National Labor Relations Board v. New Vista Nursing & Rehabilitation

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3440

_____________

NATIONAL LABOR RELATIONS BOARD,

Petitioner

1199 SEIU UNITED HEALTHCARE WORKERS

EAST, N.J. REGION,

Intervenor

v.

NEW VISTA NURSING AND REHABILITATION,

Respondent

_____________

Nos. 12-1027 & 12-1936

_____________

NEW VISTA NURSING AND REHABILITATION,

LLC,

Petitioner

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent

1199 SEIU UNITED HEALTHCARE WORKERS

EAST, N.J. REGION,

Intervenor

_______________________

On Application for Enforcement of an Order of the

National Labor Relations Board &

Cross-Petition for Review

(NLRB No. 22-CA-29988)

________________________

Argued March 19, 2013

Before: SMITH, GREENAWAY JR, and

VAN ANTWERPEN, Circuit Judges

(Filed: May 16, 2013)

Beth S. Brinkmann [ARGUED]

United States Department of Justice

Civil Division

Room 3135

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Julie B. Broido

Linda Dreeben

2

National Labor Relations Board

1099 14th Street, N.W.

Washington, DC 20570

Sarang V. Damle

United States Department of Justice

Civil Division

Room 7217

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Scott R. McIntosh

United States Department of Justice

Civil Division

Room 7259

950 Pennsylvania Avenue, N.W

Washington, DC 20530

Melissa N. Patterson

United States Department of Justice

Civil Rights Division

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Milakshmi V. Rajapakse [ARGUED]

National Labor Relations Board

Appellate and Supreme Court Litigation

Branch, Division of Enforcement

Room 8114

3

1099 14th Street, N.W.

Washington, DC 20570

Benjamin M. Shultz

United States Department of Justice

Civil Division

Room 7211

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Petitioner

William S. Massey

Gladstein, Reif & Meginniss

817 Broadway

6th Floor

New York, NY 10003

Counsel for Intervenor-Petitioner

Louis J. Capozzi [ARGUED]

Capozzi & Assoc.

P.O. Box 5866

Harrisburg, PA 17110

Morris Tuchman

2nd floor

134 Lexington Avenue

New York, NY 10016

Counsel for Respondent

4

Victor Williams

Catholic University of America

School of Law

Faculty Suite 480

3600 John McCormack Road, N.E.

Washington, DC 20064

Counsel for Amicus-Petitioner

________________

OPINION

________________

SMITH, Circuit Judge.

The Recess Appointments Clause in the

Constitution 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.‖ U.S. Const.

art. II, § 2, cl. 3. The central question in this case is the

meaning of ―the Recess of the Senate,‖ which is the only

time in which the president may use his power to recess

appoint officers. Three definitions have been offered: (1)

breaks between sessions of the Senate (i.e., ―intersession

breaks‖); (2) these intersession breaks as well as breaks

within a session (i.e., ―intrasession breaks‖) that last for a

non-negligible time, or (3) any break in Senate business

that makes the body unavailable to provide advice and

consent on the president‘s nominations. This is a difficult

5

question that has never been addressed by our Court or

the Supreme Court. We hold that ―the Recess of the

Senate‖ in the Recess Appointments Clause refers to only

intersession breaks. As a consequence, we conclude that

the National Labor Relations Board panel below lacked

the requisite number of members to exercise the Board‘s

authority because one panel member was invalidly

appointed during an intrasession break. We will therefore

vacate the Board‘s orders.

I

New Vista operates a nursing and rehabilitative

care center in Newark, New Jersey. On January 25, 2011,

a healthcare workers‘ union petitioned the National

Labor Relations Board (―the Board‖) for certification as

the representative for New Vista‘s licensed practical

nurses (―LPN‖). New Vista opposed this certification on

the grounds that its LPNs are supervisors who cannot

unionize under the National Labor Relations Act

(―NLRA‖), 29 U.S.C. § 152(3), (11). See NLRB v.

Kentucky River Cmty. Care, Inc., 532 U.S. 706, 709

(2001) (explaining that supervisors do not fall within the

NLRA‘s definition of a bargaining unit). On March 9,

2011, the Board‘s regional director determined that New

Vista‘s LPNs were not supervisors and thus certified the

union as well as ordered an election. New Vista appealed

to the Board, which affirmed the regional director‘s

order.

6

The union won a majority in the ensuing election.

New Vista refused to bargain with the union,1 which then

filed a charge of unfair labor practices against New Vista

before the Board. On behalf of the union, the Board‘s

general counsel moved for summary judgment against

New Vista, which New Vista opposed. The Board

unanimously granted summary judgment in favor of the

Union and against New Vista in a ―decision and order‖

dated August 26, 2011.

This order was issued by a three-member ―delegee

group‖ of the Board. The NLRA establishes that the

Board is composed of up to five members, appointed by

the president and confirmed with the advice and consent

of the Senate. 29 U.S.C. § 153(a). Section 153(b)

authorizes the Board to ―delegate to any group of three or

more members any or all of the powers which it may

itself exercise.‖ Id. § 153(b). These delegee groups must

1

Refusal to bargain is a common way to obtain judicial

review of representation determinations like the Board‘s

affirmation of the regional director‘s March 9, 2011

decision for which direct review is unavailable. NLRB v.

Kentucky River Cmty. Care Inc., 532 U.S. at 709

(explaining that ―direct judicial review of representation

determinations is unavailable‖ but that indirect review

may be obtained by refusing to bargain and thereby

inducing the Board to file an unfair labor practice claim

(citing AFL v. NLRB, 308 U.S. 401, 409–11 (1940)).

7

―maintain a membership of three in order to exercise the

delegated authority of the Board.‖ New Process Steel,

L.P. v. NLRB, 130 S. Ct. 2635, 2644 (2010).

Importantly, this three-member-composition

requirement is distinct from § 153(b)‘s quorum

requirements. The quorum requirements speak to the

number of members who must be present to exercise the

Board‘s powers for either the Board itself or a properly

constituted three-member (or more) delegee group. See

id. at 2642–43 (explaining that the ―group quorum

provision‖ ―authorizes two members to act as a . . . group

of at least three members‖ but does not ―authorize two

members to constitute a valid delegee group‖); see also

id. at 2642 (defining quorum as ―the number of members

of a larger body that must participate for the valid

transaction of business‖). To have a quorum, a delegee

group must have at least two of its three members present

and the Board must have at least three of its five

members present. 29 U.S.C. § 153(b).

In contrast, the three-member-composition

requirement speaks to how many members are required

for a delegee group to be a properly constituted body that

can exercise the Board‘s powers. These different

requirements are certainly related, but this case simply

turns on whether the delegee group that issued the

August 26 Order and the subsequent reconsideration

orders had three members.

8

On September 7, 2011, New Vista filed a motion

with the Board to reconsider the August 26 Order. The

company argued that the three-member delegee group

acted ultra vires because although the order is dated

August 26—one day before one member, Wilma

Liebman, resigned—it was not issued until it was mailed

during the week of August 29. This would mean,

according to New Vista, that the panel had only two

members when the order was issued, thereby violating

29 U.S.C. § 153(d)‘s three-member-composition

requirement. The company also argued that the

August 26 Order was substantively incorrect. Meanwhile,

on September 13, 2011, the Board filed with this Court

an application for enforcement of the August 26 Order.

We granted an uncontested motion to hold in abeyance

the filing of the administrative record pending resolution

of the motion for reconsideration. This functionally acted

as a stay of the proceedings before us.

On December 30, 2011, the Board denied New

Vista‘s motion for reconsideration. New Vista took two

actions. First, it filed a second motion for reconsideration

on January 3, 2012. In this motion, the company argued

that the three-member December 30 delegee group was

improperly constituted and thus without power to issue

the order because one of the panelists was recused from

the case. The company also argued in a March 14

―further motion for reconsideration‖ that the December

30 Reconsideration Order delegee group was improperly

9

constituted because one of the panelists was a recess

appointee whose term concluded at the end of the

Senate‘s 2011 session—which New Vista contended was

December 17, 2007, thirteen days before the December

30 Reconsideration Order was issued.

Second, on January 9, 2012, New Vista filed a

petition for review of the December 30 Reconsideration

Order with this Court. We have treated this petition as a

cross-petition for review opposing the Board‘s petition

for enforcement of the August 26 Order. We also granted

another Board motion to hold in abeyance the filing of

the administrative record for these petitions until New

Vista‘s second motion for reconsideration was resolved.

This, again, functionally acted as a stay of the

proceedings before us.

On March 15, 2012, the Board denied New Vista‘s

second motion for reconsideration. This order did not

address the company‘s March 14 argument that the term

of one panelist had ended on December 17. On March

22, 2012, New Vista filed a third motion for

reconsideration. This motion reiterated the company‘s

March 14 argument that the December 30 delegee group

was improperly constituted because the Senate‘s session

had ended on December 17. The motion also argued that

the three-member delegee group that issued the March 15

Reconsideration Order lacked three members because

two of its members were invalidly appointed to the Board

under the Recess Appointments Clause while the Senate

10

was not in ―recess.‖ In sum, New Vista argued that if the

Senate‘s session had ended when it began using pro

forma sessions, then the December 30 panel had only two

members because the term of one of its members expired.

But if the Senate‘s session did not end at that time, then

the March 15 panel was improperly constituted because

the president‘s recess appointments were invalidly made

while the Senate was not in recess. The Board denied this

motion on March 27, 2012. The Board also filed the

administrative record with this Court on that date,

thereby stripping itself of jurisdiction. See 29 U.S.C.

§ 160(e) (―Upon the filing of the record with it the

jurisdiction of the court shall be exclusive and its

judgment and decree shall be final.‖).

On April 4, 2012, New Vista filed a petition for

review of the March 15 and March 27 Reconsideration

Orders. We granted New Vista‘s request that this petition

be consolidated with New Vista‘s earlier petition for

review for all purposes. These consolidated petitions for

review are collectively a cross petition opposing the

Board‘s petition for enforcement of the August 26 Order.

II

We consider sua sponte whether the delegee group

that issued the August 26 Order had jurisdiction. See

Bender v. Williamsport Area Sch. Bd., 475 U.S. 534, 541

(1986) (explaining that ―every federal appellate court has

a special obligation to ‗satisfy itself not only of its own

11

jurisdiction, but also that of the lower courts in a cause

under review,‘ even though the parties are prepared to

concede it‖ (quoting Mitchell v. Maurer, 293 U.S. 237,

244 (1934))). In their initial briefs, the parties contended

that the delegee group had subject-matter jurisdiction

under 29 U.S.C. § 160(a), which ―empower[s]‖ the Board

(and its three-member delegee groups) ―to prevent any

person from engaging in any unfair labor practice . . .

affecting commerce.‖ We do not doubt that § 160(a)

provides one jurisdictional requirement for the Board to

adjudicate a case. But that does not preclude others. We

have thus inquired whether 29 U.S.C. § 153(b)‘s three-

member-composition requirement is jurisdictional. We

hold that it is.

This Court has previously explained that ―the

overall authority of the Board to hear [a] case under the

NLRA‖ is a jurisdictional question that ―‗may be raised

at any time.‘‖ NLRB v. Konig, 79 F.3d 354, 360 (3d Cir.

1996) (quoting NLRB v. Peyton Fritton Stores, Inc., 336

F.2d 769, 770 (10th Cir. 1964)); see also Polynesian

Cultural Center, Inc. v. NLRB, 582 F.2d 467, 472 (9th

Cir. 1978). Under § 153(b) and New Process Steel,

delegee groups of the Board do not have statutory

authority to act if they have fewer than three members.

New Process Steel, 130 S. Ct. at 2644; Teamsters Local

Union No. 523 v. NLRB, 624 F.3d 1321, 1322 (10th Cir.

2010) (holding that a ―two-member NLRB group that

issued the order in this case lacked statutory authority to

12

act‖ (emphasis added)). The three-member-composition

requirement is thus jurisdictional because it goes to the

Board‘s authority ―to hear [a] case under the NLRA.‖

Konig, 79 F.3d at 360.

Nevertheless, the Supreme Court ―has endeavored

in recent years to ‗bring some discipline‘ to the use of the

term ‗jurisdictional.‘‖ Gonzalez v. Thaler, 132 S. Ct. 641,

648 (2012) (quoting Henderson v. Shinseki, 131 S. Ct.

1197, 1202–03 (2011)). So there may be reason to

believe that Konig‘s analysis and the subsequent

jurisdictional conclusion for this case are no longer valid.

Lebanon Farms Disposal, Inc. v. Cnty. of Lebanon, 538

F.3d 241, 249 n.16 (3d Cir. 2008) (explaining that ―[a]n

intervening decision of the Supreme Court is a sufficient

basis for us to overrule a prior panel‘s opinion without

referring the case for an en banc decision‖). Our review

of the Court‘s recent clarification shows that Konig

remains good law and that the three-member-

composition requirement is jurisdictional. The Court has

explained that jurisdiction ―refers to a court‘s

adjudicatory authority.‖ Reed Elsevier, Inc. v. Muchnick,

130 S. Ct. 1237, 1243 (2010) (quoting Kontrick v. Ryan,

540 U.S. 443, 455 (2004)). Subject-matter jurisdiction

―refers to ‗the courts‘ statutory or constitutional power to

adjudicate the case.‘‖ Id. (quoting Steel Co. v. Citizens

for Better Env’t, 523 U.S. 83, 89 (1998) (emphasis in

original)).

13

Although these statements refer to Article III

courts, jurisdictional issues are just as important for

administrative adjudicative bodies. ―It is well settled that

an administrative agency,‖ like an Article III court, ―is a

tribunal of limited jurisdiction.‖ Pentheny Ltd. v. Gov’t of

Virgin Islands, 360 F.2d 786, 790 (3d Cir. 1966). An

administrative agency ―may exercise only the powers

granted by the statute reposing power in it.‖ Id.; see also

2 Am. Jur. 2d Administrative Law § 282 (2013)

(―Administrative agencies are tribunals of limited

jurisdiction . . . . As a general rule, agencies have only

such adjudicatory jurisdiction as is conferred on them by

statute.‖). These powers are limited by the scope of the

jurisdictional statute in the same way that a federal

court‘s powers are limited by the Constitution and

statute. Compare 2 Am. Jur. 2d Administrative Law §

282, with Exxon Mobil Corp. v. Allapattah Servs., Inc.,

545 U.S. 546, 552 (2005) (―The district courts of the

United States, as we have said many times, are ‗courts of

limited jurisdiction. They possess only that power

authorized by Constitution and statute.‘‖ (quoting

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994))). The fact that this case deals with an

administrative agency does not eliminate the requirement

that a delegee group satisfy all jurisdictional

requirements before it may exercise the Board‘s powers.

In Henderson v. Shinseki, the Supreme Court

stated that ―a rule should not be referred to as

14

jurisdictional unless it governs a court‘s adjudicatory

capacity, that is, its subject-matter or personal

jurisdiction.‖ 131 S. Ct. at 1202. As noted, subject-matter

jurisdiction is ―statutory or constitutional power to

adjudicate the case.‖ Steel Co., 523 U.S. at 89 (emphasis

in original). Furthermore, in Arbaugh v. Y&H Corp., 546

U.S. 500 (2006), the Supreme Court provided a ―readily

administrable bright line‖ rule: ―If the Legislature clearly

states that a threshold limitation on a statute‘s scope shall

count as jurisdictional, then courts and litigants will be

duly instructed and will not be left to wrestle with the

issue.‖ Id. at 515–16. ―But when Congress does not rank

a statutory limitation on coverage as jurisdictional, courts

should treat the restriction as nonjurisdictional in

character.‖ Id. at 516. ―Congress, of course, need not use

magic words in order to speak clearly on this point,‖ so

context can show that a requirement is jurisdictional.

Henderson, 131 S. Ct. at 1203.

The Supreme Court‘s recent decision in New

Process Steel indicates that § 153(b)‘s three-member-

composition requirement is jurisdictional. In that case,

the Board had delegated its power to a three-member

delegee group. Three days after the delegation became

effective, the term expired for one of the three members

of the delegated group. This left the group with only two

members. 130 S. Ct. at 2638–39. The Supreme Court

held that § 153(b)‘s three-member-composition

requirement meant that the ―two remaining Board

15

members cannot exercise‖ the authority of the Board. Id.

at 2638, 2644 (―We thus hold that the delegation clause

requires that a delegee group maintain a membership of

three in order to exercise the delegated authority of the

Board.‖). The presence of three Board members in a

delegee group is a necessary condition for the Board to

exercise its power to adjudicate a matter before it.

