Nat'l Labor Relations Bd. v. Canning

(Slip Opinion) OCTOBER TERM, 2013 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NATIONAL LABOR RELATIONS BOARD v. NOEL

CANNING ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

No. 12–1281. Argued January 13, 2014—Decided June 26, 2014

Respondent Noel Canning, a Pepsi-Cola distributor, asked the D. C.

Circuit to set aside an order of the National Labor Relations Board,

claiming that the Board lacked a quorum because three of the five

Board members had been invalidly appointed. The nominations of

the three members in question were pending in the Senate when it

passed a December 17, 2011, resolution providing for a series of “pro

forma session[s],” with “no business . . . transacted,” every Tuesday

and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess.,

923. Invoking the Recess Appointments Clause—which gives the

President the power “to fill up all Vacancies that may happen during

the Recess of the Senate,” Art. II, §2, cl. 3—the President appointed

the three members in question between the January 3 and January 6

pro forma sessions. Noel Canning argued primarily that the ap-

pointments were invalid because the 3-day adjournment between

those two sessions was not long enough to trigger the Recess Ap-

pointments Clause. The D. C. Circuit agreed that the appointments

fell outside the scope of the Clause, but on different grounds. It held

that the phrase “the recess,” as used in the Clause, does not include

intra-session recesses, and that the phrase “vacancies that may hap-

pen during the recess” applies only to vacancies that first come into

existence during a recess.

Held:

1. The Recess Appointments Clause empowers the President to fill

any existing vacancy during any recess—intra-session or inter-

session—of sufficient length. Pp. 5–33.

(a) Two background considerations are relevant to the questions

here. First, the Recess Appointments Clause is a subsidiary method

2 NLRB v. NOEL CANNING

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for appointing officers of the United States. The Founders intended

the norm to be the method of appointment in Article II, §2, cl. 2,

which requires Senate approval of Presidential nominations, at least

for principal officers. The Recess Appointments Clause reflects the

tension between the President’s continuous need for “the assistance

of subordinates,” Myers v. United States, 272 U. S. 52, 117, and the

Senate’s early practice of meeting for a single brief session each year.

The Clause should be interpreted as granting the President the pow-

er to make appointments during a recess but not offering the Presi-

dent the authority routinely to avoid the need for Senate confirma-

tion.

Second, in interpreting the Clause, the Court puts significant

weight upon historical practice. The longstanding “practice of the

government,” McCulloch v. Maryland, 4 Wheat. 316, 401, can inform

this Court’s determination of “what the law is” in a separation-of-

powers case, Marbury v. Madison, 1 Cranch 137, 176. See also, e.g.,

Mistretta v. United States, 488 U. S. 361, 401; The Pocket Veto Case,

279 U. S. 655, 689–690. There is a great deal of history to consider

here, for Presidents have made recess appointments since the begin-

ning of the Republic. Their frequency suggests that the Senate and

President have recognized that such appointments can be both neces-

sary and appropriate in certain circumstances. The Court, in inter-

preting the Clause for the first time, must hesitate to upset the com-

promises and working arrangements that the elected branches of

Government themselves have reached. Pp. 5–9.

(b) The phrase “the recess of the Senate” applies to both inter-

session recess (i.e., breaks between formal sessions of the Senate) and

intra-session recesses (i.e., breaks in the midst of a formal session) of

substantial length. The constitutional text is ambiguous. Founding-

era dictionaries and usages show that the phrase “the recess” can en-

compass intra-session breaks. And this broader interpretation is

demanded by the purpose of the Clause, which is to allow the Presi-

dent to make appointments so as to ensure the continued functioning

of the Government while the Senate is away. The Senate is equally

away and unavailable to participate in the appointments process dur-

ing both an inter-session and an intra-session recess. History offers

further support for this interpretation. From the founding until the

Great Depression, every time the Senate took a substantial, non-

holiday intra-session recess, the President made recess appoint-

ments. President Andrew Johnson made the first documented intra-

session recess appointments in 1867 and 1868, and Presidents made

similar appointments in 1921 and 1929. Since 1929, and particularly

since the end of World War II, Congress has shortened its inter-

session breaks and taken longer and more frequent intra-session

Cite as: 573 U. S. ____ (2014) 3

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breaks; Presidents accordingly have made more intra-session recess

appointments. Meanwhile, the Senate has never taken any formal

action to deny the validity of intra-session recess appointments. In

1905, the Senate Judiciary Committee defined “the recess” as “the

period of time when the Senate” is absent and cannot “participate as

a body in making appointments,” S. Rep. No. 4389, 58th Cong., 3d

Sess., p. 2, and that functional definition encompasses both intra-

session and inter-session recesses. A 1940 law regulating the pay-

ment of recess appointees has also been interpreted functionally by

the Comptroller General (an officer of the Legislative Branch). In

sum, Presidents have made intra-session recess appointments for a

century and a half, and the Senate has never taken formal action to

oppose them. That practice is long enough to entitle it to “great

weight in a proper interpretation” of the constitutional provision.

The Pocket Veto Case, supra, at 689.

The Clause does not say how long a recess must be in order to fall

within the Clause, but even the Solicitor General concedes that a 3-

day recess would be too short. The Adjournments Clause, Art. I, §5,

cl. 4, reflects the fact that a 3-day break is not a significant interrup-

tion of legislative business. A Senate recess that is so short that it

does not require the consent of the House under that Clause is not

long enough to trigger the President’s recess-appointment power.

Moreover, the Court has not found a single example of a recess ap-

pointment made during an intra-session recess that was shorter than

10 days. There are a few examples of inter-session recess appoint-

ments made during recesses of less than 10 days, but these are

anomalies. In light of historical practice, a recess of more than 3

days but less than 10 days is presumptively too short to fall within

the Clause. The word “presumptively” leaves open the possibility

that a very unusual circumstance could demand the exercise of the

recess-appointment power during a shorter break. Pp. 9–21.

(c) The phrase “vacancies that may happen during the recess of

the Senate,” Art. II, §2, cl. 3, applies both to vacancies that first come

into existence during a recess and to vacancies that initially occur be-

fore a recess but continue to exist during the recess. Again, the text

is ambiguous. As Thomas Jefferson observed, the Clause is “certain-

ly susceptible of [two] constructions.” Letter to Wilson Cary Nicholas

(Jan. 26, 1802), in 36 Papers of Thomas Jefferson 433. It “may mean

‘vacancies that may happen to be’ or ‘may happen to fall’ ” during a

recess. Ibid. And, as Attorney General Wirt wrote in 1821, the

broader reading is more consonant with the “reason and spirit” of the

Clause. 1 Op. Atty. Gen. 632. The purpose of the Clause is to permit

the President, who is always acting to execute the law, to obtain the

assistance of subordinate officers while the Senate, which acts only in

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intervals, is unavailable to confirm them. If a vacancy arises too late

in the session for the President and Senate to have an opportunity to

select a replacement, the narrower reading could paralyze important

functions of the Federal Government, particularly at the time of the

founding. The broader interpretation ensures that offices needing to

be filled can be filled. It does raise a danger that the President may

attempt to use the recess-appointment power to circumvent the Sen-

ate’s advice and consent role. But the narrower interpretation risks

undermining constitutionally conferred powers more seriously and

more often. It would prevent a President from making any recess

appointment to fill a vacancy that arose before a recess, no matter

who the official, how dire the need, how uncontroversial the appoint-

ment, and how late in the session the office fell vacant.

Historical practice also strongly favors the broader interpretation.

The tradition of applying the Clause to pre-recess vacancies dates at

least to President Madison. Nearly every Attorney General to con-

sider the question has approved the practice, and every President

since James Buchanan has made recess appointments to pre-existing

vacancies. It is a fair inference from the historical data that a large

proportion of recess appointments over our Nation’s history have

filled pre-recess vacancies. The Senate Judiciary Committee in 1863

did issue a report disagreeing with the broader interpretation, and

Congress passed a law known as the Pay Act prohibiting payment of

recess appointments to pre-recess vacancies soon after. However, the

Senate subsequently abandoned its hostility. In 1940, the Senate

amended the Pay Act to permit payment of recess appointees in cir-

cumstances that would be unconstitutional under the narrower in-

terpretation. In short, Presidents have made recess appointments to

preexisting vacancies for two centuries, and the Senate as a body has

not countered this practice for nearly three-quarters of a century,

perhaps longer. The Court is reluctant to upset this traditional prac-

tice where doing so would seriously shrink the authority that Presi-

dents have believed existed and have exercised for so long. Pp. 21–

33.

2. For purposes of the Recess Appointments Clause, the Senate is

in session when it says that it is, provided that, under its own rules,

it retains the capacity to transact Senate business.

This standard is consistent with the Constitution’s broad delega-

tion of authority to the Senate to determine how and when to conduct

its business, as recognized by this Court’s precedents. See Art. I, §5,

cl. 2; Marshall Field & Co. v. Clark, 143 U. S. 649, 672; United States

v. Ballin, 144 U. S. 1, 5, 9. Although the Senate’s own determination

of when it is and is not in session should be given great weight, the

Court’s deference cannot be absolute. When the Senate is without

Cite as: 573 U. S. ____ (2014) 5

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the capacity to act, under its own rules, it is not in session even if it

so declares.

Under the standard set forth here, the Senate was in session dur-

ing the pro forma sessions at issue. It said it was in session, and

Senate rules make clear that the Senate retained the power to con-

duct business. The Senate could have conducted business simply by

passing a unanimous consent agreement. In fact, it did so; it passed

a bill by unanimous consent during its pro forma session on Decem-

ber 23, 2011. See 2011 S. J. 924; Pub. L. 112–78. The Court will not,

as the Solicitor General urges, engage in an in-depth factual apprais-

al of what the Senate actually did during its pro forma sessions in or-

der to determine whether it was in recess or in session for purposes of

the Recess Appointments Clause.

Because the Senate was in session during its pro forma sessions,

the President made the recess appointments at issue during a 3-day

recess. Three days is too short a time to bring a recess within the

scope of the Clause, so the President lacked the authority to make

those appointments. Pp. 33–41.

705 F. 3d 490, affirmed.

BREYER, J., delivered the opinion of the Court, in which KENNEDY,

GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed an

opinion concurring in the judgment, in which ROBERTS, C. J., and

THOMAS and ALITO, JJ., joined.

Cite as: 573 U. S. ____ (2014) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 12–1281

_________________

NATIONAL LABOR RELATIONS BOARD, PETITIONER

v. NOEL CANNING, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[June 26, 2014]

JUSTICE BREYER delivered the opinion of the Court.

Ordinarily the President must obtain “the Advice and

Consent of the Senate” before appointing an “Office[r] of

the United States.” U. S. Const., Art. II, §2, cl. 2. But the

Recess Appointments Clause creates an exception. It

gives the President alone the power “to fill up all Vacan­

cies that may happen during the Recess of the Senate, by

granting Commissions which shall expire at the End of

their next Session.” Art. II, §2, cl. 3. We here consider

three questions about the application of this Clause.

The first concerns the scope of the words “recess of the

Senate.” Does that phrase refer only to an inter-session

recess (i.e., a break between formal sessions of Congress),

or does it also include an intra-session recess, such as a

summer recess in the midst of a session? We conclude

that the Clause applies to both kinds of recess.

The second question concerns the scope of the words

“vacancies that may happen.” Does that phrase refer only

to vacancies that first come into existence during a recess,

or does it also include vacancies that arise prior to a recess

but continue to exist during the recess? We conclude that

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the Clause applies to both kinds of vacancy.

The third question concerns calculation of the length of

a “recess.” The President made the appointments here at

issue on January 4, 2012. At that time the Senate was in

recess pursuant to a December 17, 2011, resolution provid­

ing for a series of brief recesses punctuated by “pro forma

session[s],” with “no business . . . transacted,” every Tues­

day and Friday through January 20, 2012. S. J., 112th

Cong., 1st Sess., 923 (2011) (hereinafter 2011 S. J.). In

calculating the length of a recess are we to ignore the pro

forma sessions, thereby treating the series of brief recesses

as a single, month-long recess? We conclude that we

cannot ignore these pro forma sessions.

Our answer to the third question means that, when the

appointments before us took place, the Senate was in the

midst of a 3-day recess. Three days is too short a time to

bring a recess within the scope of the Clause. Thus we

conclude that the President lacked the power to make the

recess appointments here at issue.

I

The case before us arises out of a labor dispute. The

National Labor Relations Board (NLRB) found that a

Pepsi-Cola distributor, Noel Canning, had unlawfully

refused to reduce to writing and execute a collective­

bargaining agreement with a labor union. The Board

ordered the distributor to execute the agreement and to

make employees whole for any losses. Noel Canning, 358

N. L. R. B. No. 4 (2012).

The Pepsi-Cola distributor subsequently asked the

Court of Appeals for the District of Columbia Circuit to set

the Board’s order aside. It claimed that three of the five

Board members had been invalidly appointed, leaving the

Board without the three lawfully appointed members

necessary for it to act. See 29 U. S. C. §160(f) (providing

for judicial review); §153(a) (providing for a 5-member

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Board); §153(b) (providing for a 3-member quorum); New

Process Steel, L. P. v. NLRB, 560 U. S. 674, 687–688

(2010) (in the absence of a lawfully appointed quorum, the

Board cannot exercise its powers).

The three members in question were Sharon Block,

Richard Griffin, and Terence Flynn. In 2011 the President

had nominated each of them to the Board. As of January

2012, Flynn’s nomination had been pending in the Senate

awaiting confirmation for approximately a year. The

nominations of each of the other two had been pending for

a few weeks. On January 4, 2012, the President, invoking

the Recess Appointments Clause, appointed all three to

the Board.

The distributor argued that the Recess Appointments

Clause did not authorize those appointments. It pointed

out that on December 17, 2011, the Senate, by unanimous

consent, had adopted a resolution providing that it would

take a series of brief recesses beginning the following day.

See 2011 S. J. 923. Pursuant to that resolution, the Sen­

ate held pro forma sessions every Tuesday and Friday

until it returned for ordinary business on January 23,

2012. Ibid.; 158 Cong. Rec. S1–S11 (Jan. 3–20, 2012). The

President’s January 4 appointments were made between

the January 3 and January 6 pro forma sessions. In the

distributor’s view, each pro forma session terminated the

immediately preceding recess. Accordingly, the appoint­

ments were made during a 3-day adjournment, which is

not long enough to trigger the Recess Appointments

Clause.

The Court of Appeals agreed that the appointments fell

outside the scope of the Clause. But the court set forth

different reasons. It held that the Clause’s words “the

recess of the Senate” do not include recesses that occur

within a formal session of Congress, i.e., intra-session

recesses. Rather those words apply only to recesses be-

tween those formal sessions, i.e., inter-session recesses.

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Since the second session of the 112th Congress began on

January 3, 2012, the day before the President’s appoint­

ments, those appointments occurred during an intra­

session recess, and the appointments consequently fell

outside the scope of the Clause. 705 F. 3d 490, 499–507

(CADC 2013).

The Court of Appeals added that, in any event, the

phrase “vacancies that may happen during the recess”

applies only to vacancies that come into existence during a

recess. Id., at 507–512. The vacancies that Members

Block, Griffin, and Flynn were appointed to fill had arisen

before the beginning of the recess during which they were

appointed. For this reason too the President’s appoint­

ments were invalid. And, because the Board lacked a

quorum of validly appointed members when it issued its

order, the order was invalid. 29 U. S. C. §153(b); New

Process Steel, supra.

We granted the Solicitor General’s petition for certio­

rari. We asked the parties to address not only the Court of

Appeals’ interpretation of the Clause but also the distribu­

tor’s initial argument, namely, “[w]hether the President’s

recess-appointment power may be exercised when the

Senate is convening every three days in pro forma ses­

sions.” 570 U. S. ___ (2013).

