Nat'l Labor Relations Bd. v. Canning,
573 U.S. ___ (2014)

Annotate this Case



No. 12–1281



on writ of certiorari to the united states court of appeals for the district of columbia circuit

[June 26, 2014]

     Justice Scalia, with whom The Chief Justice, Justice Thomas, and Justice Alito join, concurring in the judgment.

     Except where the Constitution or a valid federal law provides otherwise, all “Officers of the United States” must be appointed by the President “by and with the Advice and Consent of the Senate.” U. S. Const., Art. II, §2, cl. 2. That general rule is subject to an exception: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Id., §2, cl. 3. This case requires us to decide whether the Recess Appointments Clause authorized three appointments made by President Obama to the National Labor Relations Board in January 2012 without the Senate’s consent.

     To prevent the President’s recess-appointment power from nullifying the Senate’s role in the appointment process, the Constitution cabins that power in two significant ways. First, it may be exercised only in “the Recess of the Senate,” that is, the intermission between two formal legislative sessions. Second, it may be used to fill only those vacancies that “happen during the Recess,” that is, offices that become vacant during that intermission. Both conditions are clear from the Constitution’s text and structure, and both were well understood at the founding. The Court of Appeals correctly held that the appointments here at issue are invalid because they did not meet either condition.

     Today’s Court agrees that the appointments were in-valid, but for the far narrower reason that they were made during a 3-day break in the Senate’s session. On its way to that result, the majority sweeps away the key textual limitations on the recess-appointment power. It holds, first, that the President can make appointments without the Senate’s participation even during short breaks in the middle of the Senate’s session, and second, that those appointments can fill offices that became vacant long before the break in which they were filled. The majority justifies those atextual results on an adverse-possession theory of executive authority: Presidents have long claimed the powers in question, and the Senate has not disputed those claims with sufficient vigor, so the Court should not “upset the compromises and working arrangements that the elected branches of Government themselves have reached.” Ante, at 9.

     The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates. To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority’s insistence on deferring to the Executive’s untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court’s role in controversies involving the separation of powers and the structure of government. I concur in the judgment only.

I. Our Responsibility

     Today’s majority disregards two overarching principles that ought to guide our consideration of the questions presented here.

     First, the Constitution’s core, government-structuring provisions are no less critical to preserving liberty than are the later adopted provisions of the Bill of Rights. Indeed, “[s]o convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary.” Clinton v. City of New York, 524 U. S. 417, 450 (1998) (Kennedy, J., concurring). Those structural provisions reflect the founding generation’s deep conviction that “checks and balances were the foundation of a structure of government that would protect liberty.” Bowsher v. Synar, 478 U. S. 714, 722 (1986) . It is for that reason that “the claims of individuals—not of Government departments—have been the principal source of judicial decisions concerning separation of powers and checks and balances.” Bond v. United States, 564 U. S. ___, ___ (2011) (slip op., at 10); see, e.g., Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 (2010) ; Clinton, supra; Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 (1995) ; Bowsher, supra; INS v. Chadha, 462 U. S. 919 (1983) ; Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982) . Those decisions all rest on the bedrock principle that “the constitutional structure of our Government” is designed first and foremost not to look after the interests of the respective branches, but to “protec[t] individual liberty.” Bond, supra, at ___ (slip op., at 11).

     Second and relatedly, when questions involving the Constitution’s government-structuring provisions are presented in a justiciable case, it is the solemn responsibility of the Judicial Branch “ ‘to say what the law is.’ ” Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). This Court does not defer to the other branches’ resolution of such controversies; as Justice Kennedy has previously written, our role is in no way “lessened” because it might be said that “the two political branches are adjusting their own powers between themselves.” Clinton, supra, at 449 (concurring opinion). Since the separation of powers exists for the protection of individual liberty, its vitality “does not depend” on “whether ‘the encroached-upon branch approves the encroachment.’ ” Free Enterprise Fund, supra, at 497 (quoting New York v. United States, 505 U. S. 144, 182 (1992) ); see also Freytag v. Commissioner, 501 U. S. 868 –880 (1991); Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252 –277 (1991). Rather, policing the “enduring structure” of constitutional government when the political branches fail to do so is “one of the most vital functions of this Court.” Public Citizen v. Department of Justice, 491 U. S. 440, 468 (1989) (Kennedy, J., concurring in judgment).

     Our decision in Chadha illustrates that principle. There, we held that a statutory provision authorizing one House of Congress to cancel an executive action taken pursuant to statutory authority—a so-called “legislative veto”—exceeded the bounds of Congress’s authority under the Constitution. 462 U. S., at 957–959. We did not hesitate to hold the legislative veto unconstitutional even though Congress had enacted, and the President had signed, nearly 300 similar provisions over the course of 50 years. Id., at 944–945. Just the opposite: We said the other branches’ enthusiasm for the legislative veto “sharpened rather than blunted” our review. Id., at 944. Likewise, when the charge is made that a practice “enhances the President’s powers beyond” what the Constitution permits, “[i]t is no answer . . . to say that Congress surrendered its authority by its own hand.” Clinton, 524 U. S., at 451 (Kennedy, J., concurring). “[O]ne Congress cannot yield up its own powers, much less those of other Congresses to follow. Abdication of responsibility is not part of the constitutional design.” Id., at 452 (citations omitted).

     Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision. See, e.g., Alden v. Maine, 527 U. S. 706 –744 (1999); Bowsher, supra, at 723–724; Myers v. United States, 272 U. S. 52 –175 (1926); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610 (1952) (Frankfurter, J., concurring) (arguing that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned” should inform interpretation of the “Executive Power” vested in the President); Rutan v. Republican Party of Ill., 497 U. S. 62 , and n. 1 (1990) (Scalia, J., dissenting). But “ ‘[p]ast practice does not, by itself, create power.’ ” Medellín v. Texas, 552 U. S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453 U. S. 654, 686 (1981) ). That is a necessary corollary of the principle that the political branches cannot by agreement alter the constitutional structure. Plainly, then, a self-aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding.

     Ignoring our more recent precedent in this area, which is extensive, the majority relies on The Pocket Veto Case, 279 U. S. 655, 689 (1929) , for the proposition that when interpreting a constitutional provision “regulating the relationship between Congress and the President,” we must defer to the settled practice of the political branches if the provision is “ ‘ “in any respect of doubtful meaning.” ’ ” Ante, at 7; see ante, at 8, 16, 23, 33. The language the majority quotes from that case was pure dictum. The Pocket Veto Court had to decide whether a bill passed by the House and Senate and presented to the President less than 10 days before the adjournment of the first session of a particular Congress, but neither signed nor vetoed by the President, became a law. Most of the opinion analyzed that issue like any other legal question and concluded that treating the bill as a law would have been inconsistent with the text and structure of the Constitution. Only near the end of the opinion did the Court add that its conclusion was “confirmed” by longstanding Presidential practice in which Congress appeared to have acquiesced. 279 U. S., at 688–689. We did not suggest that the case would have come out differently had the longstanding practice been otherwise.[1]

II. Intra-Session Breaks

     The first question presented is whether “the Recess of the Senate,” during which the President’s recess-appointment power is active, is (a) the period between two of the Senate’s formal sessions, or (b) any break in the Senate’s proceedings. I would hold that “the Recess” is the gap between sessions and that the appointments at issue here are invalid because they undisputedly were made during the Senate’s session. The Court’s contrary conclusion—that “the Recess” includes “breaks in the midst of a session,” ante, at 9—is inconsistent with the Constitution’s text and structure, and it requires judicial fabrication of vague, unadministrable limits on the recess-appointment power (thus defined) that overstep the judicial role. And although the majority relies heavily on “historical practice,” no practice worthy of our deference supports the majority’s conclusion on this issue.

A. Plain Meaning

     A sensible interpretation of the Recess Appointments Clause should start by recognizing that the Clause uses the term “Recess” in contradistinction to the term “Session.” As Alexander Hamilton wrote: “The time within which the power is to operate ‘during the recess of the Senate’ and the duration of the appointments ‘to the end of the next session’ of that body, conspire to elucidate the sense of the provision.” The Federalist No. 67, p. 455 (J. Cooke ed. 1961).

     In the founding era, the terms “recess” and “session” had well-understood meanings in the marking-out of legislative time. The life of each elected Congress typically consisted (as it still does) of two or more formal sessions separated by adjournments “sine die,” that is, without a specified return date. See GPO, Congressional Directory, 113th Cong., pp. 524–542 (2013–2014) (hereinafter Congressional Directory) (listing sessions of Congress from 1789 through 2013); 705 F. 3d 490, 512, and nn. 1–2 (CADC 2013) (case below); ante, at 9. The period between two sessions was known as “the recess.” See 26 Annals of Cong. 748 (1814) (Sen. Gore) (“The time of the Senate consists of two periods, viz: their session and their recess”). As one scholar has thoroughly demonstrated, “in government practice the phrase ‘the Recess’ always referred to the gap between sessions.” Natelson, The Origins and Meaning of “Vacancies that May Happen During the Recess” in the Constitution’s Recess Appointments Clause, 37 Harv. J. L. & Pub. Pol’y 199, 213 (2014) (hereinafter Natelson); see id., at 214–227 (providing dozens of examples). By contrast, other provisions of the Constitution use the verb “adjourn” rather than “recess” to refer to the commencement of breaks during a formal legislative session. See, e.g., Art. I, §5, cl. 1; id., §5, cl. 4.[2]

     To be sure, in colloquial usage both words, “recess” and “session,” could take on alternative, less precise meanings. A session could include any short period when a legislature’s members were “assembled for business,” and a recess could refer to any brief “suspension” of legislative “business.” 2 N. Webster, American Dictionary of the English Language (1828). So the Continental Congress could complain of the noise from passing carriages disrupting its “daily Session,” 29 Journals of the Continental Congress 1774–1789, p. 561 (1785) (J. Fitzpatrick ed. 1933), and the House could “take a recess” from 4 o’clock to 6 o’clock, Journal of the House of Representatives, 17th Cong., 2d Sess., p. 259 (1823). But as even the majority acknowledges, the Constitution’s use of “the word ‘the’ in ‘the [R]ecess’ ” tends to suggest “that the phrase refers to the single break separating formal sessions.” Ante, at 10.