New Process Steel renders the three-member-

composition requirement ―a threshold limitation‖ on the

scope of the power delegated to the Board by the NLRA:

the Board cannot exercise its power through a delegee

group if that group has fewer than three members. This

statutory mandate is therefore jurisdictional. See

Arbaugh, 546 U.S. at 515 (explaining that ―threshold

limitation[s] on a statute‘s scope‖ imposed by Congress

are jurisdictional); Teamsters Local Union No. 523, 624

F.3d at 1322 (holding that a ―two-member NLRB group

that issued the order in this case lacked statutory

authority to act‖ (emphasis added)). By explaining that

three members are required ―in order to exercise the

delegated authority of the Board,‖ New Process Steel,

130 S. Ct. at 2644, the Supreme Court has in essence

declared that the three-member-composition requirement

goes directly to the board‘s ―power to hear a case,‖ which

is exactly what jurisdictional questions relate to. United

States v. Cotton, 535 U.S. 625, 630 (2002); see also Noel

Canning v. NLRB, 705 F.3d 490, 497 (D.C. Cir. 2013)

(―[T]he objections before us concerning lack of a quorum

16

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

act.‖).2

The Board relies on three cases3 as authority

providing that ―a claim that a federal officer was

2

The D.C. Circuit appears to have conflated the quorum

requirement with the three-member-composition

requirement. See generally Noel Canning, 705 F.3d

at 490 (discussing challenge as one based on the quorum

requirement); id. at 499 (stating that New Process Steel

―holds that the Board cannot act without a quorum of

three members‖ and ―[i]t is undisputed that the Board

must have a quorum of three in order to take action‖).

Notwithstanding the semantics, the substance of the D.C.

Circuit‘s conclusion was that when less than three

members purport to exercise the adjudicative authority of

the Board, it ―raise[s] questions that go to the very power

of the Board to act.‖ Id. at 497. We agree.

3

The Board also argues that Vermont Agency of Natural

Resources v. United States, 529 U.S. 765 (2000),

describes the Appointments Clause as nonjurisdictional.

Id. at 778 n.8. That case, however, states no such thing.

Instead, it illustrates the very point we make here. It

describes the question in which the appointments issue

arose, rather than the Appointments Clause itself, as

nonjurisdictional. Id. (stating that ―the validity of qui tam

suits‖ is not ―a jurisdictional issue‖). And because that

question was nonjurisdictional, the appointments issue

17

appointed unconstitutionally is not a jurisdictional

challenge.‖ NLRB Ltr. Br. at 2 (Feb. 28, 2013) (citing

Freytag v. Commissioner of Internal Revenue, 501 U.S.

868 (1991); Intercollegiate Broad. Sys., Inc. v. Copyright

Royalty Bd., 574 F.3d 748 (D.C. Cir. 2009); Evans v.

Stephens, 387 F.3d 1220 (11th Cir. 2004) (en banc)

(emphasis in original). These cases hold that

Appointments Clause challenges are nonjurisdictional

when brought independently. Freytag, 501 U.S. at 878–

79; Intercollegiate Broad. Sys., 574 F.3d at 755–56;

Evans, 387 F.3d at 1222 n.1. Those holdings are not

relevant to the jurisdictional conclusion we reach today.

We do not hold that challenges under the Appointments

or Recess Appointments Clauses are jurisdictional. We

instead hold that the NLRA‘s three-member-composition

requirement is jurisdictional and must be met before the

Board can exercise its power over a case. Because this

requirement is jurisdictional, any reason for which the

delegee group consists of fewer than three members—

including whether one member is invalidly appointed

within the question was not treated as jurisdictional. See

id. Our conclusion in relation to the three-member-

composition requirement for delegee groups is the

opposite: it is jurisdictional. Accordingly, the

appointments issue here must be treated as jurisdictional

because it is one reason that there may not have been

three members.

18

under the Recess Appointments Clause—can be raised by

a party or by this Court at any point in litigation as a

jurisdictional defect. See Henderson, 131 S. Ct. at 1202.

The jurisdictional nature of the three-member-

composition requirement is especially important in this

case because it requires us to analyze whether Craig

Becker—one of the three-member delegee group that

decided the August 26 Order—held a valid appointment

under the Recess Appointments Clause. This question is

distinct from the recess-appointments question initially

briefed by the parties. The parties‘ briefs address whether

Richard Griffin and Sharon Block—who were members

of the delegee group that decided the March 15 and

March 27 Reconsideration Orders—were invalidly recess

appointed because their January 9, 2012 appointments

were made while the Senate was holding so-called pro

forma sessions.4 Member Becker was not appointed

when the Senate was holding pro forma sessions but,

instead, was appointed on March 27, 2010, one day after

the Senate ―adjourn[ed]‖ for two weeks. 156 Cong. Rec.

S2180 (daily ed. Mar. 26, 2010) (statement of Sen.

Kaufman) (reporting Senator Ted Kaufman‘s motion for

and the Senate‘s unanimous consent of the body being

―adjourned until Monday April 12, 2010 at 2 p.m.‖). As

will be seen in Part V, this means that our consideration

4

The characteristics of pro forma sessions are described

in Part V.

19

of Member Becker‘s appointment entails evaluation of at

least one more definition of ―recess‖ than the evaluation

of Members Griffin and Block‘s appointments. Before

delving into the difficult constitutional task of defining

―recess,‖ however, we must first address two preliminary

questions: whether the delegee group that issued the

August 26 Order lacked three members as a result of

Chairman Liebman‘s resignation and whether the

definition of recess is a nonjusticiable political question.

III

―We have a longstanding practice of avoiding

constitutional questions in cases where we can reach a

decision upon other grounds.‖ Egolf v. Witmer, 526 F.3d

104, 109 (3d Cir. 2008). That practice leads us first to

consider New Vista‘s nonconstitutional argument that

the August 26 Order was issued by a delegee group of

fewer than three members. New Vista contends that one

of the three members resigned before the order was

issued. The delegee group that issued the order consisted

of Chairman Liebman, Member Becker, and Member

Hayes. The face of the order is dated August 26, 2011.

New Vista Nursing & Rehab., 367 N.L.R.B. No. 69 (Aug.

26, 2011). The Board docket also reflects August 26,

2011 as the date that the order was issued. New Vista

Nursing & Rehab., NLRB No. 22-CA-029988 (Aug. 26,

2011), http://www.nlrb.gov/case/22-CA-029988. On

August 27, Chairman Liebman resigned. New Vista

argues that the order was actually entered after Liebman

20

resigned because the order ―was mailed, received by the

Regional Board Agent, and was posted on the Board‘s

Summary of Decisions Website on August 31, 2012.‖

Pet‘r‘s Br. at 31. The Board does not dispute that the

order was mailed to interested parties after August 27 but

contends that the order was issued on August 26—the

date that appears on the face of the order.

―Agency action is entitled to a presumption of

regularity.‖ Frisby v. U.S. Dep’t of Hous. & Urban Dev.,

755 F.2d 1052, 1055 (3d Cir. 1985). ―Acts done by a

public officer which presuppose the existence of other

acts to make them legally operative, are presumptive

proofs of the latter.‖ R.H. Stearns Co. of Boston, Mass. v.

United States, 291 U.S. 54, 63 (1934). Here, the act done

was the issuance of the August 26 Order, which

presupposes that the members listed as having made the

decision did in fact make that decision. The issuance of

the order creates a presumption that all three members

listed on the order decided it. See id. It is New Vista‘s

burden to rebut that presumption.

New Vista offers only a single piece of evidence in

rebuttal: that the order was not mailed until after August

26. This is insufficient, and Braniff Airways, Inc. v. Civil

Aeronautics Bd., 379 F.2d 453 (D.C. Cir. 1967),

demonstrates why that is so. In that case, Braniff Airways

argued that the Civil Aeronautics Board lacked a quorum

because one of its members had resigned before the order

was issued. Id. at 459. The order in that case was issued

21

on June 1, the same day the member in question resigned.

The Court found that the Board had a quorum solely on

the basis that the order ―on its face indicated that it was

concurred in and signed on June 1, 1965.‖ Id. The Court

reached that conclusion despite payroll records with

conflicting accounts, one of which showed that the

member was on the payroll only through May 31, 1965.

Id. Notably, the Court also discounted that the order ―was

not served until June 2,‖ on the basis that ―[i]n [their]

view it is plain that once all members have voted on an

award and caused it to be issued the order is not nullified

because of incapacity, intervening before the ministerial

act of service, of a member needed for a quorum.‖ Id.

(emphasis added).

The D.C. Circuit‘s reasoning is equally persuasive

here. The only evidence New Vista puts forth is that the

order was mailed after it was dated and posted on the

docket. This falls short even of what Braniff Airways

presented. It relied not only on a delay in service but also

on payroll records. New Vista presents even weaker

grounds to doubt the order‘s date than Braniff offered the

D.C. Circuit. New Vista cannot overcome the

presumption of regularity.

New Vista also argues that it is entitled to seek

further discovery into when the members voted on the

August 26 Order. The company acknowledges, however,

that ―the NLRB may not be required to enter for the

record the time, place, and content of their deliberations,‖

22

Pet‘r‘s Br. at 53, and the Board has stated that the

minutes sought do not exist, Resp. Br. at 29. Yet New

Vista persists, asserting ―that the record of the time of

their votes on agency actions under review is essential to

determine‖ the validity of the August 26 Order. Pet‘r‘s

Br. at 53. The company fails to explain why the date

listed on the order itself is not evidence ―of the time of

their vote.‖ Absent a reason to doubt the date listed, the

presumption of regularity requires that we consider the

date as the record of when the delegee group caused the

opinion to be issued, which presupposes that they voted

on or before that date. Accordingly, New Vista has failed

to show that one of the members resigned prior to the

issuance of the August 26 Order.

IV

The amicus argues that we should decline to define

the word ―recess‖ within the Recess Appointments

Clause because it is a nonjusticiable political question.

―Questions of justiciability are distinct from questions of

jurisdiction, and a court with jurisdiction over a claim

should nonetheless decline to adjudicate it if it is not

justiciable.‖ Gross v. German Found. Indus. Initiative,

456 F.3d 363, 376 (3d Cir. 2006) (citing Baker v. Carr,

396 U.S. 186, 198 (1962)). An issue presents a

nonjusticiable political question when one of the

following characteristics is ―inextricable from the case‖:

23

a textually demonstrable constitutional

commitment of the issue to a coordinate

political department; or a lack of judicially

discoverable and manageable standards for

resolving it; or the impossibility of deciding

without an initial policy determination of a

kind clearly for nonjudicial discretion; or the

impossibility of a court's undertaking

independent resolution without expressing

lack of the respect due coordinate branches

of government; or an unusual need for

unquestioning adherence to a political

decision already made; or the potentiality of

embarrassment from multifarious

pronouncements by various departments on

one question.

Baker, 369 U.S. at 217. Amicus‘s principal contentions

are that the recess-appointments claim by New Vista is

nonjusticiable because (1) ―‗the issue is textually

committed‘ to the president,‖ Amicus Br. at 4 (quoting

Nixon v. United States, 506 U.S. 224, 228 (1993)), and

(2) there are ―no ‗manageable standards‘ to solve the

partisan argument between the Executive and Congress

. . . regarding dysfunctional Senate confirmation

processes,‖ id.5 Neither argument is persuasive.

5

The amicus also briefly refers to two other bases for

concluding this is a political question: that (1) resolving

24

Nothing in the language of the Recess

Appointments Clause textually commits to the president

the issue is impossible ―‗without expressing lack of the

respect due coordinate branches of government,‘‖ id. at 5

(quoting Baker, 369 U.S. at 217), and (2) ―the nation‘s

extreme need for finality in the president‘s recess

appointment practice,‖ id. (emphasis in original). Neither

is persuasive. Defining recess in the Recess

Appointments Clause does not express a lack of respect

for coordinate branches of government because defining

the word is merely an exercise of our judicial authority

―to say what the law is,‖ which sometimes requires an

evaluation of whether one branch is aggrandizing its

power at another‘s expense. See Zivotosky v. Clinton, 132

S. Ct. 1421, 1427–28 (2012); see also Nixon v.

Fitzgerald, 457 U.S. 731, 753–54 (1982) (explaining,

when discussing appropriate exercise of judicial review

of executive action, that ―[w]hen judicial action is

needed to serve broad public interest—as when the Court

acts, not in derogation of the separation of powers, but to

maintain their proper balance . . . the exercise of

jurisdiction has been warranted‖ (citations omitted)). Nor

is the constitutionality of the president‘s recess-

appointments practice the type of question implicating an

extreme need for finality that would make it

nonjusticiable. Cf. Baker, 369 U.S. at 213 (discussing the

need for finality in the context of the president‘s war

power to end a conflict).

25

the task of defining ―recess.‖ The Clause states 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.‖ U.S. Const. art. II, § 2, cl. 3. This

language lacks the explicit assignment of power to any

one branch, such as the assignment found in the

Constitution‘s Impeachment Trial Clause which states

that ―[t]he Senate shall have the sole Power to try all

Impeachments.‖ U.S. Const. art. I, § 3, cl. 6 (emphasis

added); Nixon, 506 U.S. at 228–35 (concluding that the

explicit assignment, along with drafting history

indicating that the assignment was intentional, meant that

the power to try impeachments was textually committed

to the Senate). The Recess Appointments Clause also

does not contain an imperative to either branch to craft a

rule regarding the meaning of recess—or, more broadly,

when the president may use his recess appointments

power. The Clause is thus also distinguishable from the

Naturalization Clause‘s grant to Congress of the authority

to ―establish an uniform Rule of Naturalization.‖ U.S.

Const. art. I, § 8, cl. 4; New Jersey v. United States, 91

F.3d 463, 469 (3d Cir. 1996) (stating that this Clause

represents a textual commitment to Congress).6

6

Even Congress‘ plenary authority over immigration and

naturalization does not render its actions in this area

immune from judicial review under the political-question

26

Finally, the Clause does not provide unqualified

power to either the Senate or the president that would

suggest it makes a textual commitment to either. It limits

the president‘s recess-appointment power by requiring

that the Senate be in recess, and it limits the Senate‘s

ordinary advice-and-consent power by eliminating that

power while the Senate is in recess. The Clause thus

cannot be read to invariably favor one branch‘s interests

in such a way that it makes a textual commitment to one

of them. See Freytag, 501 U.S. at 880 (―Because it

articulates a limiting principle, the Appointments Clause

does not always serve the Executive‘s interests.‖); Ryder

v. United States, 515 U.S. 177, 182 (1995) (―The

[Appointments] Clause is a bulwark against one branch

aggrandizing its power at the expense of another branch,

but it is more: it ‗preserves another aspect of the

Constitution‘s structural integrity by preventing the

diffusion of the appointment power.‘‖ (quoting Freytag,

doctrine. In INS v. Chadha, for example, the Supreme

Court held that Congress‘ plenary authority over

immigration did not render any challenge to that

authority to be a nonjusticiable political question. 462

U.S. 919, 940–41 (1983). The Court explained that ―[t]he

plenary authority of Congress over aliens . . . is not open

to question‖ except when it is alleged that the means

chosen ―‗offend[s] some other constitutional restriction‘‖

on Congress. Id. (quoting Buckley v. Valeo, 424 U.S. 1,

132 (1976)).

27

501 U.S. at 878)); The Federalist No. 76 (Alexander

Hamilton) (explaining the Constitution‘s rejection of

unitary power in either the president or the Senate in

favor of one that divides power between them).

The amicus disputes this, arguing that the Clause

makes a textual commitment by providing the president

―unilateral appointment authority when the Senate [is]

unavailable to render its advisory consent vote.‖ Amicus

Br. at 12. This argument reveals the tendency of the

political-question doctrine ―to obscure the need for case

by case inquiry.‖ Gross, 456 F.3d at 377–78 (quoting

Baker, 369 U.S. at 210–11). We have cautioned against

this tendency, instructing that our inquiry must ―avoid

‗resolution by any semantic cataloguing,‘‖ and must

instead ―undertake a ‗discriminating inquiry into the

precise facts and posture of the particular case.‘‖ Id.

(quoting Baker, 369 U.S. at 217). The amicus‘s argument

runs afoul of our instruction because it merges the issue

present in this case (when the president can use his

recess-appointments power) with an issue not in this case

(how the president can use that power). The amicus‘s

characterization of the power speaks to both issues: it

states how the president can use his recess-appointment

power (―unilateral authority‖) and assumes the answer to

the question in this case of when he can use that power

(―when the Senate [is] unavailable to render its advisory

consent vote‖). The greater power the president has

during a recess does not shed light on what the word

28

―recess‖ means or who decides what it does mean and

thus does not provide a reason to conclude that the

Clause makes a textual commitment to the president. Cf.

INS v. Chadha, 462 U.S. 919, 940–41 (1983) (explaining

that Congress‘ plenary authority over immigration does

not immunize it from judicial review for violations of

other constitutional restrictions on its power committed

while exercising that authority).

The amicus‘s concerns regarding the lack of

judicially manageable standards for defining ―the Recess

of the Senate‖ are similarly unfounded. There are several

judicially manageable standards for defining ―the Recess

of the Senate‖ and, correspondingly, for when the

president may use his recess-appointments power. The

parties present two different standards: according to New

Vista, any time after both houses have agreed to adjourn

for more than three days, Pet‘r‘s Br. at 40–41, and

according to the Board, any time the Senate is not

available to conduct regular business, Resp. Br. at 44. Cf.