We shall answer all three questions presented. We

recognize that the President has nominated others to fill

the positions once occupied by Members Block, Griffin,

and Flynn, and that the Senate has confirmed these suc­

cessors. But, as the parties recognize, the fact that the

Board now unquestionably has a quorum does not moot

the controversy about the validity of the previously en­

tered Board order. And there are pending before us peti­

tions from decisions in other cases involving challenges to

the appointment of Board Member Craig Becker. The

President appointed Member Becker during an intra­

session recess that was not punctuated by pro forma ses­

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sions, and the vacancy Becker filled had come into exist­

ence prior to the recess. See Congressional Research

Service, H. Hogue, M. Carey, M. Greene, & M. Bearden,

The Noel Canning Decision and Recess Appointments

Made from 1981–2013, p. 28 (Feb. 4, 2013) (hereinaf­

ter The Noel Canning Decision); NLRB, Members of

the NLRB since 1935, online at http://www.nlrb.gov/

who-we-are/board/members-nlrb-1935 (all Internet mate­

rials as visited June 24, 2014, and available in Clerk of

Court’s case file). Other cases involving similar challenges

are also pending in the Courts of Appeals. E.g., NLRB v.

New Vista Nursing & Rehabilitation, No. 11–3440 etc.

(CA3). Thus, we believe it is important to answer all three

questions that this case presents.

II

Before turning to the specific questions presented, we

shall mention two background considerations that we find

relevant to all three. First, the Recess Appointments

Clause sets forth a subsidiary, not a primary, method for

appointing officers of the United States. The immediately

preceding Clause—Article II, Section 2, Clause 2—

provides the primary method of appointment. It says that

the President “shall nominate, and by and with the Advice

and Consent of the Senate, shall appoint Ambassadors,

other public Ministers and Consuls, Judges of the supreme

Court, and all other Officers of the United States” (empha­

sis added).

The Federalist Papers make clear that the Founders

intended this method of appointment, requiring Senate

approval, to be the norm (at least for principal officers).

Alexander Hamilton wrote that the Constitution vests the

power of nomination in the President alone because “one

man of discernment is better fitted to analise and estimate

the peculiar qualities adapted to particular offices, than a

body of men of equal, or perhaps even of superior discern­

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ment.” The Federalist No. 76, p. 510 (J. Cooke ed. 1961).

At the same time, the need to secure Senate approval

provides “an excellent check upon a spirit of favoritism in

the President, and would tend greatly to preventing the

appointment of unfit characters from State prejudice, from

family connection, from personal attachment, or from a

view to popularity.” Id., at 513. Hamilton further ex­

plained that the

“ordinary power of appointment is confided to the

President and Senate jointly, and can therefore only

be exercised during the session of the Senate; but 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 succeeding clause is evidently in­

tended to authorise the President singly to make tem­

porary appointments.” Id., No. 67, at 455.

Thus the Recess Appointments Clause reflects the ten­

sion between, on the one hand, the President’s continuous

need for “the assistance of subordinates,” Myers v. United

States, 272 U. S. 52, 117 (1926), and, on the other, the

Senate’s practice, particularly during the Republic’s early

years, of meeting for a single brief session each year, see

Art. I, §4, cl. 2; Amdt. 20, §2 (requiring the Senate to

“assemble” only “once in every year”); 3 J. Story, Commen­

taries on the Constitution of the United States §1551, p.

410 (1833) (it would be “burthensome to the senate, and

expensive to the public” to require the Senate to be “per­

petually in session”). We seek to interpret the Clause as

granting the President the power to make appointments

during a recess but not offering the President the author­

ity routinely to avoid the need for Senate confirmation.

Second, in interpreting the Clause, we put significant

weight upon historical practice. For one thing, the inter­

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pretive questions before us concern the allocation of power

between two elected branches of Government. Long ago

Chief Justice Marshall wrote that

“a doubtful question, one on which human reason may

pause, and the human judgment be suspended, in the

decision of which the great principles of liberty are not

concerned, but the respective powers of those who are

equally the representatives of the people, are to be ad-

justed; if not put at rest by the practice of the gov-

ernment, ought to receive a considerable impression

from that practice.” McCulloch v. Maryland, 4 Wheat.

316, 401 (1819).

And we later confirmed that “[l]ong settled and estab-

lished practice is a consideration of great weight in a

proper interpretation of constitutional provisions” regulat-

ing the relationship between Congress and the President.

The Pocket Veto Case, 279 U. S. 655, 689 (1929); see also

id., at 690 (“[A] practice of at least twenty years duration

‘on the part of the executive department, acquiesced in by

the legislative department, . . . is entitled to great regard

in determining the true construction of a constitutional

provision the phraseology of which is in any respect of

doubtful meaning’ ” (quoting State v. South Norwalk, 77

Conn. 257, 264, 58 A. 759, 761 (1904))).

We recognize, of course, that the separation of powers

can serve to safeguard individual liberty, Clinton v. City of

New York, 524 U. S. 417, 449–450 (1998) (KENNEDY, J.,

concurring), and that it is the “duty of the judicial depart-

ment”—in a separation-of-powers case as in any other—“to

say what the law is,” Marbury v. Madison, 1 Cranch 137,

177 (1803). But it is equally true that the longstanding

“practice of the government,” McCulloch, supra, at 401,

can inform our determination of “what the law is,” Mar-

bury, supra, at 177.

That principle is neither new nor controversial. As

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James Madison wrote, it “was foreseen at the birth of the

Constitution, that difficulties and differences of opinion

might occasionally arise in expounding terms & phrases

necessarily used in such a charter . . . and that it might

require a regular course of practice to liquidate & settle

the meaning of some of them.” Letter to Spencer Roane

(Sept. 2, 1819), in 8 Writings of James Madison 450 (G.

Hunt ed. 1908). And our cases have continually confirmed

Madison’s view. E.g., Mistretta v. United States, 488 U. S.

361, 401 (1989); Dames & Moore v. Regan, 453 U. S. 654,

686 (1981); Youngstown Sheet & Tube Co. v. Sawyer, 343

U. S. 579, 610–611 (1952) (Frankfurter, J., concurring);

The Pocket Veto Case, supra, at 689–690; Ex parte Gross-

man, 267 U. S. 87, 118–119 (1925); United States v. Mid-

west Oil Co., 236 U. S. 459, 472–474 (1915); McPherson v.

Blacker, 146 U. S. 1, 27 (1892); McCulloch, supra; Stuart

v. Laird, 1 Cranch 299 (1803).

These precedents show that this Court has treated

practice as an important interpretive factor even when the

nature or longevity of that practice is subject to dispute,

and even when that practice began after the founding era.

See Mistretta, supra, 400–401 (“While these [practices]

spawned spirited discussion and frequent criticism, . . .

‘traditional ways of conducting government . . . give mean­

ing’ to the Constitution” (quoting Youngstown, supra, at

610) (Frankfurter, J., concurring)); Regan, supra, at 684

(“[E]ven if the pre-1952 [practice] should be disregarded,

congressional acquiescence in [a practice] since that time

supports the President’s power to act here”); The Pocket

Veto Case, supra, at 689–690 (postfounding practice is

entitled to “great weight”); Grossman, supra, at 118–119

(postfounding practice “strongly sustains” a “construction”

of the Constitution).

There is a great deal of history to consider here. Presi­

dents have made recess appointments since the beginning

of the Republic. Their frequency suggests that the Senate

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and President have recognized that recess appointments

can be both necessary and appropriate in certain circum­

stances. We have not previously interpreted the Clause,

and, when doing so for the first time in more than 200

years, we must hesitate to upset the compromises and

working arrangements that the elected branches of Gov­

ernment themselves have reached.

III

The first question concerns the scope of the phrase “the

recess of the Senate.” Art. II, §2, cl. 3 (emphasis added).

The Constitution provides for congressional elections

every two years. And the 2-year life of each elected Con­

gress typically consists of two formal 1-year sessions, each

separated from the next by an “inter-session recess.”

Congressional Research Service, H. Hogue, Recess Ap­

pointments: Frequently Asked Questions 2 (2013). The

Senate or the House of Representatives announces an

inter-session recess by approving a resolution stating that

it will “adjourn sine die,” i.e., without specifying a date to

return (in which case Congress will reconvene when the

next formal session is scheduled to begin).

The Senate and the House also take breaks in the midst

of a session. The Senate or the House announces any such

“intra-session recess” by adopting a resolution stating that

it will “adjourn” to a fixed date, a few days or weeks or

even months later. All agree that the phrase “the recess of

the Senate” covers inter-session recesses. The question is

whether it includes intra-session recesses as well.

In our view, the phrase “the recess” includes an intra­

session recess of substantial length. Its words taken

literally can refer to both types of recess. Founding-era

dictionaries define the word “recess,” much as we do today,

simply as “a period of cessation from usual work.” 13 The

Oxford English Dictionary 322–323 (2d ed. 1989) (herein­

after OED) (citing 18th- and 19th-century sources for that

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definition of “recess”); 2 N. Webster, An American Diction­

ary of the English Language (1828) (“[r]emission or sus­

pension of business or procedure”); 2 S. Johnson, A Dic­

tionary of the English Language 1602–1603 (4th ed. 1773)

(hereinafter Johnson) (same). The Founders themselves

used the word to refer to intra-session, as well as to inter­

session, breaks. See, e.g., 3 Records of the Federal Con­

vention of 1787, p. 76 (M. Farrand rev. 1966) (hereinafter

Farrand) (letter from George Washington to John Jay

using “the recess” to refer to an intra-session break of the

Constitutional Convention); id., at 191 (speech of Luther

Martin with a similar usage); 1 T. Jefferson, A Manual

of Parliamentary Practice §LI, p. 165 (2d ed. 1812) (de­

scribing a “recess by adjournment” which did not end a

session).

We recognize that the word “the” in “the recess” might

suggest that the phrase refers to the single break separat­

ing formal sessions of Congress. That is because the word

“the” frequently (but not always) indicates “a particular

thing.” 2 Johnson 2003. But the word can also refer “to a

term used generically or universally.” 17 OED 879. The

Constitution, for example, directs the Senate to choose a

President pro tempore “in the Absence of the Vice-

President.” Art. I, §3, cl. 5 (emphasis added). And the

Federalist Papers refer to the chief magistrate of an an­

cient Achaean league who “administered the government

in the recess of the Senate.” The Federalist No. 18, at 113

(J. Madison) (emphasis added). Reading “the” generically

in this way, there is no linguistic problem applying the

Clause’s phrase to both kinds of recess. And, in fact, the

phrase “the recess” was used to refer to intra-session

recesses at the time of the founding. See, e.g., 3 Farrand

76 (letter from Washington to Jay); New Jersey Legislative-

Council Journal, 5th Sess., 1st Sitting 70, 2d Sitting 9

(1781) (twice referring to a 4-month, intra-session break

as “the Recess”); see also Brief for Petitioner 14–16 (listing

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examples).

The constitutional text is thus ambiguous. And we

believe the Clause’s purpose demands the broader inter­

pretation. The Clause gives the President authority to

make appointments during “the recess of the Senate” so

that the President can ensure the continued functioning of

the Federal Government when the Senate is away. The

Senate is equally away during both an inter-session and

an intra-session recess, and its capacity to participate in

the appointments process has nothing to do with the

words it uses to signal its departure.

History also offers strong support for the broad interpre­

tation. We concede that pre-Civil War history is not help­

ful. But it shows only that Congress generally took long

breaks between sessions, while taking no significant intra­

session breaks at all (five times it took a break of a week

or so at Christmas). See Appendix A, infra. Obviously, if

there are no significant intra-session recesses, there will

be no intra-session recess appointments. In 1867 and

1868, Congress for the first time took substantial, non­

holiday intra-session breaks, and President Andrew John­

son made dozens of recess appointments. The Federal

Court of Claims upheld one of those specific appointments,

writing “[w]e have no doubt that a vacancy occurring while

the Senate was thus temporarily adjourned” during the

“first session of the Fortieth Congress” was “legally filled

by appointment of the President alone.” Gould v. United

States, 19 Ct. Cl. 593, 595–596 (1884) (emphasis added).

Attorney General Evarts also issued three opinions con­

cerning the constitutionality of President Johnson’s ap­

pointments, and it apparently did not occur to him that

the distinction between intra-session and inter-session

recesses was significant. See 12 Op. Atty. Gen. 449 (1868);

12 Op. Atty. Gen. 455 (1868); 12 Op. Atty. Gen. 469 (1868).

Similarly, though the 40th Congress impeached President

Johnson on charges relating to his appointment power, he

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was not accused of violating the Constitution by mak­

ing intra-session recess appointments. Hartnett, Recess

Appointments of Article III Judges: Three Constitutional

Questions, 26 Cardozo L. Rev. 377, 409 (2005).

In all, between the founding and the Great Depression,

Congress took substantial intra-session breaks (other than

holiday breaks) in four years: 1867, 1868, 1921, and 1929.

Appendix A, infra. And in each of those years the Presi­

dent made intra-session recess appointments. See App. to

Brief for Petitioner 1a–11a.

Since 1929, and particularly since the end of World War

II, Congress has shortened its inter-session breaks as it

has taken longer and more frequent intra-session breaks;

Presidents have correspondingly made more intra-session

recess appointments. Indeed, if we include military ap­

pointments, Presidents have made thousands of intra­

session recess appointments. Id., at 11a–64a. President

Franklin Roosevelt, for example, commissioned Dwight

Eisenhower as a permanent Major General during an

intra-session recess; President Truman made Dean Ache­

son Under Secretary of State; and President George H. W.

Bush reappointed Alan Greenspan as Chairman of the

Federal Reserve Board. Id., at 11a, 12a, 40a. JUSTICE

SCALIA does not dispute any of these facts.

Not surprisingly, the publicly available opinions of

Presidential legal advisers that we have found are nearly

unanimous in determining that the Clause authorizes

these appointments. In 1921, for example, Attorney Gen­

eral Daugherty advised President Harding that he could

make intra-session recess appointments. He reasoned:

“If the President’s power of appointment is to be de­

feated because the Senate takes an adjournment to a

specified date, the painful and inevitable result will be

measurably to prevent the exercise of governmental

functions. I can not bring myself to believe that the

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framers of the Constitution ever intended such a ca­

tastrophe to happen.” 33 Op. Atty. Gen. 20, 23.

We have found memoranda offering similar advice to

President Eisenhower and to every President from Carter

to the present. See 36 Opinion of Office of Legal Counsel

(Op. OLC) ___, ___ (2012), online at www.justice.gov/

olc/opiniondocslpro-forma-sessions-opinion.pdf; 25 Op.

OLC 182 (2001); 20 Op. OLC 124, 161 (1996); 16 Op. OLC

15 (1992); 13 Op. OLC 271 (1989); 6 Op. OLC 585, 586

(1982); 3 Op. OLC 314, 316 (1979); 41 Op. Atty. Gen. 463,

466 (1960).

We must note one contrary opinion authored by Presi­

dent Theodore Roosevelt’s Attorney General Philander

Knox. Knox advised the President that the Clause did not

cover a 19–day intra-session Christmas recess. 23 Op.

Atty. Gen. 599 (1901). But in doing so he relied heavily

upon the use of the word “the,” a linguistic point that we

do not find determinative. See supra, at 10. And Knox all

but confessed that his interpretation ran contrary to the

basic purpose of the Clause. For it would permit the

Senate to adjourn for “several months,” to a fixed date,

and thereby “seriously curtail the President’s power of

making recess appointments.” 23 Op. Atty. Gen., at 603.

Moreover, only three days before Knox gave his opinion,

the Solicitor of the Treasury came to the opposite conclu­

sion. Reply Brief 7, n. 5. We therefore do not think Knox’s

isolated opinion can disturb the consensus advice within

the Executive Branch taking the opposite position.

What about the Senate? Since Presidents began making

intra-session recess appointments, individual Senators

have taken differing views about the proper definition of

“the recess.” See, e.g., 130 Cong. Rec. 23234 (1984) (reso­

lution introduced by Senator Byrd urging limits on the

length of applicable intra-session recesses); Brief for Sen.

Mitch McConnell et al. as Amici Curiae 26 (an intra­

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session adjournment does not count as “the recess”); Brief

for Sen. Edward M. Kennedy as Amicus Curiae in Frank-

lin v. United States, O. T. 2004, No. 04–5858, p. 5 (same).

But neither the Senate considered as a body nor its com­

mittees, despite opportunities to express opposition to the

practice of intra-session recess appointments, has done so.

Rather, to the extent that the Senate or a Senate commit­

tee has expressed a view, that view has favored a func­

tional definition of “recess,” and a functional definition

encompasses intra-session recesses.

Most notably, in 1905 the Senate Committee on the

Judiciary objected strongly to President Theodore Roose­

velt’s use of the Clause to make more than 160 recess

appointments during a “fictitious” inter-session recess.