     More importantly, neither the Solicitor General nor the majority argues that the Clause uses “session” in its loose, colloquial sense. And if “the next Session” denotes a formal session, then “the Recess” must mean the break between formal sessions. As every commentator on the Clause until the 20th century seems to have understood, the “Recess” and the “Session” to which the Clause refers are mutually exclusive, alternating states. See, e.g., The Federalist No. 67, at 455 (explaining that appointments would require Senatorial consent “during the session of the Senate” and would be made by the President alone “in their recess”); 1 Op. Atty. Gen. 631 (1823) (contrasting vacancies occurring “during the recess of the Senate” with those occurring “during the session of the Senate”); 2 Op. Atty Gen. 525, 527 (1832) (discussing a vacancy that “took place while the Senate was in session, and not during the recess”). It is linguistically implausible to suppose—as the majority does—that the Clause uses one of those terms (“Recess”) informally and the other (“Session”) formally in a single sentence, with the result that an event can occur during both the “Recess” and the “Session.”

     Besides being linguistically unsound, the majority’s reading yields the strange result that an appointment made during a short break near the beginning of one official session will not terminate until the end of the following official session, enabling the appointment to last for up to two years. The majority justifies that result by observing that the process of confirming a nominee “may take several months.” Ante, at 17. But the average duration of the confirmation process is irrelevant. The Clause’s self-evident design is to have the President’s unilateral appointment last only until the Senate has “had an opportunity to act on the subject.” 3 J. Story, Commentaries on the Constitution of the United States §1551, p. 410 (1833) (emphasis added).

     One way to avoid the linguistic incongruity of the majority’s reading would be to read both “the Recess” and “the next Session” colloquially, so that the recess-appointment power would be activated during any temporary suspension of Senate proceedings, but appointments made pursuant to that power would last only until the beginning of the next suspension (which would end the next colloquial session). See, e.g., Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1569 (2005) (hereinafter Rappaport, Original Meaning). That approach would be more linguistically defensible than the majority’s. But it would not cure the most fundamental problem with giving “Recess” its colloquial, rather than its formal, meaning: Doing so leaves the recess-appointment power without a textually grounded principle limiting the time of its exercise.

     The dictionary definitions of “recess” on which the majority relies provide no such principle. On the contrary, they make clear that in colloquial usage, a recess could include any suspension of legislative business, no matter how short. See 2 S. Johnson, A Dictionary of the English Language 1602 (4th ed. 1773). Webster even provides a stark illustration: “[T]he house of representatives had a recess of half an hour.” 2 Webster, supra. The notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting. But that, in the majority’s view, is what the text authorizes.

     The boundlessness of the colloquial reading of “the Recess” thus refutes the majority’s assertion that the Clause’s “purpose” of “ensur[ing] the continued functioning of the Federal Government” demands that it apply to intra-session breaks as well as inter-session recesses. Ante, at 11. The majority disregards another self-evident purpose of the Clause: to preserve the Senate’s role in the appointment process—which the founding generation regarded as a critical protection against “ ‘despotism,’ ” Freytag, 501 U. S., at 883—by clearly delineating the times when the President can appoint officers without the Senate’s consent. Today’s decision seriously undercuts that purpose. In doing so, it demonstrates the folly of interpreting constitutional provisions designed to establish “a structure of government that would protect liberty,” Bowsher, 478 U. S., at 722, on the narrow-minded assumption that their only purpose is to make the government run as efficiently as possible. “Convenience and efficiency,” we have repeatedly recognized, “are not the primary objectives” of our constitutional framework. Free Enterprise Fund, 561 U. S., at 499 (internal quotation marks omitted).

     Relatedly, the majority contends that the Clause’s supposed purpose of keeping the wheels of government turning demands that we interpret the Clause to maintain its relevance in light of the “new circumstance” of the Senate’s taking an increasing number of intra-session breaks that exceed three days. Ante, at 17. Even if I accepted the canard that courts can alter the Constitution’s meaning to accommodate changed circumstances, I would be hard pressed to see the relevance of that notion here. The rise of intra-session adjournments has occurred in tandem with the development of modern forms of communication and transportation that mean the Senate “is always available” to consider nominations, even when its Members are temporarily dispersed for an intra-session break. Tr. of Oral Arg. 21 (Ginsburg, J.). The Recess Appointments Clause therefore is, or rather, should be, an anachronism—“essentially an historic relic, something whose original purpose has disappeared.” Id., at 19 (Kagan, J.). The need it was designed to fill no longer exists, and its only remaining use is the ignoble one of enabling the President to circumvent the Senate’s role in the appointment process. That does not justify “read[ing] it out of the Constitution” and, contra the majority, ante, at 40, I would not do so; but neither would I distort the Clause’s original meaning, as the majority does, to ensure a prominent role for the recess-appointment power in an era when its influence is far more pernicious than beneficial.

     To avoid the absurd results that follow from its collo-quial reading of “the Recess,” the majority is forced to declare that some intra-session breaks—though undisputedly within the phrase’s colloquial meaning—are simply “too short to trigger the Recess Appointments Clause.” Ante, at 21. But it identifies no textual basis whatsoever for limiting the length of “the Recess,” nor does it point to any clear standard for determining how short is too short. It is inconceivable that the Framers would have left the circumstances in which the President could exercise such a significant and potentially dangerous power so utterly indeterminate. Other structural provisions of the Constitution that turn on duration are quite specific: Neither House can adjourn “for more than three days” without the other’s consent. Art. I, §5, cl. 4. The President must return a passed bill to Congress “within ten Days (Sundays excepted),” lest it become a law. Id., §7, cl. 2. Yet on the majority’s view, when the first Senate considered taking a 1-month break, a 3-day weekend, or a half-hour siesta, it had no way of knowing whether the President would be constitutionally authorized to appoint officers in its absence. And any officers appointed in those circumstances would have served under a cloud, unable to determine with any degree of confidence whether their appointments were valid.[3]

     Fumbling for some textually grounded standard, the majority seizes on the Adjournments Clause, which bars either House from adjourning for more than three days without the other’s consent. Id., §5, cl. 4. According to the majority, that clause establishes that a 3-day break is always “too short” to trigger the Recess Appointments Clause. Ante, at 19. It goes without saying that nothing in the constitutional text supports that disposition. If (as the majority concludes) “the Recess” means a recess in the colloquial sense, then it necessarily includes breaks shorter than three days. And the fact that the Constitution includes a 3-day limit in one clause but omits it from the other weighs strongly against finding such a limit to be implicit in the clause in which it does not appear. In all events, the dramatically different contexts in which the two clauses operate make importing the 3-day limit from the Adjournments Clause into the Recess Appointments Clause “both arbitrary and mistaken.” Rappaport, Original Meaning 1556.

     And what about breaks longer than three days? The majority says that a break of four to nine days is “presumptively too short” but that the presumption may be rebutted in an “unusual circumstance,” such as a “national catastrophe . . . that renders the Senate unavailable but calls for an urgent response.” Ante, at 21. The majority must hope that the in terrorem effect of its “presumptively too short” pronouncement will deter future Presidents from making any recess appointments during 4-to-9-day breaks and thus save us from the absurd spectacle of unelected judges evaluating (after an evidentiary hearing?) whether an alleged “catastrophe” was sufficiently “urgent” to trigger the recess-appointment power. The majority also says that “political opposition in the Senate would not qualify as an unusual circumstance.” Ibid. So if the Senate should refuse to confirm a nominee whom the President considers highly qualified; or even if it should refuse to confirm any nominee for an office, thinking the office better left vacant for the time being; the President’s power would not be triggered during a 4-to-9-day break, no matter how “urgent” the President’s perceived need for the officer’s assistance. (The majority protests that this “should go without saying—except that Justice Scalia compels us to say it,” ibid., seemingly forgetting that the appointments at issue in this very case were justified on those grounds and that the Solicitor General has asked us to view the recess-appointment power as a “safety valve” against Senatorial “intransigence.” Tr. of Oral Arg. 21.)

     As for breaks of 10 or more days: We are presumably to infer that such breaks do not trigger any “presumpt[ion]” against recess appointments, but does that mean the President has an utterly free hand? Or can litigants seek invalidation of an appointment made during a 10-day break by pointing to an absence of “unusual” or “urgent” circumstances necessitating an immediate appointment, albeit without the aid of a “presumpt[ion]” in their favor? Or, to put the question as it will present itself to lawyers in the Executive Branch: Can the President make an appointment during a 10-day break simply to overcome “political opposition in the Senate” despite the absence of any “national catastrophe,” even though it “go[es] without saying” that he cannot do so during a 9-day break? Who knows? The majority does not say, and neither does the Constitution.[4]

     Even if the many questions raised by the majority’s failure to articulate a standard could be answered, alarger question would remain: If the Constitution’s text empowers the President to make appointments during any break in the Senate’s proceedings, by what right does the majority subject the President’s exercise of that power to vague, court-crafted limitations with no textual basis? The majority claims its temporal guideposts are informed by executive practice, but a President’s self-restraint cannot “bind his successors by diminishing their powers.” Free Enterprise Fund, 561 U. S., at 497; cf. Clinton v. Jones, 520 U. S. 681, 718 (1997) (Breyer, J., concurring in judgment) (“voluntary actions” by past Presidents “tel[l] us little about what the Constitution commands”).

