Canning v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 5, 2012 Decided January 25, 2013

No. 12-1115

NOEL CANNING, A DIVISION OF THE NOEL CORPORATION,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 760,

INTERVENOR

Consolidated with 12-1153

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Noel J. Francisco argued the cause for petitioner. With him

on the briefs were G. Roger King, James M. Burnham, and Gary

E. Lofland.

Miguel A. Estrada argued the cause for amici curiae Senate

Republican Leader Mitch McConnell and 41 other members of

the United States Senate in support of petitioner/cross-

respondent Noel Canning.

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Jay Alan Sekulow was on the brief for amicus curiae The

Speaker of the United States House of Representatives, John

Boehner, in support of petitioner. John N. Raudabaugh entered

an appearance.

Glenn M. Taubman, William L. Messenger, Richard P.

Hutchison, and Mark R. Levin were on the brief for amici curiae

Landmark Legal Foundation, et al. in support of petitioner.

Beth S. Brinkmann, Deputy Assistant Attorney General,

U.S. Department of Justice, and Elizabeth A. Heaney, Attorney,

National Labor Relations Board, argued the causes for

respondent. With them on the brief were Stuart F. Delery,

Acting Assistant Attorney General, Scott R. McIntosh, Sarang

V. Damle, Melissa N. Patterson, and Benjamin M. Shultz,

Attorneys, John H. Ferguson, Associate General Counsel,

National Labor Relations Board, Linda Dreeben, Deputy

Associate General Counsel, and Jill A. Griffin, Attorney.

James B. Coppess argued the cause for intervenor. With

him on the brief were Bradley T. Raymond and Laurence Gold.

Victor Williams, pro se, filed the brief for amicus curiae

Professor Victor Williams.

Before: SENTELLE, Chief Judge, HENDERSON and GRIFFITH,

Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

Concurring opinion filed by Circuit Judge GRIFFITH.

SENTELLE, Chief Judge: Noel Canning petitions for review

of a National Labor Relations Board (“NLRB” or “the Board”)

decision finding that Noel Canning violated section 8(a)(1) and

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(5) of the National Labor Relations Act (“NLRA”), 29 U.S.C.

§ 158(a)(1), (5), by refusing to reduce to writing and execute a

collective bargaining agreement reached with Teamsters Local

760 (“the Union”). See Noel Canning, A Division of the Noel

Corp., 358 N.L.R.B. No. 4, 2012 WL 402322 (Feb. 8, 2012)

(“Board Decision”). NLRB cross-petitions for enforcement of

its order. On the merits of the NLRB decision, petitioner argues

that the Board did not properly follow applicable contract law in

determining that an agreement had been reached and that

therefore, the finding of unfair labor practice is erroneous. We

determine that the Board issuing the findings and order could

not lawfully act, as it did not have a quorum, for reasons set

forth more fully below.

I. INTRODUCTION

At its inception, this appears to be a routine review of a

decision of the National Labor Relations Board over which we

have jurisdiction under 29 U.S.C. § 160(e) and (f), providing

that petitions for review of Board orders may be filed in this

court. The Board issued its order on February 8, 2012. On

February 24, 2012, the company filed a petition for review in

this court, and the Board filed its cross-application for

enforcement on March 20, 2012. While the posture of the

petition is routine, as it developed, our review is not. In its brief

before us, Noel Canning (along with a movant for status as

intervenor whose motion we will dismiss for reasons set forth

hereinafter) questions the authority of the Board to issue the

order on two constitutional grounds. First, petitioner asserts that

the Board lacked authority to act for want of a quorum, as three

members of the five-member Board were never validly

appointed because they took office under putative recess

appointments which were made when the Senate was not in

recess. Second, it asserts that the vacancies these three members

purportedly filled did not “happen during the Recess of the

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Senate,” as required for recess appointments by the Constitution.

U.S. Const. art. II, § 2, cl. 3. Because the Board must have a

quorum in order to lawfully take action, if petitioner is correct

in either of these assertions, then the order under review is void

ab initio. See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635

(2010).

Before we can even consider the constitutional issues,

however, we must first rule on statutory objections to the

Board’s order raised by Noel Canning. It is a well-settled

principle of constitutional adjudication that courts “will not pass

upon a constitutional question although properly presented by

the record, if there is also present some other ground upon which

the case may be disposed of.” Ashwander v. Tenn. Valley Auth.,

297 U.S. 288, 347 (1936) (Brandeis, J., concurring); see also

Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105

(1944); United States v. Waksberg, 112 F.3d 1225, 1227 (D.C.

Cir. 1997). We must therefore decide whether Noel Canning is

entitled to relief on the basis of its nonconstitutional arguments

before addressing the constitutional question. Noel Canning

raises two statutory arguments. First, it contends that the ALJ’s

conclusion that the parties in fact reached an agreement at their

final negotiation session is not supported by substantial

evidence. Second, it argues that even if such an agreement were

reached, it is unenforceable under Washington law. We address

each argument in turn.

A. The Sufficiency of the Evidence

Refusal to execute a written collective bargaining

agreement incorporating terms agreed upon during negotiations

is an unfair labor practice under section 8(a)(1) and (5) of the

NLRA. H. J. Heinz Co. v. NLRB, 311 U.S. 514, 525–26 (1941).

Whether the parties reached an agreement during negotiations

is a question of fact. See NLRB v. Int’l Bhd. of Elec. Workers,

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748 F.2d 348, 350 (8th Cir. 1984); NLRB v. Roll & Hold Div.

Area Transp. Co., 957 F.2d 328, 331 (7th Cir. 1992). We

therefore must affirm the Board’s conclusion that an agreement

was in fact reached if that conclusion is supported by substantial

evidence. 29 U.S.C. § 160(e).

Noel Canning and the Union had in the past enjoyed a

long collective bargaining relationship, but the parties were

unable to reach a new agreement before their most recent one

expired in April 2010. Negotiations began in June 2010. By the

time the parties met for their final negotiation session in

December 2010, all issues save wages and pensions had been

resolved. According to notes taken by Union negotiators at the

parties’ final negotiating session, the parties agreed to present

two alternative contract proposals to the Union membership:

one preferred by Noel Canning management and the other by the

Union. Each proposal included wage and pension increases but

allocated the increases differently. The notes reveal that the

Union proposal put no limit on the membership’s right to decide

how much of the $0.40 per hour pay increase to allocate to its

pension fund. According to the notes and Union witnesses, the

parties agreed that both proposals would be submitted to the

Union membership for a ratification vote and that the parties

would be bound by the outcome of that vote. Union negotiators

testified that after the parties read aloud the terms of the two

proposals, Noel Canning’s president stood and said “let’s do it.”

Deferred Appendix 78. A Noel Canning officer agreed to email

the terms to the Union the next day. After the company agreed

to allow the Union to use a company conference room to hold

the vote, the negotiators shook hands and departed.

The next day, Noel Canning management emailed the

Union the wage and pension terms of the two proposals.

According to the email, however, the Union proposal capped at

$0.10 the amount of the $0.40 pay increase that the membership

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could devote to its pension fund. The email thus conflicted with

the Union negotiators’ notes, which left the allocation question

entirely to the membership. When the chief Union negotiator,

Bob Koerner, called Noel Canning’s president to discuss the

discrepancy, the president responded that since the agreement

was not in writing, it was not binding. The vote took place

anyway, and the membership ratified the Union’s preferred

proposal, which allocated the entire pay increase to the pension

fund. Noel Canning posted a letter informing the Union that the

company considered the ratification vote to be a counteroffer,

which the company rejected, and declared the parties to be at an

impasse. Noel Canning subsequently refused to execute a

written agreement embodying the terms ratified by the Union.

The Union filed an unfair labor practice charge premised

on Noel Canning’s refusal to execute the written agreement.

After a two-day hearing, the ALJ determined that the parties had

in fact achieved consensus ad idem as to the terms of the

Union’s preferred proposal and that Noel Canning’s refusal to

execute the written agreement constituted an unfair labor

practice under section 8(a)(1) and (5) of the NLRA. The ALJ

ordered Noel Canning to sign the collective bargaining

agreement. Noel Canning timely filed exceptions to the ALJ’s

decision, and the Board affirmed.

Unsurprisingly, the parties’ testimony at the ALJ hearing

conflicted over whether the parties in fact agreed to the terms of

the Union proposal. The ALJ’s decision thus rested almost

entirely on his determination of the witnesses’ credibility.

Assessing the conflicting testimony, the ALJ determined that

because the Union witnesses’ testimony was corroborated by

contemporaneous notes taken during the December 2010

negotiation session, the Union’s witnesses were credible. In

contrast, he determined that Noel Canning’s witnesses were not

credible because they neither “produced notes of the meeting

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[n]or explained why no notes were available” and because their

testimony was “abbreviated, conclusionary, nonspecific, and

unconvincing.” Board Decision at 7 (ALJ Op.).

We are loathe to overturn the credibility determinations

of an ALJ unless they are “hopelessly incredible, self-

contradictory, or patently insupportable.” Stephens Media, LLC

v. NLRB, 677 F.3d 1241, 1250 (D.C. Cir. 2012) (internal

quotation marks omitted). Here, the ALJ chose the corroborated

testimony of Union negotiators over the unsupported testimony

of Noel Canning employees. And given undisputed testimony

that at least one Noel Canning representative took notes of the

meeting, the ALJ weighed Noel Canning’s failure to corroborate

its testimony against it. As we noted, the ALJ also found Noel

Canning’s witnesses’ testimony to be unspecific and

abbreviated. In Monmouth Care Center v. NLRB, we found no

reason to set aside a credibility determination where “the ALJ

credited the testimony of the union’s negotiator over that of the

petitioners’ representatives . . . based on a combination of

testimonial demeanor and a lack of specificity and internal

corroboration for the petitioners’ claims.” 672 F.3d 1085, 1091

(D.C. Cir. 2012). The ALJ made a nearly identical

determination here, and we discern no reason to disturb it.