S. Rep. No. 4389, 58th Cong., 3d Sess., p. 2 (hereinafter

1905 Senate Report). At noon on December 7, 1903, the

Senate President pro tempore had “declare[d]” a formal,

“extraordinary session” of the Senate “adjourned without

day,” and the next formal Senate session began immedi­

ately afterwards. 37 Cong. Rec. 544 (1903). President

Roosevelt made over 160 recess appointments during the

instantaneous inter-session interval. The Judiciary Com­

mittee, when stating its strong objection, defined “recess”

in functional terms as

“the period of time when the Senate is not sitting in

regular or extraordinary session as a branch of the

Congress . . . ; when its members owe no duty of at­

tendance; when its Chamber is empty; when, because

of its absence, it can not receive communications from

the President or participate as a body in making ap­

pointments.” 1905 Senate Report, at 2 (emphasis

deleted).

That functional definition encompasses intra-session, as

well as inter-session, recesses. JUSTICE SCALIA is right

that the 1905 Report did not specifically address the dis­

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tinction between inter-session and intra-session recesses.

But the animating principle of the Report—that “recess”

should be practically construed to mean a time when the

Senate is unavailable to participate in the appointments

process—is inconsistent with the formalistic approach that

JUSTICE SCALIA endorses.

Similarly, in 1940 the Senate helped to enact a law

regulating the payment of recess appointees, and the

Comptroller General of the United States has interpreted

that law functionally. An earlier 1863 statute had denied

pay to individuals appointed to fill up vacancies first

arising prior to the beginning of a recess. The Senate

Judiciary Committee then believed that those vacancies

fell outside the scope of the Clause. See infra, at 30. In

1940, however, the Senate amended the law to permit

many of those recess appointees to be paid. Act of July 11,

54 Stat. 751. Interpreting the amendments in 1948, the

Comptroller General—who, unlike the Attorney General,

is an “officer of the Legislative Branch,” Bowsher v. Synar,

478 U. S. 714, 731 (1986)—wrote:

“I think it is clear that [the Pay Act amendments’]

primary purpose was to relieve ‘recess appointees’ of

the burden of serving without compensation during

periods when the Senate is not actually sitting and is

not available to give its advice and consent in respect

to the appointment, irrespective of whether the recess

of the Senate is attributable to a final adjournment

sine die or to an adjournment to a specified date.” 28

Comp. Gen. 30, 37.

We recognize that the Senate cannot easily register

opposition as a body to every governmental action that

many, perhaps most, Senators oppose. But the Senate has

not been silent or passive regarding the meaning of the

Clause: A Senate Committee did register opposition to

President Theodore Roosevelt’s use of the Clause, and the

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Senate as a whole has legislated in an effort to discourage

certain kinds of recess appointments. And yet we are not

aware of any formal action it has taken to call into ques­

tion the broad and functional definition of “recess” first

set out in the 1905 Senate Report and followed by the

Executive Branch since at least 1921. Nor has JUSTICE

SCALIA identified any. All the while, the President has

made countless recess appointments during intra-session

recesses.

The upshot is that restricting the Clause to inter-session

recesses would frustrate its purpose. It would make the

President’s recess-appointment power dependent on a

formalistic distinction of Senate procedure. Moreover, the

President has consistently and frequently interpreted the

word “recess” to apply to intra-session recesses, and has

acted on that interpretation. The Senate as a body has

done nothing to deny the validity of this practice for at

least three-quarters of a century. And three-quarters of a

century of settled practice is long enough to entitle a

practice to “great weight in a proper interpretation” of the

constitutional provision. The Pocket Veto Case, 279 U. S.,

at 689.

We are aware of, but we are not persuaded by, three

important arguments to the contrary. First, some argue

that the Founders would likely have intended the Clause

to apply only to inter-session recesses, for they hardly

knew any other. See, e.g., Brief for Originalist Scholars as

Amici Curiae 27–29. Indeed, from the founding until the

Civil War inter-session recesses were the only kind of

significant recesses that Congress took. The problem with

this argument, however, is that it does not fully describe

the relevant founding intent. The question is not: Did the

Founders at the time think about intra-session recesses?

Perhaps they did not. The question is: Did the Founders

intend to restrict the scope of the Clause to the form of

congressional recess then prevalent, or did they intend a

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broader scope permitting the Clause to apply, where ap­

propriate, to somewhat changed circumstances? The

Founders knew they were writing a document designed to

apply to ever-changing circumstances over centuries.

After all, a Constitution is “intended to endure for ages to

come,” and must adapt itself to a future that can only be

“seen dimly,” if at all. McCulloch, 4 Wheat., at 415. We

therefore think the Framers likely did intend the Clause

to apply to a new circumstance that so clearly falls within

its essential purposes, where doing so is consistent with

the Clause’s language.

Second, some argue that the intra-session interpretation

permits the President to make “illogic[ally]” long recess

appointments. Brief for Respondent Noel Canning 13;

post, at 10 (SCALIA, J., concurring in judgment). A recess

appointment made between Congress’ annual sessions

would permit the appointee to serve for about a year, i.e.,

until the “end” of the “next” Senate “session.” Art. II, §2,

cl. 3. But an intra-session appointment made at the be­

ginning or in the middle of a formal session could permit

the appointee to serve for 1½ or almost 2 years (until the

end of the following formal session).

We agree that the intra-session interpretation permits

somewhat longer recess appointments, but we do not agree

that this consequence is “illogical.” A President who

makes a recess appointment will often also seek to make a

regular appointment, nominating the appointee and secur­

ing ordinary Senate confirmation. And the Clause ensures

that the President and Senate always have at least a full

session to go through the nomination and confirmation

process. That process may take several months. See

O’Connell, Vacant Offices: Delays in Staffing Top Agency

Positions, 82 S. Cal. L. Rev. 913, 967 (2009) (from 1987 to

2005 the nomination and confirmation process took an

average of 236 days for noncabinet agency heads). A

recess appointment that lasts somewhat longer than a

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year will ensure the President the continued assistance of

subordinates that the Clause permits him to obtain while

he and the Senate select a regular appointee. An ap­

pointment should last until the Senate has “an opportu­

nity to act on the subject,” Story, §1551, at 410, and the

Clause embodies a determination that a full session is

needed to select and vet a replacement.

Third, the Court of Appeals believed that application of

the Clause to intra-session recesses would introduce

“vagueness” into a Clause that was otherwise clear. 705

F. 3d, at 504. One can find problems of uncertainty, how­

ever, either way. In 1867, for example, President Andrew

Johnson called a special session of Congress, which took

place during a lengthy intra-session recess. Consider the

period of time that fell just after the conclusion of that

special session. Did that period remain an intra-session

recess, or did it become an inter-session recess? Histori­

ans disagree about the answer. Compare Hartnett, 26

Cardozo L. Rev., at 408–409, with Brief for Constitutional

Law Scholars as Amici Curiae 23–24.

Or suppose that Congress adjourns sine die, but it does

so conditionally, so that the leadership can call the mem­

bers back into session when “the public interest shall

warrant it.” E.g., 155 Cong. Rec. 33429 (2009); 152 Cong.

Rec. 23731–23732 (2006); 150 Cong. Rec. 25925–25926

(2004). If the Senate Majority Leader were to reconvene

the Senate, how would we characterize the preceding

recess? Is it still inter-session? On the narrower interpre­

tation the label matters; on the broader it does not.

The greater interpretive problem is determining how

long a recess must be in order to fall within the Clause. Is

a break of a week, or a day, or an hour too short to count

as a “recess”? The Clause itself does not say. And

JUSTICE SCALIA claims that this silence itself shows that

the Framers intended the Clause to apply only to an inter­

session recess. Post, at 12–13.

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We disagree. For one thing, the most likely reason the

Framers did not place a textual floor underneath the word

“recess” is that they did not foresee the need for one. They

might have expected that the Senate would meet for a

single session lasting at most half a year. The Federalist

No. 84, at 596 (A. Hamilton). And they might not have

anticipated that intra-session recesses would become

lengthier and more significant than inter-session ones.

The Framers’ lack of clairvoyance on that point is not

dispositive. Unlike JUSTICE SCALIA, we think it most

consistent with our constitutional structure to presume

that the Framers would have allowed intra-session recess

appointments where there was a long history of such

practice.

Moreover, the lack of a textual floor raises a problem

that plagues both interpretations—JUSTICE SCALIA’s and

ours. Today a brief inter-session recess is just as possible

as a brief intra-session recess. And though JUSTICE

SCALIA says that the “notion that the Constitution em­

powers the President to make unilateral appointments

every time the Senate takes a half-hour lunch break is so

absurd as to be self-refuting,” he must immediately con­

cede (in a footnote) that the President “can make recess

appointments during any break between sessions, no

matter how short.” Post, at 11, 15, n. 4 (emphasis added).

Even the Solicitor General, arguing for a broader inter­

pretation, acknowledges that there is a lower limit appli­

cable to both kinds of recess. He argues that the lower

limit should be three days by analogy to the Adjournments

Clause of the Constitution. Tr. of Oral Arg. 11. That

Clause says: “Neither House, during the Session of Con­

gress, shall, without the Consent of the other, adjourn for

more than three days.” Art. I, §5, cl. 4.

We agree with the Solicitor General that a 3-day recess

would be too short. (Under Senate practice, “Sunday is

generally not considered a day,” and so is not counted for

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purposes of the Adjournments Clause. S. Doc. No. 101–28,

F. Riddick & A. Frumin, Riddick’s Senate Procedure:

Precedents and Practices 1265 (hereinafter Riddick’s).)

The Adjournments Clause reflects the fact that a 3-day

break is not a significant interruption of legislative busi­

ness. As the Solicitor General says, it is constitutionally

de minimis. Brief for Petitioner 18. A Senate recess that

is so short that it does not require the consent of the

House is not long enough to trigger the President’s recess­

appointment power.

That is not to say that the President may make recess

appointments during any recess that is “more than three

days.” Art. I, §5, cl. 4. The Recess Appointments Clause

seeks to permit the Executive Branch to function smoothly

when Congress is unavailable. And though Congress has

taken short breaks for almost 200 years, and there have

been many thousands of recess appointments in that time,

we have not found a single example of a recess ap­

pointment made during an intra-session recess that was

shorter than 10 days. Nor has the Solicitor General. Reply

Brief 23. Indeed, the Office of Legal Counsel once infor­

mally advised against making a recess appointment dur­

ing a 6-day intra-session recess. 3 Op. OLC, at 315–316.

The lack of examples suggests that the recess­

appointment power is not needed in that context. (The

length of a recess is “ordinarily calculated by counting the

calendar days running from the day after the recess begins

and including the day the recess ends.” 36 Op. OLC, at

___, n. 1 (citation omitted).)

There are a few historical examples of recess appoint­

ments made during inter-session recesses shorter than 10

days. We have already discussed President Theodore

Roosevelt’s appointments during the instantaneous, “ficti­

tious” recess. President Truman also made a recess ap­

pointment to the Civil Aeronautics Board during a 3-day

inter-session recess. Hogue, Recess Appointments: Fre­

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quently Asked Questions, at 5–6. President Taft made a

few appointments during a 9-day recess following his

inauguration, and President Lyndon Johnson made sev-

eral appointments during an 8-day recess several weeks

after assuming office. Hogue, The Law: Recess Appoint-

ments to Article III Courts, 34 Presidential Studies Q.

656, 671 (2004); 106 S. Exec. J. 2 (1964); 40 S. Exec. J. 12

(1909). There may be others of which we are unaware.

But when considered against 200 years of settled practice,

we regard these few scattered examples as anomalies. We

therefore conclude, in light of historical practice, that a

recess of more than 3 days but less than 10 days is pre-

sumptively too short to fall within the Clause. We add the

word “presumptively” to leave open the possibility that

some very unusual circumstance—a national catastrophe,

for instance, that renders the Senate unavailable but calls

for an urgent response—could demand the exercise of the

recess-appointment power during a shorter break. (It

should go without saying—except that JUSTICE SCALIA

compels us to say it—that political opposition in the Sen-

ate would not qualify as an unusual circumstance.)

In sum, we conclude that the phrase “the recess” applies

to both intra-session and inter-session recesses. If a Sen-

ate recess is so short that it does not require the consent of

the House, it is too short to trigger the Recess Appoint-

ments Clause. See Art. I, §5, cl. 4. And a recess lasting

less than 10 days is presumptively too short as well.

IV

The second question concerns the scope of the phrase

“vacancies that may happen during the recess of the Sen-

ate.” Art. II, §2, cl. 3 (emphasis added). All agree that the

phrase applies to vacancies that initially occur during a

recess. But does it also apply to vacancies that initially

occur before a recess and continue to exist during the

recess? In our view the phrase applies to both kinds of

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vacancy.

We believe that the Clause’s language, read literally,

permits, though it does not naturally favor, our broader

interpretation. We concede that the most natural mean­

ing of “happens” as applied to a “vacancy” (at least to a

modern ear) is that the vacancy “happens” when it ini­

tially occurs. See 1 Johnson 913 (defining “happen” in

relevant part as meaning “[t]o fall out; to chance; to come

to pass”). But that is not the only possible way to use the

word.

Thomas Jefferson wrote that the Clause is “certainly

susceptible of [two] constructions.” Letter to Wilson Cary

Nicholas (Jan. 26, 1802), in 36 Papers of Thomas Jefferson

433 (B. Oberg ed., 2009). It “may mean ‘vacancies that

may happen to be’ or ‘may happen to fall’ ” during a recess.

Ibid. Jefferson used the phrase in the first sense when he

wrote to a job seeker that a particular position was una­

vailable, but that he (Jefferson) was “happy that another

vacancy happens wherein I can . . . avail the public of your

integrity & talents,” for “the office of Treasurer of the US.

is vacant by the resignation of mr Meredith.” Letter to

Thomas Tudor Tucker (Oct. 31, 1801), in 35 id., at 530 (B.

Oberg ed. 2008) (emphasis added). See also Laws Passed

by the Legislature of Florida, No. 31, An Act to Organize

and Regulate the Militia of the Territory of Florida §13,

H. R. Exec. Doc. No. 72, 27th Cong., 3d Sess., 22 (1842)

(“[W]hen any vacancy shall take place in the office of any

lieutenant colonel, it shall be the duty of the colonel of the

regiment in which such vacancy may happen to order an

election to be held at the several precincts in the battalion

in which such vacancy may happen” (emphasis added)).

Similarly, when Attorney General William Wirt advised

President Monroe to follow the broader interpretation, he

wrote that the “expression seems not perfectly clear. It

may mean ‘happen to take place:’ that is, ‘to originate,’ ” or

it “may mean, also, without violence to the sense, ‘happen

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to exist.’ ” 1 Op. Atty. Gen. 631, 631–632 (1823). The

broader interpretation, he added, is “most accordant with”

the Constitution’s “reason and spirit.” Id., at 632.

We can still understand this earlier use of “happen” if

we think of it used together with another word that, like

“vacancy,” can refer to a continuing state, say, a financial

crisis. A statute that gives the President authority to act

in respect to “any financial crisis that may happen during

his term” can easily be interpreted to include crises that

arise before, and continue during, that term. Perhaps that

is why the Oxford English Dictionary defines “happen” in

part as “chance to be,” rather than “chance to occur.” 6

OED 1096 (emphasis added); see also 19 OED 383 (defin­

ing “vacancy” as the “condition of an office or post being

. . . vacant”).

In any event, the linguistic question here is not whether

the phrase can be, but whether it must be, read more

narrowly. The question is whether the Clause is ambigu­

ous. The Pocket Veto Case, 279 U. S., at 690. And the

broader reading, we believe, is at least a permissible

reading of a “ ‘doubtful’ ” phrase. Ibid. We consequently go

on to consider the Clause’s purpose and historical practice.

The Clause’s purpose strongly supports the broader

interpretation. That purpose is to permit the President to

obtain the assistance of subordinate officers when the

Senate, due to its recess, cannot confirm them. Attorney

General Wirt clearly described how the narrower interpre­

tation would undermine this purpose:

“Put the case of a vacancy occurring in an office, held

in a distant part of the country, on the last day of the

Senate’s session. Before the vacancy is made known

to the President, the Senate rises. The office may be

an important one; the vacancy may paralyze a whole

line of action in some essential branch of our internal

police; the public interests may imperiously demand

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that it shall be immediately filled. But the vacancy

happened to occur during the session of the Senate;

and if the President’s power is to be limited to such

vacancies only as happen to occur during the recess of

the Senate, the vacancy in the case put must continue,

however ruinous the consequences may be to the pub­

lic.” 1 Op. Atty. Gen., at 632.