     An interpretation that calls for this kind of judicial adventurism cannot be correct. Indeed, if the Clause really did use “Recess” in its colloquial sense, then there would be no “judicially discoverable and manageable standard for resolving” whether a particular break was long enough to trigger the recess-appointment power, making that a nonjusticiable political question. Zivotofsky, 566 U. S., at ___ (slip op., at 5) (internal quotation marks omitted).

B. Historical Practice

     For the foregoing reasons, the Constitution’s text and structure unambiguously refute the majority’s freewheeling interpretation of “the Recess.” It is not plausible that the Constitution uses that term in a sense that authorizes the President to make unilateral appointments during any break in Senate proceedings, subject only to hazy, atextual limits crafted by this Court centuries after ratification. The majority, however, insists that history “offers strong support” for its interpretation. Ante, at 11. The historical practice of the political branches is, of course, irrelevant when the Constitution is clear. But even if the Constitution were thought ambiguous on this point, history does not support the majority’s interpretation.

1. 1789 to 1866

     To begin, the majority dismisses the 78 years of history from the founding through 1866 as “not helpful” because during that time Congress took hardly any “significant” intra-session breaks, by which the majority evidently means breaks longer than three days. Ibid. (citing table in Appendix A, which does not include breaks of three or fewer days). In fact, Congress took 11 intra-session breaks of more than three days during that time, see Congressional Directory 524–527, and it appears Presidents made recess appointments during none of them.

     More importantly, during those eight decades, Congress must have taken thousands of breaks that were three days or shorter. On the majority’s reading, every one of those breaks would have been within the Clause’s text—the majority’s newly minted limitation not yet having been announced. Yet there is no record of anyone, ever, having so much as mentioned the possibility that the recess-appointment power was activated during those breaks. That would be surprising indeed if the text meant what the majority thinks it means. Cf. Printz v. United States, 521 U. S. 898 –908 (1997).

2. 1867 and 1868

     The first intra-session recess appointments in our his-tory almost certainly were made by President Andrew John-son in 1867 and 1868.[5] That was, of course, a period of dramatic conflict between the Executive and Congress that saw the first-ever impeachment of a sitting President. The Solicitor General counts 57 intra-session recess appointments during those two years. App. to Brief for Petitioner 1a–9a. But the precise nature and historical understanding of many of those appointments is subject to debate. See, e.g., Brief for Constitutional Law Scholars as Amici Curiae 23–24; Rappaport, Nonoriginalism 27–33. It seems likely that at least 36 of the 57 appointments were made with the understanding that they took place during a recess between sessions. See id., at 27–31.

     As for the remainder, the historical record reveals nothing about how they were justified, if at all. There is no indication that Johnson’s Attorney General or anyone else considered at the time whether those appointments were made between or during formal legislative sessions or, if the latter, how they could be squared with the constitutional text. The majority drives that point home by citing a judicial opinion that upheld one of the appointments nearly two decades later with no analysis of the question presented here. See ante, at 11 (citing Gould v. United States, 19 Ct. Cl. 593 (1884)). Johnson’s intra-session appointments were disavowed by the first Attorney General to address that question, see infra, at 20, and were not followed as precedent by the Executive Branch for more than 50 years, see infra, at 22. Thus, the relevance of those appointments to our constitutional inquiry is severely limited. Cf. Brief for Political Scientists and Historians as Amici Curiae 21 (Johnson’s appointments “should be viewed as anomalies” that were “sui generis in the first 130 years of the Republic”).

3. 1869 to 1920

     More than half a century went by before any other President made an intra-session recess appointment, and there is strong reason to think that during that period neither the Executive nor the Senate believed such a power existed. For one thing, the Senate adjourned for more than 3 days 45 times during that period, and 43 of those adjournments exceeded 10 days (and thus would not even be subject to the majority’s “presumption” against the availability of recess appointments). See Congres-sional Directory 527–529. Yet there is no evidence that a single appointment was made during any of those adjournments or that any President before the 20th century even considered making such appointments.

     In 1901 Philander Knox, the first Attorney General known to have opined on the question, explicitly stated that the recess-appointment power was limited to the period between formal sessions. 23 Op. Atty. Gen. 599. Knox advised President Theodore Roosevelt that he could not appoint an appraiser of merchandise during an intra-session adjournment. He explained:

“[T]he Constitution and laws make it clear that in our legislative practice an adjournment during a session of Congress means a merely temporary suspension of business from day to day . . . whereas the recess means the period after the final adjournment of Congress for the session, and before the next session begins. . . . It is this period following the final adjournment for the session which is the recess during which the President has power to fill vacancies . . . . Any intermediate temporary adjournment is not such recess, although it may be a recess in the general and ordinary use of that term.” Id., at 601.[6]

Knox went on to observe that none of the “many elaborate opinions” of previous Attorneys General concerning the recess-appointment power had asserted that the power could be exercised “during a temporary adjournment of the Senate,” rather than “during the recess of the Senate between two sessions of Congress.” Id., at 602. He acknowledged the contrary example furnished by Johnson’s appointments in 1867 and 1868, but noted (with perhaps too much tact) that “[t]he public circumstances producing this state of affairs were unusual and involved results which should not be viewed as precedents.” Id.,at 603.

     That was where things stood when, in 1903, Roosevelt made a number of controversial recess appointments. At noon on December 7, the Senate moved seamlessly from a special session into a regular one scheduled to begin at that hour. See 37 Cong. Rec. 544; 38 Cong. Rec. 1. Roosevelt claimed to have made the appointments in a “constructive” recess between the two sessions. See Special Session Is Merged Into Regular, N. Y. Times, Dec. 8, 1903, p. 1. He and his allies in the Senate justified the appointments on the theory that “at the moment the gavel falls to summon the regular session into being there is an infinitesimal fraction of a second, which is the recess between the two sessions.” Extra Session Muddle, N. Y. Times, Dec. 7, 1903, p. 3. In 1905, the Senate Judiciary Committee published a report criticizing the appointments on the ground that “the Constitution means a real recess, not a constructive one.” S. Rep. No. 4389, 58th Cong., 3d Sess., p. 4. The report explained that the recess is “the period of time when the Senate is not sitting in regular or extraordinary session . . . when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments.” Id., at 2 (emphasis deleted).

     The majority seeks support in this episode, claiming that the Judiciary Committee embraced a “broad and functional definition of ‘recess’ ” consistent with the one the majority adopts. Ante, at 16. On the contrary, the episode powerfully refutes the majority’s theory. Roosevelt’s legal justification for his appointments was extremely aggressive, but even he recognized that “the Recess ofthe Senate” could take place only between formal sessions. If the majority’s view of the Clause had been considered plausible, Roosevelt could have strengthened his position considerably by making the appointments during an intra-session break of a few days, or at least a few hours. (Just 10 minutes after the new session began on December 7, the Senate took “a recess for one hour.” 38 Cong. Rec. 2.) That he instead strained to declare a dubious inter-session recess of an “infinitesimal fraction of a second” is powerful evidence that the majority’s view of “the Recess” was not taken seriously even as late as the beginning of the 20th century.

     Yet the majority contends that “to the extent that the Senate or a Senate committee has expressed a view, that view has favored a functional definition of ‘recess’ [that] encompasses intra-session recesses.” Ante, at 14. It rests that contention entirely on the 1905 Judiciary Committee Report. This distorts what the committee said when it denied Roosevelt’s claim that there had been a recess. If someone avers that a catfish is a cat, and I respond by pointing out that a catfish lives in water and does not have four legs, I have not endorsed the proposition that every land-dwelling quadruped is a cat. Likewise, when the Judiciary Committee explained that an instantaneous transition from one session to another is not a recess because the Senate is never absent, it did not suggest that the Senate’s absence is enough to create a recess. To assume otherwise, as the majority does, is to commit the fallacy of the inverse (otherwise known as denying the antecedent): the incorrect assumption that if P implies Q, then not-P implies not-Q. Contrary to that fallacious assumption, the Judiciary Committee surely believed, consistent with the Executive’s clear position at the time, that “the Recess” was limited to (actual, not constructive) breaks between sessions.

4. 1921 to the Present

     It is necessary to skip over the first 13 decades of our Nation’s history in order to find a Presidential legal ad-viser arguably embracing the majority’s interpretation of “the Recess.” In 1921 President Harding’s Attorney General, Harry Daugherty, advised Harding that he could make recess appointments while the Senate stood adjourned for 28 days during the session because “the term ‘recess’ must be given a practical construction.” 33 Op. Atty. Gen. 20, 25. Daugherty acknowledged Knox’s 1901 opinion to the contrary, id., at 21, but he (committing the same fallacy as today’s majority) thought the 1905 Judiciary Committee report had come to the opposite conclusion, id., at 23–24. He also recognized the fundamental flaw in this interpretation: that it would be impossible to “accurately dra[w]” a line between intra-session breaks that constitute “the Recess” and those that do not. Id., at 25. But he thought the absence of a standard gave the President “discretion to determine when there is a real and genuine recess.” Ibid. While a “palpable abuse of discretion might subject his appointment to review,” Daugherty thought that “[e]very presumption [should] be indulged in favor of the validity of whatever action he may take.” Ibid.[7]

     Only after Daugherty’s opinion did the flow of intra-session recess appointments start, and for several years it was little more than a trickle. The Solicitor General has identified 22 such appointments made by Presidents Harding, Coolidge, Hoover, and Franklin Roosevelt between 1921 and 1944. App. to Brief for Petitioner 9a–12a. Intra-session recess appointments experienced a brief heyday after World War II, with President Truman making about 150 such appointments to civilian positions and several thousand to military posts from 1945 through 1950. Id., at 12a–27a. (The majority’s impressive-sounding claim that “Presidents have made thousands of intra-session recess appointments,” ante, at 12, depends entirely on post-war military appointments that Truman made in just two years, 1947 and 1948.) President Eisenhower made only 43 intra-session recess appointments, id., at 27a–30a, after which the practice sank back into relative obscurity. Presidents Kennedy, Lyndon Johnson, and Ford made none, while Nixon made just 7. Id., at 30a–31a. The practice rose again in the last decades of the 20th century: President Carter made 17 intra-session recess appointments, Reagan 72, George H. W. Bush 37, Clinton 53, and George W. Bush 135. Id., at 31a–61a. When the Solicitor General filed his brief, President Obama had made 26. Id., at 62a–64a. Even excluding Truman’s military appointments, roughly 90 percent of all the intra-session recess appointments in our history have been made since 1945.