Noel Canning nevertheless claims that Koerner’s

testimony is plagued by inconsistencies. But the inconsistencies

and contradictions it identifies are either irrelevant or merely the

result of the competing testimony of the two parties’ witnesses.

There is nothing in the Union testimony — corroborated by

contemporaneous notes — that hints at hopeless incredibility or

self-contradiction.

Noel Canning thus relies on what it alleges to be an

inconsistency between Koerner’s testimony and his affidavit.

The affidavit, which is not in the record, apparently contained

8

the following sentence, referring to the parties’ tentative

agreement as “TA”: “I was voting the contract on Wednesday

and that I would vote what we TA’d during the December 8th

meeting — noting different than TA’d.” Deferred Appendix 74.

When asked at the ALJ hearing if he saw any errors in his

affidavit, Koerner claimed he saw none but struggled to explain

what the language meant. Noel Canning contends that the

affidavit is an explicit admission that Koerner presented an offer

to the Union that was materially different from the one agreed

upon by the parties and therefore contradicts his testimony. The

ALJ rejected Noel Canning’s interpretation, concluding that the

sentence suffered from a typographical error — “noting” should

have been “nothing” — and that the error accounted for the

witness’s inability to explain the affidavit’s meaning. Board

Decision at 5 n.8 (ALJ Op.).

We conceive of no reason to disagree. As written, the

language of the affidavit is confusing and becomes intelligible

only if the typographical error pointed out by the ALJ is

corrected. Moreover, the ALJ specifically determined that the

witness was confused by the affidavit, not that he was trying to

conceal deception, as Noel Canning contends. We are “ill-

positioned to second-guess” that determination. W.C.

McQuaide, Inc. v. NLRB, 133 F.3d 47, 53 (D.C. Cir. 1998). And

even assuming that Noel Canning’s reading is correct, it does

not support the company’s chief argument before the Board —

that the parties failed to reach any agreement at the December

2010 negotiation session — because even the affidavit evinces

that the parties reached some sort of agreement. Given the

deference we owe to the ALJ’s credibility determinations, the

consistency between the negotiators’ notes and the deal the

membership approved, and the lack of any evidence otherwise

suggesting that Koerner was an incredible witness, this case is

not the rare one in which we will overturn an ALJ’s credibility

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determination. The Board’s decision was therefore supported by

substantial evidence.

B. The Enforceability of the Contract

We also agree with the Board that we lack jurisdiction to

consider Noel Canning’s choice of law argument. Section 10(e)

of the NLRA forbids us from exercising jurisdiction to hear any

“objection that has not been urged before the Board.” 29 U.S.C.

§ 160(e); see also Chevron Mining, Inc. v. NLRB, 684 F.3d

1318, 1329–30 (D.C. Cir. 2012). The ALJ specifically rejected

Noel Canning’s argument that he should apply Washington state

law to decide whether the contract could be enforced. In its

exceptions to the Board, however, Noel Canning did not

mention Washington law. Although Noel Canning contended

that the ALJ incorrectly determined that the parties had in fact

reached consensus ad idem during negotiations, it nowhere

argued that the ALJ made an incorrect choice of law to govern

the contracts issue.

“While we have not required that the ground for the

exception be stated explicitly in the written exceptions filed with

the Board, we have required, at a minimum, that the ground for

the exception be evident by the context in which the exception

is raised.” Trump Plaza Assocs. v. NLRB, 679 F.3d 822, 829

(D.C. Cir. 2012) (internal quotation marks omitted). Nothing in

Noel Canning’s exceptions even hints that it objected to the

application of federal law. On the contrary, it conceded to the

Board that “[i]t is not in dispute that an employer violates [the

NLRA] by refusing to execute a Collective Bargaining

Agreement incorporating all of the terms agreed upon by the

parties during negotiations.” Deferred Appendix 100. We

therefore lack jurisdiction to consider Noel Canning’s state-law

argument because its objections were not “adequate to put the

Board on notice that the issue might be pursued on appeal.”

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Consol. Freightways v. NLRB, 669 F.2d 790, 794 (D.C. Cir.

1981). Having determined that Noel Canning does not prevail

on its statutory challenges, consideration of the constitutional

question is unavoidable, and we proceed to its resolution.

Because we agree that petitioner is correct in both of its

constitutional arguments, we grant the petition of Noel Canning

for review and deny the Board’s petition for enforcement.

II. JURISDICTION

Although no party has questioned our jurisdiction to

decide the constitutional issues raised in this petition, federal

courts, being courts of limited jurisdiction, must assure

themselves of jurisdiction over any controversy they hear,

regardless of the parties’ failure to assert any jurisdictional

question. See Telecomms. Research & Action Ctr. v. FCC, 750

F.2d 70, 75 (D.C. Cir. 1984). We note at the outset that there is

a serious argument to be made against our having jurisdiction

over the constitutional issues. Section 10(e) of the NLRA,

governing judicial review of the Board’s judgments and

petitions for enforcement, provides: “No objection that has not

been urged before the Board . . . shall be considered by the

court, unless the failure or neglect to urge such objection shall

be excused because of extraordinary circumstances.” 29 U.S.C.

§ 160(e). The record reflects no attempt by petitioner to raise

the threshold issues related to the recess appointments before the

Board. Our first question, then, is whether this failure to urge

the objection before the Board comes within the exception for

“extraordinary circumstances.” We hold that it does.

We acknowledge that no governing precedent directly

addresses this question. Nonetheless, there is instructive

precedent from other circumstances and other similar

administrative proceedings under other statutes. First, we note

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that in another administrative agency review, Railroad

Yardmasters of America v. Harris, we held that a challenge to

the authority of the National Mediation Board on the basis that

it had no quorum “present[ed] a question of power or

jurisdiction and is open to the appellee even if not initially

asserted before the Board.” 721 F.2d 1332, 1338 (D.C. Cir.

1983). In Railroad Yardmasters, we relied on the Supreme

Court’s decision in United States v. L. A. Tucker Truck Lines,

Inc. Id. at 1337–38 (discussing United States v. L. A. Tucker

Truck Lines, Inc., 344 U.S. 33 (1952)). In L. A. Tucker Truck

Lines, the Court considered a challenge to the appointment of an

examiner in an Interstate Commerce Commission proceeding.

344 U.S. at 35. Therein the Court stated in dicta that this was

not a defect “which deprives the Commission of power or

jurisdiction, so that even in the absence of timely objection its

order should be set aside as a nullity.” Id. at 38. In L. A. Tucker

Truck Lines, the challenge was not to the Commission’s power

to act, but only its examiner’s. We held in Railroad

Yardmasters that the L. A. Tucker Truck Lines rejection of the

challenge did not govern because in the case before us, “the

appellee contend[ed] that the National Mediation Board had no

power to act at all at a time when there were two vacancies on

the Board.” 721 F.2d at 1338. Because that challenge

“present[ed] a question of power or jurisdiction . . . [it was] open

to the appellee even if not initially asserted before the Board.”

Id.

The reasoning of Yardmasters is applicable here. As in

Yardmasters, the objections before us concerning lack of a

quorum raise questions that go to the very power of the Board

to act and implicate fundamental separation of powers concerns.

We hold that they are governed by the “extraordinary

circumstances” exception to the 29 U.S.C. § 160(e) requirement

and therefore are properly before us for review.

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Admittedly, Yardmasters did not implicate our

jurisdiction nor have we ever applied it to a jurisdictional

exhaustion statute. But in Natural Resources Defense Council

v. Thomas, we considered whether to apply Yardmasters to

section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C.

§ 7607(d)(7)(B), a jurisdictional administrative exhaustion

requirement. 805 F.2d 410, 428 & n.29 (D.C. Cir. 1986).

Although we ultimately declined to apply it, we did so because

the facts of the case did not involve the Yardmasters exception,

not because Yardmasters does not apply to a jurisdictional

exhaustion statute. See id. Confronted for the first time with

facts that do trigger the Yardmasters exception in the context of

a jurisdictional exhaustion statute, we hold that we may exercise

jurisdiction under section 10(e) because a constitutional

challenge to the Board’s composition creates “extraordinary

circumstances” excusing failure to raise it below.

In various circumstances, both this court and the

Supreme Court have considered objections to the authority of

the decisionmaker whose decision is under review even when

those objections were not raised below. For example, the

Supreme Court has stated, admittedly in dicta, that “if the Board

has patently traveled outside the orbit of its authority so that

there is, legally speaking, no order to enforce,” a reviewing

court can not enter an order of enforcement, such as the Board

seeks in this case. NLRB v. Cheney California Lumber Co., 327

U.S. 385, 388 (1946). It is true that petitioner’s argument before

us does not raise the Board’s “travel[ing] outside the orbit of its

authority” in precisely the same way as in Cheney. In that case,

the Supreme Court addressed arguments concerning the scope

of the Board’s authority. Here, however, there is “no order to

enforce” because there was no lawfully constituted Board. The

Cheney order was “outside the orbit of authority” by reason of

its scope. The present order is outside the orbit of the authority

of the Board because the Board had no authority to issue any

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order. It had no quorum. See generally New Process Steel, 130

S. Ct. 2635. This, we hold, constitutes an extraordinary

circumstance within the meaning of the NLRA.