Examples are not difficult to imagine: An ambassadorial

post falls vacant too soon before the recess begins for the

President to appoint a replacement; the Senate rejects a

President’s nominee just before a recess, too late to select

another. Wirt explained that the “substantial purpose of

the constitution was to keep these offices filled,” and “if

the President shall not have the power to fill a vacancy

thus circumstanced, . . . the substance of the constitution

will be sacrificed to a dubious construction of its letter.”

Ibid. Thus the broader construction, encompassing vacan­

cies that initially occur before the beginning of a recess, is

the “only construction of the constitution which is compat­

ible with its spirit, reason, and purposes; while, at the

same time, it offers no violence to its language.” Id., at

633.

We do not agree with JUSTICE SCALIA’s suggestion that

the Framers would have accepted the catastrophe envi­

sioned by Wirt because Congress can always provide for

acting officers, see 5 U. S. C. §3345, and the President can

always convene a special session of Congress, see U. S.

Const., Art. II, §3. Acting officers may have less authority

than Presidential appointments. 6 Op. OLC 119, 121

(1982). Moreover, to rely on acting officers would lessen

the President’s ability to staff the Executive Branch with

people of his own choosing, and thereby limit the Presi­

dent’s control and political accountability. Cf. Free Enter-

prise Fund v. Public Company Accounting Oversight Bd.,

561 U. S. 477, 497–498 (2010). Special sessions are

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burdensome (and would have been especially so at the

time of the founding). The point of the Recess Appoint­

ments Clause was to avoid reliance on these inadequate

expedients.

At the same time, we recognize one important purpose­

related consideration that argues in the opposite direction.

A broad interpretation might permit a President to avoid

Senate confirmations as a matter of course. If the Clause

gives the President the power to “fill up all vacancies” that

occur before, and continue to exist during, the Senate’s

recess, a President might not submit any nominations to

the Senate. He might simply wait for a recess and then

provide all potential nominees with recess appointments.

He might thereby routinely avoid the constitutional need

to obtain the Senate’s “advice and consent.”

Wirt thought considerations of character and politics

would prevent Presidents from abusing the Clause in this

way. 1 Op. Atty. Gen., at 634. He might have added that

such temptations should not often arise. It is often less

desirable for a President to make a recess appointment. A

recess appointee only serves a limited term. That, com­

bined with the lack of Senate approval, may diminish the

recess appointee’s ability, as a practical matter, to get a

controversial job done. And even where the President and

Senate are at odds over politically sensitive appointments,

compromise is normally possible. Indeed, the 1940 Pay

Act amendments represent a general compromise, for they

foresee payment of salaries to recess appointees where

vacancies occur before the recess began but not too long

before (namely, within 30 days before). 5 U. S. C.

§5503(a)(1); see infra, at 32. Moreover, the Senate, like

the President, has institutional “resources,” including

political resources, “available to protect and assert its

interests.” Goldwater v. Carter, 444 U. S. 996, 1004 (1979)

(Rehnquist, J., concurring in judgment). In an unusual

instance, where a matter is important enough to the Sen­

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ate, that body can remain in session, preventing recess

appointments by refusing to take a recess. See Part V,

infra. In any event, the Executive Branch has adhered to

the broader interpretation for two centuries, and Senate

confirmation has always remained the norm for officers

that require it.

While we concede that both interpretations carry with

them some risk of undesirable consequences, we believe

the narrower interpretation risks undermining constitu-

tionally conferred powers more seriously and more often.

It would prevent the President from making any recess

appointment that arose before a recess, no matter who the

official, no matter how dire the need, no matter how un-

controversial the appointment, and no matter how late in

the session the office fell vacant. Overall, like Attorney

General Wirt, we believe the broader interpretation more

consistent with the Constitution’s “reason and spirit.” 1

Op. Atty. Gen., at 632.

Historical practice over the past 200 years strongly

favors the broader interpretation. The tradition of apply-

ing the Clause to pre-recess vacancies dates at least to

President James Madison. There is no undisputed record

of Presidents George Washington, John Adams, or Thomas

Jefferson making such an appointment, though the Solici-

tor General believes he has found records showing that

Presidents Washington and Jefferson did so. We know

that Edmund Randolph, Washington’s Attorney General,

favored a narrow reading of the Clause. Randolph be-

lieved that the “Spirit of the Constitution favors the par-

ticipation of the Senate in all appointments,” though he

did not address—let alone answer—the powerful purpos-

ive and structural arguments subsequently made by At-

torney General Wirt. See Edmund Randolph’s Opinion on

Recess Appointments (July 7, 1792), in 24 Papers of

Thomas Jefferson 166 (J. Catanzariti ed. 1990).

President Adams seemed to endorse the broader view of

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the Clause in writing, though we are not aware of any

appointments he made in keeping with that view. See

Letter to J. McHenry (Apr. 16, 1799), in 8 Works of John

Adams 632–633 (C. Adams ed. 1853). His Attorney Gen­

eral, Charles Lee, later informed Jefferson that, in the

Adams administration, “whenever an office became vacant

so short a time before Congress rose, as not to give an

opportunity of enquiring for a proper character, they let it

lie always till recess.” 36 Papers of Thomas Jefferson 433.

We know that President Jefferson thought that the broad

interpretation was linguistically supportable, though his

actual practice is not clear. But the evidence suggests

that James Madison—as familiar as anyone with the

workings of the Constitutional Convention—appointed

Theodore Gaillard to replace a district judge who had left

office before a recess began. Hartnett, 26 Cardozo L. Rev.,

at 400–401. It also appears that in 1815 Madison signed a

bill that created two new offices prior to a recess which he

then filled later during the recess. See Act of Mar. 3, ch.

95, 3 Stat. 235; S. J. 13th Cong., 3d Sess., 689–690 (1815);

3 S. Exec. J. 19 (1828) (for Monday, Jan. 8, 1816). He also

made recess appointments to “territorial” United States

attorney and marshal positions, both of which had been

created when the Senate was in session more than two

years before. Act of Feb. 27, 1813, ch. 35, 2 Stat. 806; 3 S.

Exec. J. 19. JUSTICE SCALIA refers to “written evidence of

Madison’s own beliefs,” post, at 36, but in fact we have no

direct evidence of what President Madison believed. We

only know that he declined to make one appointment to a

pre-recess vacancy after his Secretary of War advised him

that he lacked the power. On the other hand, he did

apparently make at least five other appointments to pre­

recess vacancies, as JUSTICE SCALIA does not dispute.

The next President, James Monroe, received and pre­

sumably acted upon Attorney General Wirt’s advice,

namely that “all vacancies which, from any casualty,

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happen to exist at a time when the Senate cannot be

consulted as to filling them, may be temporarily filled by

the President.” 1 Op. Atty. Gen., at 633. Nearly every

subsequent Attorney General to consider the question

throughout the Nation’s history has thought the same.

E.g., 2 Op. Atty. Gen. 525, 528 (1832); 7 Op. Atty. Gen.

186, 223 (1855); 10 Op. Atty. Gen. 356, 356–357 (1862); 12

Op. Atty. Gen. 32, 33 (1866); 12 Op. Atty. Gen., at 452; 14

Op. Atty. Gen. 562, 564 (1875); 15 Op. Atty. Gen. 207

(1877); 16 Op. Atty. Gen. 522, 524 (1880); 17 Op. Atty.

Gen. 521 (1883); 18 Op. Atty. Gen. 29, 29–30 (1884); 19

Op. Atty. Gen. 261, 262 (1889); 26 Op. Atty. Gen. 234,

234–235 (1907); 30 Op. Atty. Gen. 314, 315 (1914); 41 Op.

Atty. Gen. 463, 465 (1960); 3 Op. OLC 314 (1979); 6 Op.

OLC 585, 586 (1982); 20 Op. OLC 124, 161 (1996); 36 Op.

OLC ___ (2012). Indeed, as early as 1862, Attorney Gen­

eral Bates advised President Lincoln that his power to fill

pre-recess vacancies was “settled . . . as far . . . as a consti­

tutional question can be settled,” 10 Op. Atty. Gen., at

356, and a century later Acting Attorney General Walsh

gave President Eisenhower the same advice “without any

doubt,” 41 Op. Atty. Gen., at 466.

This power is important. The Congressional Research

Service is “unaware of any official source of information

tracking the dates of vacancies in federal offices.” The

Noel Canning Decision 3, n. 6. Nonetheless, we have

enough information to believe that the Presidents since

Madison have made many recess appointments filling

vacancies that initially occurred prior to a recess. As we

have just said, nearly every 19th- and 20th-century Attor­

ney General expressing a view on the matter has agreed

with William Wirt, and Presidents tend to follow the legal

advice of their chief legal officers. Moreover, the Solicitor

General has compiled a list of 102 (mostly uncontested)

recess appointments made by Presidents going back to the

founding. App. to Brief for Petitioner 65a–89a. Given the

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difficulty of finding accurate information about vacancy

dates, that list is undoubtedly far smaller than the actual

number. No one disputes that every President since

James Buchanan has made recess appointments to pre­

existing vacancies.

Common sense also suggests that many recess appoin­

tees filled vacancies that arose before the recess began.

We have compared the list of intra-session recess ap­

pointments in the Solicitor General’s brief with the chart

of congressional recesses. Where a specific date of ap­

pointment can be ascertained, more than half of those

intra-session appointments were made within two weeks

of the beginning of a recess. That short window strongly

suggests that many of the vacancies initially arose prior to

the recess. See App. to Brief for Petitioner 1a–64a; Ap­

pendix A, infra. Thus, it is not surprising that the Con­

gressional Research Service, after examining the vacancy

dates associated with a random sample of 24 inter-session

recess appointments since 1981, concluded that “[i]n most

of the 24 cases, the preponderance of evidence indicated

that the vacancy arose prior to the recess during which the

appointment was made.” The Noel Canning Decision 3.

Further, with research assistance from the Supreme Court

Library, we have examined a random sample of the recess

appointments made by our two most recent Presidents,

and have found that almost all of those appointments

filled pre-recess vacancies: Of a sample of 21 recess ap­

pointments, 18 filled pre-recess vacancies and only 1 filled

a vacancy that arose during the recess in which he was

appointed. The precise date on which 2 of the vacancies

arose could not be determined. See Appendix B, infra.

Taken together, we think it is a fair inference that a large

proportion of the recess appointments in the history of the

Nation have filled pre-existing vacancies.

Did the Senate object? Early on, there was some spo­

radic disagreement with the broad interpretation. In 1814

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Senator Gore said that if “the vacancy happen at another

time, it is not the case described by the Constitution.” 26

Annals of Cong. 653. In 1822 a Senate committee, while

focusing on the President’s power to fill a new vacancy

created by statute, used language to the same effect. 38

id., at 489, 500. And early Congresses enacted statutes

authorizing certain recess appointments, see post, at 31, a

fact that may or may not suggest they accepted the nar­

rower interpretation of the Clause. Most of those stat­

utes—including the one passed by the First Congress—

authorized appointments to newly created offices, and may

have been addressed to the separate question of whether

new offices are vacancies within the meaning of the

Clause. See Letter from Alexander Hamilton to James

McHenry (May 3, 1799), in 23 Papers of Alexander Hamil­

ton 94 (H. Syrett ed. 1976) (“Vacancy is a relative term,

and presupposes that the Office has been once filled”);

Reply Brief 17. In any event, by 1862 Attorney General

Bates could still refer to “the unbroken acquiescence of the

Senate” in support of the broad interpretation. 10 Op.

Atty. Gen., at 356.

Then in 1863 the Senate Judiciary Committee disagreed

with the broad interpretation. It issued a report conclud­

ing that a vacancy “must have its inceptive point after one

session has closed and before another session has begun.”

S. Rep. No. 80, 37th Cong., 3d Sess., p. 3. And the Senate

then passed the Pay Act, which provided that “no money

shall be paid . . . as a salary, to any person appointed

during the recess of the Senate, to fill a vacancy . . . which

. . . existed while the Senate was in session.” Act of Feb. 9,

1863, §2, 12 Stat. 646. Relying upon the floor statement of

a single Senator, JUSTICE SCALIA suggests that the pas­

sage of the Pay Act indicates that the Senate as a whole

endorsed the position in the 1863 Report. But the circum­

stances are more equivocal. During the floor debate on the

bill, not a single Senator referred to the Report. Cong.

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Globe, 37th Cong., 3d Sess. 564–565 (1863). Indeed, Sena­

tor Trumbull, who introduced the Pay Act, acknowledged

that there was disagreement about the underlying consti­

tutional question. Id., at 565 (“[S]ome other persons think

he has that power”). Further, if a majority of the Senate

had believed appointments to pre-recess vacancies were

unconstitutional, it could have attempted to do far more

than temporarily dock the appointees’ pay. Cf. Tenure of

Office Act of 1867, §5, 14 Stat. 431 (making it a federal

crime for “any person” to “accept any appointment” in

certain circumstances).

In any event, the Senate subsequently abandoned its

hostility. In the debate preceding the 1905 Senate Report

regarding President Roosevelt’s “constructive” recess

appointments, Senator Tillman—who chaired the Com­

mittee that authored the 1905 Report—brought up the

1863 Report, and another Senator responded: “Whatever

that report may have said in 1863, I do not think that has

been the view the Senate has taken” of the issue. 38 Cong.

Rec. 1606 (1904). Senator Tillman then agreed that “the

Senate has acquiesced” in the President’s “power to fill”

pre-recess vacancies. Ibid. And Senator Tillman’s 1905

Report described the Clause’s purpose in terms closely

echoing Attorney General Wirt. 1905 Senate Report, at 2

(“Its sole purpose was to render it certain that at all times

there should be, whether the Senate was in session or not,

an officer for every office” (emphasis added)).

In 1916 the Senate debated whether to pay a recess

appointee who had filled a pre-recess vacancy and had not

subsequently been confirmed. Both Senators to address

the question—one on each side of the payment debate—

agreed that the President had the constitutional power to

make the appointment, and the Senate voted to pay the

appointee for his service. 53 Cong. Rec. 4291–4299; 39

Stat. 818–819. In 1927 the Comptroller General, a legisla­

tive officer, wrote that “there is no question but that the

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President has authority to make a recess appointment to

fill any vacancy,” including those that “existed while the

Senate was in session.” 7 Comp. Gen. 10, 11 (emphasis

added). Meanwhile, Presidents continued to make ap­

pointments to pre-recess vacancies. The Solicitor General

has identified 40 between 1863 and 1940, but that number

is clearly not comprehensive. See, e.g., 32 Op. Atty. Gen.

271–272 (1920) (listing 5 appointments that are not in the

Solicitor General’s appendix); Recess Appointments,

Washington Post, July 7, 1880, p. 1 (noting that President

Hayes had made “quite a number of appointments” to pre­

recess vacancies).

Then in 1940 Congress amended the Pay Act to author­

ize salary payments (with some exceptions) where (1) the

“vacancy arose within thirty days prior to the termination

of the session,” (2) “at the termination of the session” a

nomination was “pending,” or (3) a nominee was “rejected

by the Senate within thirty days prior to the termination

of the session.” Act of July 11, 54 Stat. 751 (codified, as

amended, at 5 U. S. C. §5503). All three circumstances

concern a vacancy that did not initially occur during a

recess but happened to exist during that recess. By pay­

ing salaries to this kind of recess appointee, the 1940

Senate (and later Senates) in effect supported the Presi­

dent’s interpretation of the Clause.

The upshot is that the President has consistently and

frequently interpreted the Recess Appointments Clause to

apply to vacancies that initially occur before, but continue

to exist during, a recess of the Senate. The Senate as a

body has not countered this practice for nearly three­

quarters of a century, perhaps longer. See A. Amar, The

Unwritten Constitution 576–577, n. 16 (2012) (for nearly

200 years “the overwhelming mass of actual practice”

supports the President’s interpretation); Mistretta v.