     Legal advisers in the Executive Branch during this period typically endorsed the President’s authority to make intra-session recess appointments by citing Daugherty’s opinion with little or no additional analysis. See, e.g., 20 Opinions of Office of Legal Counsel (Op. OLC) 124, 161 (1996) (finding the question to have been “settled within the executive branch” by Daugherty’s “often-cited opinion”). The majority’s contention that “opinions of Presidential legal advisers . . . are nearly unanimous in determining that the Clause authorizes [intra-session recess] appointments,” ante, at 12, is thus true but misleading: No Presidential legal adviser approved that practice before 1921, and subsequent approvals have rested more on precedent than on independent examination.

     The majority is correct that during this period, the Senate “as a body” did not formally repudiate the emerging executive practice. Ante, at 14. And on one occasion, Comptroller General Lindsay Warren cited Daugherty’s opinion as representing “the accepted view” on the question, 28 Comp. Gen. 30, 34 (1948), although there is no evidence he consulted any Senators or that his statement reflected their views. But the rise of intra-session recess appointments in the latter half of the 20th century drew sharp criticism from a number of Senators on both sides of the aisle. At first, their objections focused on the length of the intra-session breaks at issue. See, e.g., 130 Cong. Rec. 22774–22776 (1984) (Sen. Sarbanes) (decrying recess appointment during a 3-week intra-session adjournment as “a circumvention of the Senate confirmation power”); id., at 23235 (resolution offered by Sen. Byrd, with 39 cosponsors, urging that no recess appointments occur during intra-session breaks of fewer than 30 days).

     Later, many Senators sought to end intra-session recess appointments altogether. In 1993, the Senate Legal Counsel prepared a brief to be filed on behalf of the Senate in Mackie v. Clinton, 827 F. Supp. 56 (DC 1993), vacated in part as moot, 1994 WL 163761 (CADC 1994) (percuriam), but “Republican opposition” blocked the filing. 139 Cong. Rec. 15266–15267. The brief argued that “the recess[-appointment] power is limited to Congress’ annual recess between sessions,” that no contrary executive practice “of any appreciable magnitude” had existed before “the past fifty years,” and that the Senate had not “acquiesced in this steady expansion of presidential power.” Id., at 15268, 15270. It explained that some Senators had limited their objections to shorter intra-session breaks out of a desire “to coexist with the Executive” but that “the Executive’s subsequent, steady chipping away at the length of recess sufficient for making recess appointments ha[d] demonstrated the need to return to the Framers’ original intent and limit the power to intersession adjournments.” Id., at 15267, 15272. Senator Kennedy reiterated that position in a brief to this Court in 2004. Brief for Sen. Edward M. Kennedy as Amicus Curiae in Franklin v. United States, O. T. 2004, No. 04–5858, p. 5. Today the partisan tables are turned, and that position is urged on us by the Senate’s Republican Members. See Brief for Sen. McConnell et al. as Amici Curiae 26.

*  *  *

     What does all this amount to? In short: Intra-session recess appointments were virtually unheard of for the first 130 years of the Republic, were deemed unconstitutional by the first Attorney General to address them, were not openly defended by the Executive until 1921, were not made in significant numbers until after World War II, and have been repeatedly criticized as unconstitutional by Senators of both parties. It is astonishing for the majority to assert that this history lends “strong support,” ante, at 11, to its interpretation of the Recess Appointments Clause. And the majority’s contention that recent executive practice in this area merits deference because the Senate has not done more to oppose it is utterly divorced from our precedent. “The structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic,” Freytag, 501 U. S., at 880, and the Senate could not give away those protections even if it wanted to. See Chadha, 462 U. S., at 957–958; Clinton, 524 U. S., at 451–452 (Kennedy, J., concurring).

     Moreover, the majority’s insistence that the Senate gainsay an executive practice “as a body” in order to prevent the Executive from acquiring power by adverse possession, ante, at 14, will systematically favor the expansion of executive power at the expense of Congress. In any con-troversy between the political branches over a separation-of-powers question, staking out a position and defendingit over time is far easier for the Executive Branch thanfor the Legislative Branch. See generally Bradley and Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 439–447 (2012). All Presidents have a high interest in expanding the powers of their office, since the more power the President can wield, the more effectively he can implement his political agenda; whereas individual Senators may have little interest in opposing Presidential encroachment on legislative prerogatives, especially when the encroacher is a President who is the leader of their own party. (The majority would not be able to point to a lack of “formal action” by the Senate “as a body” challenging intra-session recess appointments, ante, at 15–16, had the appointing President’s party in the Senate not blocked such action on multiple occasions.) And when the President wants to assert a power and establish a precedent, he faces neither the collective-action problems nor the procedural inertia inherent in the legislative process. The majority’s methodology thus all but guarantees the continuing aggrandizement of the Executive Branch.

III. Pre-Recess Vacancies

     The second question presented is whether vacancies that “happen during the Recess of the Senate,” which the President is empowered to fill with recess appointments, are (a) vacancies that arise during the recess, or (b) all vacancies that exist during the recess, regardless of when they arose. I would hold that the recess-appointment power is limited to vacancies that arise during the recess in which they are filled, and I would hold that the appointments at issue here—which undisputedly filled pre-recess vacancies—are invalid for that reason as well as for the reason that they were made during the session. The Court’s contrary conclusion is inconsistent with the Constitution’s text and structure, and it further undermines the balance the Framers struck between Presidential and Senatorial power. Historical practice also fails to support the majority’s conclusion on this issue.

A. Plain Meaning

     As the majority concedes, “the most natural meaning of ‘happens’ as applied to a ‘vacancy’ . . . is that the vacancy ‘happens’ when it initially occurs.” Ante, at 22. The majority adds that this meaning is most natural “to a modern ear,” ibid., but it fails to show that founding-era ears heard it differently. “Happen” meant then, as it does now, “[t]o fall out; to chance; to come to pass.” 1 Johnson, Dictionary of the English Language 913. Thus, a vacancy that happened during the Recess was most reasonably understood as one that arose during the recess. It was, of course, possible in certain contexts for the word “happen” to mean “happen to be” rather than “happen to occur,” as in the idiom “it so happens.” But that meaning is not at all natural when the subject is a vacancy, a state of affairs that comes into existence at a particular moment in time.[8]

     In any event, no reasonable reader would have understood the Recess Appointments Clause to use the word “happen” in the majority’s “happen to be” sense, and thus to empower the President to fill all vacancies that might exist during a recess, regardless of when they arose. For one thing, the Clause’s language would have been a surpassingly odd way of giving the President that power. The Clause easily could have been written to convey that meaning clearly: It could have referred to “all Vacancies that may exist during the Recess,” or it could have omitted the qualifying phrase entirely and simply authorized the President to “fill up all Vacancies during the Recess.” Given those readily available alternative phrasings, the reasonable reader might have wondered, why would any intelligent drafter intending the majority’s reading have inserted the words “that may happen”—words that, as the majority admits, make the majority’s desired reading awkward and unnatural, and that must be effectively read out of the Clause to achieve that reading?

     For another thing, the majority’s reading not only strains the Clause’s language but distorts its constitutional role, which was meant to be subordinate. As Hamilton explained, appointment with the advice and consent of the Senate was to be “the general mode of appointing officers of the United States.” The Federalist No. 67, at 455. The Senate’s check on the President’s appointment power was seen as vital because “ ‘manipulation of official appointments’ had long been one of the American revolutionary generation’s greatest grievances against executive power.” Freytag, 501 U. S., at 883. The unilateral power conferred on the President by the Recess Appointments Clause was therefore understood to be “nothing more than a supplement” to the “general method” of advice and consent. The Federalist No. 67, at 455.