Zivotofsky, 132 S. Ct. at 1428–30 (relying on the

―detailed legal arguments‖ provided by the parties

regarding whether the statute at issue was constitutional

to show the existence of judicially manageable

standards). The D.C. Circuit has provided another:

intersession breaks that follow adjournments sine die of

the Senate. Noel Canning, 705 F.3d at 506–07. Of these

standards, those provided by the D.C. Circuit and New

Vista are judicially manageable because they rely on

29

regular procedures employed in the Senate and found in

the Senate‘s record. The Board‘s more open-ended

definition of recess might very well be unmanageable

because it does not rely on any particular Senate

procedure and would require judicial ―explor[ation] [of]

communications between the Senate Minority and the

president‖ in addition to review of the ―scheduling

schemes of the Senate Minority and House Majority.‖

Amicus Br. at 20–24 (arguing, after rejecting the standard

offered by New Vista, that the Board‘s standard is

unmanageable). But this only cautions against selecting

the Board‘s standard rather than showing that there are

no judicially manageable standards available.

Of course, if the question is framed—as the amicus

has—as a need to derive a judicially manageable

standard ―to resolve [ ] the underlying cycles of partisan

confirmation obstruction payback which caused the

NLRB vacancies,‖ Amicus Br. at 25, then there is likely

no judicially manageable standard. See also Evans, 387

F.3d at 1227 (rejecting as nonjusticiable an argument that

the president unconstitutionally used the recess-

appointment power because the appointee had been

previously rejected by the Senate and thus constituted a

circumvention of the Senate‘s advice and consent role).

But that is not the question we face. Instead, we must

define the phrase ―the Recess of the Senate,‖ which is a

question distinct from resolving the ―cycles of partisan

confirmation obstruction payback.‖ See id. at 1224–26,

30

1227 (defining recess to include intrasession breaks

despite holding that the political argument made was

nonjusticiable).

This task falls within the ―‗province and duty of

the judicial department to say what the law is.‘‖

Zivotosky, 132 S. Ct. at 1427–28 (quoting Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). This ―duty

will sometimes involve the ‗[r]esolution of litigation

challenging the constitutional authority of one of the

three branches,‘ but courts cannot avoid their

responsibility merely ‗because the issues have political

implications.‘‖ Id. at 1428 (quoting Chadha, 462 U.S.

at 943) (alteration in original). Thus, ―the fact that the

resolution of the merits of a case would have ‗significant

political overtones does not automatically invoke the

political question doctrine.‘‖ Khouzam v. Att’y Gen., 549

F.3d 235, 249–50 (3d Cir. 2008) (quoting Chadha, 462

U.S. at 942–43). That the issue presented here touches on

political events of the day is not dispositive of whether

this case presents a nonjusticiable question. Because

there are manageable standards and because the Clause

does not make a textual commitment to the Senate or the

president, we hold that interpreting the phrase ―the

Recess of the Senate‖ is a justiciable question.

V

Having determined that the Recess Appointments

question is justiciable, we now begin our analysis of the

31

recess-appointment issue. Member Becker is the only

member of the delegee group that issued the August 26

Order who was recess appointed and thus the only one

whose appointment is in question. As noted, he was

appointed during an intrasession break that began on

March 26, 2010, and ended on April 12, 2010. This break

lasted seventeen days and the Senate was indisputably

not open for business. His appointment will be invalid if

the Recess Appointments Clause does not empower

presidents to make recess appointments during these

types of breaks.

The Clause 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.‖ U.S. Const. art. II, § 2, cl. 3. This is understood

to allow the president to use his recess appointment

power only ―during the Recess of the Senate,‖ thereby

rendering the definition of recess, along with its temporal

reach, of pivotal consequence to the controversy now

before us. See Noel Canning, 705 F.3d at 499–500;

Evans, 387 F.3d at 1224. Three possible definitions have

been presented. The D.C. Circuit defines the term to

mean only intersession breaks, which are ―the period

between sessions of the Senate when the Senate is by

definition not in session and therefore unavailable.‖ Noel

Canning, 705 F.3d at 499–500, 506. The end of a session

is typically demarcated by a particular type of Senate

32

adjournment—an adjournment sine die—which is the

procedure used to end a Senate session. Id. at 512–13.7

An intersession break is the period between an

adjournment sine die and the start of the next session.

David H. Carpenter et al., Cong. Research Serv., R42323,

President Obama’s January 4, 2012, Recess

Appointments: Legal Issues 4 n.23 (2012).

A second definition, one which the Eleventh

Circuit has adopted, is that recess includes intersession

breaks as well as some ―intrasession‖ breaks, which are

breaks in Senate business during a session. Evans, 387

F.3d at 1224. An intrasession break is demarked by a

Senate adjournment of any type—other than adjournment

sine die—and lasts until the next time the Senate

convenes, which is set by the motion to adjourn. See,

e.g., Cong. Rec. S2180 (daily ed. Mar. 26, 2010)

7

Senate practice also ends sessions automatically

through its understanding of the Constitution‘s

requirement that they ―shall assemble at least once in

every year‖ in a meeting that begins ―at noon on the 3d

day of January.‖ U.S. Const. Amend. XX. Under this

practice, if a session of Congress has not ended by noon

on January 3 of a given year, then the session

automatically ends and another begins at noon of that

day. See Thomas Jefferson, A Manual of Parliamentary

Practice: For the Use of the Senate of the United States

166 (2d ed. 1812).

33

(statement of Sen. Kaufman) (reporting Senator

Kaufman‘s March 26, 2010 motion for and the Senate‘s

unanimous consent of the body being ―adjourned until

Monday April 12, 2010 at 2 p.m.‖). From 1921 until

recently, there was a consensus that an intrasession break

was not ―the Recess of the Senate‖ unless the break

lasted for a non-negligible number of days. The first

attorney general to adopt this view suggested that the

minimum duration was ten days. 33 U.S. Op. Att‘y Gen.

20, 24–25 (1921) (rejecting the proposition that ―an

adjournment for 5 or even 10 days can be said to

constitute the recess intended by the Constitution,‖ but

advising the president that a break of 28 days is within

the meaning of recess). All presidents, at least in practice,

followed this ten-day minimum until January 2012.

Carpenter et al., supra, at 15 & n.97 (stating that no

presidents until 2012 made a recess appointment during

an intrasession break shorter than ten days). Accordingly,

the second definition includes only those intrasession

breaks that last for a significant duration, which

historically has been ten days or more.8

8

Others have argued that a three-day break is sufficient

to constitute ―the Recess of the Senate.‖ See, e.g.,

Edward A. Hartnett, Recess Appointments of Article III

Judges: Three Constitutional Questions, 26 Cardozo L.

Rev. 377, 419–21 (2005). This number is drawn from the

Adjournments Clause, which requires the Senate and the

34

The third and final possible definition is of more

recent vintage. In January 2012, President Barack Obama

made several recess appointments while the Senate was

holding pro forma sessions every three or four days.

These sessions are considered recesses under the third

definition. Pro forma sessions are formal meetings of the

Senate in which usually only one Senator is present to

convene the body briefly before adjourning it until the

next pro forma session. Id. at 2; see also, e.g., 157 Cong.

Rec. S8787 (daily ed. Dec. 20, 2011) (statement of Sen.

Warner) (recording Senator Mark Warner‘s convening

and adjournment of the Senate in a span of thirty-five

seconds). Before such sessions are held, the Senate

agrees by unanimous consent that there will be ―no

business conducted‖ except business that was previously

agreed to, such as convening a new session of the Senate.

See, e.g., 157 Cong. Rec. S8783–84 (daily ed. Dec. 17,

2011) (statement of Sen. Wyden) (recording the schedule

of pro forma sessions to be held between December 17,

2011 and January 23, 2012). However, these consent

agreements can, and have been, subsequently altered to

allow initially unplanned business—including the passing

of legislation—during a pro forma session. See, e.g., 157

House to concur on any adjournment lasting longer than

three days. U.S. Const. art. I, § 5, cl. 4. The argument is

that any intrasession break of less than three days is de

minimis and thus not adequate to constitute ―the Recess

of the Senate.‖ Hartnett, supra, at 419–20.

35

Cong. Rec. S8789 (daily ed. Dec. 23, 2011) (statement of

Sen. Reid) (obtaining unanimous consent that a bill ―be

considered read three times and passed‖ if an identical

version is passed by the House, which the House

subsequently did, during a pro forma session); see also

Carpenter et al., supra, at 18 & n.108. Importantly, these

sessions prevent the Senate from being adjourned for

more than three or four days at a time, which means the

adjournment never reaches the ten-day minimum

discussed above. See, e.g., 157 Cong. Rec. S8784 (daily

ed. Dec. 17, 2011) (statement of Sen. Wyden) (recording

Senator Ron Wyden‘s motion, and the Senate‘s

unanimous concurrence therewith, that the Senate be

―adjourned until Tuesday, December 20, 2011, at 11

a.m.‖); 157 Cong. Rec. S8787 (daily ed. Dec. 20, 2011)

(statement of Sen. Warner) (recording the Senate‘s

adjournment ―until Friday, December 23, 2011, at 9:30

a.m.‖).

The third definition of recess, which is offered by

the Board, allows the president to make recess

appointments while the Senate is holding these pro forma

sessions. The Board argues that a recess occurs when

―the Senate is not open to conduct business‖ and thus

unavailable to ―provid[e] advice and consent on

nominations.‖ Resp. Br. at 44. The Board argues that this

definition follows from Attorney General Harry

Daugherty‘s 1921 opinion, which adopted a partially

functionalist definition of ―the Recess of the Senate‖:

36

[T]he essential inquiry, it seems to me, is

this: Is the adjournment of such duration that

the members of the Senate owe no duty of

attendance? Is its chamber empty? Is the

Senate absent so that it can not [sic] receive

communications from the President or

participate as a body in making

appointments?

33 U.S. Op. Att‘y Gen. at 25. The Board contends that

these criteria decide whether the Senate is open to

conduct business and available to provide its advice and

consent. Unlike Attorney General Daugherty‘s opinion,

the Board appears to consider these criteria controlling in

themselves, such that there is no requirement for a

minimum, non-negligible period of time to pass in order

for the Senate to be in recess.9 Id.

9

The Board does note that if pro forma sessions are

ignored, then more than ten days passed during the break

in which the president recess appointed two Board

members who sat on the March 15 and 27 delegee group.

Resp. Br. at 46 (noting that twenty days passed between

when the second session of the Senate was convened on

January 3, 2012 and when the Senate held its first non–

pro forma session). This might suggest that the Board

believes a period of time greater than ten days between

non–pro forma sessions is still required, but such a

contention is absent from its briefs and was not suggested

37

Based on these criteria, the Board contends that

periods in which the Senate holds pro forma sessions

only constitute a recess. This is because during these

sessions, the body is neither doing business nor available

to provide its advice and consent. This means, per the

third definition, that these sessions do not interrupt what

would otherwise be an intrasession break that begins with

the adjournment before the first pro forma session and

lasts until the next convening of the Senate in a non–pro

forma session.

In sum, the parties argue that ―the Recess of the

Senate‖ has one of three meanings: (1) intersession

breaks; (2) intersession and intrasession breaks that last a

non-negligible period, which has historically been ten

days (―long intrasession breaks‖ hereinafter); or (3) any

time in which the Senate is not open for business and is

at oral arguments when asked for limiting principles to its

definition. Resp. Br. at 43–45 (defining recess in only

functionalist terms), 58 (rejecting the relevance of a

three-day requirement derived from the Adjournment

Clause because nothing shows that it is related to the

Recess Appointments Clause); Oral Arg. Tr. at 48:11 to

50:1 (explaining that ―unavailability of the Senate to

provide advice and consent‖ is the limiting principle on

the functionalist definition of recess).

38

unavailable to provide its advice and consent.10 We hold

10

We disagree with the dissent that the second and third

definitions of recess should be combined into one

―intrasession recess‖ definition. Dissenting Op. at 1–2.

Distinguishing between these definitions provides

necessary nuance to the analysis. First, as has been

discussed, these two definitions have starkly different

historical pedigrees: Until 2012, presidents and their

attorneys general have always tied intrasession breaks to

a non-negligible period of time. See, e.g., 33 U.S. Op.

Att‘y Gen. at 25. In fact, the Office of Legal Counsel‘s

2012 memorandum on President Obama‘s recess

appointments during pro forma sessions begins by

emphasizing that the period between the non–pro forma

sessions was of sufficient length to be a recess. 36 Op.

O.L.C. *4–9 (Jan. 6, 2012). The availability-based

definitions of recess that reject any need for a fixed

number of days to pass thus represent a significant

departure from past practice. Combining the unavailable-

for-business definition with the long-intrasession-break

definition glosses over important historical differences

between the two.

Second, as will be shown, the unavailable-for-business

definition has significantly less support than the long-

intrasession-break definition from the historical meaning

of ―recess‖ as well as the purpose of the Recess

Appointments Clause. Accordingly, we reject each

definition for somewhat different reasons.

39

that ―the Recess of the Senate‖ means only intersession

breaks, and so we conclude that Member Becker‘s

appointment was invalid.

A. ―[T]he Recess of the Senate‖

1. The Literal Meaning of Recess

When interpreting the Constitution, ―we begin

with its text.‖ City of Boerne v. Flores, 521 U.S. 507, 519

(1997). In doing so, ―we are guided by the principle that

‗[t]he Constitution was written to be understood by the

voters; its words and phrases were used in their normal

and ordinary as distinguished from technical meaning.‘‖

District of Columbia v. Heller, 554 U.S. 570, 576 (2008)

(quoting United States v. Sprague, 282 U.S. 716, 731

(1931)). The ―[n]ormal meaning may of course include

an idiomatic meaning, but it excludes secret or technical

meanings that would not have been known to ordinary

citizens in the founding generation.‖ Id. at 576–77.

The word ―recess‖ lacks a natural meaning that

clearly identifies whether it includes only intersession

breaks or also includes intrasession breaks, whether they

be of a certain duration or a period of unavailability.

Dictionaries from the time of ratification provide

definitions that can be read to support any of these

definitions. Samuel Johnson‘s dictionary defines recess

to mean ―[r]etirement; retreat; withdrawing; secession‖

as well as ―[d]eparture‖ and ―[r]emoval to distance.‖

40

Samuel Johnson, 2 A Dictionary of the English Language

469 (6th ed. 1785).11 All of these definitions contain

some connotation of permanence or, at least, longevity.

―Secession,‖ for example, means ―[t]he act of departing‖

or ―[t]he act of withdrawing from councils or actions.‖

Id. at 589; see also Merriam-Webster’s Collegiate

Dictionary 1121 (11th ed. 2003) (defining ―secession‖ to

mean ―formal withdrawal from an organization‖). And

―departure‖ is defined by Johnson to mean ―[a] going

away,‖ the ―[d]eath; . . . the act of leaving the present

state of existence,‖ and ―an abandoning.‖ Samuel

Johnson, 1 A Dictionary of the English Language 568

(6th ed. 1785); see also Merriam-Webster’s at 334

(defining ―departure‖ to mean ―the act or an instance of

departing,‖ ―a setting out (on a new course)‖); 1 William

Blackstone, Commentaries *187–88 (defining one

method of terminating parliamentary business, the

11

The entire definition found in Johnson‘s dictionary is:

1. Retirement; retreat; withdrawing;

secession. 2. Departure. 3. Place of

retirement; place of secrecy; private abode.

4. Perhaps an abstract of the proceedings of

an imperial diet. 5. Departure into privacy.

6. Remission or suspension of any

procedure. 7. Removal to distance. 8.

Privacy; secrecy of abode. 9. Secret part.

Johnson, 2 A Dictionary of the English Language at 469.

41

dissolution, as ―the civil death of the parliament‖). The

implication of permanence supports an understanding of

recess to mean only intersession breaks because these are

followed by an adjournment sine die, which are

adjournments without a set date for reconvening. And the

implication of longevity supports the idea that recess

includes long intrasession breaks.

Neither of these implications is consistent with the

Board‘s unavailable-for-business definition of recess, but

other entries in Johnson‘s dictionary provide some

support for that definition. Johnson‘s definition of recess

includes ―[r]emission or suspension of any procedure.‖

Johnson, 2 A Dictionary of the English Language at 469.

And, of course, words such as ―departure‖ also have less

permanent implications than death. Johnson, 1 A

Dictionary of the English Language at 568 (defining

―departure‖ as ―[a] going away‖). The term ―recess,‖ by

itself, thus lacks a literal meaning that unambiguously

supports one of the three definitions.

2. The Historical Use of Recess

Importantly, though, the Constitution does not say

only ―Recess.‖ Rather, it limits the president‘s recess-

appointments power to the ―Recess of the Senate.‖ The

words ―of the Senate‖ provide some context for our

analysis: parliamentary procedure at the time of

ratification. Deal v. United States, 508 U.S. 129, 132

(1993) (―[T]he meaning of a word cannot be determined

42

in isolation, but must be drawn from the context in which

it is used.‖).

American colonial legislatures and the first Senate

largely derived their parliamentary procedures from the

procedures used by the English Parliament. See Henry M.