United States, 488 U. S. 361, 401 (1989) (a “200–year

tradition” can “ ‘give meaning’ to the Constitution” (quot­

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ing Youngstown, 343 U. S., at 610 (Frankfurter, J., con-

curring))). The tradition is long enough to entitle the

practice “to great regard in determining the true construc-

tion” of the constitutional provision. The Pocket Veto Case,

279 U. S., at 690. And we are reluctant to upset this

traditional practice where doing so would seriously shrink

the authority that Presidents have believed existed and

have exercised for so long.

In light of some linguistic ambiguity, the basic purpose

of the Clause, and the historical practice we have de-

scribed, we conclude that the phrase “all vacancies” in-

cludes vacancies that come into existence while the Senate

is in session.

V

The third question concerns the calculation of the length

of the Senate’s “recess.” On December 17, 2011, the Sen-

ate by unanimous consent adopted a resolution to convene

“pro forma session[s]” only, with “no business . . . trans-

acted,” on every Tuesday and Friday from December 20,

2011, through January 20, 2012. 2011 S. J. 923. At the

end of each pro forma session, the Senate would “adjourn

until” the following pro forma session. Ibid. During that

period, the Senate convened and adjourned as agreed. It

held pro forma sessions on December 20, 23, 27, and 30,

and on January 3, 6, 10, 13, 17, and 20; and at the end of

each pro forma session, it adjourned until the time and

date of the next. Id., at 923–924; 158 Cong. Rec. S1–S11.

The President made the recess appointments before us

on January 4, 2012, in between the January 3 and the

January 6 pro forma sessions. We must determine the

significance of these sessions—that is, whether, for pur-

poses of the Clause, we should treat them as periods when

the Senate was in session or as periods when it was in

recess. If the former, the period between January 3 and

January 6 was a 3-day recess, which is too short to trigger

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the President’s recess-appointment power, see supra, at

19–21. If the latter, however, then the 3-day period was

part of a much longer recess during which the President

did have the power to make recess appointments, see ibid.

The Solicitor General argues that we must treat the

pro forma sessions as periods of recess. He says that these

“sessions” were sessions in name only because the Senate

was in recess as a functional matter. The Senate, he

contends, remained in a single, unbroken recess from

January 3, when the second session of the 112th Congress

began by operation of the Twentieth Amendment, until

January 23, when the Senate reconvened to do regular

business.

In our view, however, the pro forma sessions count as

sessions, not as periods of recess. We hold that, for pur­

poses of the Recess Appointments Clause, the Senate is in

session when it says it is, provided that, under its own

rules, it retains the capacity to transact Senate business.

The Senate met that standard here.

The standard we apply is consistent with the Constitu­

tion’s broad delegation of authority to the Senate to de­

termine how and when to conduct its business. The Con­

stitution explicitly empowers the Senate to “determine the

Rules of its Proceedings.” Art. I, §5, cl. 2. And we have

held that “all matters of method are open to the determi­

nation” of the Senate, as long as there is “a reasonable

relation between the mode or method of proceeding estab­

lished by the rule and the result which is sought to be

attained” and the rule does not “ignore constitutional

restraints or violate fundamental rights.” United States v.

Ballin, 144 U. S. 1, 5 (1892).

In addition, the Constitution provides the Senate with

extensive control over its schedule. There are only limited

exceptions. See Amdt. 20, §2 (Congress must meet once a

year on January 3, unless it specifies another day by law);

Art. II, §3 (Senate must meet if the President calls it into

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special session); Art. I, §5, cl. 4 (neither House may ad­

journ for more than three days without consent of the

other). See also Art. II, §3 (“[I]n Case of Disagreement

between [the Houses], with Respect to the Time of Ad­

journment, [the President] may adjourn them to such

Time as he shall think proper”). The Constitution thus

gives the Senate wide latitude to determine whether and

when to have a session, as well as how to conduct the

session. This suggests that the Senate’s determination

about what constitutes a session should merit great

respect.

Furthermore, this Court’s precedents reflect the breadth

of the power constitutionally delegated to the Senate. We

generally take at face value the Senate’s own report of its

actions. When, for example, “the presiding officers” of the

House and Senate sign an enrolled bill (and the President

“approve[s]” it), “its authentication as a bill that has

passed Congress should be deemed complete and unim­

peachable.” Marshall Field & Co. v. Clark, 143 U. S. 649,

672 (1892). By the same principle, when the Journal of

the Senate indicates that a quorum was present, under a

valid Senate rule, at the time the Senate passed a bill, we

will not consider an argument that a quorum was not, in

fact, present. Ballin, supra, at 9. The Constitution re­

quires the Senate to keep its Journal, Art. I, §5, cl. 3

(“Each House shall keep a Journal of its proceedings . . .”),

and “if reference may be had to” it, “it must be assumed to

speak the truth,” Ballin, supra, at 4.

For these reasons, we conclude that we must give great

weight to the Senate’s own determination of when it is and

when it is not in session. But our deference to the Senate

cannot be absolute. When the Senate is without the ca-

pacity to act, under its own rules, it is not in session even

if it so declares. See Tr. of Oral Arg. 69 (acknowledgment

by counsel for amici Senators that if the Senate had left

the Capitol and “effectively given up . . . the business of

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legislating” then it might be in recess, even if it said it was

not). In that circumstance, the Senate is not simply un­

likely or unwilling to act upon nominations of the Presi­

dent. It is unable to do so. The purpose of the Clause is to

ensure the continued functioning of the Federal Govern­

ment while the Senate is unavailable. See supra, at 5–6.

This purpose would count for little were we to treat the

Senate as though it were in session even when it lacks the

ability to provide its “advice and consent.” Art. II, §2, cl. 2.

Accordingly, we conclude that when the Senate declares

that it is in session and possesses the capacity, under its

own rules, to conduct business, it is in session for purposes

of the Clause.

Applying this standard, we find that the pro forma

sessions were sessions for purposes of the Clause. First,

the Senate said it was in session. The Journal of the

Senate and the Congressional Record indicate that the

Senate convened for a series of twice-weekly “sessions”

from December 20 through January 20. 2011 S. J. 923–

924; 158 Cong. Rec. S1–S11. (The Journal of the Senate

for 2012 has not yet been published.) And these reports of

the Senate “must be assumed to speak the truth.” Ballin,

supra, at 4.

Second, the Senate’s rules make clear that during its

pro forma sessions, despite its resolution that it would

conduct no business, the Senate retained the power to

conduct business. During any pro forma session, the

Senate could have conducted business simply by passing a

unanimous consent agreement. See Riddick’s 1313. The

Senate in fact conducts much of its business through

unanimous consent. Id., at 1311–1312. Senate rules

presume that a quorum is present unless a present Sena­

tor questions it. Id., at 1041–1042. And when the Senate

has a quorum, an agreement is unanimously passed if,

upon its proposal, no present Senator objects. Id., at

1329–1330. It is consequently unsurprising that the

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Senate has enacted legislation during pro forma sessions

even when it has said that no business will be transacted.

Indeed, the Senate passed a bill by unanimous consent

during the second pro forma session after its December 17

adjournment. 2011 S. J. 924. And that bill quickly be­

came law. Pub. L. 112–78, 125 Stat. 1280.

By way of contrast, we do not see how the Senate could

conduct business during a recess. It could terminate the

recess and then, when in session, pass a bill. But in that

case, of course, the Senate would no longer be in recess. It

would be in session. And that is the crucial point. Senate

rules make clear that, once in session, the Senate can act

even if it has earlier said that it would not.

The Solicitor General argues that more is required. He

contends that what counts is not the Senate’s capacity to

conduct business but what the Senate actually does (or

here, did) during its pro forma sessions. And he looks for

support to the functional definition of “recess” set forth in

the 1905 Senate Report discussed above. See supra, at 14.

That Report describes a “recess” of the Senate as

“the period of time . . . when its members owe no duty

of attendance; when its Chamber is empty; when, be­

cause of its absence, it can not receive communica­

tions from the President or participate as a body in

making appointments.” 1905 Senate Report, at 2.

Even were we, for argument’s sake, to accept all of these

criteria as authoritative, they would here be met. Taking

the last criterion first, could the Senate, during its pro

forma sessions, “participate as a body in making appoint­

ments”? It could. It could confirm nominees by unani­

mous consent, just as it passed the bill mentioned above.

See Riddick’s 1313.

Could the Senate “receive communications from the

President”? It could. The Congressional Record indicates

that the Senate “received” a message from the President

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on January 12, during a 3-day adjournment between two

pro forma sessions. See 158 Cong. Rec. S37 (Jan. 23,

2012). If the Senate could receive Presidential messages

between two pro forma sessions, it could receive them

during a pro forma session.

Was the Senate’s Chamber “empty”? It was not. By its

official rules, the Senate operates under the presumption

that a quorum is present until a present Senator suggests

the absence of a quorum, Riddick’s 1041–1042, and noth­

ing in the Journal of the Senate or the Congressional

Record reflects any such suggestion.

Did Senators “owe [a] duty of attendance”? They did.

The Senate’s rules dictate that Senators are under a duty

to attend every session. See Riddick’s 214; Standing Rule

of the Senate VI(2), S. Doc. No. 112–1, p. 5 (2011) (“No

Senator shall absent himself from the service of the Sen­

ate without leave”). Nothing excused the Senators from

this duty during the Senate’s pro forma sessions. If any

present Senator had raised a question as to the presence

of a quorum, and by roll call it had become clear that a

quorum was missing, the Senators in attendance could

have directed the Sergeant at Arms to bring in the missing

Senators. Rule VI(4).

The Solicitor General asks us to engage in a more realis­

tic appraisal of what the Senate actually did. He argues

that, during the relevant pro forma sessions, business was

not in fact conducted; messages from the President could

not be received in any meaningful way because they could

not be placed before the Senate; the Senate Chamber was,

according to C-SPAN coverage, almost empty; and in

practice attendance was not required. See Brief for Peti­

tioner 48–49, 54–55.

We do not believe, however, that engaging in the kind of

factual appraisal that the Solicitor General suggests is

either legally or practically appropriate. From a legal

perspective, this approach would run contrary to prece­

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dent instructing us to “respect . . . coequal and independ-

ent departments” by, for example, taking the Senate’s

report of its official action at its word. Field, 143 U. S., at

672; see Ballin, 144 U. S., at 4. From a practical perspec-

tive, judges cannot easily determine such matters as who

is, and who is not, in fact present on the floor during a

particular Senate session. Judicial efforts to engage in

these kinds of inquiries would risk undue judicial interfer-

ence with the functioning of the Legislative Branch.

Finally, the Solicitor General warns that our holding

may “ ‘disrup[t] the proper balance between the coordinate

branches by preventing the Executive Branch from ac-

complishing its constitutionally assigned functions.’ ”

Brief for Petitioner 64 (quoting Morrison v. Olson, 487

U. S. 654, 695 (1988); alteration in original). We do not

see, however, how our holding could significantly alter the

constitutional balance. Most appointments are not contro-

versial and do not produce friction between the branches.

Where political controversy is serious, the Senate unques-

tionably has other methods of preventing recess appoint-

ments. As the Solicitor General concedes, the Senate

could preclude the President from making recess appoint-

ments by holding a series of twice-a-week ordinary (not

pro forma) sessions. And the nature of the business con-

ducted at those ordinary sessions—whether, for example,

Senators must vote on nominations, or may return to

their home States to meet with their constituents—is a

matter for the Senate to decide. The Constitution also

gives the President (if he has enough allies in Congress) a

way to force a recess. Art. II, §3 (“[I]n Case of Disagree-

ment between [the Houses], with Respect to the Time of

Adjournment, [the President] may adjourn them to such

Time as he shall think proper”). Moreover, the President

and Senators engage with each other in many different

ways and have a variety of methods of encouraging each

other to accept their points of view.

40 NLRB v. CANNING

Appendix A to opinionCourt Court

Opinion of the of the

Regardless, the Recess Appointments Clause is not

designed to overcome serious institutional friction. It

simply provides a subsidiary method for appointing offi­

cials when the Senate is away during a recess. Here, as in

other contexts, friction between the branches is an inevi­

table consequence of our constitutional structure. See

Myers, 272 U. S., at 293 (Brandeis, J., dissenting). That

structure foresees resolution not only through judicial

interpretation and compromise among the branches but

also by the ballot box.

VI

The Recess Appointments Clause responds to a struc­

tural difference between the Executive and Legislative

Branches: The Executive Branch is perpetually in opera­

tion, while the Legislature only acts in intervals separated

by recesses. The purpose of the Clause is to allow the

Executive to continue operating while the Senate is una­

vailable. We believe that the Clause’s text, standing

alone, is ambiguous. It does not resolve whether the

President may make appointments during intra-session

recesses, or whether he may fill pre-recess vacancies. But

the broader reading better serves the Clause’s structural

function. Moreover, that broader reading is reinforced by

centuries of history, which we are hesitant to disturb. We

thus hold that the Constitution empowers the President to

fill any existing vacancy during any recess—intra-session

or inter-session—of sufficient length.

JUSTICE SCALIA would render illegitimate thousands of

recess appointments reaching all the way back to the

founding era. More than that: Calling the Clause an

“anachronism,” he would basically read it out of the Con­

stitution. Post, at 12. He performs this act of judicial

excision in the name of liberty. We fail to see how excising

the Recess Appointments Clause preserves freedom. In

fact, Alexander Hamilton observed in the very first Feder­

Cite as: 573 U. S. ____ (2014) 41

Opinion of the Court

Opinion of the Court

alist Paper that “the vigour of government is essential to

the security of liberty.” The Federalist No. 1, at 5. And

the Framers included the Recess Appointments Clause to

preserve the “vigour of government” at times when an

important organ of Government, the United States Senate,

is in recess. JUSTICE SCALIA’s interpretation of the Clause

would defeat the power of the Clause to achieve that

objective.

The foregoing discussion should refute JUSTICE SCALIA’s

claim that we have “embrace[d]” an “adverse-possession

theory of executive power.” Post, at 48. Instead, as in

all cases, we interpret the Constitution in light of its

text, purposes, and “our whole experience” as a Nation.

Missouri v. Holland, 252 U. S. 416, 433 (1920). And we

look to the actual practice of Government to inform our

interpretation.

Given our answer to the last question before us, we

conclude that the Recess Appointments Clause does not

give the President the constitutional authority to make

the appointments here at issue. Because the Court of

Appeals reached the same ultimate conclusion (though for

reasons we reject), its judgment is affirmed.

It is so ordered.

42 NLRB v. CANNING

Appendix A to opinionCourt Court

Opinion of the of the

Appendix A to opinionof the Court

APPENDIXES

A

The following table contains the dates of all the intra­

session and inter-session recesses that Congress has taken

since the founding. The information (including the foot­

notes) is taken from 2011–2012 Official Congressional

Directory, 112th Cong., 522–539.