     If, however, the Clause had allowed the President to fill all pre-existing vacancies during the recess by granting commissions that would last throughout the following session, it would have been impossible to regard it—as the Framers plainly did—as a mere codicil to the Constitution’s principal, power-sharing scheme for filling federal offices. On the majority’s reading, the President would have had no need ever to seek the Senate’s advice and consent for his appointments: Whenever there was a fair prospect of the Senate’s rejecting his preferred nominee, the President could have appointed that individual unilaterally during the recess, allowed the appointment to expire at the end of the next session, renewed the appointment the following day, and so on ad infinitum. (Circumvention would have been especially easy if, as the majority also concludes, the President was authorized to make such appointments during any intra-session break of more than a few days.) It is unthinkable that such an obvious means for the Executive to expand its power would have been overlooked during the ratification debates.[9]

     The original understanding of the Clause was consistent with what the majority concedes is the text’s “most natural meaning.” Ante, at 22. In 1792, Attorney General Edmund Randolph, who had been a leading member of the Constitutional Convention, provided the Executive Branch’s first formal interpretation of the Clause. He advised President Washington that the Constitution did not authorize a recess appointment to fill the office of Chief Coiner of the United States Mint, which had been created by Congress on April 2, 1792, during the Senate’s session. Randolph wrote: “[I]s it a vacancy which has happened during the recess of the Senate? It is now the same and no other vacancy, than that, which existed on the 2nd. of April 1792. It commenced therefore on that day or may be said to have happened on that day.” Opinion on Recess Appointments (July 7, 1792), in 24 Papers of Thomas Jefferson 165–166 (J. Catanzariti ed. 1990). Randolph added that his interpretation was the most congruent with the Constitution’s structure, which made the recess-appointment power “an exception to the general participation of the Senate.” Ibid. (footnote omitted).

     President John Adams’ Attorney General, Charles Lee, was in agreement. See Letter to George Washington (July 7, 1796) (the President may “fill for a limited time an old office become vacant during [the] recess” (emphasis added)), online at http://‌founders.‌archives.‌gov/‌documents/‌Washington/‌99-01-02-00702; Letter from James McHenry to John Adams (May 7, 1799) (hereinafter 1799 McHenry Letter) (conveying Lee’s advice that certain offices were “ ‘vacanc[ies] happening during the session, which the President cannot fill, during the recess, by the powers vested in him by the constitution’ ”), online at http://‌wardepartmentpapers.‌org‌/document.‌php?id=31766.[10] One of the most prominent early academic commenters on the Constitution read the Clause the same way. See 1 St. George Tucker, Blackstone’s Commentaries, App. 342–343 (1803) (assuming the President could appoint during the recess only if “the office became vacant during the recess”).

     Early Congresses seem to have shared Randolph’s and Lee’s view. A statute passed by the First Congress authorized the President to appoint customs inspectors “with the advice and consent of the Senate” and provided that “if the appointment . . . shall not be made during the present session of Congress, the President . . . is hereby empowered to make such appointments during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” Act of Mar. 3, 1791, §4, 1Stat. 200. That authorization would have been superfluous if the Recess Appointments Clause had been understood to apply to pre-existing vacancies. We have recognized that an action taken by the First Congress “provides ‘contemporaneous and weighty evidence’ of the Constitution’s meaning.” Bowsher, 478 U. S., at 723–724. And other statutes passed in the early years of the Republic contained similar authorizations. See App. to Brief for Respondent Noel Canning 1a–17a.[11]

     Also illuminating is the way the Third Congress interpreted the Constitution’s Senate Vacancies Clause, which uses language similar to that of the Recess Appointments Clause. Before the passage of the Seventeenth Amendment, the Constitution provided that “if 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.” Art. I, §3, cl. 2. Senator George Read of Delaware resigned in December 1793; the state legislature met in January and February 1794; and the Governor appointed Kensey Johns to fill the seat in March 1794. The Senate refused to seat Johns, resolving that he was “not entitled to a seat in the Senate of the United States; a session of the Legislature of the said State having intervened, between the resignation . . . and the appointment.” 4 Annals of Cong. 77–78 (1794). It is thus clear that the phrase “happen . . . during the Recess” in the Senate Vacancies Clause was understood to refer to vacancies that arose, not merely existed, during the recess in which the appointment was made. It is not apparent why the nearly identical language of the Recess Appointments Clause would have been understood differently.

     The majority, however, relies heavily on a contrary account of the Clause given by Attorney General William Wirt in 1823. See 1 Op. Atty. Gen 631. Wirt notably began—as does the majority—by acknowledging that his predecessors’ reading was “most accordant with the letter of the constitution.” Id., at 632. But he thought the “most natural” reading had to be rejected because it would interfere with the “substantial purpose of the constitution,” namely, “keep[ing] . . . offices filled.” Id., at 631–632. He was chiefly concerned that giving the Clause its plain meaning would produce “embarrassing inconveniences” if a distant office were to become vacant during the Senate’s session, but news of the vacancy were not to reach the President until the recess. Id., at 632, 634. The majority fully embraces Wirt’s reasoning. Ante, at 22–25.

     Wirt’s argument is doubly flawed. To begin, the Constitution provides ample means, short of rewriting its text, for dealing with the hypothetical dilemma Wirt posed. Congress can authorize “acting” officers to perform the duties associated with a temporarily vacant office—and has done that, in one form or another, since 1792. See 5 U. S. C. §3345; Act of May 8, 1792, ch. 37, §8, 1Stat. 281; 705 F. 3d, at 511; Rappaport, Original Meaning 1514–1517. And on “extraordinary Occasions” the President can call the Senate back into session to consider a nomination. Art. II, §3. If the Framers had thought those options insufficient and preferred to authorize the President to make recess appointments to fill vacancies arising late in the session, they would have known how to do so. Massachusetts, for example, had authorized its Governor to make certain recess appointments “in case a vacancy shall happen . . . in the recess of the General Court [i.e., the state legislature], or at so late a period in any session of the same Court, that the vacancy . . . shall not be supplied in the same session thereof.” 1783 Mass. Acts ch. 12, in Acts and Laws of the Commonwealth of Massachusetts 523 (1890) (emphasis added).

     The majority protests that acting appointments, unlike recess appointments, are an “inadequate” solution to Wirt’s hypothetical dilemma because acting officers “may have less authority than Presidential appointments.” Ante, at 24–25. It cites an OLC opinion which states that “an acting officer . . . is frequently considered merely a caretaker without a mandate to take far-reaching measures.” 6 Op. OLC 119, 121 (1982). But just a few lines later, the majority says that “the lack of Senate approval . . . may diminish the recess appointee’s ability, as a practical matter, to get a controversial job done.” Ante, at 25. The majority does not explain why an acting officer would have less authority “as a practical matter” than a recess appointee. The majority also objects that requiring the President to rely on acting officers would “lessen the President’s ability to staff the Executive Branch with people of his own choosing,” ante, at 24—a surprising charge, since that is the very purpose of the Constitution’s advice-and-consent requirement. As for special sessions, the majority thinks it a sufficient answer to say that they are “burdensome,” ibid., an observation that fails to distinguish them from many procedures required by our structural Constitution.

     More fundamentally, Wirt and the majority are mistaken to say that the Constitution’s “ ‘substantial purpose’ ” isto “ ‘keep . . . offices filled.’ ” Ibid. (quoting 1 Op. Atty. Gen., at 632). The Constitution is not a road map for maximally efficient government, but a system of “carefully crafted restraints” designed to “protect the people from the improvident exercise of power.” Chadha, 462 U. S., at 957, 959. Wirt’s and the majority’s argumentum ab inconvenienti thus proves far too much. There are many circumstances other than a vacancy that can produce similar inconveniences if they arise late in the session: For example, a natural disaster might occur to which the Executive cannot respond effectively without a supplemental appropriation. But in those circumstances, the Constitution would not permit the President to appropriate funds himself. See Art. I, §9, cl. 7. Congress must either anticipate such eventualities or be prepared to be haled back into session. The troublesome need to do so is not a bug to be fixed by this Court, but a calculated feature of the constitutional framework. As we have recognized, while the Constitution’s government-structuring provisions can seem “clumsy” and “inefficient,” they reflect “hard choices . . . consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” Chadha, supra, at 959.

B. Historical Practice

     For the reasons just given, it is clear that the Constitution authorizes the President to fill unilaterally only those vacancies that arise during a recess, not every vacancy that happens to exist during a recess. Again, however, the majority says “[h]istorical practice” requires the broader interpretation. Ante, at 26. And again the majority is mistaken. Even if the Constitution were wrongly thought to be ambiguous on this point, a fair recounting of the relevant history does not support the majority’s interpretation.

1. 1789 to 1822

     The majority correctly admits that there is “no undisputed record of Presidents George Washington, John Adams, or Thomas Jefferson” using a recess appointment to fill a pre-recess vacancy. Ibid. That is not surprising in light of Randolph’s early conclusion that doing so would be unconstitutional. Adams on one occasion contemplated filling pre-recess vacancies but was dissuaded by, among others, Attorney General Lee, who said the Constitution did not permit him to do so. See 1799 McHenry Letter.[12] And the Solicitor General does not allege that even a single appointment made by Adams filled a pre-recess vacancy. Jefferson, too, at one point thought the Clause “susceptible of” the majority’s reading, 1802 Jefferson Letter, but his administration, like Adams’, appears never to have adopted that reading.