Robert III, et al., Robert’s Rules of Order: Newly Revised

xxxiv–xxxv (11th ed. 2011) (recounting the migration of

English procedures to the American colonies); Thomas

Jefferson, A Manual of Parliamentary Practice: For the

Use of the Senate of the United States (2d ed. 1812)

(relying heavily on English precedents in providing

procedural rules for the Senate). English parliamentary

procedure at the time had three types of breaks:

adjournments, which were ―continuances of the session

from one day to another . . . and sometimes a fortnight or

a month together‖; prorogations, which were

―continuances of the parliament from one session to

another‖ initiated by the king; and dissolutions, which

were terminations of a Parliament initiated by the king‘s

order, his death, or a length of time that necessitated new

elections before another Parliament could be convened. 1

William Blackstone, Commentaries *186–89; see also

Jefferson, supra, § 51 at 164–65; Michael B. Rappaport,

The Original Meaning of the Recess Appointments

Clause, 52 U.C.L.A. L. Rev. 1487, 1550–51 (2005). The

Parliament thus had three breaks: adjournments for

intrasession breaks and prorogations as well as

dissolutions for intersession breaks.

43

At first blush, these three types of breaks appear to

correspond with the three mechanisms for breaks referred

to in our Constitution. ―Adjournment,‖ or its verbal form

―adjourn,‖ is the same phrase the Constitution uses to

denote day-to-day and longer breaks within sessions of

either chamber. U.S. Const. art. I, § 5, cl. 1 (allowing a

minority of members to ―adjourn from day to day‖); id.

art. I, § 5, cl. 4 (requiring concurrence between both

chambers if, ―during the session of Congress,‖ they are to

―adjourn for more than three days‖).12 The word

―dissolution‖ does not appear in the Constitution,

12

The words adjourn or adjournment appear six times in

five clauses of the Constitution. U.S. Const. art. I, § 7, cl.

2 (―If any bill shall not be returned by the President

within ten days (Sundays excepted) after it shall have

been presented to him, the same shall be a law, in like

manner as if he had signed it, unless the Congress by

their adjournment prevent its return, in which case it shall

not be a law.‖); id. at art. I, § 7, cl. 3 (―Every order,

resolution, or vote to which the concurrence of the Senate

and House of Representatives may be necessary (except

on a question of adjournment) shall be presented to the

President of the United States‖); id. at art. II, § 3 (―[The

President] may, on extraordinary occasions, convene

both Houses, or either of them, and in case of

disagreement between them, with respect to the time of

adjournment, he may adjourn them to such time as he

shall think proper.‖).

44

probably because the president does not have the power

to dissolve Congress. See id at art. II, § 3 (providing that

the president, at most, ―may adjourn [Congress] to such

time as he shall think proper‖ if they cannot agree on ―the

time of adjournment‖); The Federalist No. 69 (Alexander

Hamilton) (explaining the powers of the president and

how they are less than those of the king and even the

governor of New York by contrasting the president‘s

power to ―only adjourn the national legislature‖ with the

―British monarch[‘s]‖ power to ―prorogue or even

dissolve the Parliament‖). But the concept of dissolution

is still present in the Constitution: Congress is

automatically dissolved—and any ongoing session

ended—every two years by termination of the terms of

one-third of Senators and all members of the House. U.S.

Const. art. I, § 2, cl. 1; id. art. I, § 3, cls. 1–2. These

dissolutions end a session and, following elections, begin

another session in a new Congress, see Jefferson, supra,

§ 51 at 166 (―A dissolution certainly closes one session;

and the meeting of the new Congress begins another.‖)—

just as the king‘s dissolution, or the dissolution by the

passage of time, did for the English Parliament, 1

William Blackstone, Commentaries *189.

In light of these parallels, it is tempting to say that

―Recess of the Senate‖ corresponds with prorogations

and thus must refer only to terminations of sessions and

the intersession breaks that follow them. But this

argument proves too much. Even though the Constitution

45

uses ―adjournment‖ to mean breaks within a session, it

also uses the term to mean breaks between sessions. The

Supreme Court held in the Pocket Veto Case, 279 U.S.

655 (1929), that ―adjournment‖ in Article I, § 7, clause 2

of the Constitution is any break in business ―that prevents

the President from returning the bill to the House in

which it originated within the time allowed.‖ Id. at 680

(internal quotation marks omitted); see also U.S. Const.

art. I, § 7, cl. 2 (providing that a bill passed by Congress

becomes law after ten days after presentment to the

president ―unless the Congress by their adjournment

prevent its return‖). This definition does not distinguish

between breaks within sessions and those between

sessions. See id.; accord Rappaport, supra, at 1551 n.198

(explaining that ―the Framers used the term

‗adjournment‘ with a broader meaning than it had

traditionally under English law‖). This means that the

Constitution does not simply adopt ―adjournment‖ as it

was used in Parliament and correspondingly suggests that

―Recess of the Senate‖ is not simply prorogation by

another name.

Understanding the differences between prorogation

and adjournment is helpful, however, to make sense of

ratification-era state constitutions.13 Eight of these

13

The dissent argues that our discussion of state

constitutions and early American practice transforms our

definition of recess into a technical one. Dissenting Op.

46

constitutions use the word ―recess.‖ Six contain the same

ambiguity found in the federal Constitution.14 The word

at 16–18 & n.11. These sources are, however, frequently

relied on by the Supreme Court to decide the meaning of

Constitution. See, e.g., Heller, 128 S. Ct. at 585–86;

Collins v. Youngsblood, 497 U.S. 37, 42 (199). We, too,

consider such reliance to be appropriate because the

average citizen likely would have understood the

Constitution in reference to the state constitutions and

practices at the time.

14

See Del. Const. of 1776 art. 7; Md. Const. of 1776

pt. 2, art. XIII; N.C. Const. of 1776 pt. 2, arts. XVIII–

XX; Pa. Const. of 1776 pt. 2, § 20; S.C. Const. of 1778

arts. IX, XVIII, XXXV; Vt. Const. of 1777 ch. II, §§

XVII–XVIII.

Of these provisions, the North Carolina Constitution‘s

Recess Appointments Clause has been argued to be the

most relevant to the federal Recess Appointments Clause

because the federal clause is thought by some to be

modeled after the North Carolina one. Noel Canning, 705

F.3d at 501. The North Carolina Constitution gives the

governor power to ―grant[] temporary commission[s]‖ of

officers ―whose appointment[s] [were] by [the North

Carolina] Constitution vested in the General Assembly

. . . during their recess.‖ N.C. Const. of 1776, pt. 2, art.

XX. Recess here is essentially used in the same manner

that it is in the federal constitution, which limits the

47

―recess‖ in the Massachusetts and New Hampshire

constitutions, however, includes only intersession breaks.

See Rappaport, supra, at 1552. These constitutions have

similar provisions that provided their respective

governors with different powers depending on whether

the legislature was in ―session‖ or ―in recess.‖ Mass.

Const. of 1780, pt. 2, ch 2, § 1, art. V; N.H. Const. of

1792 pt. 2, § L. When the legislatures were in ―session,‖

the governors had the power either to prorogue or to

adjourn them. See, e.g., Mass. Const. of 1780, pt. 2, ch. 2,

§ 1 (―The Governor . . . shall have full power and

authority, during the session of the General Court [i.e.,

the Massachusetts legislature], to adjourn or prorogue the

same to any time the two Houses shall desire‖). But when

recess-appointment power to ―the Recess of the Senate.‖

Both constitutions thus contain the same ambiguity.

The D.C. Circuit concluded that this ambiguity is

clarified for the North Carolina constitution by a North

Carolina Supreme Court decision that the D.C. Circuit

argues implicitly distinguishes between session and

recess. Noel Canning, 705 F.3d at 501. We disagree. The

North Carolina Supreme Court opinion is not informative

because—as the Board argues—the question in the case

was not the meaning of ―recess‖ but whether a recess-

appointed judge‘s court had jurisdiction to determine

whether he was properly appointed. Beard v. Cameron, 3

Mur. 181, 184–86 (N.C. 1819).

48

the legislatures were ―in recess,‖ the governors only had

the power to prorogue them—or, in simpler terms, extend

the duration of the intersession recess, see Johnson, 2 A

Dictionary of the English Language 412 (defining

―prorogue‖ as ―to withhold a session of parliament to a

distant time.‖). See, e.g., Mass. Const. of 1780, pt.2, ch 2,

§ 1 (providing the governor, ―in the recess of the said

Court,‖ the power ―to prorogue the same from time to

time‖). These provisions make sense only if the

legislature is not in ―session‖ when it is ―in recess.‖

Otherwise, the provisions are in conflict, stating that the

governors both had and did not have the power to

adjourn the legislature during intrasession breaks. These

two constitutions thus used recess to mean intersession

breaks only.15

15

The intersession-breaks-only definition of recess is

also seen in a second way. As explained, the governors

only had the power to prorogue when their respective

legislatures were ―in recess‖; but they had the power to

both adjourn as well as to prorogue the legislatures when

they were in session. See Mass. Const. of 1780, pt. 2,

ch 2, § 1, art. V; N.H. Const. of 1792 pt. 2, § L. This is

telling because if recess included intrasession breaks as

well as intersession breaks, then the power to adjourn

ought to also be included. Recall that one central

difference between adjournments and prorogations is that

the former do not end all business such that it need be

49

There are, however, examples of state executives

assuming that a constitutional recess includes

intrasession breaks. Vermont and Pennsylvania‘s former

constitutions, for example, provided their respective

executives power to ―lay embargoes . . . in the recess of

the house only.‖ Vt. Const. of 1777, ch. 2, § XVIII; Pa.

Const. of 1776, pt. 2, § 20. Governors of both states

imposed embargos during intrasession breaks,16 which

started anew when the legislature reconvenes while the

latter do end business. Jefferson, supra, at 164–65. So in

these constitutions, while the legislatures were in session,

the governors had the option of either ending business

through prorogation or, through adjournment, merely

ending their meetings but without ending their business.

There is no obvious reason that if recess included

intrasession breaks—after which business that was

ongoing before the break would continue—the governors

would lose their power to end that business. The most

plausible explanation of the differing powers in each

situation is that recesses were only constituted of

intersession recesses, which made it unnecessary to

provide the governors the power to adjourn the

legislatures because there was no business that could be

continued. The Massachusetts and New Hampshire

constitutions thus used recess to mean intersession

recesses only.

16

For the Vermont example, see 3 J. & Proceedings of

the General Assemb. of the State of Vt. 235 (P.H. Gobia

50

Press 1924) (recording the Vermont Assembly‘s

―adjourn[ment] until the second Wednesday of June‖ on

April 16, 1781); 2 Records of the Governor and Council

of the State of Vt. 164 (E.P. Walton ed., 1874) (recording

the May 1781 imposition of an embargo by the

executive). This was an intrasession break because the

legislature had not adjourned without day, as they often

did to end the last meeting of the year. See, e.g., 3 J. &

Proceedings of the General Assemb. of the State of Vt.

at 31 (adjourning on June 17, 1778 ―until his Excellency

the Governor commands them to meet‖), 73 (adjourning

―without day‖ on June 4, 1779); 123 (adjourning

―without day‖ on March 16, 1780); 271 (adjourning

―without day‖ on June 28, 1781).

For the Pennsylvania example, see J. & Minutes of the

Pa. Assembly 212 (1778) (recording the Pennsylvania

House of Representatives‘ adjournment on May 25, 1778

―to meet on the 9th day of September next‖ and its

subsequent reconvening on August 4, 1778 pursuant to

the summons of the ―vice-president and [s]upreme

executive council‖); 11 Minutes of the Supreme Exec.

Council of Pa. 544–45 (Theo Fenn & Co., 1852)

(recording the August 1, 1778 imposition of an embargo

by the executive). The Board has stated that this

intrasession break lasted until September 9, 1778. This

does not take into account the Pennsylvania House of

Representative‘s being recalled on August 4, however.

This discrepancy does not undermine the Board‘s general

51

suggests they understood that such breaks were included

in the meaning of recess.

The New Jersey governor acted similarly. He

relied on the Senate Vacancies Clause in the federal

Constitution to appoint a senator on December 19, 1798.

8 Annals of Cong. 2197 (1798). Prior to the Twentieth

Amendment, this Clause allowed state executives to

make temporary appointments of Senators ―during the

Recess of the Legislature of [that] State.‖ U.S. Const. art.

I, § 3, cl. 2. His appointment of a senator on December

19, 1798, shows that he construed recess to include

intrasession breaks because the New Jersey General

Assembly was in an intrasession break from November 8,

1798, until January 16, 1799.17

point that the embargo was set by the executive during an

intrasession break because the May 25 adjournment was

not an adjournment sine die and the August 1 embargo

imposition is before the Assembly‘s August 4

reconvening date.

17

Votes and Proceedings of the Twenty-Third General

Assemb. of the State of N.J, 1st sitting, 64 (1798–99)

(recording the adjournment of the New Jersey General

Assembly); J. of Proceedings of the Legis. Council of the

State of N.J., 23d Sess., 1st sitting 20 (1798–99)

(recording the adjournment of the New Jersey Legislative

Council).

52

This history shows that recess had at least two

meanings at the time of ratification: either intersession

breaks only or intersession breaks plus long intrasession

breaks. The state constitutions favor the former, while the

governors‘ actions favor the latter. To be sure, the

executive‘s actions should be viewed with some

skepticism because an expansive definition of recess

served their institutional self-interest by expanding their

powers. See Steven G. Calabresi & Saikrishna B.

Prakash, The President’s Power to Execute the Laws, 104

Yale L.J. 541, 558–59 (1994) (explaining that post-

enactment actions by the first Congress must be viewed

cautiously because of their institutional interest in

limiting the president‘s power). But it would be

erroneous to reject their understanding on this basis

alone. Nothing in the historical record affirmatively

rejects their understanding for purposes of the federal

Constitution.18 But neither is there anything affirmatively

18

Besides state-executive practice, the Board also points

to the Continental Congress‘s understanding of the

meaning as revealed by its practices. NLRB Ltr. Br. at 6

& n.3. Under the Articles of Confederation, the Congress

could only convene a ―Committee of the States‖ during

―the recess of Congress.‖ Articles of Confederation of

1781, art. IX, para. 5; id. art. X, para 1. Such a committee

was convened during the period that followed the

Continental Congress‘s adjournment on June 3, 1784

until October 30, 1784. 27 J. of Continental Congress

53

establishing that it adopted this definition of recess in lieu

of the definition found in the Massachusetts and New

Hampshire constitutions. Standing alone, ―Recess of the

Senate‖ is thus ambiguous. Edwards v. A.H. Cornell &

Son, Inc., 610 F.3d 217, 222 (3d Cir. 2010) (―Words or

provisions are ambiguous when ‗they are reasonably

susceptible of different interpretations.‘‖ (quoting

Dobrek v. Phelan, 419 F.3d 259, 263 (3d Cir. 2005))).

Importantly, though, neither of these possibilities

is similar to the unavailable-for-business definition put

forth by the Board. Every example discussed thus far has

two common characteristics. First, each break lasted for a

considerable period of time. The intrasession breaks in

555 (1784). That this adjournment was until a fixed date

suggests that the period after ought to have been an

intrasession break because it was not an adjournment sine

die, which would be denoted by the absence of a fixed

reconvening date. Subsequent proceedings, however, call

this understanding into question because the Continental

Congress‘s journal does not record their reconvening on

October 30 but instead shows them convening when the

Articles of Confederation required they meet again, 28 J.

of Continental Congress 639–41 (1784) (convening

―[p]ursuant to the Articles of Confederation,‖ rather than

pursuant to the prior adjournment), which is consistent

with having adjourned sine die. We decline to rely on this

practice one way or another because of the uncertainty.

54

which the governors of Vermont and Pennsylvania used

their powers were 57 and 71 days, respectively. See

supra note 10. And the intrasession break in which the

New Jersey governor appointed a senator was 69 days.

See supra note 11. As far as we are aware, the shortest

break referred to as a recess lasted 14 days, 2 A

Documentary History of the English Colonies in North

America 1346–48 (Peter Force, ed., 1839), which

conforms with the modern practice equating recess with

breaks lasting at least 10 days. These durations suggest

that a recess was more than the day-to-day adjournment

of a legislature and likely held the connotation of long

duration. This is contrary to the Board‘s current view that

breaks in business need not be of any particular duration

to constitute a recess.

The second notable trait of these breaks is that the

beginning of each was determined solely by when the

legislature adjourned—rather than by some functionalist

definition of when the body was unavailable for business.

The Board has pointed to no examples of the word

―recess‖ turning on factors such as whether members

were required to attend, the legislative chamber was

empty, and the body could receive messages. The

examples instead show that recess was tied to the type, or

possibly the duration, of the legislature‘s self-defined

adjournment. Accord Jefferson, supra, at 51 at 165

(explaining that Senate ―Committees may be appointed to

sit during a recess by adjournment, but not by

55

prorogation‖).