We further find instructive our decision in Carroll

College, Inc. v. NLRB, 558 F.3d 568 (D.C. Cir. 2009). In that

case, we considered an objection to the Board’s authority to

subject a religious institution to the NLRA’s collective

bargaining requirements. Id. at 571. In agreeing with the

petitioner in Carroll College that the Board had erred, we stated,

“[t]he Board thus had no jurisdiction to order the school to

bargain with the union, and we have authority to invalidate the

Board’s order even though the college did not raise its

jurisdictional challenge below.” Id. at 574. Although for

different reasons, the petitioner here, just as in Carroll College,

argues that the Board was without authority to enter the order

under review. Just as in Carroll College, we hold that where the

Board “had no jurisdiction” to enter the order, “we have

authority to invalidate the Board’s order even though the

[petitioner] did not raise its jurisdictional challenge below.” Id.

III. THE UNDERLYING PROCEEDINGS

Petitioner is a bottler and distributor of Pepsi-Cola

products and is an employer within the terms of the NLRA. As

discussed, an NLRB administrative law judge concluded that

Noel Canning had violated the NLRA. Board Decision at 8

(ALJ Op.). After Noel Canning filed exceptions to the ALJ’s

findings, a three-member panel of the Board, composed of

Members Hayes, Flynn, and Block, affirmed those findings in

a decision dated February 8, 2012. Id. at 1 (Board Op.).

On that date, the Board purportedly had five members.

Two members, Chairman Mark G. Pearce and Brian Hayes, had

been confirmed by the Senate on June 22, 2010. It is undisputed

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that they remained validly appointed Board members on

February 8, 2012. See 156 Cong. Rec. S5,281 (daily ed. June

22, 2010).

The other three members were all appointed by the

President on January 4, 2012, purportedly pursuant to the Recess

Appointments Clause of the Constitution, U.S. Const. art. II, § 2,

cl. 3. See Ctr. for Soc. Change, Inc., 358 N.L.R.B. No. 24, slip

op. at 1, 2012 WL 1064641 (2012).

The first of these three members, Sharon Block, filled

a seat that became vacant on January 3, 2012, when Board

member Craig Becker’s recess appointment expired. See 158

Cong. Rec. S582–83 (daily ed. Feb. 13, 2012); Part IV.B, infra.

The second of the three members, Terence F. Flynn,

filled a seat that became vacant on August 27, 2010, when Peter

Schaumber’s term expired. See 158 Cong. Rec. S582–83; 152

Cong. Rec. 17,077 (2006). The third, Richard F. Griffin, filled

a seat that became vacant on August 27, 2011, when Wilma B.

Liebman’s term expired. See 158 Cong. Rec. S582–83; 152

Cong. Rec. 17,077.

At the time of the President’s purported recess

appointments of the three Board members, the Senate was

operating pursuant to a unanimous consent agreement, which

provided that the Senate would meet in pro forma sessions every

three business days from December 20, 2011, through January

23, 2012. 157 Cong. Rec. S8,783–84 (daily ed. Dec. 17, 2011).

The agreement stated that “no business [would be] conducted”

during those sessions. Id. at S8,783. During the December 23

pro forma session, the Senate overrode its prior agreement by

unanimous consent and passed a temporary extension to the

payroll tax. Id. at S8,789 (daily ed. Dec. 23, 2011). During the

January 3 pro forma session, the Senate acted to convene the

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second session of the 112th Congress and to fulfill its

constitutional duty to meet on January 3. 158 Cong. Rec. S1

(daily ed. Jan. 3, 2012); see U.S. Const. amend. XX, § 2 (“The

Congress shall assemble at least once in every year, and such

meeting shall begin at noon on the 3d day of January, unless

they shall by law appoint a different day.”).

Noel Canning asserts that the Board did not have a

quorum for the conduct of business on the operative date,

February 8, 2012. Citing New Process Steel, L.P. v. NLRB, 130

S. Ct. 2635 (2010), which holds that the Board cannot act

without a quorum of three members, Noel Canning asserts that

the Board lacked a quorum on that date. Noel Canning argues

that the purported appointments of the last three members of the

Board were invalid under the Recess Appointments Clause of

the Constitution, Article II, Section 2, Clause 3. Because we

agree that the appointments were constitutionally invalid and the

Board therefore lacked a quorum, we grant the petition for

review and vacate the Board’s order.

IV. ANALYSIS

It is undisputed that the Board must have a quorum of

three in order to take action. It is further undisputed that a

quorum of three did not exist on the date of the order under

review unless the three disputed members (or at least one of

them) were validly appointed. It is further agreed that the

members of the Board are “Officers of the United States” within

the meaning of the Appointments Clause of the Constitution,

which provides 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,

whose Appointments are not herein otherwise provided for, and

which shall be established by Law.” U.S. Const. art. II, § 2, cl.

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2. Finally, it is undisputed that the purported appointments of

the three members were not made “by and with the Advice and

Consent of the Senate.”

This does not, however, end the dispute. The Board

contends that despite the failure of the President to comply with

Article II, Section 2, Clause 2, he nonetheless validly made the

appointments under a provision sometimes referred to as the

“Recess Appointments Clause,” which provides that “[t]he

President shall have Power to fill up all Vacancies that may

happen during the Recess of the Senate, by granting

Commissions which shall expire at the End of their next

Session.” Id. art. II, § 2, cl. 3. Noel Canning contends that the

putative recess appointments are invalid and the Recess

Appointments Clause is inapplicable because the Senate was not

in the recess at the time of the putative appointments and the

vacancies did not happen during the recess of the Senate. We

consider those issues in turn.

A. The Meaning of “the Recess”

Noel Canning contends that the term “the Recess” in

the Recess Appointments Clause refers to the intersession recess

of the Senate, that is to say, the period between sessions of the

Senate when the Senate is by definition not in session and

therefore unavailable to receive and act upon nominations from

the President. The Board’s position is much less clear. It argues

that the alternative appointment procedure created by that

Clause is available during intrasession “recesses,” or breaks in

the Senate’s business when it is otherwise in a continuing

session. The Board never states how short a break is too short,

under its theory, to serve as a “recess” for purposes of the

Recess Appointments Clause. This merely reflects the Board’s

larger problem: it fails to differentiate between “recesses” and

the actual constitutional language, “the Recess.”

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It is this difference between the word choice “recess”

and “the Recess” that first draws our attention. When

interpreting a constitutional provision, we must look to the

natural meaning of the text as it would have been understood at

the time of the ratification of the Constitution. District of

Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). Then, as

now, the word “the” was and is a definite article. See 2 Samuel

Johnson, A Dictionary of the English Language 2041 (1755)

(defining “the” as an “article noting a particular thing”

(emphasis added)). Unlike “a” or “an,” that definite article

suggests specificity. As a matter of cold, unadorned logic, it

makes no sense to adopt the Board’s proposition that when the

Framers said “the Recess,” what they really meant was “a

recess.” This is not an insignificant distinction. In the end it

makes all the difference.

Six times the Constitution uses some form of the verb

“adjourn” or the noun “adjournment” to refer to breaks in the

proceedings of one or both Houses of Congress. Twice, it uses

the term “the Recess”: once in the Recess Appointments Clause

and once in the Senate Vacancies Clause, U.S. Const. art. I, § 3,

cl. 2. Not only did the Framers use a different word, but none of

the “adjournment” usages is preceded by the definite article. All

this points to the inescapable conclusion that the Framers

intended something specific by the term “the Recess,” and that

it was something different than a generic break in proceedings.

The structure of the Clause is to the same effect. The

Clause sets a time limit on recess appointments by providing

that those commissions shall expire “at the End of their [the

Senate’s] next Session.” Again, the Framers have created a

dichotomy. The appointment may be made in “the Recess,” but

it ends at the end of the next “Session.” The natural

interpretation of the Clause is that the Constitution is noting a

difference between “the Recess” and the “Session.” Either the

18

Senate is in session, or it is in the recess. If it has broken for

three days within an ongoing session, it is not in “the Recess.”

It is universally accepted that “Session” here refers to

the usually two or sometimes three sessions per Congress.

Therefore, “the Recess” should be taken to mean only times

when the Senate is not in one of those sessions. Cf. Virginia v.

Tennessee, 148 U.S. 503, 519 (1893) (interpreting terms “by

reference to associated words”). Confirming this reciprocal

meaning, the First Congress passed a compensation bill that

provided the Senate’s engrossing clerk “two dollars per day

during the session, with the like compensation to such clerk

while he shall be necessarily employed in the recess.” Act of

Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71.

Not only logic and language, but also constitutional

history supports the interpretation advanced by Noel Canning,

not that of the Board. When the Federalist Papers spoke of

recess appointments, they referred to those commissions as

expiring “at the end of the ensuing session.” The Federalist No.

67, at 408 (Clinton Rossiter ed., 2003). For there to be an

“ensuing session,” it seems likely to the point of near certainty

that recess appointments were being made at a time when the

Senate was not in session — that is, when it was in “the

Recess.” Thus, background documents to the Constitution, in

addition to the language itself, suggest that “the Recess” refers

to the period between sessions that would end with the ensuing

session of the Senate.