     James Madison’s administration seems to have rejected the majority’s reading as well. In 1814, Madison wanted to appoint Andrew Jackson to a vacant major-generalship in the Army during the Senate’s recess, but he accepted, without contradiction or reservation, his Secretary of War’s advice that he lacked the power to do so because the post’s previous occupant had resigned before the recess. He therefore ordered that Jackson be given a “brevet of Major General,” i.e., a warrant conferring the nominal rank without the salary thereof. Letter from John Armstrong to Madison (May 14, 1814); Letter from Madison to Armstrong (May 17, 1814). In conveying the brevet, Madison’s Secretary of War explained to Jackson that “ ‘[t]he vacancy produced by General Hampton’s resignation, not having been filled during the late session of the Senate, cannot be supplied constitutionally, during the recess.’ ” Letter from Armstrong to Jackson (May 22, 1814). A week later, when Madison learned that a different major general had resigned during the recess, he thought that development would enable him to appoint Jackson “at once.” Letter from Madison to Armstrong (May 24, 1814); see Letter from Armstrong to Madison (May 20, 1814) (reporting the resignation).[13]

     The majority discounts that evidence of an occasion when Madison and his advisers actually considered the precise constitutional question presented here. It does so apparently because Madison, in acting on the advice he was given without questioning the interpretation of the recess-appointment power that was offered as the reason for that advice, did not explicitly say “I agree.” The majority prefers to focus on five appointments by Madison, unremarked by anyone at the time, that “the evidence suggests” filled pre-recess vacancies. Ante, at 27. Even if the majority is correct about those appointments, there is no indication that any thought was given to their constitutionality, either within or outside the Executive Branch. A handful of appointments that appear to contravene the written opinions of Attorneys General Randolph and Lee and the written evidence of Madison’s own beliefs about what the Constitution authorized, and that lack any contemporaneous explanation, are not convincing evidence of the Constitution’s original meaning.[14]

     If Madison or his predecessors made any appointments in reliance on the broader reading, those appointments must have escaped general notice. In 1822, the Senate Committee on Military Affairs declared that the President had “no power to make [appointments] in the recess” where “the vacancies did not happen in the recess.” 38 Annals of Cong. 500. The Committee believed its construction had been “heretofore observed” and that “no instance ha[d] before occurred . . . where the President ha[d] felt himself authorized to fill such vacancies, without special authority by law.” Ibid.; see also T. Sergeant, Constitutional Law 373 (2d ed. 1830) (“[I]t seemed distinctly understood to be the sense of the senate, that [it] is only in offices that become vacant during the recess, that the president is authorised to exercise the right of appointing”).

2. 1823 to 1862

     The Executive Branch did not openly depart from Randolph and Lee’s interpretation until 1823, when Wirt issued the opinion discussed earlier. Even within that branch, Wirt’s view was hotly contested: William Crawford, Monroe’s Treasury Secretary, argued “with great pertinacity” that the Clause authorized the President to fill only “vacancies which happen during the recess” and not those “which happen while Congress are in session.” 5 Memoirs of John Quincy Adams 486–487 (C. Adams ed. 1875). Wirt’s analysis nonetheless gained ground in the Executive Branch over the next four decades; but it did so slowly and fitfully.

     In 1830, Attorney General Berrien disagreed with Wirt when he wrote that “[i]f the vacancy exist during the session of the Senate, . . . the President cannot appoint during the recess.” 2 Op. Atty. Gen. 333, 334. Two years later, Attorney General Taney endorsed Wirt’s view al-though doing so was, as he acknowledged, unnecessary to resolve the issue before him: whether the President could, during the recess, fill a vacancy resulting from the expiration of a prior recess appointment at the end of the Senate’s session. 2 Op. Atty Gen. 525, 528 (1832). Addressing the same issue in 1841, Attorney General Legaré appeared to believe the dispositive question was whether the office could be said to have “becom[e] vacant” during the recess. 3 Op. Atty. Gen. 673, 674. And in 1845, Attorney General Mason thought it “well established” that “[i]f vacancies are known to exist during the session of the Senate, and nominations are not then made, they cannot be filled by executive appointments in the recess.” 4 Op. Atty. Gen. 361, 363.[15]

     The tide seemed to turn—as far as the Executive Branch was concerned—in the mid-19th century: Attorney General Cushing in 1855 and Attorney General Bates in 1862 both treated Wirt’s position as settled without subjecting it to additional analysis. 7 Op. Atty. Gen. 186, 223; 10 Op. Atty. Gen. 356. Bates, however, entertained “serious doubts” about its validity. Ibid. And as one 19th-century court shrewdly observed in rejecting Wirt’s interpretation, the frequency with which Attorneys General during this period were called upon to opine on the question likely “indicate[s] that no settled administrative usage had been . . . established.” In re District Attorney of United States, 7 F. Cas. 731, 738 (No. 3,924) (DC Pa. 1868). The Solicitor General identifies only 10 recess appointments made between 1823 and 1863 that filled pre-recess vacancies—about one every four years. App. to Brief for Petitioner 68a–71a. That is hardly an impressive number, and most of the appointments were to minor offices (like Deputy Postmaster for Janesville, Wisconsin, id., at 70a) unlikely to have gotten the Senate’s attention. But the Senate did notice when, in 1862, President Lincoln recess-appointed David Davis to fill a seat on this Court that had become vacant before the recess, id., at 71a—and it reacted with vigor.

3. 1863 to 1939

     Two months after Lincoln’s recess appointment of Davis, the Senate directed the Judiciary Committee “to inquire whether the practice . . . of appointing officers to fill vacancies which have not occurred during the recess of Congress, but which existed at the preceding session of Congress, is in accordance with the Constitution; and if not, what remedy shall be applied.” Cong. Globe, 37th Cong., 3d Sess., 100 (1862). The committee responded with a report denouncing Wirt’s interpretation of the Clause as “artificial,” “forced and unnatural,” “unfounded,” and a “perversion of language.” S. Rep. No. 80, 37th Cong., 3d Sess., pp. 4–6 (1863). Because the majority all but ignores this evidence of the Senate’s views, it is worth quoting the report at some length:

     “When must the vacancy . . . accrue or spring into existence? May it begin during the session of the Senate, or must it have its beginning during the recess? We think the language too clear to admit of reasonable doubt, and that, upon principles of just construction, this period must have its inceptive point after one session has closed and before another session has begun. . . .

.     .     .     .     .

     “We . . . dissent from the construction implied by the substituted reading, ‘happened to exist,’ for the word ‘happen’ in the clause. . . . [I]f a vacancy once exists, it has in law happened; for it is in itself an instantaneous event. It implies no continuance of the act that produces it, but takes effect, and is complete and perfect at an indivisible point of time, like the beginning or end of a recess. Once in existence, it has happened, and the mere continuance of the condition of things which the occurrence produces, cannot, without confounding the most obvious distinctions, be taken or treated as the occurrence itself, as Mr. Wirt seems to have done. . . .

     “Again, we see no propriety in forcing the language from its popular meaning in order to meet and fulfill one confessedly great purpose, (the keeping the office filled,) while there is plainly another purpose of equal magnitude and importance (fitting qualifications)attached to and inseparable from the former.” Id.,at 3–6.

The Committee acknowledged that the broad reading “ha[d] been, from time to time, sanctioned by Attorneys General . . . and that the Executive ha[d], from time to time, practiced upon it,” but it said the Executive’s practice was entitled to no weight because the Constitution’s text was “too plain to admit of a doubt or to need interpretation.” Id., at 7.

     On the same day the Committee published its scathing report, its chairman, Senator Trumbull, proposed a law barring the payment of any officer appointed during the recess to fill a pre-recess vacancy. Cong. Globe, 37th Cong., 3d Sess., 564. Senator Fessenden spoke in support of the proposal:

“It ought to be understood distinctly, that when an officer does not come within the rules of law, and is appointed in that way in defiance of the wishes of the Senate, he shall not be paid. It may not be in our power to prevent the appointment, but it is in our power to prevent the payment; and when payment is prevented, I think that will probably put an end to the habit of making such appointments.” Id., at 565.

The amendment was adopted by the Senate, ibid., and after passing the House became the Pay Act, which provided that “no money shall be paid . . . out of the Treasury, as salary, to any person appointed during the recess of the Senate, to fill a vacancy . . . which . . . existed while the Senate was in session.” Act of Feb. 9, 1863, §2, 12Stat. 646 (codified at Rev. Stat. §1761; subsequently codified as amended at 5 U. S. C. §56 (1925–1926 ed.)).

     The Pay Act would remain in force without significant modification for nearly eight decades. The Executive Branch, however, refused to acknowledge that the Act embodied the Senate’s rejection of the broad reading of “happen.” Several Attorneys General continued to treat Wirt’s interpretation as settled without so much as mentioning the Act. See 12 Op. Atty. Gen. 32 (1866); 12 Op. Atty. Gen. 449 (1868); 14 Op. Atty. Gen. 562 (1875); 15 Op. Atty. Gen. 207 (1877). And when, 17 years after its passage, Attorney General Devens deigned to acknowledge the Act, he preposterously described it as “conced[ing]” the President’s power to make the appointments for which the Act barred payment. 16 Op. Atty. Gen. 522, 531 (1880).

     The majority is not that bold. Instead, it relegates the 1863 Judiciary Committee report to a pair of anodyne sentences in which it says only that the committee “dis-agreed with” Wirt’s interpretation. Ante, at 30. (With like understatement, one could say that Shakespeare’s Mark Antony “disagreed with” Caesar’s detractors.) Even more remarkably, the majority goes on to claim that the Senate’s passage of the Pay Act on the same day the committee issued its report was not a strong enough statement to impede the constitutionalization-by-adverse-possession of the power asserted by the Executive. Why not? Because, the majority says, some Senators may have disagreed with the report, and because the Senate did not go so far as to make acceptance of a recess appointment that filled a pre-recess vacancy “a federal crime.” Ante, at 30–31. That reasoning starkly illustrates the excessive burden the majority places on the Legislative Branch in contests with the Executive over the separation of powers. See supra,at 26.