In short, the natural meaning of recess does not

help us decide between intersession breaks and

intrasession breaks of a fixed duration, but the relevant

context does undermine the Board‘s current position.19

19

The dissent refers to our reliance on state constitutions

and contemporary interpretations of recess as a ―dubious‖

method of interpretation. Dissenting Op. at 20. To be

clear, these historical examples demonstrate that the use

of recess at the time of ratification was consistent with

either the intersession-break definition of recess or the

intersession-plus-long-intrasession-break definition. We

discuss these only to show the ordinary meanings of the

word ―recess‖ for the founding generation, as

demonstrated by their usage. Heller, 554 U.S. at 576. We

do not use them as conclusive evidence that recess means

intersession breaks only, which cannot be done because

there is not sufficient historical evidence on which

meaning was intended in the Constitution.

These historical practices do, however, cast doubt on the

unavailable-for-business definition argued for by the

Board, a version of which is adopted by the dissent. This

is not so much because of what the practices were but

what they were not. Namely, the Board and the dissent

cannot point to a single example from the period of

ratification in which a legislative body or executive

defined recess exclusively using a functionalist definition

56

To resolve the remaining ambiguity, one might argue that

the Constitution uses a definitive article: ―the Recess of

the Senate.‖ The word ―the‖ might mean that the phrase

refers to a specific thing, possibly suggesting that recess

refers to the one recess that follows every session, an

intersession break. See Noel Canning, 705 F.3d at 499–

500. But ―the‖ also can denote a particular class of

something as well. Indeed, that is how the D.C. Circuit

ultimately interpreted ―the Recess,‖ holding that it means

all intersession breaks. Id. But even conceding that ―the‖

is meant to denote a specific class of something, there is

nothing in the word ―the‖ itself that necessarily requires

that class to be intersession breaks. ―[T]he Recess‖

might, for example, simply refer to times in which the

Senate is in a recess. See Evans, 387 F.3d at 1224–25.

There is nothing that shows what ―the‖ means in the

Recess Appointments Clause, especially because the

Constitution uses ―the‖ in several manners. See, e.g., U.S.

Const. art. I, § 3, cl. 4 (providing that ―[t]he Vice

President . . . shall be President of the Senate‖); art. I,

§ 3, cl. 5 (providing that the Senate shall select a

president pro tempore ―in the Absence of the Vice

President‖). Accordingly, we are convinced that use of

―the‖ is uninformative. We must therefore look to the

based on availability. If such a definition of recess were a

―normal and ordinary‖ meaning for the ―founding

generation,‖ Heller, 554 U.S. at 576, there ought to be at

least one example of its use from that period.

57

broader textual context in which ―the Recess of the

Senate‖ was ratified.

B. Textual Context

1. Constitutional Context and the Unavailable-for-

Business Definition

―If, from the imperfection of human language,

there should be serious doubts respecting the extent of

any given power, it is a well settled rule, that the objects

[i.e., the purpose] for which it was given . . . should have

great influence on the construction.‖ Gibbons v. Ogden,

22 U.S. 1, 188–89 (1824). The purpose of the Recess

Appointments Clause is most evident in its relation to the

Appointments Clause. The text and structure of the

Constitution demonstrate that the Recess Appointments

Clause is a secondary, or exceptional, method of

appointing officers, while the Appointments Clause

provides the primary, or general, method of appointment.

The Appointments Clause provides the general rule for

appointing officers through presidential nomination and

senatorial advice and consent. U.S. Const. art. II, § 2,

cl. 2. The Clause lacks any limitation on when this power

is operative—the president always has the power to fill

vacancies through nomination and the advice and consent

of the Senate. See id. (―[The President] shall nominate,

and by and with the Advice and Consent of the Senate,

58

shall appoint . . .‖).20 This perpetual power stands in

contrast to the power given to the president in the Recess

Appointments Clause, which explicitly allows him to fill

vacancies unilaterally only ―during the Recess of the

Senate.‖ Id. at art. II, § 2, cl. 3. The clauses thus reveal a

constitutional preference for divided power over the

20

The Appointments Clause states in full:

He shall have Power, by and with the

Advice and Consent of the Senate, to make

Treaties, provided two thirds of the Senators

present concur; and he 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: but the

Congress may by Law vest the Appointment

of such inferior Officers, as they think

proper, in the President alone, in the Courts

of Law, or in the Heads of Departments.

U.S. Const. art. II, § 2, cl. 2.

59

appointments process, which is deviated from only in

specified situations.21

Alexander Hamilton echoed this understanding of

the Constitution. He explained in Federalist 67 that the

Appointments Clause ―declares the general mode of

appointing officers of the United States.‖ The Federalist

No. 67 (Alexander Hamilton). The Recess Appointments

Clause, however, is ―nothing more than a supplement to

the [the Appointments Clause], for the purpose of

establishing an auxiliary method of appointment, in cases

to which the general method was inadequate.‖ Id.

Accordingly, the ―ordinary power of appointment is

confined to the president and the Senate jointly, and can

therefore only be exercised during the session of the

Senate.‖ Id. (emphasis in original). But ―in [the Senate’s]

recess,‖ the ―President, singly,‖ has power to make

temporary appointments. Id. (emphasis in original). This

deviation is necessary, Hamilton argues, because it is

―improper to oblige this body to be continually in

session‖ and because ―it might be necessary for the

21

Besides the exception found in the Recess

Appointments Clause, the Appointments Clause also

creates an exception for ―inferior Officers.‖ These

officers can be appointed either through the ordinary

process or, if specified by statute, unilaterally by the

President, courts, or department heads. See U.S. Const.

art. II, § 2, cl. 2.

60

public service to fill without delay.‖ Id.

The ―main purpose‖ of the Recess Appointments

Clause, therefore, is not—as the Eleventh Circuit held

and the Board argues—only ―to enable the President to

fill vacancies to assure the proper functioning of our

government.‖ Evans, 387 F.3d at 1226. This formulation

leaves out a crucial aspect of the Clause‘s purpose: to

preserve the Senate‘s advice-and-consent power by

limiting the president‘s unilateral appointment power.

Accord Noel Canning, 705 F.3d at 505 (explaining that

the Eleventh Circuit‘s statement of the Clause‘s purpose

―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‖ (emphasis in original)).

The importance of this aspect of the Clause‘s

purpose is difficult to understate. At the time of

ratification, skepticism in executive unilateral

appointments power was firmly established. ―‗[T]he

power of appointments to offices‘ was deemed ‗the most

insidious and powerful weapon of eighteenth century

despotism.‘‖ Freytag, 501 U.S. at 883 (quoting Gordon

Wood, The Creation of the American Republic 1776–

1787 79 (1969)). But the framers‘ skepticism concerning

unilateral power was not limited to the executive. They

also rejected unilateral legislative control of

appointments out of concern for ―diversity of views,

feelings, and interests, which frequently distract and warp

the resolutions of a collective body.‖ The Federalist No.

61

76 (Alexander Hamilton). As a consequence of these

concerns, the framers sought to ―ensure that those who

wielded [appointments powers] were accountable to

political force and the will of the people‖ by limiting the

power of any one person or body. They did so by

dividing that power between the executive and legislative

branches. Freytag, 501 U.S. at 883–84; see also Ryder,

515 U.S. at 182 (―The [Appointments] Clause is a

bulwark against one branch aggrandizing its power at the

expense of another branch, but it is more: it preserves

another aspect of the Constitution‘s structural integrity by

preventing the diffusion of the appointment power.‖). To

ignore this division of power is to neglect a central

principle that underlies the two Appointments Clauses.22

22

The dissent understands this principle to mean that one

purpose of the Recess Appointments Clause is ―to

provide a check on the Senate‘s control over the

appointment of officers by sharing the power of

confirmation with the executive.‖ Dissenting Op. at 28.

While we agree that the Clause is intended to preserve

the balance of power struck in the Appointments Clause,

we disagree that it does this by limiting the Senate‘s

power to provide its advice and consent. The Recess

Appointments Clause preserves the balance of power by

limiting the instances in which the president has

unilateral authority to appoint officers, which is

illustrated by its explicit limitation of that power to ―the

62

Recess of the Senate.‖ Nothing in the text of the Clause

or the historical record suggests that it is intended to be a

type of pressure valve for when the president cannot

obtain the Senate‘s consent, whether that be because it

has become dysfunctional or because it rejects a

president‘s nominations. Cf. The Federalist No. 67

(Alexander Hamilton) (explaining that the Clause is

needed because it is ―improper to oblige this body to be

continually in session‖ or because ―it might be necessary

for the public service to fill without delay‖ rather than

because it is a necessary tool to check the Senate‘s

power).

Our disagreement with our dissenting colleague is rooted

in a difference in understanding of the president‘s and the

Senate‘s respective powers. Regarding the president, the

dissent contends that we must interpret the president‘s

recess-appointment power broadly because to do

otherwise would ―eviscerat[e] his appointments

prerogative‖ so that he may ―be able to surround himself

with the people he believed best fit to help him fulfill his

duty.‖ Dissenting Op. at 23–24. But the president does

not have an ―appointments prerogative‖ or the

constitutional right to surround himself with those he

believes are ―best fit to help.‖ That is exactly what the

drafters rejected when they rejected unilateral

appointments authority in the executive. The president

has a prerogative to nominate whomever he likes, and the

Senate has the prerogative to reject or confirm whomever

63

And therein lies the implausibility of the

unavailable-for-business definition. As explained above,

the Board argues that a recess occurs any time members

the president nominates. To construe the Recess

Appointments Clause as providing presidents these rights

is to promote it from an auxiliary appointments device to

an additional one, which we know from Hamilton is

exactly what it is not. See Federalist No. 67 (Alexander

Hamilton).

Regarding the Senate‘s advice-and-consent power, the

dissent analogizes it to the president‘s veto power.

Dissenting Op. at 21–23 & nn.14–15. This analogy is

inaccurate. The drafters of the Constitution rejected an

approval mechanism proposed by Madison that gave the

Senate only the power to veto presidential nominees by a

majority vote in favor of ―advice and consent.‖ 2 The

Records of the Federal Convention of 1787 at 80–83

(Max Farrand ed., 1911); see also Matthew C.

Stephenson, Can the President Appoint Principal

Executive Officers without a Senate Confirmation Vote?,

122 Yale L.J. 940, 964–95 (2013). This means there is no

reason to think that the balance of powers created

through provisions of the advice-and-consent power to

the Senate is anything like the president‘s veto power. As

we have explained, the balance is much more equitable

between the branches and provides each the ability to

negate the role of the other.

64

of the Senate do not have a duty to attend, the Senate

chamber is empty, and the Senate is unavailable to

receive communications from the president. See Resp.

Br. at 44–45; 33 U.S. Op. Att‘y Gen. at 21–22, 25. The

problem with this definition is that the Senate fulfills

these criteria whenever its members leave for the

weekend, go home for the evening, or even take a break

for lunch. In each of these instances, the senators have no

duty to attend, the Senate chamber is empty, and the

body cannot receive messages from the president.

Defining recess in this way would eviscerate the

divided-powers framework the two Appointments

Clauses establish. If the Senate refused to confirm a

president‘s nominees, then the president could

circumvent the Senate‘s constitutional role simply by

waiting until senators go home for the evening. The

exception of the Recess Appointments Clause would

swallow the rule of the Appointments Clause.

The Board appears to recognize this difficulty with

its definition. Oral Arg. Tr. at 48:6–9 (stating that ―[t]he

executive branch has not claimed authority to make

recess appointments during lunch‖). Accordingly, the

Board argues that there is a limitation in addition to the

three open-for-business criteria: unavailability to provide

advice and consent. Oral Arg. Tr. at 49:15–18. But the

Board does not clearly define unavailability in a way that

distinguishes it from the Board‘s discussion of when the

Senate is open for business. At times, its brief treats the

65

two requirements as one. Resp. Br. at 44 (―[T]he Clause

authorizes appointments when the Senate is not open to

conduct business and thus not providing advice and

consent on nominations.‖).

Perhaps the best indication of what the Board

means by unavailability is its reliance on the Senate‘s

unanimous-consent agreement that established the

schedule for the pro forma sessions from December 20,

2011, through January 23, 2012. This resolution provided

that there would be ―no business conducted‖ during the

sessions. 157 Cong. Rec. at S8783 (statement of Sen.

Wyden). This resolution might be understood to mean

that during the pro forma sessions the Senate was open

for business but unavailable to provide advice and

consent on nominations because of the body‘s prior

agreement.

The first problem with this argument is that the

Senate‘s actions under the resolution reveal that it could

have provided advice and consent during these pro forma

sessions if it had desired to do so. On December 23,

2011, during one of the pro forma sessions stipulated in

the unanimous-consent agreement, the Senate passed a

bill that provided ―a 2-month extension of the reduced

payroll tax, unemployment insurance, TANF, and the

Medicare payment fix.‖ 157 Cong. Rec. at S8789

(statement of Sen. Reid). That same day, the Senate also

―agree[d] to the request for a conference‖ from the House

in relation to related bills passed by both chambers. Id. If

66

the Senate could pass a bill and agree to a request from

the House to create a conference for another bill, then the

Senate likely could have provided its advice and consent

but chose not to—as they are entitled to under the

Appointments Clause.23

23

The dissent rejects this conclusion on the ground that if

the Senate is available any time it could act on

nominations ―if it had the desire[] to do so,‖ then the

Senate would logically always be available. Dissenting

Op. at 51. This misses one central feature of pro forma

sessions: the Senate has convened. We do not hold that

the Senate is available any time when it could confirm

nominations if it wanted to. Instead, we are pointing out

that the Board cannot distinguish pro forma sessions

from ordinary sessions on the basis of the Senate‘s

availability because during pro forma sessions the Senate

convenes in a manner that allows it to consent to

nominations if it desires to. This is evidenced by the

Senate‘s passing of legislation during these sessions.

Holding that the Senate is unavailable during these

sessions requires a definition of availability that allows

the counterintuitive situation in which the Senate is

available to enact legislation while simultaneously

unavailable to provide its advice and consent.

The dissent suggests one possibility, which is that the

Senate is not available to provide its advice and consent

during pro forma sessions because ―business via

67

Besides this factual difficulty, the Board‘s limiting

principle has another, larger problem: it still does not

foreclose day-to-day adjournments from constituting

unanimous consent agreement . . . is not the type of

business that yields the advice and consent envisioned by

the Framers.‖ Id. at 29. Underlying this is the assertion

that advice and consent requires a vote by the Senate‘s

members. Id. at 7. This is a complicated question. See

Adam J. White, Toward the Framers’ Understanding of

“Advice and Consent”: A Historical and Textual Inquiry,

29 Harv. J.L. & Pub Pol‘y 103, 107–08, 147–48 (2005)

(collecting sources arguing the Senate is required to act

on nominations before analyzing the text and convention

debates to conclude that the Senate has no obligation to

act on presidential nominees). We are reluctant to express

an opinion on it, especially because it has not been

briefed.

Assuming that a vote is required to provide the Senate‘s

advice and consent, however, it is also the case that the

Senate must vote to ―pass‖ a bill. See Chadha, 462 U.S.

at 980–81 (equating pass with vote). Why unanimous-

consent agreements are sufficient to pass legislation, and

thus constitute a vote, yet are inadequate to constitute a

vote for the purpose of advice and consent is unclear. The

dissent‘s definition thus suffers from the same flaw as the

Board‘s: it cannot provide a principled method of

defining availability.

68

recesses. The important feature of the Senate‘s

scheduling agreement that the Board emphasizes is the

provision that there would be ―no business conducted.‖

Resp. Br. at 45–47; Oral Arg. Tr. at 49:21–24. This,

however, is indistinguishable from a daily adjournment.

At the end of the day, the Senate adjourns, which

represents an agreement that it will do no business until it

reconvenes the next day. In fact, when the Senate agrees

to adjourn, it agrees that no senator can even be

recognized to speak on the floor. See Riddick’s Senate

Procedure: Precedents and Practices, S. Doc. No. 101-

28, at Adjournment 2 (1992) (―Once the Chair has

announced that the Senate stands in adjournment, there is

no recourse available to the Senator seeking recognition

until the Senate reconvenes.‖). The only distinction is

formalistic—day-to-day adjournments are embodied in a

motion to adjourn (that is often unanimously agreed to)

rather than a unanimous consent agreement—but there is

no reason to believe that makes an actual difference

under the Board‘s approach. Therefore, the Board‘s

limiting principle fails to limit the meaning of recess and

must be rejected to prevent the Recess Appointment

Clause‘s exception from swallowing the rule of divided

power.

Now that we have established what ―the Recess of

the Senate‖ does not mean, we must establish what it

does mean. The Recess Appointments Clause‘s

preservation of the Senate‘s advice-and-consent power

69

does not help us decide between the remaining two

possibilities because the requirement that an intrasession

break last a certain duration would prevent the exception

from swallowing the rule. We must therefore look to

provisions of the Constitution.

Several constitutional provisions appear relevant to

our analysis, such as those that use the word

―adjournment.‖ See Noel Canning, 705 F.3d at 500.

Adjournment, as discussed above, is an instance in which

Congress or one of its chambers takes a break of any type

or length. See, e.g., Pocket Veto Case, 279 U.S. at 680

(interpreting ―adjournment‖ in the Pocket Veto Clause to

include both types of breaks). Thus, if the framers had

intended for the president to be able to appoint officers

during intrasession breaks, then the Recess Appointments

Clause could have been worded differently, allowing

recess appointments ―during the Adjournment of the

Senate.‖ See Noel Canning, 705 F.3d at 500, 505–06.