SESSIONS OF CONGRESS, 1st–112th CONGRESSES, 1789–2011

Length Recesses 2

Con­ Ses­ Convening Adjournment

in House of Representa­

gress sion Date Date Senate

days1 tives

1st 1 Mar. 4, 1789 Sept. 29, 1789 210

2 Jan. 4, 1790 Aug. 12, 1790 221

3 Dec. 6, 1790 Mar. 3, 1791 88

2d S Mar. 4, 1791 Mar. 4, 1791 1

1 Oct. 24, 1791 May 8, 1792 197

2 Nov. 5, 1792 Mar. 2, 1793 119

3d S Mar. 4, 1793 Mar. 4, 1793 1

1 Dec. 2, 1793 June 9, 1794 190

2 Nov. 3, 1794 Mar. 3, 1795 121

4th S June 8, 1795 June 26, 1795 19

1 Dec. 7, 1795 June 1, 1796 177

2 Dec. 5, 1796 Mar. 3, 1797 89

5th S Mar. 4, 1797 Mar. 4, 1797 1

1–E May 15, 1797 July 10, 1797 57

S July 17, 1798 July 19, 1798 3

2 Nov. 13, 1797 July 16, 1798 246

3 Dec. 3, 1798 Mar. 3, 1799 91

6th 1 Dec. 2, 1799 May 14, 1800 164

2 Nov. 17, 1800 Mar. 3, 1801 107 Dec. 23–Dec. 30, 1800 Dec. 23–Dec. 30, 1800

7th S Mar. 4, 1801 Mar. 5, 1801 2

1 Dec. 7, 1801 May 3, 1802 148

2 Dec. 6, 1802 Mar. 3, 1803 88

8th 1–E Oct. 17, 1803 Mar. 27, 1804 163

2 Nov. 5, 1804 Mar. 3, 1805 119

9th 1 Dec. 2, 1805 Apr. 21, 1806 141

2 Dec. 1, 1806 Mar. 3, 1807 93

10th 1–E Oct. 26, 1807 Apr. 25, 1808 182

2 Nov. 7, 1808 Mar. 3, 1809 117

11th S Mar. 4, 1809 Mar. 7, 1809 4

1 May 22, 1809 June 28, 1809 38

2 Nov. 27, 1809 May 1, 1810 156

3 Dec. 3, 1810 Mar. 3, 1811 91

12th 1–E Nov. 4, 1811 July 6, 1812 245

2 Nov. 2, 1812 Mar. 3, 1813 122

13th 1 May 24, 1813 Aug. 2, 1813 71

2 Dec. 6, 1813 Apr. 18, 1814 134

3–E Sept. 19, 1814 Mar. 3, 1815 166

14th 1 Dec. 4, 1815 Apr. 30, 1816 148

2 Dec. 2, 1816 Mar. 3, 1817 92

15th S Mar. 4, 1817 Mar. 6, 1817 3

1 Dec. 1, 1817 Apr. 20, 1818 141 Dec. 24–Dec. 29, 1817 Dec. 24–Dec. 29, 1817

2 Nov. 16, 1818 Mar. 3, 1819 108

16th 1 Dec. 6, 1819 May 15, 1820 162

2 Nov. 13, 1820 Mar. 3, 1821 111

17th 1 Dec. 3, 1821 May 8, 1822 157

2 Dec. 2, 1822 Mar. 3, 1823 92

18th 1 Dec. 1, 1823 May 27, 1824 178

2 Dec. 6, 1824 Mar. 3, 1825 88

19th S Mar. 4, 1825 Mar. 9, 1825 6

1 Dec. 5, 1825 May 22, 1826 169

Cite as: 573 U. S. ____ (2014) 43

Appendix A to opinionCourt Court

Opinion of the of the

Length Recesses 2

Con­ Ses­ Convening Adjournment

in House of Representa­

gress sion Date Date Senate

days1 tives

2 Dec. 4, 1826 Mar. 3, 1827 90

20th 1 Dec. 3, 1827 May 26, 1828 175

2 Dec. 1, 1828 Mar. 3, 1829 93 Dec. 24–Dec. 29, 1828 Dec. 24–Dec. 29, 1828

21st S Mar. 4, 1829 Mar. 17, 1829 14

1 Dec. 7, 1829 May 31, 1830 176

2 Dec. 6, 1830 Mar. 3, 1831 88

22d 1 Dec. 5, 1831 July 16, 1832 225

2 Dec. 3, 1832 Mar. 2, 1833 91

23d 1 Dec. 2, 1833 June 30, 1834 211

2 Dec. 1, 1834 Mar. 3, 1835 93

24th 1 Dec. 7, 1835 July 4, 1836 211

2 Dec. 5, 1836 Mar. 3, 1837 89

25th S Mar. 4, 1837 Mar. 10, 1837 7

1–E Sept. 4, 1837 Oct. 16, 1837 43

2 Dec. 4, 1837 July 9, 1838 218

3 Dec. 3, 1838 Mar. 3, 1839 91

26th 1 Dec. 2, 1839 July 21, 1840 233

2 Dec. 7, 1840 Mar. 3, 1841 87

27th S Mar. 4, 1841 Mar. 15, 1841 12

1–E May 31, 1841 Sept. 13, 1841 106

2 Dec. 6, 1841 Aug. 31, 1842 269

3 Dec. 5, 1842 Mar. 3, 1843 89

28th 1 Dec. 4, 1843 June 17, 1844 196

2 Dec. 2, 1844 Mar. 3, 1845 92

29th S Mar. 4, 1845 Mar. 20, 1845 17

1 Dec. 1, 1845 Aug. 10, 1846 253

2 Dec. 7, 1846 Mar. 3, 1847 87

30th 1 Dec. 6, 1847 Aug. 14, 1848 254

2 Dec. 4, 1848 Mar. 3, 1849 90

31st S Mar. 5, 1849 Mar. 23, 1849 19

1 Dec. 3, 1849 Sept. 30, 1850 302

2 Dec. 2, 1850 Mar. 3, 1851 92

32d S Mar. 4, 1851 Mar. 13, 1851 10

1 Dec. 1, 1851 Aug. 31, 1852 275

2 Dec. 6, 1852 Mar. 3, 1853 88

33d S Mar. 4, 1853 Apr. 11, 1853 39

1 Dec. 5, 1853 Aug. 7, 1854 246

2 Dec. 4, 1854 Mar. 3, 1855 90

34th 1 Dec. 3, 1855 Aug. 18, 1856 260

2–E Aug. 21, 1856 Aug. 30, 1856 10

3 Dec. 1, 1856 Mar. 3, 1857 93

35th S Mar. 4, 1857 Mar. 14, 1857 11

1 Dec. 7, 1857 June 14, 1858 189 Dec. 23, 1857–Jan. 4, Dec. 23, 1857–Jan. 4,

1858 1858

S June 15, 1858 June 16, 1858 2

2 Dec. 6, 1858 Mar. 3, 1859 88 Dec. 23, 1858–Jan. 4, Dec. 23, 1858–Jan. 4,

1859 1859

36th S Mar. 4, 1859 Mar. 10, 1859 7

1 Dec. 5, 1859 June 25, 1860 202

S June 26, 1860 June 28, 1860 3

2 Dec. 3, 1860 Mar. 3, 1861 93

37th S Mar. 4, 1861 Mar. 28, 1861 25

1–E July 4, 1861 Aug. 6, 1861 34

2 Dec. 2, 1861 July 17, 1862 228

3 Dec. 1, 1862 Mar. 3, 1863 93 Dec. 23, 1862–Jan. 5, Dec. 23, 1862–Jan. 5,

1863 1863

38th S Mar. 4, 1863 Mar. 14, 1863 11

1 Dec. 7, 1863 July 4, 1864 209 Dec. 23, 1863–Jan. 5, Dec. 23, 1863–Jan. 5,

1864 1864

2 Dec. 5, 1864 Mar. 3, 1865 89 Dec. 22, 1864–Jan. 5, Dec. 22, 1864–Jan. 5,

1865 1865

39th S Mar. 4, 1865 Mar. 11, 1865 8

1 Dec. 4, 1865 July 28, 1866 237 Dec. 6–Dec. 11, 1865 Dec. 6–Dec. 11, 1865

Dec. 21, 1865–Jan. 5, Dec. 21, 1865–Jan. 5,

1866 1866

2 Dec. 3, 1866 Mar. 3, 1867 91 Dec. 20, 1866–Jan. 3, Dec. 20, 1866–Jan. 3,

1867 1867

40th 1 Mar. 4, 1867 Dec. 1, 1867 273 Mar. 30–July 3, 1867 Mar. 30–July 3, 1867

July 20–Nov. 21, 1867 July 20–Nov. 21, 1867

S Apr. 1, 1867 Apr. 20, 1867 20

2 Dec. 2, 1867 Nov. 10, 1868 345 Dec. 20, 1867–Jan. 6, Dec. 20, 1867–Jan. 6,

1868 1868

July 27–Sept. 21, 1868 July 27–Sept. 21, 1868

44 NLRB v. CANNING

Appendix A to opinionCourt Court

Opinion of the of the

Length Recesses 2

Con­ Ses­ Convening Adjournment

in House of Representa­

gress sion Date Date Senate

days1 tives

Sept. 21–Oct. 16, 1868 Sept. 21–Oct. 16, 1868

Oct. 16–Nov. 10, 1868 Oct. 16–Nov. 10, 1868

3 Dec. 7, 1868 Mar. 3, 1869 87 Dec. 21, 1868–Jan. 5, Dec. 21, 1868–Jan. 5,

1869 1869

41st 1 Mar. 4, 1869 Apr. 10, 1869 38

S Apr. 12, 1869 Apr. 22, 1869 11

2 Dec. 6, 1869 July 15, 1870 222 Dec. 22, 1869–Jan. 10, Dec. 22, 1869–Jan. 10,

1870 1870

3 Dec. 5, 1870 Mar. 3, 1871 89 Dec. 23, 1870–Jan. 4, Dec. 22, 1870–Jan. 4,

1871 1871

42d 1 Mar. 4, 1871 Apr. 20, 1871 48

S May 10, 1871 May 27, 1871 18

2 Dec. 4, 1871 June 10, 1872 190 Dec. 21, 1871–Jan. 8, Dec. 21, 1871–Jan. 8,

1872 1872

3 Dec. 2, 1872 Mar. 3, 1873 92 Dec. 20, 1872–Jan. 6, Dec. 20, 1872–Jan. 6,

1873 1873

43d S Mar. 4, 1873 Mar. 26, 1873 23

1 Dec. 1, 1873 June 23, 1874 204 Dec. 19, 1873–Jan. 5, Dec. 19, 1873–Jan. 5,

1874 1874

2 Dec. 7, 1874 Mar. 3, 1875 87 Dec. 23, 1874–Jan. 5, Dec. 23, 1874–Jan. 5,

1875 1875

44th S Mar. 5, 1875 Mar. 24, 1875 20

1 Dec. 6, 1875 Aug. 15, 1876 254 Dec. 20, 1875–Jan. 5, Dec. 21, 1875–Jan. 5,

1876 1876

2 Dec. 4, 1876 Mar. 3, 1877 90

45th S Mar. 5, 1877 Mar. 17, 1877 13

1–E Oct. 15, 1877 Dec. 3, 1877 50

2 Dec. 3, 1877 June 20, 1878 200 Dec. 15, 1877–Jan. 10, Dec. 15, 1877–Jan. 10,

1878 1878

3 Dec. 2, 1878 Mar. 3, 1879 92 Dec. 20, 1878–Jan. 7, Dec. 20, 1878–Jan. 7,

1879 1879

46th 1–E Mar. 18, 1879 July 1, 1879 106

2 Dec. 1, 1879 June 16, 1880 199 Dec. 19, 1879–Jan. 6, Dec. 19, 1879–Jan. 6,

1880 1880

3 Dec. 6, 1880 Mar. 3, 1881 88 Dec. 23, 1880–Jan. 5, Dec. 23, 1880–Jan. 5,

1881 1881

47th S Mar. 4, 1881 May 20, 1881 78

S Oct. 10, 1881 Oct. 29, 1881 20

1 Dec. 5, 1881 Aug. 8, 1882 247 Dec. 22, 1881–Jan. 5, Dec. 22, 1881–Jan. 5,

1882 1882

2 Dec. 4, 1882 Mar. 3, 1883 90

48th 1 Dec. 3, 1883 July 7, 1884 218 Dec. 24, 1883–Jan. 7, Dec. 24, 1883–Jan. 7,

1884 1884

2 Dec. 1, 1884 Mar. 3, 1885 93 Dec. 24, 1884–Jan. 5, Dec. 24, 1884–Jan. 5,

1885 1885

49th S Mar. 4, 1885 Apr. 2, 1885 30

1 Dec. 7, 1885 Aug. 5, 1886 242 Dec. 21, 1885–Jan. 5, Dec. 21, 1885–Jan. 5,

1886 1886

2 Dec. 6, 1886 Mar. 3, 1887 88 Dec. 22, 1886–Jan. 4, Dec. 22, 1886–Jan. 4,

1887 1887

50th 1 Dec. 5, 1887 Oct. 20, 1888 321 Dec. 22, 1887–Jan. 4, Dec. 22, 1887–Jan. 4,

1888 1888

2 Dec. 3, 1888 Mar. 3, 1889 91 Dec. 21, 1888–Jan. 2, Dec. 21, 1888–Jan. 2,

1889 1889

51st S Mar. 4, 1889 Apr. 2, 1889 30

1 Dec. 2, 1889 Oct. 1, 1890 304 Dec. 21, 1889–Jan. 6, Dec. 21, 1889–Jan. 6,

1890 1890

2 Dec. 1, 1890 Mar. 3, 1891 93

52d 1 Dec. 7, 1891 Aug. 5, 1892 251

2 Dec. 5, 1892 Mar. 3, 1893 89 Dec. 22, 1892–Jan. 4, Dec. 22, 1892–Jan. 4,

1893 1893

53d S Mar. 4, 1893 Apr. 15, 1893 43

1–E Aug. 7, 1893 Nov. 3, 1893 89

2 Dec. 4, 1893 Aug. 28, 1894 268 Dec. 21, 1893–Jan. 3,

1894

3 Dec. 3, 1894 Mar. 3, 1895 97 Dec. 23, 1894–Jan. 3,

1895

54th 1 Dec. 2, 1895 June 11, 1896 193

2 Dec. 7, 1896 Mar. 3, 1897 87 Dec. 22, 1896–Jan. 5, Dec. 22, 1896–Jan. 5,

1897 1897

55th S Mar. 4, 1897 Mar. 10, 1897 11

Cite as: 573 U. S. ____ (2014) 45

Appendix A to opinionCourt Court

Opinion of the of the

Length Recesses 2

Con­ Ses­ Convening Adjournment

in House of Representa­

gress sion Date Date Senate

days1 tives

1–E Mar. 15, 1897 July 24, 1897 131

2 Dec. 6, 1897 July 8, 1898 215 Dec. 18, 1897–Jan. 5, Dec. 18, 1897–Jan. 5,

1898 1898

3 Dec. 5, 1898 Mar. 3, 1899 89 Dec. 21, 1898–Jan. 4, Dec. 21, 1898–Jan. 4,

1899 1899

56th 1 Dec. 4, 1899 June 7, 1900 186 Dec. 20, 1899–Jan. 3, Dec. 20, 1899–Jan. 3,

1900 1900

2 Dec. 3, 1900 Mar. 3, 1901 91 Dec. 20, 1900–Jan. 3, Dec. 21, 1900–Jan. 3,

1901 1901

57th S Mar. 4, 1901 Mar. 9, 1901 6

1 Dec. 2, 1901 July 1, 1902 212 Dec. 19, 1901–Jan. 6, Dec. 19, 1901–Jan. 6,

1902 1902

2 Dec. 1, 1902 Mar. 3, 1903 93 Dec. 20, 1902–Jan. 5, Dec. 20, 1902–Jan. 5,

1903 1903

58th S Mar. 5, 1903 Mar. 19, 1903 15

1–E Nov. 9, 1903 Dec. 7, 1903 29

2 Dec. 7, 1903 Apr. 28, 1904 144 Dec. 19, 1903–Jan. 4, Dec. 19, 1903–Jan. 4,

1904 1904

3 Dec. 5, 1904 Mar. 3, 1905 89 Dec. 21, 1904–Jan. 4, Dec. 21, 1904–Jan. 4,

1905 1905

59th S Mar. 4, 1905 Mar. 18, 1905 15

1 Dec. 4, 1905 June 30, 1906 209 Dec. 21, 1905–Jan. 4, Dec. 21, 1905–Jan. 4,

1906 1906

2 Dec. 3, 1906 Mar. 3, 1907 91 Dec. 20, 1906–Jan. 3, Dec. 20, 1906–Jan. 3,

1907 1907

60th 1 Dec. 2, 1907 May 30, 1908 181 Dec. 21, 1907–Jan. 6, Dec. 21, 1907–Jan. 6,

1908 1908

2 Dec. 7, 1908 Mar. 3, 1909 87 Dec. 19, 1908–Jan. 4, Dec. 19, 1908–Jan. 4,

1909 1909

61st S Mar. 4, 1909 Mar. 6, 1909 3

1–E Mar. 15, 1909 Aug. 5, 1909 144

2 Dec. 6, 1909 June 25, 1910 202 Dec. 21, 1909–Jan. 4, Dec. 21, 1909–Jan. 4,

1910 1910

3 Dec. 5, 1910 Mar. 3, 1911 89 Dec. 21, 1910–Jan. 5, Dec. 21, 1910–Jan. 5,

1911 1911

62d 1–E Apr. 4, 1911 . Aug. 22, 1911 141

2 Dec. 4, 1911 Aug. 26, 1912 267 Dec. 21, 1911–Jan. 3, Dec. 21, 1911–Jan. 3,

1912 1912

3 Dec. 2, 1912 Mar. 3, 1913 92 Dec. 19, 1912–Jan. 2, Dec. 19, 1912–Jan. 2,

1913 1913

63d S Mar. 4, 1913 Mar. 17, 1913 14

1–E Apr. 7, 1913 Dec. 1, 1913 239

2 Dec. 1, 1913 Oct. 24, 1914 328 Dec. 23, 1913–Jan. 12, Dec. 23, 1913–Jan. 12,

1914 1914

3 Dec. 7, 1914 Mar. 3, 1915 87 Dec. 23–Dec. 28, 1914 Dec. 23–Dec. 28, 1914

64th 1 Dec. 6, 1915 Sept. 8, 1916 278 Dec. 17, 1915–Jan. 4, Dec. 17, 1915–Jan. 4,