     Despite its minimization by subsequent Attorneys General and by today’s majority, there is no reason to doubt that the Pay Act had a deterrent effect. The Solicitor General has identified just 40 recess appointments that filled pre-recess vacancies during the nearly eight decades between the Act’s passage in 1863 and its amendment in 1940. App. to Brief for Petitioner 71a–79a.[16]

4. 1940 to the Present

     The majority finds it highly significant that in 1940, Congress created a few carefully limited exceptions to the Pay Act’s prohibition on paying recess appointees who filled pre-recess vacancies. See Act of July 11, 1940, ch. 580, 54Stat. 751, now codified with nonsubstantive amendments at 5 U. S. C. §5503. Under the current version of the Act, “[p]ayment for services may not be made from the Treasury of the United States to an individual appointed during a recess of the Senate to fill a vacancy” that “existed while the Senate was in session” unless either the vacancy arose, or a different individual’s nomination to fill the vacancy was rejected, “within 30 days before the end of the session”; or a nomination was pending before the Senate at the end of the session, and the individual nominated was not himself a recess appointee. §5503(a)(1)–(3). And if the President fills a pre-recess vacancy under one of the circumstances specified in the Act, the law requires that he submit a nomination for that office to the Senate “not later than 40 days after the beginning of the next session.” §5503(b).

     The majority says that by allowing salaries to be paid to recess appointees in these narrow circumstances, “the 1940 Senate (and later Senates) in effect supported” the majority’s interpretation of the Clause. Ante, at 32. Nonsense. Even as amended, the Act strictly regulates payment to recess appointees who fill pre-recess vacancies, and it still forbids payment to many officers whose appointments are constitutional under the majority’s interpretation. As amici Senators observe, the 1940 amendments “reflect at most a desire not to punish public servants caught in the crossfire” of interbranch conflict. Brief for Sen. McConnell et al. as Amici Curiae 30. Surely that inference is more reasonable than the majority’s supposition that Congress, by permitting some of the appointees covered by the Act to be paid, meant to signal that it now believed all of the covered appointments were valid.

     Moreover, given the majority’s interpretation of the Recess Appointments Clause, it is fairly debatable whether the current version of the Pay Act is constitutional (and a fortiori, whether the pre-1940 version was constitutional). Even as amended, the Act seeks to limit and channelthe President’s exercise of the recess-appointment power by prohibiting payment to officers whose appointmentsare (per the majority) within the President’s sole constitutional authority if those appointments do not comply with conditions imposed by Congress, and by requiring the President to submit a nominee to the Senate in the first 40 days of the ensuing session. There is a colorable argument—which is routinely made by lawyers in the Executive Branch—that Congress “ ‘cannot use the appropriations power to control a Presidential power that is beyond its direct control.’ ” 33 Op. OLC ___, ___ (2009), online at http://‌www.‌justice.‌gov/‌olc/‌opiniondocs/‌section7054.pdf (quoting 20 Op. OLC 253, 267 (1996)). Consistent with that view, the Office of Legal Counsel has maintained that Congress could not “condition . . . the funding of an officer’s salary on being allowed to appoint the officer.” 13 Op. OLC 258, 261 (1989).

     If that is correct, then the Pay Act’s attempt to control the President’s exercise of the recess-appointment power at least raises a substantial constitutional question under the majority’s reading of the Recess Appointments Clause. See Rappaport, Original Meaning 1544–1546. The Executive has not challenged the Act’s constitutionality in this case, and I express no opinion on whether such a challenge would succeed. I simply point out that it is impossible to regard the amended Pay Act as evidence of Senatorial acquiescence in the majority’s reading when that reading has the potential to invalidate the Act.

     Since the Pay Act was amended, individual Senators have continued to maintain that recess appointments may not constitutionally be used to fill pre-recess vacancies. See, e.g., 130 Cong. Rec. 22780 (statement of seven Senators that a recess appointment to the Federal Reserve Board in 1984 was unconstitutional because the vacancy “did not happen during the recess”); Brief for Sen. McConnell et al. as Amici Curiae 26 (45 Senators taking that view of the Clause). And there is no evidence that the watering-down of the Pay Act produced an immediate flood of recess appointments filling pre-recess vacancies. The Solicitor General has pointed us to only 40 such appointments between 1940 and the present. App. to Brief for Petitioner 79a–89a.

     The majority, however, finds it significant that in two small “random sample[s]” of contemporary recess appointments—24 since 1981 and 21 since 2000—the bulk of the appointments appear to have filled pre-existing vacancies. Ante, at 29. Based on that evidence, the majority thinks it “a fair inference that a large proportion of the recess appointments in the history of the Nation have filled pre-existing vacancies.” Ibid. The extrapolation of that sweeping conclusion from a small set of recent data does not bear even the slightest scrutiny. The majority ignores two salient facts: First, from the founding until the mid-19th century, the President’s authority to make such appointments was far from settled even within the Executive Branch. Second, from 1863 until 1940, it was illegal to pay any recess appointee who filled a pre-recess va-cancy, which surely discouraged Presidents from making, and nominees from accepting, such appointments. Consequently, there is no reason to assume that the majority’s sampling—even if it accurately reflects practices during the last three decades—is at all typical of practices that prevailed throughout “the history of the Nation.”[17]

*  *  *

     In sum: Washington’s and Adams’ Attorneys General read the Constitution to restrict recess appointments to vacancies arising during the recess, and there is no evidence that any of the first four Presidents consciously departed from that reading. The contrary reading was first defended by an executive official in 1823, was vehemently rejected by the Senate in 1863, was vigorously resisted by legislation in place from 1863 until 1940, and is arguably inconsistent with legislation in place from 1940 to the present. The Solicitor General has identified only about 100 appointments that have ever been made under the broader reading, and while it seems likely that a good deal more have been made in the last few decades, there is good reason to doubt that many were made before 1940 (since the appointees could not have been compensated). I can conceive of no sane constitutional theory under which this evidence of “historical practice”—which is actually evidence of a long-simmering inter-branch conflict—would require us to defer to the views of the Executive Branch.

IV. Conclusion

     What the majority needs to sustain its judgment is an ambiguous text and a clear historical practice. What it has is a clear text and an at-best-ambiguous historical practice. Even if the Executive could accumulate power through adverse possession by engaging in a consistent and unchallenged practice over a long period of time, the oft-disputed practices at issue here would not meet that standard. Nor have those practices created any justifiable expectations that could be disappointed by enforcing the Constitution’s original meaning. There is thus no ground for the majority’s deference to the unconstitutional recess-appointment practices of the Executive Branch.

     The majority replaces the Constitution’s text with a new set of judge-made rules to govern recess appointments. Henceforth, the Senate can avoid triggering the President’s now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is understood that no business will be conducted. Ante, at 33–34. How this new regime will work in practice remains to be seen. Perhaps it will reduce the prevalence of recess appointments. But perhaps not: Members of the President’s party in Congress may be able to prevent the Senate from holding pro forma sessions with the necessary frequency, and if the House and Senate disagree, the President may be able to adjourn both “to such Time as he shall think proper.” U. S. Const., Art. II, §3. In any event, the limitation upon the President’s appointment power is there not for the benefit of the Senate, but for the protection of the people; it should not be dependent on Senate action for its existence.

     The real tragedy of today’s decision is not simply the abolition of the Constitution’s limits on the recess-appointment power and the substitution of a novel framework invented by this Court. It is the damage done to our separation-of-powers jurisprudence more generally. It is not every day that we encounter a proper case or controversy requiring interpretation of the Constitution’s structural provisions. Most of the time, the interpretation of those provisions is left to the political branches—which, in deciding how much respect to afford the constitutional text, often take their cues from this Court. We should therefore take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand. Sad, but true: The Court’s embrace of the adverse-possession theory of executive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.

     I concur in the judgment only.


