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.