Further, the Supreme Court has used analogous state

constitutional provisions to inform its interpretation of the

Constitution. See Heller, 128 S. Ct. at 2802. For example, in

Collins v. Youngblood, the Court considered several early state

constitutions in discerning “the original understanding of the Ex

Post Facto Clause” because “they appear to have been a basis

19

for the Framers’ understanding of the provision.” 497 U.S. 37,

43 (1990). The North Carolina Constitution, which contains the

state constitutional provision most similar to the Recess

Appointments Clause and thus likely served as the Clause’s

model, see Thomas A. Curtis, Note, Recess Appointments to

Article III Courts: The Use of Historical Practice in

Constitutional Interpretation, 84 Colum. L. Rev. 1758, 1770–72

(1984), supports the intersession interpretation. It provides:

That in every case where any officer, the right of

whose appointment is by this Constitution vested in the

General Assembly, shall, during their recess, die, or his

office by other means become vacant, the Governor

shall have power, with the advice of the Council of

State, to fill up such vacancy, by granting a temporary

commission, which shall expire at the end of the next

session of the General Assembly.

N.C. Const. of 1776, art. XX, reprinted in 7 Sources and

Documents of United States Constitutions 406 (1978). This

provision, like the Recess Appointments Clause, describes a

singular recess and does not use the word “adjournment.” And

an 1819 North Carolina Supreme Court case dealing with this

provision implies that the provision was seen as differentiating

between “the session of the General Assembly” and “the recess

of the General Assembly.” Beard v. Cameron, 7 N.C. (3 Mur.)

181 (1819) (opinion of Taylor, C.J.).

The Board argues that “the Company’s view would . . .

upend the established constitutional balance of power between

the Senate and the President with respect to presidential

appointments.” Resp’t. Br. at 13. However, the Board’s view

of “the established constitutional balance” is neither so well

established nor so clear as the Board seems to think. In fact, the

historical role of the Recess Appointments Clause is neither

20

clear nor consistent.

The interpretation of the Clause in the years immediately

following the Constitution’s ratification is the most instructive

historical analysis in discerning the original meaning. Indeed,

such early interpretation is a “critical tool of constitutional

interpretation” because it reflects the “public understanding” of

the text “in the period after its . . . ratification.” Heller, 128 S.

Ct. at 2804–05. With respect to the Recess Appointments

Clause, historical practice strongly supports the intersession

interpretation. The available evidence shows that no President

attempted to make an intrasession recess appointment for 80

years after the Constitution was ratified. Michael A. Carrier,

Note, When is the Senate in Recess for Purposes of the Recess

Appointments Clause?, 92 Mich. L. Rev. 2204, 2211 (1994).

The first intrasession recess appointment probably did not come

until 1867, when President Andrew Johnson apparently

appointed one district court judge during an intrasession

adjournment. See Edward A. Hartnett, Recess Appointments of

Article III Judges: Three Constitutional Questions, 26 Cardozo

L. Rev. 377, 408–09 (2005). It is not even entirely clear that the

Johnson appointment was made during an intrasession recess.

See id. at 409 n.136.

Presidents made only three documented intrasession recess

appointments prior to 1947, with the other two coming during

the presidencies of Calvin Coolidge and Warren Harding. See

Carrier, supra, at 2209–12, 2235; see also Lawfulness of Recess

Appointments During a Recess of the Senate Notwithstanding

Periodic Pro Forma Sessions, 36 Op. O.L.C. 1, 5 (2012),

available at http://www.justice.gov/olc/2012/pro-forma-

sessions-opinion.pdf (“2012 OLC Memo”).

Whatever the precise number of putative intrasession recess

appointments before 1947, it is well established that for at least

21

80 years after the ratification of the Constitution, no President

attempted such an appointment, and for decades thereafter, such

appointments were exceedingly rare. The Supreme Court in

Printz v. United States, exploring the reach of federal power

over the states, deemed it significant that the early Congress had

not attempted to exercise the questioned power. 521 U.S. 898

(1997). Paralleling the Supreme Court’s reasoning in Printz, we

conclude that the infrequency of intrasession recess

appointments during the first 150 years of the Republic

“suggests an assumed absence of [the] power” to make such

appointments. Id. at 908. Though it is true that intrasession

recesses of significant length may have been far less common in

those early days than today, see Carrier, supra, at 2211, it is

nonetheless the case that the appointment practices of Presidents

more nearly contemporaneous with the adoption of the

Constitution do not support the propriety of intrasession recess

appointments. Their early understanding of the Constitution is

more probative of its original meaning than anything to be

drawn from administrations of more recent vintage.

While the Board seeks support for its interpretation in the

practices of more recent administrations, we do not find those

practices persuasive. We note that in INS v. Chadha, when the

Supreme Court was considering the constitutionality of a one-

house veto, it considered a similar argument concerning the

increasing frequency of such legislative veto provisions. 462

U.S. 919, 944–45 (1983). In rejecting that argument, the

Chadha Court stated that “our inquiry is sharpened rather than

blunted by the fact that congressional veto provisions are

appearing with increasing frequency . . . .” Id. at 944. Like the

Supreme Court in Chadha, we conclude that practice of a more

recent vintage is less compelling than historical practice dating

back to the era of the Framers.

22

Likewise, in Myers v. United States, the Court considered

a statutory limitation on the President’s power to remove his

appointees. 272 U.S. 52 (1926). In a powerful tribute to the

strength of interpretations from the time of the ratification, Chief

Justice Taft, writing for the Court, gave almost dispositive

weight to the First Congress’s construction of the Constitution

on the question of the President’s removal power. See id. at

174–75. The Court expressly valued the early practice over

recent 1870s legislation inconsistent with the early

understanding.

The Constitution’s overall appointments structure provides

additional confirmation of the intersession interpretation. The

Framers emphasized that the recess appointment power served

only as a stopgap for times when the Senate was unable to

provide advice and consent. Hamilton wrote in Federalist No.

67 that advice and consent “declares the general mode of

appointing officers of the United States,” while the Recess

Appointments Clause serves as “nothing more than a

supplement to the other for the purpose of establishing an

auxiliary method of appointment, in cases to which the general

method was inadequate.” The Federalist No. 67, supra, at 408.

The “general mode” of participation of the Senate through

advice and consent served an important function: “It would be

an excellent check upon a spirit of favoritism in the President,

and would tend greatly to prevent the appointment of unfit

characters from State prejudice, from family connection, from

personal attachment, or from a view to popularity.” The

Federalist No. 76, supra, at 456.

Nonetheless, the Framers recognized that they needed some

temporary method for appointment when the Senate was in the

recess. At the time of the Constitution, intersession recesses

were regularly six to nine months, Michael B. Rappaport, The

Original Meaning of the Recess Appointments Clause, 52 UCLA

23

L. Rev. 1487, 1498 (2005), and senators did not have the luxury

of catching the next flight to Washington. To avoid government

paralysis in those long periods when senators were unable to

provide advice and consent, the Framers established the

“auxiliary” method of recess appointments. But they put strict

limits on this method, requiring that the relevant vacancies

happen during “the Recess.” It would have made little sense to

extend this “auxiliary” method to any intrasession break, for the

“auxiliary” ability to make recess appointments could easily

swallow the “general” route of advice and consent. The

President could simply wait until the Senate took an intrasession

break to make appointments, and thus “advice and consent”

would hardly restrain his appointment choices at all.

To adopt the Board’s proffered intrasession interpretation

of “the Recess” would wholly defeat the purpose of the Framers

in the careful separation of powers structure reflected in the

Appointments Clause. As the Supreme Court observed in

Freytag v. Commissioner of Internal Revenue, “The

manipulation of official appointments had long been one of the

American revolutionary generation’s greatest grievances against

executive power, because the power of appointment to offices

was deemed the most insidious and powerful weapon of

eighteenth century despotism.” 501 U.S. 868, 883 (1991)

(internal quotation marks and citation omitted). In short, the

Constitution’s appointments structure — the general method of

advice and consent modified only by a limited recess

appointments power when the Senate simply cannot provide

advice and consent — makes clear that the Framers used “the

Recess” to refer only to the recess between sessions.

Confirming this understanding of the Recess Appointments

Clause is the lack of a viable alternative interpretation of “the

Recess.” The first alternative interpretation is that “the Recess”

refers to all Senate breaks. But no party presses that

24

interpretation, and for good reason. See Resp’t Br. at 65

(conceding that “a routine adjournment for an evening, a

weekend, or a lunch break occurring during regular working

sessions of the Senate does not constitute a ‘Recess of the

Senate’ under the Recess Appointments Clause”). As discussed

above, the appointments structure would have been turned

upside down if the President could make appointments any time

the Senate so much as broke for lunch. This interpretation also

cannot explain the use of the definite article “the,” the singular

“Recess” in the Clause, or why the Framers used “adjournment”

differently from “Recess.”

The second possible interpretation is that “the Recess” is a

practical term that refers to some substantial passage of time,

such as a ten- or twenty-day break. Attorney General Daugherty

seemed to abandon the intersession interpretation in 1921 and

adopted this functional interpretation, arguing that “[t]o give the

word ‘recess’ a technical and not a practical construction, is to

disregard substance for form.” 33 Op. Att’y Gen. 20, 22 (1921).

Daugherty refused to put an exact time on the length of the

break necessary for a “Recess,” stating that “[i]n the very nature

of things the line of demarcation can not be accurately drawn.”

Id. at 25.

We must reject Attorney General Daugherty’s vague

alternative in favor of the clarity of the intersession

interpretation. As the Supreme Court has observed, when

interpreting “major features” of the Constitution’s separation of

powers, we must “establish[] high walls and clear distinctions

because low walls and vague distinctions will not be judicially

defensible in the heat of interbranch conflict.” Plaut v.