1916 1916

2 Dec. 4, 1916 Mar. 3, 1917 90 Dec. 22, 1916–Jan. 2, Dec. 22, 1916–Jan. 2,

1917 1917

65th S Mar. 5, 1917 Mar. 16, 1917 12

1–E Apr. 2, 1917 Oct. 6, 1917 188

2 Dec. 3, 1917 Nov. 21, 1918 354 Dec. 18, 1917–Jan. 3, Dec. 18, 1917–Jan. 3,

1918 1918

3 Dec. 2, 1918 Mar. 3, 1919 92

66th 1–E May 19, 1919 Nov. 19, 1919 185 July 1–July 8, 1919 July 1–July 8, 1919

2 Dec. 1, 1919 June 5, 1920 188 Dec. 20, 1919–Jan. 5, Dec. 20, 1919–Jan. 5,

1920 1920

3 Dec. 6, 1920 Mar. 3, 1921 88

67th S Mar. 4, 1921 Mar. 15, 1921 12

1–E Apr. 11, 1921 Nov. 23, 1921 227 Aug. 24–Sept. 21, 1921 Aug. 24–Sept. 21, 1921

2 Dec. 5, 1921 Sept. 22, 1922 292 Dec. 22, 1921–Jan. 3, Dec. 22, 1921–Jan. 3,

1922 1922

3–E Nov. 20, 1922 Dec. 4, 1922 15

4 Dec. 4, 1922 Mar. 3, 1923 90

68th 1 Dec. 3, 1923 June 7, 1924 188 Dec. 20, 1923–Jan. 3, Dec. 20, 1923–Jan. 3,

1924 1924

2 Dec. 1, 1924 Mar. 3, 1925 93 Dec. 20–Dec. 29, 1924 Dec. 20–Dec. 29, 1924

69th S Mar. 4, 1925 Mar. 18, 1925 15

1 Dec. 7, 1925 July 3, 1926 209 Dec. 22, 1925–Jan. 4, Dec. 22, 1925–Jan. 4,

1926 1926

2 Dec. 6, 1926 Mar. 4, 1927 88 Dec. 22, 1926–Jan. 3, Dec. 22, 1926–Jan. 3,

1927 1927

70th 1 Dec. 5, 1927 May 29, 1928 177 Dec. 21, 1927–Jan. 4, Dec. 21, 1927–Jan. 4,

46 NLRB v. CANNING

Appendix A to opinionCourt Court

Opinion of the

Appendix A to opinionof the Court

of the

Length Recesses 2

Con­ Ses­ Convening Adjournment

in House of Representa­

gress sion Date Date Senate

days1 tives

1928 1928

2 Dec. 3, 1928 Mar. 3, 1929 91 Dec. 22, 1928–Jan. 3, Dec. 22, 1928–Jan. 3,

1929 1929

71st S Mar. 4, 1929 Mar. 5, 1929 2

1–E Apr. 15, 1929 Nov. 22, 1929 222 June 19–Aug. 19, June 19–Sept. 23,

1929 1929

2 Dec. 2, 1929 July 3, 1930 214 Dec. 21, 1929–Jan. 6, Dec. 21, 1929–Jan. 6,

1930 1930

S July 7, 1930 July 21, 1930 15

3 Dec. 1, 1930 Mar. 3, 1931 93 Dec. 20, 1930–Jan. 5, Dec. 20, 1930–Jan. 5,

1931 1931

72d 1 Dec. 7, 1931 July 16, 1932 223 Dec. 22, 1931–Jan. 4, Dec. 22, 1931–Jan. 4,

1932 1932

2 Dec. 5, 1932 Mar. 3, 1933 89

73d S Mar. 4, 1933 Mar. 6, 1933 3

1–E Mar. 9, 1933 June 15, 1933 99

2 Jan. 3, 1934 June 18, 1934 167

74th 1 Jan. 3, 1935 Aug. 26, 1935 236

2 Jan. 3, 1936 June 20, 1936 170 June 8–June 15, 1936 June 8–June 15, 1936

75th 1 Jan. 5, 1937 Aug. 21, 1937 229

2–E Nov. 15, 1937 Dec. 21, 1937 37

3 Jan. 3, 1938 June 16, 1938 165

76th 1 Jan. 3, 1939 Aug. 5, 1939 215

2–E Sept. 21, 1939 Nov. 3, 1939 44

3 Jan. 3, 1940 Jan. 3, 1941 366 July 11–July 22, 1940 July 11–July 22, 1940

77th 1 Jan. 3, 1941 Jan. 2, 1942 365

2 Jan. 5, 1942 Dec. 16, 1942 346

78th 1 Jan. 6, 1943 Dec. 21, 1943 350 July 8–Sept. 14, 1943 July 8–Sept. 14, 1943

2 Jan. 10, 1944 Dec. 19, 1944 345 Apr. 1–Apr. 12, 1944 Apr. 1–Apr. 12, 1944

June 23–Aug. 1, 1944 June 23–Aug. 1, 1944

Sept. 21–Nov. 14, 1944 Sept. 21–Nov. 14, 1944

79th 1 Jan. 3, 1945 Dec. 21, 1945 353 Aug. 1–Sept. 5, 1945 July 21–Sept. 5, 1945

2 Jan. 14, 1946 Aug. 2, 1946 201 Apr. 18–Apr. 30, 1946

80th 1 Jan. 3, 1947 Dec. 19, 1947 351 July 27–Nov. 17, 1947 July 27–Nov. 17, 1947

2 Jan. 6, 1948 Dec. 31, 1948 361 June 20–July 26, 1948 June 20–July 26, 1948

Aug. 7–Dec. 31, 1948 Aug. 7–Dec. 31, 1948

81st 1 Jan. 3, 1949 Oct. 19, 1949 290

2 Jan. 3, 1950 Jan. 2, 1951 365 Sept. 23–Nov. 27, 1950 p Apr. 6–Apr. 18, 1950

Sept. 23–Nov. 27, 1950

82d 1 Jan. 3, 1951 Oct. 20, 1951 291 Mar. 22–Apr. 2, 1951

Aug. 23–Sept. 12, 1951

2 Jan. 8, 1952 July 7, 1952 182 Apr. 10–Apr. 22, 1952

83d 1 Jan. 3, 1953 Aug. 3, 1953 213 Apr. 2–Apr. 13, 1953

2 Jan. 6, 1954 Dec. 2, 1954 331 Aug. 20–Nov. 8, 1954 Apr. 15–Apr. 22, 1954

Nov. 18–Nov. 29, 1954 Adjourned sine die

Aug. 20, 1954

84th 1 Jan. 5, 1955 Aug. 2, 1955 210 Apr. 4–Apr. 13, 1955 Apr. 4–Apr. 13, 1955

2 Jan. 3, 1956 July 27, 1956 207 Mar. 29–Apr. 9, 1956 Mar. 29–Apr. 9, 1956

85th 1 Jan. 3, 1957 Aug. 30, 1957 239 Apr. 18–Apr. 29, 1957 Apr. 18–Apr. 29, 1957

2 Jan. 7, 1958 Aug. 24, 1958 230 Apr. 3–Apr. 14, 1958 Apr. 3–Apr. 14, 1958

86th 1 Jan. 7, 1959 Sept. 15, 1959 252 Mar. 26–Apr. 7, 1959 Mar. 26–Apr. 7, 1959

2 Jan. 6, 1960 Sept. 1, 1960 240 Apr. 14–Apr. 18, 1960 Apr. 14–Apr. 18, 1960

May 27–May 31, 1960 May 27–May 31, 1960

July 3–Aug. 8, 1960 July 3–Aug. 15, 1960

87th 1 Jan. 3, 1961 Sept. 27, 1961 268 Mar. 30–Apr. 10, 1961

2 Jan. 10, 1962 Oct. 13, 1962 277 Apr. 19–Apr. 30, 1962

88th 1 Jan. 9, 1963 Dec. 30, 1963 356 Apr. 11–Apr. 22, 1963

2 Jan. 7, 1964 Oct. 3, 1964 270 July 10–July 20, 1964 Mar. 26–Apr. 6, 1964

Aug. 21–Aug. 31, 1964 July 2–July 20, 1964

Aug. 21–Aug. 31, 1964

89th 1 Jan. 4, 1965 Oct. 23, 1965 293

2 Jan. 10, 1966 Oct. 22, 1966 286 Apr. 7–Apr. 13, 1966 Apr. 7–Apr. 18, 1966

June 30–July 11, 1966 June 30–July 11, 1966

90th 1 Jan. 10, 1967 Dec. 15, 1967 340 Mar. 23–Apr. 3, 1967 Mar. 23–Apr. 3, 1967

June 29–July 10, 1967 June 29–July 10, 1967

Aug. 31–Sept. 11, 1967 Aug. 31–Sept. 11, 1967

Nov. 22–Nov. 27, 1967 Nov. 22–Nov. 27, 1967

2 Jan. 15, 1968 Oct. 14, 1968 274 Apr. 11–Apr. 17, 1968 Apr. 11–Apr. 22, 1968

May 29–June 3, 1968 May 29–June 3, 1968

June 3–July 8, 1968 June 3–July 8, 1968

Aug. 2–Sept. 4, 1968 Aug. 2–Sept. 4, 1968

91st 1 Jan. 3, 1969 Dec. 23, 1969 355 Feb. 7–Feb. 17, 1969 Feb. 7–Feb. 17, 1969

Apr. 3–Apr. 14, 1969 Apr. 3–Apr. 14, 1969

July 2–July 7, 1969 May 28–June 2, 1969

Aug. 13–Sept. 3, 1969 July 2–July 7, 1969

Cite as: 573 U. S. ____ (2014) 47

Appendix A to opinionCourt Court

Opinion of the of the

Length Recesses 2

Con­ Ses­ Convening Adjournment

in House of Representa­

gress sion Date Date Senate

days1 tives

Nov. 26–Dec. 1, 1969 Aug. 13–Sept. 3, 1969

Nov. 6–Nov. 12, 1969

Nov. 26–Dec. 1, 1969

2 Jan. 19, 1970 Jan. 2, 1971 349 Feb. 10–Feb. 16, 1970 Feb. 10–Feb. 16, 1970

Mar. 26–Mar. 31, 1970 Mar. 26–Mar. 31, 1970

Sept. 2–Sept. 8, 1970 May 27–June 1, 1970

Oct. 14–Nov. 16, 1970 July 1–July 6, 1970

Nov. 25–Nov. 30, 1970 Aug. 14–Sept. 9, 1970

Dec. 22–Dec. 28, 1970 Oct. 14–Nov. 16, 1970

Nov. 25–Nov. 30, 1970

Dec. 22–Dec. 29, 1970

92d 1 Jan. 21, 1971 Dec. 17, 1971 331 Feb. 11–Feb. 17, 1971 Feb. 10–Feb. 17, 1971