Because the Constitution uses recess instead of

adjournment, we presume that recess has a meaning

different from adjournment. Kelo v. City of New London,

Connecticut, 545 U.S. 469, 496 (2005) (―When

interpreting the Constitution, we begin with the

unremarkable presumption that every word in the

document has independent meaning, ‗that no word was

unnecessarily used, or needlessly added.‘‖) (quoting

Wright v. United States, 302 U.S. 583, 588 (1938)).

That the words have different meanings, however,

70

does not necessarily tell us what those meanings are and

whether they might overlap. The Eleventh and D.C.

Circuits provide two different possibilities. On the one

hand, adjournment could mean the act of adjourning (i.e.,

ending business) for any period of time, while recess

could refer to the period of time that follows an

adjournment. Evans, 387 F.3d at 1225. On the other

hand, adjournment could again mean the act of

adjourning for any period of time, while recess might

refer to breaks of a more limited nature—whether that be

limited by the duration of the break or the type of break.

Noel Canning, 705 F.3d at 500. In both instances,

adjournment and recess have different meanings but

nothing about the dichotomy between the words tells us

which meaning was intended.

When these possibilities are considered in light of

the purpose of the Recess Appointments Clause,

however, the dichotomy must be that adjournment results

in more breaks than recess does. If the Eleventh Circuit is

correct that the sole reason for using recess instead of

adjournment was to recognize a difference between the

act of adjourning and the period that follows, then recess

would mean any break in Senate business regardless of

the break‘s length. This is a broad definition that no one,

including the Board, adopts because it would result in the

exception swallowing the rule. So the dichotomy does

reveal that recess must mean something narrower than

any break that follows an adjournment.

71

But what this narrower definition is cannot be

derived from the dichotomy between adjournment and

recess alone. Nothing about the words tells us whether

recess is limited by the duration of the break (as the

intrasession definition does) or by the type of break (as

the intersession definition does). Contra Noel Canning,

705 F.3d at 500, 505–06 (using the dichotomy plus the

fact that recess is preceded by ―the‖ as support for its

conclusion that ―the Recess‖ must mean intersession

breaks only). The dichotomy between adjournment and

recess therefore leaves us in the same place as the Recess

Appointments Clause‘s purpose: rejecting an all inclusive

definition of recess but without a basis to decide between

the intersession definition and the intersession-plus-long-

intrasession-breaks definition.

2. Constitutional Context and the Remaining

Definitions

We resolve this uncertainty by first noting what is

absent in the Constitution: a link between ―the Recess of

the Senate‖ and any particular length of time. Attorney

General Daugherty, who first suggested a minimum

duration of ten days, did not tie this duration to any

constitutional provision. See 33 U.S. Op. Att‘y Gen.

at 24–25 (―Nor do I think an adjournment for 5 or even

10 days can be said to constitute the recess intended by

the Constitution.‖). Some have tried to tie the duration to

the Adjournment Clause, which requires either chamber

of Congress to obtain the consent of the other to adjourn

72

for more than three days, U.S. Const. art. I, § 5, cl. 4.24

See, e.g., 33 U.S. Op. Att‘y gen. at 24–25 (invoking the

Adjournment Clause to reject the idea that two days may

constitute a recess); Edward A. Hartnett, Recess

Appointments of Article III Judges: Three Constitutional

Questions, 26 Cardozo L. Rev. 377, 419–21 (2005). The

argument is that the Adjournment Clause provides a

measure of what constitutes a de minimis break—one that

should be read into the Recess Appointments Clause to

prevent the exception from swallowing the rule. See

Hartnett, supra, at 419–21.25 The central error in this

24

The Clause states:

Neither House, during the session of

Congress, shall, without the consent of the

other, adjourn for more than three days, nor

to any other place than that in which the two

Houses shall be sitting.

U.S. Const. art. I, § 5, cl. 4.

25

The Adjournment Clause may be thought to create a

problem for the intersession definition of recess. Namely,

by requiring that the two chambers of Congress agree on

any adjournment lasting longer than three days, the

Clause enables the House to prevent the Senate from

adjourning sine die. This would be problematic for the

intersession definition because, as the argument goes, it

inserts the House into the appointments process even

73

argument, however, is that ―[n]othing in the text of either

Clause, the Constitution‘s structure, or its history

suggests a link between the Clauses.‖ Noel Canning, 705

F.3d at 504; cf. Atl. Cleaners & Dyers v. United States,

286 U.S. 427, 433–34 (1993) (demonstrating that the

context of individual provisions is important to deciding

the meaning of them by explaining that the same words

in the Constitution often have different meanings

depending on their context). Absent some connection,

there is no reason to believe that the Adjournment

Clause‘s duration requirement controls the meaning of

the Recess Appointment Clause. And beyond the

Adjournment Clause, nothing in the Constitution

establishes the necessary length of an intrasession break

though the Constitution purposely excludes it from the

process.

The problem is eliminated, however, by Article II, § 3 of

the Constitution. This provision allows the president to

―adjourn both Houses‖ only ―if the two Houses cannot

agree on a date of adjournment.‖ U.S. Const. Art. II, § 3.

Assuming that the Supreme Court would interpret

adjourn to be the verbal form of adjournment, which it

has said constitutes both inter- and intra-session breaks,

Pocket Veto Case, 279 U.S. at 680, this provision allows

the president to prevent the House from interfering in the

appointments process if it prevents the Senate from

adjourning for either an inter- or intra-session break.

74

that would constitute a recess.26 This is the most

significant weakness of the long-break intrasession

argument.

Although there is no constitutional basis for any

sort of durational limit on what constitutes ―the Recess,‖

the Recess Appointments Clause does contain a temporal

characteristic: the Recess Appointment Clause‘s

specification that recess-appointed officers‘ terms ―shall

expire at the End of [the Senate‘s] next Session.‖ U.S.

Const. art. II, § 2, cl. 3. A session of the Senate, everyone

agrees, begins at the Senate‘s first convening and ends

either when the Senate adjourns sine die or automatically

expires at noon on January 3 in any given year. Henry B.

Hogue, Cong. Research Serv., RS21308, Recess

Appointments: Frequently Asked Questions 1–2 & n.5

26

Another possible source of a durational limitation on

recess is the Pocket Veto Clause, which provides that a

bill passed by Congress becomes a law if the President

takes no action on it for ten days ―unless the Congress by

their adjournment prevent its return.‖ U.S. Const. art. I,

§ 7, cl. 2. The ten-day-duration requirement that might be

drawn from this fails for the same reason the three-day-

duration requirement fails in relation to the Adjournment

Clause. Namely, the context of the Pocket Veto Clause is

significantly different from the context of the Recess

Appointments Clause, which means there is no reason to

believe the former controls interpretation of the latter.

75

(2012). The expiration of these officers‘ terms at the end

of the next session implies that their appointments were

made during a period between sessions.

This implication follows from the reason for

making recess appointments expire at the end of the

―next Session.‖ As discussed, the Recess Appointment

Clause provides an ―auxiliary‖ method of appointing

officers. The Federalist No. 67 (Alexander Hamilton)

(explaining that the Clause is ―nothing more than a

supplement to the [Appointments Clause]‖ that

―establish[es] an auxiliary method of appointment, in

cases to which the general method is inadequate‖). The

durational provision maintains this by limiting recess

appointees‘ terms to last for only the time needed for the

president and the Senate to have the opportunity to

undergo the normal process. As Justice Joseph Story

explained, the Clause authorizes the president ―to make

temporary appointments during the recess, which should

expire, when the senate should have had an opportunity

to act on the subject.‖ 3 Joseph Story, Commentaries on

the Constitution of the United States § 1551 at 410

(1833) (emphasis added). Limiting the duration to a

single opportunity follows from the auxiliary nature of

the Clause. After all, the Senate‘s decision not to act on a

nomination effectively is a rejection of that nomination,

as evidenced by the Senate‘s routine return to the

president of nominations who have not been acted on.

Standing Rules of the Senate XXXI, para. 6

76

(―Nominations neither confirmed nor rejected during the

session at which they are made shall not be acted upon at

any succeeding session without being again made to the

Senate by the President.‖). In fact, a system in which

Senate silence would allow for the appointment of

officers was explicitly rejected at the drafting convention.

2 The Records of the Federal Convention of 1787 at 80–

83 (Max Farrand ed., 1911); see also Adam J. White,

Toward the Framers’ Understanding of “Advice and

Consent”: A Historical and Textual Inquiry, 29 Harv.

J.L. & Pub Pol‘y 103, 117–19 (2005) (explaining the

drafters‘ rejection of a system in which only the Senate

had the power to veto nominations); Matthew C.

Stephenson, Can the President Appoint Principal

Executive Officers without a Senate Confirmation Vote?,

122 Yale L.J. 940, 964–95 (2013). The Clause‘s function

is thus fulfilled once an opportunity for the Senate to act

has come and gone.

So if recess includes intrasession breaks, then we

would expect the recess-appointment term to last only

until the end of that session. This is because once the

Senate returned from its break there would be an

opportunity to undergo the normal process. Yet the

Constitution provides that the term would last until the

end of the next session. This suggests that the durational

provision contemplates a meaning of recess that means

intersession breaks only.

This is best seen in the process of recess

77

appointments that results under each definition of recess.

Under the intersession-only definition, the president

would make a recess appointment between sessions of

the Senate, which ensures the continued operation of the

government even though the Senate has not considered

the president‘s selection. Once the Senate begins its ―next

Session‖ by reconvening, the primary appointments

process becomes available and—because the Constitution

requires joint appointment authority—must be

undertaken by the Senate and the president. However, to

allow the operation of government to continue, the

Senate has until the end of this session to consider the

president‘s selection and confirm or deny it. And if the

body does not act or denies that appointment, then the

recess appointment ends because the constitutional

requirement of joint agreement has not been reached.

Through this process, the Appointments Clause retains its

primacy as the preferred constitutional method of

appointing officers, while the Recess Appointments

Clause retains its auxiliary role that allows the president

to fill positions when the ordinary process is unavailable.

Under an intrasession definition, the Clause would

no longer have an auxiliary role. The president would

make the recess appointment during a break within a

Senate session. But the Senate‘s reconvening and first

subsequent adjournment—whether that be for a long

intrasession break or for the intersession break—would

have no immediate effect on the recess appointment

78

because the appointment lasts until the ―next Session,‖ as

demarked by adjournments sine die. The appointment

would not expire until the Senate reconvened, adjourned

sine die, reconvened, and then adjourned sine die a

second time. Thus, the appointment would continue even

though the opportunity to undergo the ordinary, preferred

process had come and gone. This shows that when the

intrasession definition of recess is combined with the

durational provision, a fundamentally different

relationship between the clauses is created: the

intrasession definition makes the Recess Appointments

Clause an additional rather than auxiliary method of

appointing officers.

The durational provision thus indicates that the

most natural reading of the Clause defines recess to mean

intersession breaks only. Cf. Weinberger v. Hynson,

Westcott & Dunning, Inc., 412 U.S. 609, 631–32 (1973)

(―It is well established that our task in interpreting

separate provisions of a single Act is to give the Act the

most harmonious, comprehensive meaning possible in

light of the legislative policy and purpose.‖ (internal

quotation marks omitted)); Gustafson v. Alloyd, Inc., 513

U.S. 561, 575 (1995) (―[A] word is known by the

company it keeps. This rule we rely upon to avoid

ascribing to one word a meaning so broad that it is

inconsistent with its accompanying words‖). This is

supported by the fact that the original Senate Vacancies

Clause used a different durational provision: ―the next

79

Meeting.‖ U.S. Const. art. I, § 3, cl. 2, superseded by id.

Amend. XVII.27 The original language shows that the

durational provision in the Recess Appointments Clause

could have been phrased in a manner that would have

allowed the Senate and president only one opportunity to

undergo the ordinary process if recess instead included

intrasession breaks. By setting the duration to the ―next

Meeting,‖ it becomes irrelevant what type of break the

legislature took because once it convenes, the

appointment expires and the legislature must act.28 That

27

The Senate Vacancies Clause stated in full:

[I]f Vacancies [in the Senate] 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, superseded by id. Amend.

XVII.

28

Correspondingly, this could mean that the break before

that meeting—i.e., ―the Recess of the Legislature‖—did

not necessarily have to be an intersession break. If this is

the case, it is unlikely that recess was used in the same

manner in the Senate Vacancies Clause as it is in the

Recess Appointments Clause. Some words in the

Constitution have different meanings ―according to the

80

the Clause uses ―next Session‖ rather than ―next

Meeting‖ thus shows that recess contemplates a

particular type of break. And, in light of the competing

operations of the definitions, that type is the intersession

break.

The Board disagrees with this characterization. It

argues that the duration provision conforms with an

intrasession definition of recess because if recess

appointees‘ tenures did not extend until the end of the

next session, then the Senate would lack an opportunity

to consider a recess appointee when an intrasession break

coincides with the end of a session. NLRB Ltr. Br. at 12–

13. After all, if the appointment lasted until the end of the

Senate‘s session, and the intrasession break in which he

was appointed lasted until the end of that session, then

the appointee‘s term would expire at the end of that break

and the Senate would not have a chance to consider the

appointment. So, according to the Board, fixing the

duration to the next session might ensure that the Senate

has an opportunity to provide its advice and consent.

connection in which [they are] employed‖ and ―the

character of the function‖ in which the word is found.

Atlantic Cleaners & Dryers v. United States, 286 U.S.

427, 433–34 (1932). The different meanings of recess

would likely be necessary here to account for varying

state procedures that may or may not have had formal

sessions similar to the Senate.

81

This argument is unpersuasive for two reasons.

First, the problem arises only if one adopts an

intrasession definition of recess. If recess is limited to

intersession breaks, then there will never be any doubt

that the Senate will have its single chance to weigh in:

once it reconvenes for its next session. Avoiding this

problem is yet another reason to define recess to mean

intersession breaks. Cf. Am. Tobacco Co. v. Patterson,

456 U.S. 63, 71 (1982) (explaining that ―[s]tatutes should

be interpreted to avoid untenable distinctions and

unreasonable results whenever possible‖).

Second, we acknowledge that the durational

provision can be read consistently with an intrasession

definition. But the Board‘s point does not show that the

most natural reading of the Clause‘s duration provision

supports this definition. Instead, it tends to show the

opposite. We doubt that the phrase ―next Session‖ is

intended to address an unusual situation—one that the

drafters‘ of the Constitution were unlikely to

contemplate. An intrasession break has extended until the

end of one of the Senate‘s 296 completed sessions only

once, in 1992. (And even if we were to adopt the Board‘s

contention that pro forma sessions constitute a recess—

which we do not—then the number increases to three

times, in 2008 and 2011).29 In other words, if fixing the

29

The Official Congressional Directory records fourteen

sessions of Congress that have ended within a day of the

82

Constitution‘s automatic termination date. See

Congressional Directory for the 112th Congress 522–38

(2011). This directory was completed before the end of

the 2011 session of Congress, so the inclusion of the

session that ended on January 3, 2012, brings the total to

fifteen. A session automatically ended the first Monday

of December until the Twentieth Amendment changed it

to January 3 in 1933. U.S. Const. art. I, § 4, cl. 2; Amend.

XX. These are the only relevant terminations of Senate

sessions because if the Senate ends their session by

convening and then adjourning sine die, then the Senate

has a chance to consider nominations while they are

convened. For example, in 2003, the Senate had an

intrasession break that lasted from November 25 until

December 9. 149 Cong. Rec. 31985 (Nov. 25, 2003)

(statement of Sen. McConnell). On December 9, they

convened and adjourned sine die. 149 Cong. Rec. 32404

(Dec. 9, 2003) (statement of Sen. Frist). The Board points

to this as one example of a session ending before the

Senate has the chance to consider a president‘s recess

appointments. NLRB Ltr. Br. at 12–13. But, even though

the recess ended on the same day the session did, when

the Senate convened to adjourn sine die they conducted

quite a bit of business—including the confirmation of

fifty-two people as officers of the United States. 149

Cong. Rec. at 32404–05.

Only in one instance has an intrasession break ended at

the same time that a Senate session has. See 137 Cong.

83

Rec. 36362–64 (Nov. 27, 1991 through Jan. 3, 1992)

(recording the Senate‘s November 27, 1991 adjournment

until January 3, 1992). Even there, however, the Senate

still convened before the session ended and had the

opportunity to conduct business if it had wanted to. For

example, it received messages from the president

regarding nominations, though it did not confirm anyone

before adjourning sine die. See 137 Cong. Rec. at 36364.

Two were preceded by a series of pro forma Senate

sessions. See 157 Cong. Rec. S8783–84 (daily ed. Dec,

17, 2011) (recording the unanimous consent agreement to

a schedule of pro forma session); 154 Cong. Rec. 24802–

08 (Dec. 12, 2008; Dec. 12, 2008; Dec. 16, 2008; Dec.