Spendthrift Farm, Inc., 514 U.S. 211, 239 (1995). Thus, the

inherent vagueness of Daugherty’s interpretation counsels

against it. Given that the appointments structure forms a major

part of the separation of powers in the Constitution, the Framers

25

would not likely have introduced such a flimsy standard.

Moreover, the text of the Recess Appointments Clause offers no

support for the functional approach. Some undefined but

substantial number of days-break is not a plausible interpretation

of “the Recess.”

A third alternative interpretation of “the Recess” is that it

means any adjournment of more than three days pursuant to the

Adjournments Clause. See U.S. Const. art. I, § 5, cl. 4 (“Neither

House, during the Session of Congress, shall, without the

Consent of the other, adjourn for more than three days . . . .”).

This interpretation lacks any constitutional basis. The Framers

did not use the word “adjournment” in the Recess Appointments

Clause. Instead, they used “the Recess.” The Adjournments

Clause and the Recess Appointments Clause exist in different

contexts and contain no hint that they should be read together.

Nothing in the text of either Clause, the Constitution’s structure,

or its history suggests a link between the Clauses. Without any

evidence indicating that the two Clauses are related, we cannot

read one as governing the other. We will not do violence to the

Constitution by ignoring the Framers’ choice of words.

The fourth and final possible interpretation of “the Recess,”

advocated by the Office of Legal Counsel, is a variation of the

functional interpretation in which the President has discretion to

determine that the Senate is in recess. See 2012 OLC Memo,

supra, at 23 (“[T]he President therefore has discretion to

conclude that the Senate is unavailable to perform its advise-

and-consent function and to exercise his power to make recess

appointments.”). This will not do. Allowing the President to

define the scope of his own appointments power would

eviscerate the Constitution’s separation of powers. The checks

and balances that the Constitution places on each branch of

government serve as “self-executing safeguard[s] against the

encroachment or aggrandizement of one branch at the expense

26

of the other.” Buckley v. Valeo, 424 U.S. 1, 122 (1976). An

interpretation of “the Recess” that permits the President to

decide when the Senate is in recess would demolish the checks

and balances inherent in the advice-and-consent requirement,

giving the President free rein to appoint his desired nominees at

any time he pleases, whether that time be a weekend, lunch, or

even when the Senate is in session and he is merely displeased

with its inaction. This cannot be the law. The intersession

interpretation of “the Recess” is the only one faithful to the

Constitution’s text, structure, and history.

The Board’s arguments supporting the intrasession

interpretation are not convincing. The Board relies on an

Eleventh Circuit opinion holding that “the Recess” includes

intrasession recesses. See Evans v. Stephens, 387 F.3d 1220,

1224 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005). The

Evans court explained that contemporaneous dictionaries

defined “recess” broadly as “remission and suspension of any

procedure.” Id. (quoting 2 Johnson, supra, at 1650). The court

also dismissed the importance of the definite article “the,”

discounted the Constitution’s distinction between “adjournment”

and “Recess” by interpreting “adjournment” as a parliamentary

action, and emphasized the prevalence of intrasession recess

appointments in recent years. See id. at 1225–26.

While we respect our sister circuit, we find the Evans

opinion unconvincing. Initially, we note that the Eleventh

Circuit’s analysis was premised on an incomplete statement of

the Recess Appointments Clause’s purpose: “to enable the

President to fill vacancies to assure the proper functioning of our

government.” Id. at 1226. This statement omits a crucial

element of the Clause, which enables the President to fill

vacancies only when the Senate is unable to provide advice and

consent. See, e.g., 2012 OLC Memo, supra, at 10 (“[T]he recess

appointment power is required to address situations in which the

27

Senate is unable to provide advice and consent on

appointments.”). As we have explained, the Clause deals with

the Senate’s being unable to provide advice and consent only

during “the Recess,” viz., an intersession recess. As written, the

Eleventh Circuit’s statement disregards the full structure of the

Constitution’s appointments provision, which makes clear that

the recess appointments method is secondary to the primary

method of advice and consent. The very existence of the advice

and consent requirement highlights the incompleteness of the

Eleventh Circuit’s broad statement of constitutional purpose.

Nor are we convinced by the Eleventh Circuit’s more

specific arguments. First, the natural meaning of “the Recess”

is more limited than the broad dictionary definition of “recess.”

In context, “the Recess” refers to a specific state of the

legislature, so sources other than general dictionaries are more

helpful in elucidating the term’s original public meaning. See

Virginia, 148 U.S. at 519 (“[T]he meaning of a term may be

enlarged or restrained by reference to the object of the whole

clause in which it is used.”). Indeed, it is telling that even the

Board concedes that “Recess” does not mean all breaks, see

Resp’t Br. at 65, which is the interpretation suggested by the

dictionary definition. See 2 Johnson, supra, at 1650 (defining

“recess” as the “remission and suspension of any procedure”).

Second, the Eleventh Circuit fails to explain the use of the

singular “Recess,” and it underestimates the significance of the

definite article “the” preceding “Recess” by relying on

twentieth-century dictionaries to argue that “the” can come

before a generic term. See Evans, 387 F.3d at 1224–25.

Contemporaneous dictionaries treated “the” as “noting a

particular thing.” 2 Johnson, supra, at 2041 (emphasis added).

Third, as the Eleventh Circuit acknowledged, the Supreme

Court has suggested that the Constitution does not in fact only

28

use “adjournment” to denote parliamentary action. See Evans,

387 F.3d at 1225 (citing Wright v. United States, 302 U.S. 583

(1938)).

In fact, the Constitution uses “adjournment” to refer

generally to legislative breaks. It uses “the Recess” differently

and then incorporates the definite article. Thus, the Eleventh

Circuit’s interpretation of “adjournment” fails to distinguish

between “adjournment” and “Recess,” rendering the latter

superfluous and ignoring the Framers’ specific choice of words.

Cf. Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570–71 (1840)

(plurality opinion) (“In expounding the Constitution of the

United States, every word must have its due force, and

appropriate meaning; for it is evident from the whole instrument,

that no word was unnecessarily used, or needlessly added.”);

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) (“It

cannot be presumed that any clause in the constitution is

intended to be without effect . . . .”).

The Board offers as an example of an early interpretation of

“the Recess” consistent with its view the case of a senator

appointed by the governor of New Jersey to fill a vacated seat in

the United States Senate pursuant to Article I, Section 3, Clause

2. Under that clause, “if Vacancies happen by Resignation, or

otherwise, during the Recess of the Legislature of any State, the

Executive thereof may make temporary Appointments until the

next Meeting of the Legislature, which shall then fill such

Vacancies.” U.S. Const. art. I, § 3, cl. 2. In the example relied

upon by the Board, Franklin Davenport was “appointed a

Senator by the Executive of the State of New Jersey, in the

recess of the Legislature” and “took his seat in the Senate.” 8

Annals of Cong. 2197 (1798). The Board then offers evidence

that the New Jersey Legislative Council Journal, 23d Session

20–21 (1798–99), documents an intrasession recess at the

apparent time of Davenport’s appointment. We do not find this

29

persuasive. Nothing in the Annals of Congress establishes that

Congress considered or even knew that the appointment was

made during an intrasession recess of the legislature. The

example offers at most the understanding of one state governor,

not a common understanding of “the Recess” as used in the

Recess Appointments Clause.

Finally, we would make explicit what we have implied

earlier. The dearth of intrasession appointments in the years and

decades following the ratification of the Constitution speaks far

more impressively than the history of recent presidential

exercise of a supposed power to make such appointments.

Recent Presidents are doing no more than interpreting the

Constitution. While we recognize that all branches of

government must of necessity exercise their understanding of

the Constitution in order to perform their duties faithfully

thereto, ultimately it is our role to discern the authoritative

meaning of the supreme law.

As Chief Justice Marshall made clear in Marbury v.

Madison, “[i]t is emphatically the province and duty of the

judicial department to say what the law is. Those who apply the

rule to particular cases, must of necessity expound and interpret

that rule. If two laws conflict with each other, the courts must

decide on the operation of each.” 5 U.S. (1 Cranch) at 177. In

Marbury, the Supreme Court established that if the legislative

branch has acted in contravention of the Constitution, it is the

courts that make that determination. In Youngstown Sheet &

Tube Co. v. Sawyer, the Supreme Court made clear that the

courts must make the same determination if the executive has

acted contrary to the Constitution. 343 U.S. 579 (1952). That

is the case here, and we must strike down the unconstitutional

act.

30

In short, we hold that “the Recess” is limited to intersession

recesses. The Board conceded at oral argument that the

appointments at issue were not made during the intersession

recess: the President made his three appointments to the Board

on January 4, 2012, after Congress began a new session on

January 3 and while that new session continued. 158 Cong. Rec.

S1 (daily ed. Jan. 3, 2012). Considering the text, history, and

structure of the Constitution, these appointments were invalid

from their inception. Because the Board lacked a quorum of

three members when it issued its decision in this case on

February 8, 2012, its decision must be vacated. See 29 U.S.C.

§ 153(b); New Process Steel, 130 S. Ct. at 2644–45.

B. Meaning of “Happen”

Although our holding on the first constitutional argument of

the petitioner is sufficient to compel a decision vacating the

Board’s order, as we suggested above, we also agree that the

petitioner is correct in its understanding of the meaning of the

word “happen” in the Recess Appointments Clause. The Clause

permits only the filling up of “Vacancies that may happen

during the Recess of the Senate.” U.S. Const. art. II, § 2, cl. 3.

Our decision on this issue depends on the meaning of the

constitutional language “that may happen during the Recess.”

