senate can be in recess and in session at the same time, and indeed his opinion repeatedly indicates that recess and session are mutually exclusive. E.g., 33 Op. Att’y Gen. at 21 (“the real question, as I view it, is whether in a practical sense the Senate is in session”); id. at 24 (recess is “the period of time when the Senate is not sitting in regular or extraordinary session”). So Daugherty’s view actually entails the recognition of more recesses, but also more sessions. Michael Stern, Attorney General Daugherty and the “Intra-Session” Recess, Point of Order Blog (March 30, 2012), 03/30/attorney-general-daugherty-and-the-intra-session-recess. There are no “intrasession recesses” under this view, but more numerous sessions broken by recesses.
Under Daugherty’s view, recess appointments would generally be of significantly shorter duration, because they terminate at the end of the Senate’s “next Session,” U.S. Const. art. II, § 2, cl. 3, and each recess marks the end of a session. Indeed, recess appointments made in the few decades after Daugherty’s opinion were held to expire relatively quickly, confirming that Daugherty’s opinion reflects the “modified intersession view.” Rappaport, Nonoriginalism, supra, at 31-32. For example, the recess appointment of John Esch in 1928, see U.S. Br. appx 10a, terminated after less than five months, rather than lasting another year as it would under the Solicitor General’s view. Rappaport, Nonoriginalism, supra, at 31.
If this Court were to adopt Daugherty’s view, the appointments at issue in this case would have expired after a few months, when the Senate adjourned for a period long enough to constitute a recess. Indeed, if a three-day break constitutes a recess and pro forma sessions are disregarded, as the Solicitor General proposes, the appointments expired on February 17, 2012, when the Senate took a 9-day break (punctuated by two pro forma sessions), 158 Cong. Rec. S1021 (daily ed. Feb. 17, 2012), which the Solicitor General would deem a recess. In short, the Solicitor General wants to have it both ways: “recesses” are functional and may be as short as three days (with pro forma sessions ignored), but “sessions” are formal and last the full year without break. We perceive no logic in this inconsistency.