SUPREME COURT OF THE UNITED STATES
_________________
No. 12–1281
_________________
NATIONAL LABOR RELATIONS BOARD, PETITIONER v.
NOEL CANNING, et al.
on writ of certiorari to the united states
court of appeals for the district of columbia circuit
[June 26, 2014]
Justice 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.