19, 2008; Dec. 23, 2008; Dec. 26, 2008; Dec. 30, 2008;

Jan. 2, 2009) (holding a series of pro forma sessions from

Dec. 13, 2008 through Jan. 2, 2009).

Eleven were preceded by the Senate conducting business.

See 158 Cong. Rec. S8637–68 (daily ed. Jan. 2, 2013)

(confirming presidential nominees and completing

business from days immediately prior before adjourning

pursuant to the Constitution); 141 Cong. Rec. 38549–

38608 (Dec. 29, 1995; Dec. 30, 1995; Jan. 2, 1996; Jan.

3, 1996); 116 Cong. Rec. 43999–44129, 44346–44597

(Dec. 30, 1970; Dec. 31, 1970; Jan. 2, 1971) (adjourning

sine die one day before the constitutional deadline of

January 3 after completing business); 96 Cong. Rec.

17022–17121 (Jan. 2, 1951) (same); 87 Cong. Rec.

84

duration until the Senate‘s next session (rather than the

end of that session) is meant only to ensure the Senate

has a chance to provide its advice and consent without

regard to its effect on the broader framework, then the

duration provision‘s purpose has only become important

10138–10143 (Dec. 26, 1941; Dec. 30, 1941; Jan. 2,

1942) (same); 86 Cong. Rec. 13997–14000, 14003–07,

14011–46, 14058–59 (Dec. 26, 1940; Dec. 30, 1940; Jan.

2, 1941; Jan. 3, 1941) (conducting business several days

before the session terminated by function of the

Constitution on January 3, 1941); 63 Cong. Rec. 440–48,

450–52 (Dec. 2, 1922; Dec. 4, 1922) (conducting

business on the first Monday of December, and the days

preceding it, before adjourning sine die as required by the

Constitution); 50 Cong. Rec. 6030–37, 6041–44, 6050–

53 (Nov. 26, 1913; Nov. 29, 1913; Dec. 1, 1913) (same);

37 Cong. Rec. 520–25; 529–31; 542–44 (Dec. 4, 1903;

Dec. 5, 1903; Dec. 7, 1903) (same); 6 Cong. Rec. 764–

98, 799–805, 816–17 (Nov. 30, 1877; Dec. 1, 1877; Dec.

3, 1877) (same); 38 Cong. Globe, 40th Cong., 1st Sess.

793–95, 802, 810–11, 816–17 (Nov. 26, 1867; Nov. 27,

1867; Nov. 29, 1867; Dec. 2, 1867) (same).

And one of these terminations of Congress‘s session was

due to continued business by the House, even though the

Senate had adjourned sine die earlier. See 125 Cong. Rec.

37605–06 (Dec. 20, 1979) (recording the Senate‘s sine

die adjournment on December 20, 1979).

85

one time. And even during this recent instance, the

Senate convened before their constitutionally imposed

deadline and could have considered nominations if they

had chosen to do so. See 137 Cong. Rec. 36364 (Jan. 3,

1992). The complete absence of the problem described

by the Board in the last 225 years suggests that the

Constitution most likely was not written with such a

problem in mind. Cf. Marozsan v. United States, 852

F.2d 1469, 1498 (7th Cir. 1988) (en banc) (Easterbrook,

J., dissenting) (―The terror of extreme hypotheticals

produces much bad law.‖). This implies that the

durational provision was most likely written simply to

reinforce the auxiliary nature of the Recess Appointment

Clause by limiting recess appointees‘ terms to last only

as long as necessary to afford the Senate one opportunity

to undergo the ordinary process.

The Constitution thus shows that the more limited

definition of recess—that is necessitated by the purpose

of the Recess Appointments Clause and the adjournment-

recess dichotomy—includes only intersession breaks.

Nothing within the broader context of the Constitution

supports the Board‘s definition. As for the intersession-

plus-long-intrasession definition, although it could

conform with the relationship between the Clauses, there

is no constitutional basis for defining ―long‖ and the

definition is unsupported by the other relevant

86

constitutional provisions.30 The relationship between the

30

The dissent argues that our interpretation of recess

reads the modifier ―intersession‖ into the Constitution,

contrary to the Supreme Court‘s admonition to avoid

doing so. Dissenting Op. at 12–14. This misunderstands

our reasoning. As we have shown, the ordinary meaning

of recess could support any of the definitions asserted,

including the intersession definition. Through analysis of

historical usage, application of the Recess Appointment

Clause‘s purpose, and analysis of the relevant

constitutional context, we hold that of the ordinary

meanings, the Constitution uses the intersession

definition of recess. In short, we do not read

―intersession‖ into the Constitution because—as the word

is used in the document—―recess‖ means only

intersession breaks.

This method is also seen in the dissent‘s reasoning,

which defines recess to mean when the Senate is

unavailable to provide its advice and consent. Id. at 2. Per

the dissent‘s logic, Judge Greenaway‘s definition would

read the Clause to be ―the Recess of the Senate [in which

it cannot provide its advice and consent].‖ This is best

illustrated by the dissent‘s acknowledgement that the

Senate recesses when it goes to lunch but that these

recesses do not fall within ―Recess‖ as it is meant in the

Constitution. Id. at 8–10. Adding ―in which it cannot

provide its advice and consent‖ to the Clause is not what

we understand the dissent to do. Instead, our colleague

87

Appointments Clauses, the duration of recess

appointments, and the Constitution‘s use of adjournment

elsewhere all show that ―the Recess of the Senate‖

includes only breaks between sessions of the Senate.

C. Historical Practice

Our conclusion is supported by early historical

practice. From ratification until 1921, there was a rough

consensus that recess appointments could be made only

during intersession breaks. See Rappaport, supra,

at 1572–73. Before 1867, no president made a recess

appointment during an intrasession break of the Senate.

Id.; Hartnett, supra, at 408–10. In 1867 and 1868,

President Andrew Johnson made several recess

appointments during intrasession breaks of the Senate.

Hartnett, supra, at 408–10. His use of the appointments

powers, however, was a cause of significant turmoil at

the time and it served a not insignificant role in his

eventual impeachment. Id. at 409; Rappaport, supra,

at 1572. Accordingly, it is unclear whether President

Johnson‘s actions were based on a consensus view of the

Constitution. There is evidence that it was not. U.S.

argues that recess itself means moments in which the

Senate cannot provide advice and consent. While we

disagree with this conclusion, both the majority opinion

and the dissent are engaged in the same task—defining

the word ―recess.‖

88

Attorney General Philander Knox—the first attorney

general to directly address the meaning of recess—

advised President Theodore Roosevelt that he could not

make a recess appointment during intrasession breaks. 23

U.S. Op. Att‘y Gen. 599, 604 (1901). For over one-

hundred years following ratification, recess was generally

understood to mean intersession breaks only.

To be sure, this practice arose when intrasession

breaks were generally no longer than two weeks.

Rappaport, supra, at 1572; Hartnett, supra, at 410. But

that is no reason to discount the practice. As modern

practice has shown, it is sometimes in the interest of

presidents to make recess appointments during breaks as

short as two weeks. See, e.g., Evans, 387 F.3d at 1221

(describing President George W. Bush‘s recess

appointment of Judge William Pryor to the Eleventh

Circuit during an eleven-day intrasession break). That

presidents did not assert this power for over 100 years—

despite this interest—suggests that they do not, in fact,

have this power. Cf. Printz v. United States, 521 U.S.

898, 907–08 (1997) (explaining that an absence of

examples of Congress ―impress[ing] the state executive

into its service . . . suggests an assumed absence of such

power‖ (emphasis in original)); see also Noel Canning,

705 F.3d at 502.

Executive practice changed in 1921 when

President Warren Harding made an intrasession recess

appointment. Michael A. Carrier, Note, When is the

89

Senate in Recess for Purposes of the Recess

Appointments Clause?, 92 Mich. L. Rev. 2204, 2235

(1994). As explained above, this act was supported by

U.S. Attorney General Daugherty, who reversed the

opinion offered by Attorney General Knox a mere twenty

years earlier. 33 U.S. Op. Att‘y Gen. at 21–22. Attorney

General Daugherty explained that ―whether the Senate

has adjourned or recessed . . . is whether in a practical

sense the Senate is in session so that its advice and

consent can be obtained.‖ Id. This conclusion was based

on a Senate Judiciary Committee report, which argued

that practical considerations should prevent a president

from using his recess-appointment power during

intersession breaks that last mere seconds. Id. at 24. From

this report, he drew the practical considerations that the

Board urges us to adopt today, explaining that the Senate

is not in session when its members have no duty to

attend, the chamber is empty, and the Senate cannot

receive communications. Id.

Importantly, Attorney General Daugherty

explicitly rejected the ―all recesses‖ implication of this

test. He recognized that the practical considerations

identified could allow presidents to use their power for

―an adjournment for only 2 instead of 28 days‖ but

rejected the idea that 2 days were sufficient to constitute

a recess within the meaning of the Constitution. Id.

at 24–25 (answering ―unhesitatingly‖ that two days did

not amount to a recess). He explained that not ―even 10

90

days can be said to constitute the recess intended by the

Constitution.‖ Id. at 25. As discussed above, though, this

suggestion of ten days is not linked to any text in the

Constitution.

Since issuance of Attorney General Daugherty‘s

opinion, the executive has claimed the authority to recess

appoint officers during intrasession breaks. Before World

War II, however, the power was used only one other

time. Carrier, supra, at 2211–12. After World War II,

intrasession appointments remained relatively rare for

some time: President Harry Truman made twenty,

President Dwight Eisenhower made nine, President

Richard Nixon made eight, and President Jimmy Carter

made seventeen; but Presidents John Kennedy, Lyndon

Johnson, and Gerald Ford made none. Id. at 2212–13.

The practice grew dramatically under President Ronald

Reagan, who made 73 intrasession appointments, and it

has seen significant use ever since: President George

H.W. Bush made 37, President Bill Clinton made 53, and

President George W. Bush made 141; President Barack

Obama made 26 as of January 5, 2012. Id. at 2214–15;

Henry B. Hogue et al., Cong. Research Serv., The Noel

Canning Decision and Recess Appointments Made from

1981–2013 *4 (2013). Thus, it has been only over the last

thirty years that presidents began relying so heavily on

such recess appointments.

Notably, this relatively recent practice supports

only an intrasession definition that is associated with a

91

long duration. It does not support the Board‘s

functionalist definition. The executive has maintained

from 1921 until 2012, at least in practice, that a certain

number of days must pass before an intrasession

appointment could be made. See Carpenter et al., supra,

at 15 (―The length of the recess may be of great

importance, as it appears that no President, at least in the

modern era, has made an intrasession recess appointment

during a recess of less than 10 days.‖); see also 36 Op.

O.L.C. *1 (Jan. 6, 2012) (―This Office has consistently

advised that a recess during a session of the Senate, at

least if it is sufficient length, can be a ‗Recess.‘‖

(citation and internal quotation marks omitted)). The

Board now seeks to abandon this limitation, which is

completely unsupported by modern practice.

More important, however, recent practices cannot

alter the structural framework of the Constitution. The

Eleventh Circuit relied on a presumption that actions by

the president are constitutional. Evans, 387 F.3d

at 1222.31 We doubt that the presumption applies in

31

The Eleventh Circuit also implicitly derives this

presumption from the framework explained by Justice

Jackson in Youngstown Sheet & Tube Company v.

Sawyer, 343 U.S. 579 (1952). See Evans, 387 F.3d

at 1222. Evans does not discuss Youngstown, but it cites

United States v. Allocco, 305 F.2d 704, 713 (2d Cir.

1962), as support for the presumption. Evans, 387 F.3d

92

separation-of-powers cases. In Clinton v. New York City,

524 U.S. 417 (1998), for example, the Supreme Court

analyzed the constitutionality of the line-item veto

without ever expressing the need to defer to the other

at 1222. Allocco, in turn, relies on Youngstown to defer to

executive practice regarding the meaning of ―happens‖ in

the Recess Appointments Clause. 305 F.2d at 713–14.

Specifically, Allocco relied on Youngstown by using it as

support for its interpretation of ―happen‖ since the

Second Circuit believed its interpretation as ―‗a

systematic, unbroken, executive practice, long pursued to

the knowledge of the Congress and never before

questioned,‘‖ which ―‗may be treated as a gloss on

‗Executive Power‘ vested in the President by § 1 of Art.

II.‘‖ Id. (quoting Youngstown, 343 U.S. at 610–11).

While we are unsure whether the executive practice

before the Allocco Court regarding the meaning of

―happen‖ is actually ―systematic‖ and ―unbroken,‖ we

are sure that the executive practice regarding the meaning

of ―the Recess of the Senate‖ is not. As discussed, the

modern executive practice is contrary to executive

practice before 1921 and has only become commonly

used in the past thirty years. Furthermore, Congress has

questioned presidents‘ practices by, for example, holding

pro forma sessions in an effort to stop it. We consider the

Eleventh Circuit‘s reliance on Allocco as support for a

presumption of constitutionality in separation-of-power

cases unpersuasive.

93

branches‘ constitutional judgments. And in Morrison v.

Olson, 487 U.S. 654 (1988), Justice Scalia noted in his

dissent that one could ―not find anywhere in the Court‘s

opinion the usual, almost formulary caution that we owe

great deference to Congress‘ view that what it has done is

constitutional.‖ Id. at 704–05 (Scalia, J., dissenting). The

absence of deference is also found in the Supreme

Court‘s most recent separation-of-powers case, Free

Enterprise Fund v. Public Company Accounting

Oversight Board, 130 S. Ct. 3138 (2010). There, the

Court pointedly explained that ―the separation of powers

does not depend on the views of individual Presidents,

nor on whether ‗the encroached-upon branch approves

the encroachment.‘‖ Id. at 3155 (quoting New York v.

United States, 505 U.S. 144, 182 (1992)). This is because

―[t]he Constitution‘s division of power among the three

branches is violated where one branch invades the

territory of another, whether or not the encroached-upon

branch approves the encroachment.‖ New York, 505 U.S.

at 182.

The lack of deference to executive and legislative

judgments on these issues follows from the fact that

―separation-of-powers jurisprudence generally focuses on

the danger of one branch‘s aggrandizing its power at the

expense of another branch.‖ Freytag, 501 U.S. at 878.

Giving deference to either branch is inconsistent with this

concern because a presumption could prevent us from

stopping one branch from ―aggrandizing its power at the

94

expense of another branch,‖ or ensuring that ―the

carefully defined limits on the power of each Branch‖ are

not eroded, Chadha, 462 U.S. at 957–58. Our role as the

―ultimate interpreter of the Constitution‖ requires that we

ensure its structural safeguards are preserved. Baker, 369

U.S. at 211. It is a role that cannot be shared with the

other branches anymore than the president can share his

veto power or Congress can share its power to override

vetoes. See United States v. Nixon, 418 U.S. 683, 704–05

(1974). This ―requires that [we] on occasion interpret the

Constitution in a manner at variance with the

construction given the document by another branch.‖

Powell v. McCormack, 395 U.S. 486, 549 (1969).

The Supreme Court has stated as much in respect

to the appointments provisions of the Constitution. In

Freytag, the Supreme Court explained that the

Appointments Clause represents an independent restraint

on both branches—one that does not exclusively serve

either branch‘s interests. 501 U.S. at 880. This is equally

true for the Recess Appointments Clause: just as ―[t]he

structural interests protected by the Appointments Clause

are not those of any one branch of Government but of the

entire Republic,‖ id., the structural protections of the

Recess Appointments Clause belong to no single branch.

Accordingly, ―[t]he assent of the Executive to a bill

which contains a provision contrary to the Constitution

does not shield it from judicial review.‖ Id. (quoting

Chadha, 462 U.S. at 942 n.13). This applies equally to

95

the legislature‘s assent to executive practice. Any

acquiescence between the branches remains subject to the

constraints imposed by the Constitution. There is ―no

statute of limitations for interpreting and enforcing the

Constitution.‖ Evans, 387 F.3d at 1237 (Barkett, J.,

dissenting).

Furthermore, our analysis of recent practice is

―sharpened rather than blunted by the fact that [the

practice in question is] appearing with increasing

frequency.‖ Chadha, 462 U.S. at 944. Our analysis has

shown that defining recess to mean intersession plus long

intrasession breaks is incompatible with the Constitution.

Although this definition is consistent with one possible

meaning of ―recess‖ in isolation, it is unsupported by the

rest of the Constitution. The Constitution provides no

measure of a ―long‖ duration and limits the duration of

recess appointees‘ terms in a manner that indicates an

intersession-only definition. This means that the current

practice is contrary to the structural framework set out in

the Constitution and must be held unconstitutional.