The company contends that “happen” means “arise” or “begin”

or “come into being.” The Board, on the other hand, contends

that the President may fill up any vacancies that “happen to

exist” during “the Recess.” It is our firm conviction that the

appointments did not occur during “the Recess.” We proceed

now to determine whether the appointments are also invalid as

the vacancies did not “happen” during “the Recess.”

In determining the meaning of “happen” in the Recess

Appointments Clause, we begin our analysis as we did in the

first issue by looking to the natural meaning of the text as it

31

would have been understood at the time of the ratification of the

Constitution. See Heller, 128 S. Ct. at 2788. Upon a simple

reading of the language itself, we conclude that the word

“happen” could not logically have encompassed any vacancies

that happened to exist during “the Recess.” If the language were

to be construed as the Board advocates, the operative phrase

“that may happen” would be wholly unnecessary. Under the

Board’s interpretation, the vacancy need merely exist during

“the Recess” to trigger the President’s recess appointment

power. The Board’s interpretation would apply with equal

force, however, irrespective of the phrase “that may happen.”

Its interpretation therefore deprives that phrase of any force. By

effectively reading the phrase out of the Clause, the Board’s

interpretation once again runs afoul of the principle that every

phrase of the Constitution must be given effect. See Marbury,

5 U.S. (1 Cranch) at 174 (“It cannot be presumed that any clause

in the constitution is intended to be without effect . . . .”).

For our logical analysis of the language with respect to the

meaning of “happen” to be controlling, we must establish that it

is consistent with the understanding of the word

contemporaneous with the ratification. Dictionaries at the time

of the Constitution defined “happen” as “[t]o fall out; to chance;

to come to pass.” 1 Johnson, supra, at 965; see also Evans, 387

F.3d at 1230 & n.4 (Barkett, J., dissenting) (surveying a variety

of eighteenth-century dictionaries and concluding that they all

defined “happen” similarly). A vacancy happens, or “come[s]

to pass,” only when it first arises, demonstrating that the Recess

Appointments Clause requires that the relevant vacancy arise

during the recess. The term “happen” connotes an event taking

place — an action — and it would be plainly incorrect to say

that an event happened during some period of time when in fact

it happened before that time.

32

In addition to the logic of the language, there is ample other

support for this conclusion. First, we repair again to

examination of the structure of the Constitution. If we accept

the Board’s construction, we eviscerate the primary mode of

appointments set forth in Article II, Section 2, Clause 2. It

would have made little sense to make the primary method of

appointment the cumbersome advice and consent procedure

contemplated by that Clause if the secondary method would

permit the President to fill up all vacancies regardless of when

the vacancy arose. A President at odds with the Senate over

nominations would never have to submit his nominees for

confirmation. He could simply wait for a “recess” (however

defined) and then fill up all vacancies.

We further note that the “arise” interpretation is consistent

with other usages of “happen” in the Constitution. Article I,

Section 3, Clause 2, the Senate Vacancies Clause, provides for

the filling of vacancies in Senate seats. Though now amended,

at the time of the adoption of the Constitution, that section

stated: “if Vacancies happen by Resignation, or otherwise,

during the Recess of the Legislature of any State, the Executive

thereof may make temporary Appointments until the next

Meeting of the Legislature, which shall then fill such

Vacancies.” U.S. Const. art. I, § 3, cl. 2. That Clause makes

sense if “happen . . . during the Recess” refers to arising or

coming into being during “the Recess.” If it merely means that

the vacancy happens to exist at the time of a recess, it becomes

implausible.

Our construction of “happen” as meaning “arise” in the

Recess Appointments Clause is consistent with the use of the

same wording in the Senate Vacancies Clause. It is well

established that “inconsistency [within the Constitution] is to be

implied only where the context clearly requires it.” Nat’l Mut.

Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 587 (1949).

33

Our understanding of the plain meaning of the Recess

Appointments Clause as requiring that a qualifying vacancy

must have come to pass or arisen “during the Recess” is

consistent with the apparent meaning of the Senate Vacancies

Clause. The interpretation proffered by the Board is not.

As with the first issue, we also find that evidence of the

earliest understanding of the Clause is inconsistent with the

Board’s position. It appears that the first President, who took

office shortly after the ratification, understood the recess

appointments power to extend only to vacancies that arose

during senatorial recess. More specifically, President

Washington followed a practice that strongly suggests that he

understood “happen” to mean “arise.” If not enough time

remained in the session to ask a person to serve in an office,

President Washington would nominate a person without the

nominee’s consent, and the Senate would confirm the individual

before recessing. See Rappaport, supra, at 1522. Then, if the

person declined to serve during the recess, thereby creating a

new vacancy during the recess, President Washington would fill

the position using his recess appointment power. Id. If

President Washington and the early Senate had understood the

word “happen” to mean “happen to exist,” this convoluted

process would have been unnecessary.

In 1792, Edmund Randolph, the first Attorney General,

addressed the issue of an office that had become vacant during

the session when the Secretary of State sought his view.

Edmund Randolph, Opinion on Recess Appointments (July 7,

1792), in 24 The Papers of Thomas Jefferson 165, 165–67 (John

Catanzariti et al. eds., 1990) (“Randolph Opinion”). Addressing

the vacancy, concluding that it did not “happen” during the

recess, and thereby rejecting the “exist” interpretation, Randolph

wrote:

34

But is it a vacancy which has happened during the recess of

the Senate? It is now the same and no other vacancy, than

that, which existed on the 2nd. of April 1792. It commenced

therefore on that day or may be said to have happened on

that day.

Id. at 166.

Alexander Hamilton, similarly, wrote that “[i]t is clear, that

independent of the authority of a special law, the President

cannot fill a vacancy which happens during a session of the

Senate.” Letter from Alexander Hamilton to James McHenry

(May 3, 1799), in 23 The Papers of Alexander Hamilton 94, 94

(Harold C. Syrett ed., 1976); see also The Federalist No. 67,

supra, at 408 (explaining the purpose of the Clause by stating

that “vacancies might happen in their recess” (emphasis in

original)). In March 1814, Senator Christopher Gore argued that

the Clause’s scope is limited to “vacanc[ies] that may happen

during the recess of the Senate”:

If the vacancy happens at another time, it is not the case

described by the Constitution; for that specifies the precise

space of time wherein the vacancy must happen, and the

times which define this period bring it emphatically within

the ancient and well-established maxim: “Expressio unius

est exclusio alterius.”

26 Annals of Cong. 653 (1814); see United States v. Wells

Fargo Bank, 485 U.S. 351, 357 (1988) (defining the interpretive

canon of “expressio unius est exclusio alterius” as “the

expression of one is the exclusion of others” (italics omitted)).

Additional support for the “arise” interpretation comes from

early interpreters who understood that the Clause only applied

to vacancies where the office had previously been occupied, as

35

opposed to vacancies that existed because the office had been

newly created. Justice Joseph Story explained that “[t]he word

‘happen’ had relation to some casualty,” a statement consistent

with the arise interpretation. 3 Joseph Story, Commentaries on

the Constitution § 1553 (1833) (“Story’s Commentaries”),

reprinted in 4 The Founders’ Constitution 122 (Philip B.

Kurland & Ralph Lerner eds., 1987).

We recognize that some circuits have adopted the “exist”

interpretation. See Evans, 387 F.3d at 1226–27; United States

v. Woodley, 751 F.2d 1008, 1012–13 (9th Cir. 1985); United

States v. Allocco, 305 F.2d 704, 709–15 (2d Cir. 1962). Those

courts, however, did not focus their analyses on the original

public meaning of the word “happen.” In arguing that happen

could mean “exist,” the Evans majority used a modern

dictionary to define “happen” as “befall,” and then used the

same modern dictionary to define “befall” as “happen to be.”

See 387 F.3d at 1226 (quoting 6 Oxford English Dictionary 1096

(2d ed. 1989); 2 id. at 62). As the Evans dissent argued, “[t]his

is at best a strained effort to avoid the available dictionary

evidence.” Id. at 1230 n.4 (Barkett, J., dissenting). A modern

cross-reference is not a contemporary definition. The Board has

offered no dictionaries from the time of the ratification that

define “happen” consistently with the proffered definition of

“happen to exist.”

The Evans majority also relied on a handful of recess

appointments supposedly made by Presidents Washington and

Jefferson to offices that became vacant prior to the recess. Id.

at 1226 (majority opinion). Subsequent scholarship, however,

has demonstrated that these appointments were “in fact

examples of the practice of appointing an individual without his

consent and then, if he turns down the appointment during the

recess, making a recess appointment at that time.” Rappaport,

supra, at 1522 n.97. Again, as with the appointments by

36

President Washington referenced above, the use of this

convoluted method of appointment demonstrates that early

interpreters read “happen” as “arise.”

The Evans, Woodley, and Allocco courts all relied on

supposed congressional acquiescence in the practice of making

recess appointments to offices that were vacant prior to the

recess because 5 U.S.C. § 5503 permits payment to such

appointees in some circumstances. See Evans, 387 F.3d at

1226–27; Woodley, 751 F.2d at 1013; Allocco, 305 F.2d at 715

(referring to § 5503’s predecessor statute); see also 5 U.S.C.

§ 5503 (denying recess appointees payment “if the vacancy

[they filled] existed while the Senate was in session,” subject to

certain exceptions).

Section 5503 was passed in 1966. Act of Sept. 6, 1966,

Pub. L. No. 89-554, 80 Stat. 378, 475. Its similar predecessor

statute was passed in 1940. Act of July 11, 1940, ch. 580, 54

Stat. 751. The enactment of statutes in 1940 and 1966 sheds no

light on the original understanding of the Constitution. This is

particularly true as prior statutes refused payments of salaries to

all recess appointees whose vacancies arose during the session.