Apr. 7–Apr. 14, 1971 Apr. 7–Apr. 19, 1971

May 26–June 1, 1971 May 27–June 1, 1971

June 30–July 6, 1971 July 1–July 6, 1971

Aug. 6–Sept. 8, 1971 Aug. 6–Sept. 8, 1971

Oct. 21–Oct. 26, 1971 Oct. 7–Oct. 12, 1971

Nov. 24–Nov. 29, 1971 Oct. 21–Oct. 26, 1971

Nov. 19–Nov. 29, 1971

2 Jan. 18, 1972 Oct. 18, 1972 275 Feb. 9–Feb. 14, 1972 Feb. 9–Feb. 16, 1972

Mar. 30–Apr. 4, 1972 Mar. 29–Apr. 10, 1972

May 25–May 30, 1972 May 24–May 30, 1972

June 30–July 17, 1972 June 30–July 17, 1972

Aug. 18–Sept. 5, 1972 Aug. 18–Sept. 5, 1972

93d 1 Jan. 3, 1973 Dec. 22, 1973 354 Feb. 8–Feb. 15, 1973 Feb. 8–Feb. 19, 1973

Apr. 18–Apr. 30, 1973 Apr. 19–Apr. 30, 1973

May 23–May 29, 1973 May 24–May 29, 1973

June 30–July 9, 1973 June 30–July 10, 1973

Aug. 3–Sept. 5, 1973 Aug. 3–Sept. 5, 1973

Oct. 18–Oct. 23, 1973 Oct. 4–Oct. 9, 1973

Nov. 21–Nov. 26, 1973 Oct. 18–Oct. 23, 1973

Nov. 15–Nov. 26, 1973

2 Jan. 21, 1974 Dec. 20, 1974 334 Feb. 8–Feb. 18, 1974 Feb. 7–Feb. 13, 1974

Mar. 13–Mar. 19, 1974 Apr. 11–Apr. 22, 1974

Apr. 11–Apr. 22, 1974 May 23–May 28, 1974

May 23–May 28, 1974 Aug. 22–Sept. 11, 1974

Aug. 22–Sept. 4, 1974 Oct. 17–Nov. 18, 1974

Oct. 17–Nov. 18, 1974 Nov. 26–Dec. 3, 1974

Nov. 26–Dec. 2, 1974

94th 1 Jan. 14, 1975 Dec. 19, 1975 340 Mar. 26–Apr. 7, 1975 Mar. 26–Apr. 7, 1975

May 22–June 2, 1975 May 22–June 2, 1975

June 27–July 7, 1975 June 26–July 8, 1975

Aug. 1–Sept. 3, 1975 Aug. 1–Sept. 3, 1975

Oct. 9–Oct. 20, 1975 Oct. 9–Oct. 20, 1975

Oct. 23–Oct. 28, 1975 Oct. 23–Oct. 28, 1975

Nov. 20–Dec. 1, 1975 Nov. 20–Dec. 1, 1975

2 Jan. 19, 1976 Oct. 1, 1976 257 Feb. 6–Feb. 16, 1976 Feb. 11–Feb. 16, 1976

Apr. 14–Apr. 26, 1976 Apr. 14–Apr. 26, 1976

May 28–June 2, 1976 May 27–June 1, 1976

July 2–July 19, 1976 July 2–July 19, 1976

Aug. 10–Aug. 23, 1976 Aug. 10–Aug. 23, 1976

Sept. 1–Sept. 7, 1976 Sept. 2–Sept. 8, 1976

95th 1 Jan. 4, 1977 Dec. 15, 1977 346 Feb. 11–Feb. 21, 1977 Feb. 9–Feb. 16, 1977

Apr. 7–Apr. 18, 1977 Apr. 6–Apr. 18, 1977

May 27–June 6, 1977 May 26–June 1, 1977

July 1–July 11, 1977 June 30–July 11, 1977

Aug. 6–Sept. 7, 1977 Aug. 5–Sept. 7, 1977

Oct. 6–Oct. 11, 1977

2 Jan. 19, 1978 Oct. 15, 1978 270 Feb. 10–Feb. 20, 1978 Feb. 9–Feb. 14, 1978

Mar. 23–Apr. 3, 1978 Mar. 22–Apr. 3, 1978

May 26–June 5, 1978 May 25–May 31, 1978

June 29–July 10, 1978 June 29–July 10, 1978

Aug. 25–Sept. 6, 1978 Aug. 17–Sept. 6, 1978

96th 1 Jan. 15, 1979 Jan. 3, 1980 354 Feb. 9–Feb. 19, 1979 Feb. 8–Feb. 13, 1979

Apr. 10–Apr. 23, 1979 Apr. 10–Apr. 23, 1979

May 24–June 4, 1979 May 24–May 30, 1979

June 27–July 9, 1979 June 29–July 9, 1979

Aug. 3–Sept. 5, 1979 Aug. 2–Sept. 5, 1979

Nov. 20–Nov. 26, 1979 Nov. 20–Nov. 26, 1979

Adjourned sine die,

Dec. 20, 1979

2 Jan. 3, 1980 Dec. 16, 1980 349 Apr. 3–Apr. 15, 1980 Feb. 13–Feb. 19, 1980

May 22–May 28, 1980 Apr. 2–Apr. 15, 1980

July 2–July 21, 1980 May 22–May 28, 1980

Aug. 6–Aug. 18, 1980 July 2–July 21, 1980

48 NLRB v. CANNING

Appendix A to opinionCourt Court

Opinion of the of the

Length Recesses 2

Con­ Ses­ Convening Adjournment

in House of Representa­

gress sion Date Date Senate

days1 tives

Aug. 27–Sept. 3, 1980 Aug. 1–Aug. 18, 1980

Oct. 1–Nov. 12, 1980 Aug. 28–Sept. 3, 1980

Nov. 25–Dec. 1, 1980 Oct. 2–Nov. 12, 1980

Nov. 21–Dec. 1, 1980

97th 1 Jan. 5, 1981 Dec. 16, 1981 347 Feb. 6–Feb. 16, 1981 Feb. 6–Feb. 17, 1981

Apr. 10–Apr. 27, 1981 Apr. 10–Apr. 27, 1981

June 25–July 8, 1981 June 26–July 8, 1981

Aug. 3–Sept. 9, 1981 Aug. 4–Sept. 9, 1981

Oct. 7–Oct. 14, 1981 Oct. 7–Oct. 13, 1981

Nov. 24–Nov. 30, 1981 Nov. 23–Nov. 30, 1981

2 Jan. 25, 1982 Dec. 23, 1982 333 Feb. 11–Feb. 22, 1982 Feb. 10–Feb. 22, 1982

Apr. 1–Apr. 13, 1982 Apr. 6–Apr. 20, 1982

May 27–June 8, 1982 May 27–June 2, 1982

July 1–July 12, 1982 July 1–July 12, 1982

Aug. 20–Sept. 8, 1982 Aug. 20–Sept. 8, 1982

Oct. 1–Nov. 29, 1982 Oct. 1–Nov. 29, 1982

98th 1 Jan. 3, 1983 Nov. 18, 1983 320 Jan. 3–Jan. 25, 1983 Jan. 6–Jan. 25, 1983

Feb. 3–Feb. 14, 1983 Feb. 17–Feb. 22, 1983

Mar. 24–Apr. 5, 1983 Mar. 24–Apr. 5, 1983

May 26–June 6, 1983 May 26–June 1, 1983

June 29–July 11, 1983 June 30–July 11, 1983

Aug. 4–Sept. 12, 1983 Aug. 4–Sept. 12, 1983

Oct. 7–Oct. 17, 1983 Oct. 6–Oct. 17, 1983

2 Jan. 23, 1984 Oct. 12, 1984 264 Feb. 9–Feb. 20, 1984 Feb. 9–Feb. 21, 1984

Apr. 12–Apr. 24, 1984 Apr. 12–Apr. 24, 1984

May 24–May 31, 1984 May 24–May 30, 1984

June 29–July 23, 1984 June 29–July 23, 1984

Aug. 10–Sept. 5, 1984 Aug. 10–Sept. 5, 1984

99th 1 Jan. 3, 1985 Dec. 20, 1985 352 Jan. 7–Jan. 21, 1985 Jan. 3–Jan. 21, 1985

Feb. 7–Feb. 18, 1985 Feb. 7–Feb. 19, 1985

Apr. 4–Apr. 15, 1985 Mar. 7–Mar. 19, 1985

May 9–May 14, 1985 Apr. 4–Apr. 15, 1985

May 24–June 3, 1985 May 23–June 3, 1985

June 27–July 8, 1985 June 27–July 8, 1985

Aug. 1–Sept. 9, 1985 Aug. 1–Sept. 4, 1985

Nov. 23–Dec. 2, 1985 Nov. 21–Dec. 2, 1985

2 Jan. 21, 1986 Oct. 18, 1986 278 Feb. 7–Feb. 17, 1986 Feb. 6–Feb. 18, 1986

Mar. 27–Apr. 8, 1986 Mar. 25–Apr. 8, 1986

May 21–June 2, 1986 May 22–June 3, 1986

June 26–July 7, 1986 June 26–July 14, 1986

Aug. 15–Sept. 8, 1986 Aug. 16–Sept. 8, 1986

100th 1 Jan. 6, 1987 Dec. 22, 1987 351 Jan. 6–Jan. 12, 1987 Jan. 8–Jan. 20, 1987

Feb. 5–Feb. 16, 1987 Feb. 11–Feb. 18, 1987

Apr. 10–Apr. 21, 1987 Apr. 9–Apr. 21, 1987

May 21–May 27, 1987 May 21–May 27, 1987

July 1–July 7, 1987 July 1–July 7, 1987

Aug. 7–Sept. 9, 1987 July 15–July 20, 1987

Nov. 20–Nov. 30, 1987 Aug. 7–Sept. 9, 1987

Nov. 10–Nov. 16, 1987

Nov. 20–Nov. 30, 1987

2 Jan. 25, 1988 Oct. 22, 1988 272 Feb. 4–Feb. 15, 1988 Feb. 9–Feb. 16, 1988

Mar. 4–Mar. 14, 1988 Mar. 31–Apr. 11, 1988

Mar. 31–Apr. 11, 1988 May 26–June 1, 1988

Apr. 29–May 9, 1988 June 30–July 7, 1988

May 27–June 6, 1988 July 14–July 26, 1988

June 29–July 6, 1988 Aug. 11–Sept. 7, 1988

July 14–July 25, 1988

Aug. 11–Sept. 7, 1988

101st 1 Jan. 3, 1989 Nov. 22, 1989 324 Jan. 4–Jan. 20, 1989 Jan. 4–Jan. 19, 1989

Jan. 20–Jan. 25, 1989 Feb. 9–Feb. 21, 1989

Feb. 9–Feb. 21, 1989 Mar. 23–Apr. 3, 1989

Mar. 17–Apr. 4, 1989 Apr. 18–Apr. 25, 1989

Apr. 19–May 1, 1989 May 25–May 31, 1989

May 18–May 31, 1989 June 29–July 10, 1989

June 23–July 11, 1989 Aug. 5–Sept. 6, 1989

Aug. 4–Sept. 6, 1989

2 Jan. 23, 1990 Oct. 28, 1990 260 Feb. 8–Feb. 20, 1990 Feb. 7–Feb. 20, 1990

Mar. 9–Mar. 20, 1990 Apr. 4–Apr. 18, 1990

Apr. 5–Apr. 18, 1990 May 25–June 5, 1990

May 24–June 5, 1990 June 28–July 10, 1990

June 28–July 10, 1990 Aug. 4–Sept. 5, 1990

Aug. 4–Sept. 10, 1990

102d 1 Jan. 3, 1991 Jan. 3, 1992 366 Feb. 7–Feb. 19, 1991 Feb. 6–Feb. 19, 1991

Mar. 22–Apr. 9, 1991 Mar. 22–Apr. 9, 1991

Apr. 25–May 6, 1991 May 23–May 29, 1991

Cite as: 573 U. S. ____ (2014) 49

Opinion of the Court

Appendix A to opinion of the Court

Length Recesses 2

Con­ Ses­ Convening Adjournment

in House of Representa­

gress sion Date Date Senate

days1 tives

May 24–June 3, 1991 June 27–July 9, 1991

June 28–July 8, 1991 Aug. 2–Sept. 11, 1991

Aug. 2–Sept. 10, 1991 Nov. 27, 1991–Jan. 3,

Nov. 27, 1991–Jan. 3, 1992

1992

2 Jan. 3, 1992 Oct. 9, 1992 281 Jan. 3–Jan. 21, 1992 Jan. 3–Jan. 22, 1992

Feb. 7–Feb. 18, 1992 p Apr. 10–Apr. 28, 1992

Apr. 10–Apr. 28, 1992 May 21–May 26, 1992

May 21–June 1, 1992 July 2–July 7, 1992

July 2–July 20, 1992 July 9–July 21, 1992

Aug. 12–Sept. 8, 1992 Aug. 12–Sept. 9, 1992

103d 1 Jan. 5, 1993 Nov. 26, 1993 326 Jan. 7–Jan. 20, 1993 Jan. 6–Jan. 20, 1993

Feb. 4–Feb. 16, 1993 Jan. 27–Feb. 2, 1993

Feb. 18–Feb. 24, 1993 p Feb. 4–Feb. 16, 1993

Apr. 7–Apr. 19, 1993 Apr. 7–Apr. 19, 1993

May 28–June 7, 1993 May 27–June 8, 1993

July 1–July 13, 1993 July 1–July 13, 1993

Aug. 7–Sept. 7, 1993 Aug. 6–Sept. 8, 1993

Oct. 7–Oct. 13, 1993 Sept. 15–Sept. 21, 1993

Nov. 11–Nov. 16, 1993 Oct. 7–Oct. 12, 1993

Nov. 10–Nov. 15, 1993

2 Jan. 25, 1994 Dec. 1, 1994 311 Feb. 11–Feb. 22, 1994 Jan. 26–Feb. 1, 1994

Mar. 26–Apr. 11, 1994 Feb. 11–Feb. 22, 1994

May 25–June 7, 1994 Mar. 24–Apr. 12, 1994

July 1–July 11, 1994 May 26–June 8, 1994

Aug. 25–Sept. 12, 1994 June 30–July 12, 1994

Oct. 8–Nov. 30, 1994 Aug. 26–Sept. 12, 1994

Oct. 8–Nov. 29, 1994

104th 1 Jan. 4, 1995 Jan. 3, 1996 365 Feb. 16–Feb. 22, 1995 Feb. 16–Feb. 21, 1995

Apr. 7–Apr. 24, 1995 Mar. 16–Mar. 21, 1995

May 26–June 5, 1995 Apr. 7–May 1, 1995

June 30–July 10, 1995 May 3–May 9, 1995

Aug. 11–Sept. 5, 1995 May 25–June 6, 1995

Sept. 29–Oct. 10, 1995 June 30–July 10, 1995

Nov. 20–Nov. 27, 1995 Aug. 4–Sept. 6, 1995

Sept. 29–Oct. 6, 1995

Nov. 20–Nov. 28, 1995

2 Jan. 3, 1996 Oct. 4, 1996 276 Jan. 10–Jan. 22, 1996 Jan. 9–Jan. 22, 1996

Feb. 1–Feb. 6, 1996 p Feb. 1–Feb. 27, 1996 p

Feb. 7–Feb. 20, 1996 p Mar. 29–Apr. 15, 1996

Feb. 29–Mar. 5, 1996 p May 23–May 29, 1996

Mar. 29–Apr. 15, 1996 June 28–July 8, 1996

May 24–June 3, 1996 Aug. 2–Sept. 4, 1996

June 28–July 8, 1996

Aug. 2–Sept. 3, 1996

105th 1 Jan. 7, 1997 Nov. 13, 1997 311 Jan. 9–Jan. 21, 1997 Jan. 9–Jan. 20, 1997

Feb. 13–Feb. 24, 1997 Jan. 21–Feb. 4, 1997

Mar. 21–Apr. 7, 1997 Feb. 13–Feb. 25, 1997

May 23–June 2, 1997 p Mar. 21–Apr. 8, 1997

June 27–July 7, 1997 June 26–July 8, 1997

July 31–Sept. 2, 1997 Aug. 1–Sept. 3, 1997

Oct. 9–Oct. 20, 1997 Oct. 9–Oct. 21, 1997

2 Jan. 27, 1998 Dec. 19, 1998 327 Feb. 13–Feb. 23, 1998 Jan. 28–Feb. 3, 1998

Apr. 3–Apr. 20, 1998 Feb. 5–Feb. 11, 1998

May 22–June 1, 1998 Feb. 12–Feb. 24, 1998

June 26–July 6, 1998 Apr. 1–Apr. 21, 1998

July 31–Aug. 31, 1998 May 22–June 3, 1998

Adjourned sine die, June 25–July 14, 1998

Oct. 21, 1998. Aug. 7–Sept. 9, 1998

Oct. 21–Dec. 17, 1998

106th 1 Jan. 6, 1999 Nov. 22, 1999 321 Feb. 12–Feb. 22, 1999 Jan. 6–Jan. 19, 1999

Mar. 25–Apr. 12, 1999 Jan. 19–Feb. 2, 1999

May 27–June 7, 1999 Feb. 12–Feb. 23, 1999

July 1–July 12, 1999 Mar. 25–Apr. 12, 1999

Aug. 5–Sept. 8, 1999 May 27–June 7, 1999

July 1–July 12, 1999

Aug. 6–Sept. 8, 1999

2 Jan. 24, 2000 Dec. 15, 2000 326 Feb. 10–Feb. 22, 2000 Feb. 16–Feb. 29, 2000

Mar. 9–Mar. 20, 2000 Apr. 13–May 2, 2000

Apr. 13–Apr. 25, 2000 May 25–June 6, 2000

May 25–June 6, 2000 June 30–July 10, 2000

June 30–July 10, 2000 July 27–Sept. 6, 2000

July 27–Sept. 5, 2000 Nov. 3–Nov. 13, 2000

Nov. 2–Nov. 14, 2000 Nov. 14–Dec. 4, 2000

Nov. 14–Dec. 5, 2000

50 NLRB v. CANNING

Appendix A to opinionCourt Court

Opinion of the of the

Length Recesses 2

Con­ Ses­ Convening Adjournment

in House of Representa­

gress sion Date Date Senate

days1 tives

107th 1 Jan. 3, 2001 Dec. 20, 2001 352 Jan. 8–Jan. 20, 2001 Jan. 6–Jan. 20, 2001

Feb. 15–Feb. 26, 2001 Jan. 20–Jan. 30, 2001

Apr. 6–Apr. 23, 2001 Jan. 31–Feb. 6, 2001

May 26–June 5, 2001 Feb. 14–Feb. 26, 2001

June 29–July 9, 2001 Apr. 4–Apr. 24, 2001

Aug. 3–Sept. 4, 2001 May 26–June 5, 2001

Oct. 18–Oct. 23, 2001 June 28–July 10, 2001

Nov. 16–Nov. 27, 2001 Aug. 2–Sept. 5, 2001

Oct. 17–Oct. 23, 2001

Nov. 19–Nov. 27, 2001

2 Jan. 23, 2002 Nov. 22, 2002 304 Jan. 29–Feb. 4, 2002 Jan. 29–Feb. 4, 2002

Feb. 15–Feb. 25, 2002 Feb. 14–Feb. 26, 2002

Mar. 22–Apr. 8, 2002 Mar. 20–Apr. 9, 2002

May 23–June 3, 2002 May 24–June 4, 2002

June 28–July 8, 2002 June 28–July 8, 2002

Aug. 1–Sept. 3, 2002 July 27–Sept. 4, 2002

Oct. 17–Nov. 12, 2002 p

108th 1 Jan. 7, 2003 Dec. 9, 2003 337 Feb. 14–Feb. 24, 2003 Jan. 8–Jan. 27, 2003

Apr. 11–Apr. 28, 2003 Feb. 13–Feb. 25, 2003

May 23–June 2, 2003 Apr. 12–Apr. 29, 2003

June 27–July 7, 2003 May 23–June 2, 2003

Aug. 1–Sept. 2, 2003 June 27–July 7, 2003

Oct. 3–Oct. 14, 2003 July 29–Sept. 3, 2003

Nov. 25–Dec. 9, 2003 Nov. 25–Dec. 8, 2003

2 Jan. 20, 2004 Dec. 8, 2004 324 Feb. 12–Feb. 23, 2004 Feb. 11–Feb. 24, 2004

Mar. 12–Mar. 22, 2004 Apr. 2–Apr. 20, 2004

Apr. 8–Apr. 19, 2004 May 20–June 1, 2004

May 21–June 1, 2004 June 9–June 14, 2004

June 9–June 14, 2004 June 25–July 6, 2004

June 25–July 6, 2004 July 22–Sept. 7, 2004

July 22–Sept. 7, 2004 Oct. 9–Nov. 16, 2004

Oct. 11–Nov. 16, 2004 Nov. 24–Dec. 6, 2004

Nov. 24–Dec. 7, 2004

109th 1 Jan. 4, 2005 Dec. 22, 2005 353 Jan. 6–Jan. 20, 2005 Jan. 6–Jan. 20, 2005

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