D. Additional Considerations

Our conclusion that recess includes only

intersession breaks is supported by the Supreme Court‘s

direction that ―the doctrine of separation of powers is a

structural safeguard‖ which has as one of ―its major

feature[s]‖ the ―establish[ment] [of] high walls and clear

distinctions because low walls and vague distinctions will

96

not be judicially defensible in the heat of interbranch

conflict.‖ Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,

239 (1995) (emphasis in original). This bolsters our

rejection of the Board‘s definition because the

unavailable-for-business criteria are almost by definition

a ―low wall‖ that contain ―vague distinctions‖ which will

make them difficult for the Senate and the president to

predictably apply. The vagueness of the Board‘s

definition is perhaps best captured by its argument that

the Senate is not available for business during pro forma

sessions even though there are documented examples of

the Senate conducting business during such sessions. Its

definition thus falls far short of containing the ―major

feature‖ of separation-of-powers structural safeguards.

This is also true for the intrasession definition that

limits recess to long breaks. This definition is not

―judicially defensible‖ because whatever duration is

selected as long would be based on something other than

the Constitution. See Maryland v. Shatzer, 559 U.S. 98,

__, 130 S. Ct. 1213, 1228 (2010) (Thomas, J., concurring

in part, dissenting in part) (explaining that ―an otherwise

arbitrary rule is not justifiable merely because it gives

clear instruction‖). Furthermore, although an arbitrary

number of days at first seems to erect a high wall and

clear distinction, further review reveals that it is also

fraught with ambiguity. For example, if we were to hold

that an intrasession break of over ten days constitutes a

recess, it is unclear at which point the adjournment

97

evolves into a recess. Assume the Senate initially agrees

to adjourn for twelve days but provides the majority

leader the power to recall the body earlier, as it often

does. See, e.g., H. Con. Res. 307, 111th Cong. (2010)

(providing the House of Representative‘s concurrence

with the Senate that the latter would take a month-long

recess starting in August 2010 that ended on September

13, 2010 unless ―[t]he Majority Leader of the Senate . . . ,

after consultation with the Minority Leader of the Senate,

shall notify the Members of the Senate to reassemble at

such place and time as he may designate if, in his

opinion, the public interest shall warrant it‖). Does this

adjournment become a recess at the moment the Senate

votes for the adjournment or must ten days first elapse?

If the former, then assume the majority leader reconvenes

the body after eight days of the adjournment. At this

point, would a recess appointment made on the first day

of the adjournment become invalid because it was not

made during ―the Recess‖ of the Senate? The

Constitution provides no clear answer to these difficult

questions. The long-intrasession break definition thus

lacks the clear distinctions required by the Supreme

Court, which means that the intersession definition is the

only one that provides high walls and clear distinctions

rooted in the text of the constitution.

The Board nevertheless argues that the rule we

adopt today creates too powerful an opportunity for

98

mischief by the Senate.32 The intersession definition

32

The dissent makes a form of this argument as well,

arguing that the intersession-break definition of recess is

―unworkable,‖ ―not judicially manageable,‖

impracticable, and leads to absurd results. Dissenting Op.

at 52–54. We disagree that the definition is unworkable,

unmanageable, or impracticable; whether a break is

intersession or not is a simple matter of reviewing how

the Senate has adjourned. We also disagree that the result

of a president‘s recess appointment being valid one day

and not the next is absurd, id. at 53–54, because this is a

necessary result of defining recess. The dissent‘s own

definition, for example, would have this effect: a

presidential recess appointment presumably would be

valid on January 22, 2012, because the Senate did not

convene at all on that day, see 158 Cong. Rec. S11 (Jan.

20, 2012) (adjourning until Monday, January 23, 2012);

but be invalid if made on January 23, 2012, because the

Senate became available by convening for a non–pro

forma session, 158 Cong. Rec. S13 (daily ed. Jan. 23,

2012). Absurdity is also not clearly shown from the

intersession-break definition‘s allowance of recess

appointments during intersession recesses that last very

short periods. Id. at 54. It is a result that has been rejected

only by one 110-year-old Senate Committee Report—no

president, court, or scholar has rejected the possibility.

Cf. Hartnett, supra, at 406 (―All agree that recesses

99

allows the Senate to prevent the president from

exercising his recess-appointment powers by

manipulating the timing and the types of its

adjournments. See NLRB Ltr. Br. at 10–11. This is true.

But the opportunity for abuse is present under any

possible definition of recess. Under the Board‘s

definition, the Senate might avoid being in recess by

stopping the practice of agreeing by unanimous consent

that no business will be done during pro forma sessions;

or it might alter its procedures to allow messages to be

received during such sessions, thus making itself

available for business under the Board‘s definition, see

Resp. Br. at 44. And under the other intrasession

definition, the Senate could very well adopt scheduling

orders that prevent a break from lasting longer than

whatever duration courts selected—as, in fact, pro forma

sessions are designed to do. Yet the potential for abuse is

not limited to the Senate, as presidents may also abuse

any definition given to recess. Under the intersession

definition, as a final example, presidents still could recess

appoint (and indeed have so appointed33) officers during

between sessions . . . give rise to the President‘s recess

appointment power.‖).

33

Hartnett, supra, at 416 & nn.176–77 (describing

President Theodore Roosevelt‘s recess appointment of

160 officers during an intersession break that lasted mere

seconds).

100

intersession breaks that last negligible periods of time—

the lack of a constitutional basis for selecting a long

duration in defining intrasession breaks is just as absent

to define intersession breaks.

All this is to say that the potential for abuse and

subsequent gridlock lies not in what recess means but in

the Constitution‘s framework of divided powers. A

division of powers demonstrates that ―[c]onvenience and

efficiency are not the primary objectives—or the

hallmarks—of democratic government.‖ Chadha, 462

U.S. at 944. We, as federal judges, are not empowered to

regulate, recommend, or comment on how the two other

branches of the federal government should use the

powers the Constitution allocates between them—not

because we can-but-chose-not-to, but because we lack

the factual record, institutional tools, and constitutional

authority to evaluate which branch is more or less likely

to abuse the powers given to them. We can, however, and

indeed we must, decide what powers each branch has and

when they may use them because ―[i]t is emphatically the

province and duty of the judicial department to say what

the law is.‖ Marbury v. Madison, 5 U.S. (1 Cranch) 137,

177 (1803). That is all we do today.

VI

Member Becker was invalidly recess appointed to

the Board during the March 2010 intrasession break. This

means that the delegee group had fewer than three

101

members when it issued the August 26 Order.

Consequently, the delegee group acted without power

and lacked jurisdiction when it issued the order. Our

holding makes it unnecessary to interpret the word

―happen‖ in the Recess Appointments Clause. Accord

Noel Canning, 705 F.3d at 515 (Griffith, J.,

concurring).34 Furthermore, we need not address whether

the Board‘s substantive decision was correct or whether

the delegee groups that decided the subsequent

reconsideration orders were properly composed. Dir.,

Office of Workers’ Compensation Programs v. Sun Ship,

Inc., 150 F.3d 288, 291 (3d Cir. 1998). Review of the

reconsideration orders is also unnecessary because they

were based on consideration of an invalid order. We will

therefore vacate the Board‘s orders.

34

Accordingly, we do not have to address the conflict

between the Second, Ninth, and Eleventh Circuits and the

D.C. Circuit over the definition of ―happen.‖ Compare

United States v. Allocco, 305 F.2d 704, 709–12 (2d Cir.

1962) (defining ―happen‖ to mean ―to exist‖; United

States v. Woodley, 751 F.2d 1008, 1009–13 (9th Cir.

1985) (same); Evans, 387 F.3d at 1226–27, with Noel

Canning, 705 F.3d at 507–14 (defining ―happen‖ to mean

―to occur‖).

102

GREENAWAY, JR., Circuit Judge, dissenting.

The tension between the branches of our government

reflects the brilliance and prescience of our Founding Fathers

and is the foundation of our nation‟s democracy. Who may

exercise power, and under what circumstances, is often

dependent on our branches‟ interpretation of the wording and

meaning of the Constitution. In this matter, the Recess

Appointments Clause of Article II is at issue. My colleagues

in the Majority have determined that the recess appointment

of Member Craig Becker on March 27, 2010 is invalid and,

for the same reasons, would presumably find that the recess

appointments of Members Sharon Block, Terence Flynn, and

Robert Griffin on January 4, 2012 are likewise invalid. The

Majority‟s rationale undoes an appointments process that has

successfully operated within our separation of powers regime

for over 220 years.

In defining the scope of the Recess Appointments

Clause, the critical issue is more straightforward than the

Majority suggests: The issue is whether “the Recess” includes

only intersession recesses (those between two regular sessions

of Congress) or intersession recesses and intrasession recesses

(those within a regular session of Congress).1 The Majority‟s

three possible definitions of “Recess” can be distilled into one

question: Are intrasession recesses included within the ambit

of “the Recess”? I would hold that “the Recess” refers to

both intrasession and intersession recesses because the Senate

1

No party argues that “the Recess” should be limited only to

intrasession recesses, and neither do I.

1

can be unavailable to provide advice and consent during both.

The availability of the Senate to provide advice and consent is

the crux of the Recess Appointments Clause because its

operation depends on its complementary interplay with the

Appointments Clause, which requires that the Senate be

available to provide advice and consent.

The plain meaning and structure of the text of the

Constitution, the intent of the Framers, the purpose of the

Recess Appointments Clause, and the tradition and practice of

the branches of our government all demand this result. Any

interpretation of the Recess Appointments Clause is

incomplete without consideration of the executive power and

the system of separation of powers devised by the Framers,

and such consideration leads to the pragmatic conclusion that

the President must be able to make recess appointments

during intrasession recesses. Since the March 27, 2010 recess

appointment of Member Becker and the January 4, 2012

recess appointments of Members Block, Flynn, and Griffin

were all made during intrasession recesses, I would hold that

each appointment was a valid exercise of the executive power

granted to the President in the Recess Appointments Clause

of Article II of the Constitution.2 I respectfully dissent.3

2

Given the procedural posture on appeal and the Majority‟s

holding, resolving the merits of whether New Vista‟s

Licensed Practical Nurses (LPNs) are supervisors is

unnecessary at this time.

3

I also disagree with the Majority‟s conclusion that the group

quorum requirement (what I believe the Majority refers to as

the “three-member-composition” requirement) is

jurisdictional. In New Process Steel, L.P. v. NLRB, 130 S. Ct.

2

I. “THE RECESS”

A. The Text of the Constitution

Our examination of the Recess Appointments Clause is

dependent on the interpretation of two words: “the Recess”.

This examination then begs two inquiries: 1) the meaning of

“Recess” within the Recess Appointments Clause and 2) the

significance of “the”, a definite article, as a modifier.

Recesses fall into two general categories, intersession and

intrasession, and so unraveling the meaning of “Recess”

begins and ends with resolving the intersession-intrasession

dynamic. The Majority posits that this dichotomy

contemplates that intersession breaks and intrasession breaks

are both recesses by the Senate that have contrasting effects

on the President‟s ability to make recess appointments. I

disagree.

As a starting point in defining a “recess”, it is helpful

to define a “session” since the two terms are related. There

are various types of sessions, including the “daily sessions” of

Congress, during which it conducts its day-to-day business, as

well as its “regular sessions”, which are the periods during

which Congress conducts its business on a regular basis. In

addition to these sessions, there are also “extraordinary

sessions” of Congress that can be called by the President

under Article II.4 U.S. Const. art. II, § 3. And, since the

2635 (2010), the Supreme Court does not use the word

“jurisdictional”, or any variant thereof, and did not

characterize the § 153(b) requirement as jurisdictional.

4

The Majority‟s definition of an intersession recess also

includes recesses preceding and following extraordinary and

3

House and Senate are not required to match schedules, the

session or recess of one body may be different than that of the

other.

Based on the definition of a regular session, recesses

can be divided into the two mentioned categories of breaks,

intersession recesses and intrasession recesses. Intersession

recesses are those breaks of the Senate that occur between

two regular sessions of the Senate; they are generally initiated

by an adjournment sine die. See Henry B. Hogue, Cong.

Research Serv., Recess Appointments: Frequently Asked

Questions 1-2 (Jan. 9, 2012). Intrasession recesses are breaks

that occur during a regular session of the Senate. It had been

suggested that Congress cannot be in a recess and in a regular

session concurrently, but the Supreme Court has rejected this

conclusion. Wright v. United States, 302 U.S. 583, 589

(1938) (“Plainly the taking of such a recess [by one house] is

not an adjournment by the Congress. The „Session of

Congress‟ continues.”); see also Evans v. Stephens, 387 F.3d

1220, 1225 (11th Cir. 2004) (en banc). From this, it is

possible for one house to recess while the session of the

Congress, as a joint body, continues.5

special sessions of Congress, but such a holding is beyond the

facts of our case. See Edward A. Hartnett, Recess

Appointments of Article III Judges: Three Constitutional

Questions, 26 Cardozo L. Rev. 377, 408 n.136, 414-15

(2005).

5

For one, the regular session of the Senate does not end when

it takes an intrasession recess. See generally Congressional

Directory for the 112th Congress (2011) (showing that the

dates of intrasession recesses occur within the dates spanning

4

To begin our textual analysis, the Recess

Appointments Clause must be read in conjunction with the

Appointments Clause. While the Majority also reads these

two clauses together, it takes a shortsighted view of their

interrelation. The Majority contends that the Appointments

Clause gives the President a “perpetual” power to seek the

advice and consent of the Senate. (Majority Op. at 58-59.)

The Majority also contends that the Appointments Clause

suggests a preference for “divided power” in the

appointments process. I could not agree more with the

Majority that every facet of the appointments process must

reinforce the separation of powers, but the Majority‟s view is

too narrow. While the Recess Appointments Clause gives the

President sole authority to make appointments during the

“Recess” of the Senate, the Recess Appointments Clause

maintains the separation of powers within the larger

framework of the appointments process. In The Federalist

No. 67, which the Majority relies upon for this point,

Alexander Hamilton emphasized that the recess appointment

power was only a supplement to the advice and consent

power of the Senate. The Federalist No. 67, at 409

(Alexander Hamilton) (Clinton Rossiter ed., 1961). The

Majority misinterprets Hamilton‟s point. The supplemental

nature of the Recess Appointments Clause helps to maintain

the separation of powers by preventing the President from

holding the entire power to appoint in his hands.

the convening date and adjournment date of regular sessions

of the Senate). For another, the House and the Senate, as one

Congress, generally share the same regular session and the

recess of one body, such as the Senate, does not interrupt the

regular session of the House and Congress as a whole.

5

The Appointments Clause provides that a nominee

may only be presented by the President but, on the other

hand, may only be confirmed to office with the advice and

consent of the Senate. The Recess Appointments Clause

thereafter provides an alternate means of confirming

nominees when the Appointments Clause cannot be

implemented, namely when the Senate cannot provide advice

and consent to the President. After all, the Appointments

Clause and Recess Appointments Clause cannot both operate

simultaneously — one means of appointment must be used or

the other. Thus, it can be adduced that the meaning of “the

Recess” is the converse of when the Senate can provide

advice and consent to the Senate: The Senate is in “the

Recess” when it is not available to provide advice and

consent. See Noel Canning v. NLRB, 705 F.3d 490, 505

(D.C. Cir. 2013) (observing that there is “a crucial element of

the [Recess Appointments] Clause, which enables the

President to fill vacancies only when the Senate is unable to

provide advice and consent” (emphasis in original)). Since

the Senate can be unavailable to provide advice and consent

during either an intrasession recess or an intersession recess,

“the Recess” naturally encompasses both types of recesses.

To provide advice and consent, the Senate must be able to

offer a confirmation vote on nominees, be it up or down.6

6

This segues to an inherent weakness in restricting “the

Recess” to intersession recesses. The House was largely

responsible for the pro forma sessions because it refused to let

the Senate take a longer recess due to the Adjournments

Clause‟s requirement that the House and Senate have the

other body‟s consent to “adjourn for more than three days.”

U.S. Const. art. I, § 5, cl. 4; Office of Legal Counsel,

6

Lawfulness of Recess Appointments During a Recess of the

Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op.

O.L.C. 1, 2-3 (2012). Without doubt, the Framers did not

intend for the House to single-handedly stall the appointments

process. The plain and uncontestable text of the

Appointments Clause makes it clear that only the President

and the Senate are to consult on appointments. Nowhere in

the Appointments Clause is the House mentioned. If

“Recess” were limited to intersession recesses, because that is

the only time when the Senate is not in a regular session, and

the Senate is always available to provide advice and consent

when in a regular session, then the House would be allowed

to inject its whims into the appointments process by limiting

even the duration of the intersession recess. This is because

an adjournment of more than three days requires the

imprimatur of the House under the Adjournments Clause.

After all, the purpose of the Adjournments Clause is to make

sure that one house of Congress cannot abandon the other in

the legislative process, and the House cannot legislate with

the Senate if it is not in session. See Edward A. Hartnett,

Recess Appointments of Article III Judges: Three

Constitutional Questions, 26 Cardozo L. Rev. 377, 379

(2005). If the Recess Appointments Clause was only

triggered when the Senate ended a regular session, then a

recess appointment made during an intersession recess of at

least three days would effectively be subject to the approval

of the House. The House could simply deny the Senate leave

to adjourn in order to thwart the President‟s ability to make

recess appointments. In at least the last thirty years, the

President has never made a recess appointment, of either the

intersession or intrasession variety, during a recess of less

than ten days. See Henry B. Hogue, Cong. Research Serv.,

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