See Act of Feb. 9, 1863, ch. 25, § 2, 12 Stat. 642, 646 (stating

that no “money [shall] be paid out of the Treasury, as salary, to

any person appointed during the recess of the Senate, to fill a

vacancy in any existing office, which vacancy existed while the

Senate was in session and is by law required to be filled by and

with the advice and consent of the Senate, until such appointee

shall have been confirmed by the Senate”); 5 U.S.C. § 56

(1934). We doubt that our sister circuits are correct in

construing this legislation as acquiescent. The Framers placed

the power of the purse in the Congress in large part because the

British experience taught that the appropriations power was a

tool with which the legislature could resist “the overgrown

prerogatives of the other branches of government.” The

37

Federalist No. 58, supra, at 357. The 1863 Act constitutes

precisely that: resistance to executive aggrandizement. In any

event, if the Constitution does not empower the President to

make the appointments, “[n]either Congress nor the Executive

can agree to waive . . . structural protection[s]” in the

Appointments Clause. Freytag, 501 U.S. at 880; cf. Chadha,

462 U.S. at 942 n.13 (“The assent of the Executive to a bill

which contains a provision contrary to the Constitution does not

shield it from judicial review.”).

As we recalled in our analysis of the first issue, “[i]t is

emphatically the province and duty of the judicial department to

say what the law is. Those who apply the rule to particular

cases, must of necessity expound and interpret that rule.”

Marbury, 5 U.S. (1 Cranch) at 177. The Senate’s desires do not

determine the Constitution’s meaning. The Constitution’s

separation of powers features, of which the Appointments

Clause is one, do not simply protect one branch from another.

See Freytag, 501 U.S. at 878. These structural provisions serve

to protect the people, for it is ultimately the people’s rights that

suffer when one branch encroaches on another. As Madison

explained in Federalist No. 51, the division of power between

the branches forms part of the “security [that] arises to the rights

of the people.” The Federalist No. 51, supra, at 320. Or as the

Supreme Court held in Freytag, “The structural interests

protected by the Appointments Clause are not those of any one

branch of Government but of the entire Republic.” 501 U.S. at

880. In short, nothing in 5 U.S.C. § 5503 changes our view that

the original meaning of “happen” is “arise.”

Our sister circuits and the Board contend that the “arise”

interpretation fosters inefficiencies and leaves open the

possibility of just what is occurring here — that is, a Board that

cannot act for want for a quorum. The Board also suggests more

dire consequences, arguing that failure to accept the “exist”

38

interpretation will leave the President unable to fulfill his chief

constitutional obligation to “take Care that the Laws be

faithfully executed,” U.S. Const. art. II, § 3, and even suggests

that the interpretation we adopt today could pose national

security risks. See Noel Canning v. NLRB, No. 12-1115, Oral

Argument Tr. at 52 (D.C. Cir. Dec. 5, 2012). But if Congress

wished to alleviate such problems, it could certainly create

Board members whose service extended until the qualification

of a successor, or provide for action by less than the current

quorum, or deal with any inefficiencies in some other fashion.

And our suggestion that Congress can address this issue is no

mere hypothesis. The two branches have repeatedly, and

thoroughly, addressed the problems of vacancies in the

executive branch. Congress has provided for the temporary

filling of a vacancy in a particular executive office by an

“acting” officer authorized to perform all of the duties and

exercise all of the powers of that office, see, e.g., 28 U.S.C.

§ 508 (Attorney General); 29 U.S.C. § 552 (Secretary of Labor),

including key national security positions. See, e.g., 10 U.S.C.

§ 132(b) (Secretary of Defense); id. § 154(d), (e) (Chairman,

Joint Chiefs of Staff); 50 U.S.C. § 403-3a(a) (Director of

National Intelligence); id. § 403-4c(b)(2) (Director of Central

Intelligence Agency); see also S. Rep. No. 105-250, at 16–17

(1998) (listing other provisions). Moreover, Congress

statutorily addressed the filling of vacancies in the executive

branch not otherwise provided for. See 5 U.S.C.

§§ 3345–3349d.

Congress has also addressed the problem of vacancies on

various multimember agencies, providing that members may

continue to serve for some period past the expiration of their

commissions until successors are nominated and confirmed.

See, e.g., 7 U.S.C. § 2(a)(2)(A) (Commodities Futures Trading

Commission); 15 U.S.C. § 78d(a) (Securities and Exchange

Commission); 42 U.S.C. § 7171(b)(1) (Federal Energy

39

Regulatory Commission); 47 U.S.C. § 154(c) (Federal

Communications Commission). And we have cited only a

fraction of the multimember boards for which Congress has

provided such potential extensions.

Admittedly, Congress has chosen not to provide for acting

NLRB members. See 5 U.S.C. § 3349c(1)(A). But that choice

cannot support the Board’s interpretation of the Clause. We

cannot accept an interpretation of the Constitution completely

divorced from its original meaning in order to resolve exigencies

created by — and equally remediable by — the executive and

legislative branches. And as the Supreme Court expressly noted

in New Process Steel, in the context of the Board, “[i]f Congress

wishes to allow the Board to decide cases with only two

members, it can easily do so.” 130 S. Ct. at 2645.

In any event, if some administrative inefficiency results

from our construction of the original meaning of the

Constitution, that does not empower us to change what the

Constitution commands. As the Supreme Court observed in INS

v. Chadha, “the fact that a given law or procedure is efficient,

convenient, and useful in facilitating functions of government,

standing alone, will not save it if it is contrary to the

Constitution.” 462 U.S. at 944. It bears emphasis that

“[c]onvenience and efficiency are not the primary objectives —

or the hallmarks — of democratic government.” Id.

The power of a written constitution lies in its words. It is

those words that were adopted by the people. When those words

speak clearly, it is not up to us to depart from their meaning in

favor of our own concept of efficiency, convenience, or

facilitation of the functions of government. In light of the

extensive evidence that the original public meaning of “happen”

was “arise,” we hold that the President may only make recess

appointments to fill vacancies that arise during the recess.

40

Applying this rule to the case before us, we further hold that

the relevant vacancies did not arise during the intersession

recess of the Senate. The three Board seats that the President

attempted to fill on January 4, 2012, had become vacant on

August 27, 2010, August 27, 2011, and January 3, 2012,

respectively. See Part III, supra (showing the dates for

Chairman Liebman and Members Schaumber and Becker’s

departures). On August 27, 2010, the Senate was in the midst of

an intrasession recess, so the vacancy that arose on that date did

not arise during “the Recess” for purposes of the Recess

Appointments Clause. See Congressional Directory for the

112th Congress 538 (2011). Similarly, the Senate was in an

intrasession recess on August 27, 2011, so the vacancy that

arose on that date also did not qualify for a recess appointment.

See id.

The seat formerly occupied by Member Becker became

vacant at the “End” of the Senate’s session on January 3, 2012

— it did not “happen during the Recess of the Senate.” First,

this vacancy could not have arisen during an intersession recess

because the Senate did not take an intersession recess between

the first and second sessions of the 112th Congress.

It has long been the practice of the Senate, dating back to

the First Congress, to conclude its sessions and enter “the

Recess” with an adjournment sine die.1 The Senate has followed

1

See Congressional Directory for the 112th Congress, supra,

at 522–38 (listing all of the Senate’s intersession recesses prior to

2012); see, e.g., 156 Cong. Rec. S11,070 (daily ed. Dec. 22, 2010)

(concluding Second Session of 111th Congress with adjournment sine

die); 147 Cong. Rec. 27,953 (2001) (concluding First Session of 107th

Congress with adjournment sine die); 139 Cong. Rec. 32,433 (1993)

(concluding First Session of 103d Congress with adjournment sine

die); 128 Cong. Rec. 33,629 (1982) (concluding Second Session of the

41

this practice even for relatively brief intersession recesses.2

97th Congress with adjournment sine die); 125 Cong. Rec. 37,605

(1979) (concluding First Session of 96th Congress with adjournment

sine die); 117 Cong. Rec. 47,658 (1971) (concluding First Session of

the 92d Congress with adjournment sine die); 105 Cong. Rec. 19,688

(1959) (concluding First Session of 86th Congress with adjournment

sine die); 91 Cong. Rec. 12,525 (1945) (concluding First Session of

79th Congress with adjournment sine die); 65 Cong. Rec. 11,202

(1924) (concluding First Session of 68th Congress with adjournment

sine die); 45 Cong. Rec. 9,080 (1910) (concluding Second Session of

61st Congress with adjournment sine die); 23 Cong. Rec. 7,081 (1892)

(concluding First Session of 52d Congress with adjournment sine die);

Cong. Globe, 42d Cong., 2d Sess. 4,504 (1872) (concluding Second

Session of 42d Congress with adjournment sine die); Cong. Globe,

23d Cong., 1st Sess. 480 (1834) (concluding First Session of 23d

Congress with adjournment sine die); 29 Annals of Cong. 372 (1816)

(concluding First Session of 14th Congress with adjournment sine

die); 3 Annals of Cong. 668 (1793) (concluding Second Session of 2d

Congress with adjournment sine die); 2 Annals of Cong. 1786 (1791)

(concluding Third Session of 1st Congress with adjournment sine die).