1  The other cases cited by the majority in which we have afforded significant weight to historical practice, at 8, are consistent with the principles described above. Nearly all involved venerable and unchallenged practices, and constitutional provisions that were either deeply ambiguous or plainly supportive of the practice. See v. , –681, and n. 8, 686 (1981) (citing Presidential practice dating from 1799 and never questioned by Congress to inform meaning of “Executive Power”); , –119 (1925) (citing unchallenged Presidential practice dating from 1841 as support for a construction of the pardon power based on the “common law,” the “history of the clause in the Convention,” and “the ordinary meaning of its words”); v. , –471, 474 (1915) (citing Presidential practice dating from “an early period in the history of the government,” “uniformly and repeatedly acquiesced in” by Congress and previously upheld by this Court, to establish “a recognized administrative power of the Executive in the management of the public lands”); v. , –35 (1892) (citing method of choosing Presidential electors prevalent among the States “from the formation of the government until now,” as to the constitutionality of which “ ‘no question ha[d] ever arisen,’ ” in support of construction consistent with the constitutional text and its drafting history); v. , 4 Wheat. 316, 401–402 (1819) (citing power “exercised by the first Congress elected under the present constitution,” “recognized by many successive legislatures, and . . . acted upon by the judicial department,” in support of the conclusion that the Necessary and Proper Clause allowed Congress to incorporate a bank); v. , 1 Cranch 299, 309 (1803) (citing practice that “commence[d] with the organization of the judicial system” in rejecting challenge to Supreme Court Justices’ riding circuit). Even v. , , which concluded that the constitutional text did not prohibit judges from undertaking extrajudicial duties and found “additional evidence” for that conclusion in a longstanding practice that it acknowledged had been “controversial,” emphasized that it was relying on “contemporaneous practice by the Founders themselves” that had been “frequent and continuing” since ratification. at 397–400.
2  The majority claims that “the phrase ‘the recess’ was used to refer to intra-session recesses at the time of the founding,” at 10, but it offers strikingly little support for that assertion. It first cites a letter from George Washington that is quite obviously an example of imprecise, colloquial usage. See 3 Records of the Federal Convention of 1787, p. 76 (M. Farrand rev. 1966) (“I had put my carriage in the hands of a workman to be repaired and had not the means of mooving [sic] during the recess”). It next cites an example from the New Jersey Legislature that simply reflects that body’s practice of dividing its time not only into “sessions” but also into distinct, formal “sittings” within each session, with “the recess” denoting the period between sittings. See Brief for Respondent Noel Canning 23; see also Natelson 207. Finally, the majority cites three pages from the Solicitor General’s brief without acknowledging the arguments offered in response to the Solicitor General’s few supposed counterexamples. See, Brief for Respondent Noel Canning 21–24; Natelson 222, n. 120.
3  The majority insists that “the most likely reason the Framers did not place a textual floor underneath the word ‘recess’ is that they did not foresee the for one” because they did not anticipate that intra-session breaks “would become lengthier and more significant than inter-session ones.” at 19. The majority’s logic escapes me. The Framers’ supposed failure to anticipate “length[y]” intra-session breaks might explain why (as I maintain) they did not bother to authorize recess appointments during intra-session breaks at all; but it cannot explain why (as the majority holds) they would have enacted a text that authorizes appointments during intra-session breaks—even the short ones the majority says they anticipate—without placing a temporal limitation on that power.
4  The majority erroneously suggests that the “lack of a textual floor raises a problem that plagues” both interpretations of “the Recess.” at 19. Not so. If the Clause is given its plain meaning, the President cannot make recess appointments during the session but can make recess appointments during any break sessions, no matter how short. Contra the majority, that is not a “problem.” True, the recess-appointment power applies even during very short inter-session breaks. But inter-session breaks typically occur at most a few times a year, and the recess-appointment power is of limited utility during very short inter-session breaks since, as explained below, the President can fill only those vacancies that arise during the break. See Part III, . Of course, as the Senate Judiciary Committee has argued, the break must be actual and not “constructive”; the Senate must adjourn for some measurable period of time between the two sessions. See at 20–22. But the requirement that there actually a recess does not involve anywhere near the level of indeterminacy entailed by the majority’s requirement that the recess be (or the circumstances unusual enough), as determined by a court, to trigger the recess-appointment power.
5  The majority does not contend otherwise. The Solicitor General claims that President Lincoln appointed a handful of brigadier generals during intra-session breaks in 1862 and 1863, but he does not include those appointments in his list of known intra-session recess appointments. Compare Brief for Petitioner 22 with App. to Brief for Petitioner 1a. Noel Canning convincingly argues that the generals were not given recess appointments but only unofficial “acting appointments” for which they received no commissions. Brief for Respondent Noel Canning 25; see Rappaport, Why Nonoriginalism Does Not Justify Departing from the Original Meaning of the Recess Appointments Clause (manuscript, at 27, n. 79) (hereinafter Rappaport, Nonoriginalism), online at http://‌papers.‌ssrn.‌com/‌sol3/‌papers.‌cfm?abstract_‌id=‌2374563 (all Internet materials as visited June 24, 2014, and available in the Clerk of Court’s case file).
6  The majority dismisses Knox’s opinion as overly formalistic because it “relied heavily upon the use of the word ‘the’ ” in the phrase “the Recess.” at 13. It did not. As the passage quoted above makes clear, Knox was relying on the common understanding of what “the Recess” meant in the context of marking out legislative time.
7  I say Daugherty “arguably” embraced the majority’s view because he may have been endorsing, not the majority’s position, but the intermediate view that reads both “the Recess” and “the next Session” in functional terms, so that intra-session appointments would last only until the next intra-session break. See at 10; Rappaport, Nonoriginalism 34–35.
8  Despite initially admitting that the text “does not naturally favor” its interpretation, the majority halfheartedly suggests that the “ ‘happen to be’ ” reading may be admissible when the subject, like “vacancy,” denotes a “continuing state.” at 22–23. That suggestion distorts ordinary English usage. It is indeed natural to say that an ongoing activity or event, like a war, a parade, or a financial crisis, is “happening” for as long as it continues. But the same is not true when the subject is a settled state of affairs, like death, marriage, or vacancy, all of which “happen” when they come into being.
9  The majority insists that “character and politics” will ordinarily prevent the President from circumventing the Senate, and that the Senate has “political resources” to respond to attempts at circumvention. at 25. Neither character nor politics prevented Theodore Roosevelt from proclaiming a fictitious recess lasting an “infinitesimal fraction of a second.” In any event, the Constitution does not entrust the Senate’s role in the appointments process to the vagaries of character and politics. See, v. , –880 (1991).
10  The majority does not deny that Lee took those positions, but it claims he also “later informed [Thomas] Jefferson that, in the Adams administration, ‘whenever an office became vacant, so short a time before Congress rose, as not to give an opportunity of enquiring for a proper character, they let it lie always till recess.’ ” at 27 (quoting Letter from Jefferson to Wilson Cary Nicholas (Jan. 26, 1802), in 36 Papers of Thomas Jefferson 433 (B. Oberg ed. 2009) (hereinafter 1802 Jefferson Letter)). Assuming Lee in fact made the statement attributed to him by Jefferson, and further assuming that Lee endorsed the constitutionality of the practice described in that statement (which Jefferson does not say), that practice could only have been regarded as a pragmatic exception to the general view of the Clause that Lee, like Randolph, espoused. And the practice must not have been extensive, since the Solicitor General has been unable to identify even a single appointment made by Adams that filled a pre-recess vacancy. See at 36.
11  The majority suggests that these statutes may have reflected, not a belief that the recess-appointment power was limited to vacancies arising during the recess, but a “separate” belief that the power could not be used for “new offices” created by Congress and not previously filled. at 30. But the latter view (which the majority does not endorse) was inseparably linked with the former (which the majority rejects), as is made clear by the very source the majority cites. See Letter from Alexander Hamilton to James McHenry (May 3, 1799), in 23 Papers of Alexander Hamilton 94 (H. Syrett ed. 1976) (“[T]he power to fill the vacancy is not the power to make an original appointment. The phrase ‘Which may have happened’ serves to confirm this construction. . . . [I]ndependent of the authority of a special law, the President cannot fill a vacancy which happens during a session of the Senate”); see also 2 Op. Atty. Gen., at 334 (“If the vacancy exist during the session of the Senate, as in the first creation of an office by law, it has been held that the President cannot appoint during the recess, unless he is specially authorized so to do by law”); W. Rawle, A View of the Constitution of the United States of America 163 (2d ed. 1829) (reprint 2009) (“It has been held by [the Senate], that if new offices are created by congress, the president cannot, after the adjournment of the senate, make appointments to fill them. The vacancies do not during the recess of the senate”).
12  See also Letter from Adams to James McHenry (April 16, 1799), in 8 Works of John Adams 632 (C. Adams ed. 1853) (proposing the appointments); Letter from Adams to McHenry (May 16, 1799), in at 647 (agreeing to “suspend [the appointments] for the present, perhaps till the meeting of the Senate”). Before advising Adams, McHenry also consulted Alexander Hamilton, who agreed that the appointments would be unlawful. See Letter from McHenry to Hamilton (Apr. 26, 1799), in 23 Papers of Alexander Hamilton, at 69, 70 (“It would seem that, under this Constitutional power, the President cannot alone . . . fill up vacancies that may happen during a session of the senate”); Letter from Hamilton to McHenry (May 3, 1799), in at 94 (“It is clear, that independent of the authority of a special law, the President cannot fill a vacancy which happens during a session of the Senate”).
13  All the letters cited in this paragraph are available onlinecourtesy of the Library of Congress. See James Madison Papers,
14  The same can be said of the Solicitor General’s claim to have found two recess appointments by Washington and four by Jefferson that filled pre-existing vacancies. Noel Canning disputes that claim, pointing out that Washington told the Senate the offices in question had “ ‘fallen vacant during the recess’ ” and arguing that Jefferson may have removed the incumbent officers during the recess. Brief for Respondent Noel Canning 44. Suffice it to say that if either Washington or Jefferson had adopted the broader reading, against the written advice of Attorneys General Randolph and Lee, one would expect a good deal more evidence of that fact.
15  A year later Mason, like Taney and Legaré before him, concluded that when a recess appointment expired at the end of the Senate’s session, the President could fill the resulting vacancy during the ensuing recess. In reaching that conclusion, Mason reiterated that the recess-appointment power “depends on the happening of vacancies when the Senate is not in session” and said the vacancy at issue was “within the meaning of” the Clause because the happening of the vacancy and the termination of the session had “occurred .” 4 Op. Atty. Gen. 523, 526–527 (1846).
16  In the early 20th century, some Senators acceded to the majority’s reading of the Clause, as the majority is eager to point out, at 31. In 1904, Senator Tillman allowed that “the Senate ha[d] acquiesced” in the President’s use of the recess-appointment power to fill pre-existing vacancies, 38 Cong. Rec. 1606, though he also quoted at length from the 1863 Judiciary Committee report and said he did “not see how anybody can find any argument to controvert the position [the report] takes,” at 1608. And in 1916, Senators Robinson and Sutherland accepted the majority’s reading without analysis. 53 Cong. Rec. 4298. The reader can decide whether those statements by three Senators justify the assertion that the Senate “abandoned its hostility” to the broad reading, at 31.
17  The majority also notes that many of the recess appointments identified by the Solicitor General were made “within two weeks of the beginning of the recess,” which, according to the majority, “strongly suggests that many of the vacancies initially arose prior to the recess.” at 29. The inference is unwarranted, since there are many circumstances other than random chance that could cause a vacancy to arise early in the recess: For example, the prior officeholder may have been another recess appointee whose commission expired at the end of the Senate’s session, or he may have waited until the recess to resign so that his successor could be compensated without violating the Pay Act. In any event, the overwhelming majority of the intra-session recess appointments on the Solicitor General’s list occurred after 1945 and do not shed light on earlier practices.
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