One theme of the amicus brief I helped write in Noel Canning was the need for a consistent treatment of text, history, and modern practice. If the executive branch wishes to argue that modern practice trumps the text and early history on questions 1 and 2 (“the recess” and “happen”), then it should be stuck with modern practice with respect to question 3 (pro-forma sessions).
I was pleased to see Justice Kagan express a very similar sentiment during yesterday’s oral argument:
JUSTICE KAGAN: General, I think that [reliance on modern practice is] 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.
Along very similar lines, over the weekend I published an op-ed in Forbes arguing that “regardless of whether one agrees with originalism, the appointments are still unconstitutional.”