2

See, e.g., 154 Cong. Rec. 24,808 (2009) (concluding Second

Session of 110th Congress and entering three-day intersession recess

with adjournment sine die); 141 Cong. Rec. 38,608 (1996)

(concluding First Session of 104th Congress and entering momentary

intersession recess with adjournment sine die); 137 Cong. Rec. 36,364

(1992) (concluding First Session of 102d Congress with adjournment

sine die at the same time that the Second Session began); 109 Cong.

Rec. 25,674 (1963) (concluding First Session of 88th Congress and

entering eight-day intersession recess with adjournment sine die); 96

Cong. Rec. 17,121 (1951) (concluding Second Session of 81st

Congress and entering one-day intersession recess with adjournment

sine die); 94 Cong. Rec. 10,264 (1948) (concluding Second Session

of 80th Congress and entering three-day intersession recess with

adjournment sine die); 87 Cong. Rec. 10,143 (1942) (concluding First

Session of 77th Congress and entering three-day intersession recess

with adjournment sine die); 76 Cong. Rec. 5,656 (1933) (concluding

Second Session of 72d Congress and entering one-day intersession

42

Indeed, various acts of Congress refer to the adjournment

sine die as the conclusion of the session. See, e.g., 2 U.S.C.

§ 682(5) (for purpose of congressional budget consideration,

“continuity of a session of the Congress shall be considered as

broken only by an adjournment of the Congress sine die”); 5

U.S.C. § 906(b)(1) (for purpose of agency reorganization plans,

“continuity of session is broken only by an adjournment of

Congress sine die”).

We find a recent example of this longstanding practice,

with dates nearly identical to those in this case, to be particularly

instructive. On December 31, 2007, the Senate met in pro forma

session and concluded the First Session of the 110th Congress,

and entered “the Recess,” with an adjournment sine die. See

Congressional Directory for the 112th Congress, supra, at 537

(confirming that the First Session of the 110th Congress ended

on December 31, 2007); 153 Cong. Rec. 36,508 (2007)

(adjourning Senate sine die). It then convened the Second

Session of the 110th Congress with a pro forma session on

January 3, 2008. See Congressional Directory for the 112th

Congress, supra, at 537 (confirming that the Second Session of

the 110th Congress began on January 3, 2008); 154 Cong. Rec.

2 (2008) (convening Second Session).

Because, in this case, the Senate declined to adjourn sine

die on December 30, 2011, it did not enter an intersession

recess, and the First Session of the 112th Congress expired

simultaneously with the beginning of the Second Session. See,

e.g., 86 Cong. Rec. 14,059 (1941) (noting that, in the absence of

an adjournment sine die on January 3, 1941, “[t]he third session

of the Seventy-sixth Congress expired automatically, under

constitutional limitation, when the hour of 12 o’clock arrived”).

recess with adjournment sine die).

43

Although the December 17, 2011, scheduling order

specifically provided that the Second Session of the 112th

Congress would convene on January 3, 2012, see 157 Cong.

Rec. S8,783 (daily ed. Dec. 17, 2011), it did not specify when

the First Session would conclude. And, at the last pro forma

session before the January 3, 2012, session, the Senate

adjourned to a date certain: January 3, 2012. See 157 Cong.

Rec. S8,793 (daily ed. Dec. 30, 2011). Because the Senate did

not adjourn sine die, it did not enter “the Recess” between the

First and Second Sessions of the 112th Congress. Becker’s

appointment therefore expired at the end of the First Session on

January 3, 2012, and the vacancy in that seat could not have

“happen[ed]” during “the Recess” of the Senate.

Second, in any event, the Clause states that a recess

appointment expires “at the End of [the Senate’s] next Session,”

U.S. Const. art. II, § 2, cl. 3, not “at the beginning of the

Senate’s next Recess.” Likewise, the structure of Article II,

Section 2 supports this reading, for “it makes little sense to

allow a second consecutive recess appointment for the same

position, because the President and the Senate would have had

an entire Senate session during the first recess appointment to

nominate and confirm a permanent appointee.” Rappaport,

supra, at 1509. The January 3, 2012, vacancy thus did not arise

during the recess, depriving the President of power to make an

appointment under the Recess Appointments Clause. Because

none of the three appointments were valid, the Board lacked a

quorum and its decision must be vacated. See 29 U.S.C.

§ 153(b); New Process Steel, 130 S. Ct. at 2644–45.

Even if the “End” of the session were “during the

Recess,” meaning that the January 3, 2012, vacancy arose during

some imaginary recess, we hold that the appointment to that seat

is invalid because the President must make the recess

appointment during the same intersession recess when the

44

vacancy for that office arose. The Clause provides that a recess

appointee’s commission expires at “the End of [the Senate’s]

next Session,” which the Framers understood as “the end of the

ensuing session.” The Federalist No. 67, supra, at 408

(emphasis added).

Consistent with the structure of the Appointments Clause

and the Recess Appointments Clause exception to it, the filling

up of a vacancy that happens during a recess must be done

during the same recess in which the vacancy arose. There is no

reason the Framers would have permitted the President to wait

until some future intersession recess to make a recess

appointment, for the Senate would have been sitting in session

during the intervening period and available to consider

nominations. The earliest authoritative commentary on the

Constitution explains that the purpose of the Recess

Appointments Clause was to give the President authorization “to

make temporary appointments during the recess, which should

expire, when the senate should have had an opportunity to act on

the subject.” Story’s Commentaries, supra, § 1551, reprinted in

4 The Founders’ Constitution, supra, at 122; see also Evans, 387

F.3d at 1233 (Barkett, J., dissenting).

As with the first issue, we hold that the petitioner’s

understanding of the constitutional provision is correct, and the

Board’s is wrong. The Board had no quorum, and its order is

void.

V. THE MOTION FOR INTERVENTION

As we referenced early in this opinion, we have before

us a motion for intervention. The Chamber of Commerce and

the Coalition for a Democratic Workplace seek to intervene. It

is the law of this circuit that litigants seeking to intervene in

cases involving direct review of administrative actions must

45

establish Article III standing. See Rio Grande Pipeline Co. v.

FERC, 178 F.3d 533, 538–39 (D.C. Cir. 1999). Our judicial

power is limited to “Cases” or “Controversies,” U.S. Const. art.

III, § 2, cl. 1, meaning that litigants must show “(1) an injury in

fact, (2) a causal relationship between the injury and the

challenged conduct, and (3) a likelihood that the injury will be

redressed by a favorable decision.” United Food & Commercial

Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544,

551 (1996).

The movants claim to have “associational standing.” In

that context, the Supreme Court has explained that “an

association has standing to bring suit on behalf of its members

when: (a) its members would otherwise have standing to sue in

their own right; (b) the interests it seeks to protect are germane

to the organization’s purpose; and (c) neither the claim asserted

nor the relief requested requires the participation of individual

members in the lawsuit.” Hunt v. Washington State Apple

Adver. Comm’n, 432 U.S. 333, 343 (1977).

We need not decide the question of the movants’

standing. Our precedent is clear: “[I]f one party has standing in

an action, a court need not reach the issue of the standing of

other parties when it makes no difference to the merits of the

case.” Ry. Labor Execs.’ Ass’n v. United States, 987 F.2d 806,

810 (D.C. Cir. 1993) (per curiam); see also Doe v. Bolton, 410

U.S. 179, 189 (1973) (“We conclude that we need not pass upon

the status of these additional appellants in this suit, for the issues

are sufficiently and adequately presented by [the original

appellants], and nothing is gained or lost by the presence or

absence of [the additional appellants].”).

Noel Canning has standing. The case, like other

petitions for review of administrative adjudications, proceeded

between the party to the administrative adjudication and the

46

agency. We reached our decision. The motion is now moot, and

we order it dismissed. The Chamber could have had its say by

filing as an amicus, but for reasons satisfactory to itself, chose

to attempt a strained claim of intervenor status.

CONCLUSION

For the reasons set forth above, we grant the petition of

Noel Canning and vacate the Board’s order. We deny the cross-

petition of the Board for enforcement of its invalid order.

So ordered.

GRIFFITH, Circuit Judge, concurring in the opinion except

as to Part IV.B and concurring in the judgment:

The majority acknowledges that our holding on

intrasession recess appointments is sufficient to vacate the

Board’s order, see supra slip op. at 30, and I would stop our

constitutional analysis there. If we need not take up a

constitutional issue, we should not. See, e.g., Elk Grove

Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (noting

the “deeply rooted commitment not to pass on questions of

constitutionality unless adjudication of the constitutional issue

is necessary” (internal quotation marks omitted)); Dames &

Moore v. Regan, 453 U.S. 654, 660-61 (1981) (highlighting

the Court’s “attempt to confine the opinion to the very

questions necessary to decision of the case”); Ashwander v.

Tenn. Valley Auth., 297 U.S. 288, 346-47 (1936) (Brandeis, J.,

concurring) (“The Court will not ‘formulate a rule of

constitutional law broader than is required by the precise facts

to which it is to be applied.’” (quoting Liverpool, N.Y. &

Phila. S.S. Co. v. Comm’rs of Emigration, 113 U.S. 33, 39

(1885))). I agree that the Executive’s view that the President

can fill vacancies that “happen to exist” during “the Recess”

is suspect, but that position dates back to at least the 1820s,

see Exec. Auth. To Fill Vacancies, 1 Op. Att’y Gen. 631, 633-

34 (1823), making it more venerable than the much more

recent practice of intrasession recess appointments. See

Mistretta v. United States, 488 U.S. 361, 399-400 (1989); INS

v. Chadha, 462 U.S. 919, 944-45 (1983). We should not

dismiss another branch’s longstanding interpretation of the

Constitution when the case before us does not demand it.