throbber
(Slip Opinion)
`
`
`
` OCTOBER TERM, 2013
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
`NATIONAL LABOR RELATIONS BOARD v. NOEL
`
`CANNING ET AL.
`
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE DISTRICT OF COLUMBIA CIRCUIT
` No. 12–1281. Argued January 13, 2014—Decided June 26, 2014
`
`Respondent Noel Canning, a Pepsi-Cola distributor, asked the D. C.
`Circuit to set aside an order of the National Labor Relations Board,
`claiming that the Board lacked a quorum because three of the five
`Board members had been invalidly appointed. The nominations of
`the three members in question were pending in the Senate when it
`passed a December 17, 2011, resolution providing for a series of “pro
`
`forma session[s],” with “no business . . . transacted,” every Tuesday
`and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess.,
`923. Invoking the Recess Appointments Clause—which gives the
`President the power “to fill up all Vacancies that may happen during
`the Recess of the Senate,” Art. II, §2, cl. 3—the President appointed
`the three members in question between the January 3 and January 6
`pro forma sessions. Noel Canning argued primarily that the ap-
`pointments were invalid because the 3-day adjournment between
`
`those two sessions was not long enough to trigger the Recess Ap-
`pointments Clause. The D. C. Circuit agreed that the appointments
`fell outside the scope of the Clause, but on different grounds. It held
`that the phrase “the recess,” as used in the Clause, does not include
`intra-session recesses, and that the phrase “vacancies that may hap-
`pen during the recess” applies only to vacancies that first come into
`
`existence during a recess.
`Held:
`
`
`1. The Recess Appointments Clause empowers the President to fill
`any existing vacancy during any recess—intra-session or inter-
`session—of sufficient length. Pp. 5–33.
`
`
`(a) Two background considerations are relevant to the questions
`
`here. First, the Recess Appointments Clause is a subsidiary method
`
`
`
`
`
`
`
`
`
`

`
`
`NLRB v. NOEL CANNING
`
`
`Syllabus
`for appointing officers of the United States. The Founders intended
`the norm to be the method of appointment in Article II, §2, cl. 2,
`which requires Senate approval of Presidential nominations, at least
`
`for principal officers. The Recess Appointments Clause reflects the
`tension between the President’s continuous need for “the assistance
`of subordinates,” Myers v. United States, 272 U. S. 52, 117, and the
`Senate’s early practice of meeting for a single brief session each year.
`The Clause should be interpreted as granting the President the pow-
`
`er to make appointments during a recess but not offering the Presi-
`dent the authority routinely to avoid the need for Senate confirma-
`tion.
`
`Second, in interpreting the Clause, the Court puts significant
`weight upon historical practice. The longstanding “practice of the
`
`
`
`government,” McCulloch v. Maryland, 4 Wheat. 316, 401, can inform
`this Court’s determination of “what the law is” in a separation-of-
`
`
`powers case, Marbury v. Madison, 1 Cranch 137, 176. See also, e.g.,
`Mistretta v. United States, 488 U. S. 361, 401; The Pocket Veto Case,
`
`279 U. S. 655, 689–690. There is a great deal of history to consider
`
`here, for Presidents have made recess appointments since the begin-
`ning of the Republic. Their frequency suggests that the Senate and
`President have recognized that such appointments can be both neces-
`
`sary and appropriate in certain circumstances. The Court, in inter-
`preting the Clause for the first time, must hesitate to upset the com-
`promises and working arrangements that the elected branches of
`
`Government themselves have reached. Pp. 5–9.
`(b) The phrase “the recess of the Senate” applies to both inter-
`session recess (i.e., breaks between formal sessions of the Senate) and
`intra-session recesses (i.e., breaks in the midst of a formal session) of
`substantial length. The constitutional text is ambiguous. Founding-
`era dictionaries and usages show that the phrase “the recess” can en-
`compass intra-session breaks. And this broader interpretation is
`demanded by the purpose of the Clause, which is to allow the Presi-
`
`
`dent to make appointments so as to ensure the continued functioning
`of the Government while the Senate is away. The Senate is equally
`away and unavailable to participate in the appointments process dur-
`
`
`ing both an inter-session and an intra-session recess. History offers
`further support for this interpretation. From the founding until the
`Great Depression, every time the Senate took a substantial, non-
`holiday intra-session recess, the President made recess appoint-
`ments. President Andrew Johnson made the first documented intra-
`session recess appointments in 1867 and 1868, and Presidents made
`similar appointments in 1921 and 1929. Since 1929, and particularly
`since the end of World War II, Congress has shortened its inter-
`session breaks and taken longer and more frequent intra-session
`
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`
`2
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`

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`
`Cite as: 573 U. S. ____ (2014)
`
`
`Syllabus
`breaks; Presidents accordingly have made more intra-session recess
`appointments. Meanwhile, the Senate has never taken any formal
`action to deny the validity of intra-session recess appointments. In
`1905, the Senate Judiciary Committee defined “the recess” as “the
`period of time when the Senate” is absent and cannot “participate as
`a body in making appointments,” S. Rep. No. 4389, 58th Cong., 3d
`Sess., p. 2, and that functional definition encompasses both intra-
`session and inter-session recesses. A 1940 law regulating the pay-
`ment of recess appointees has also been interpreted functionally by
`the Comptroller General (an officer of the Legislative Branch). In
`sum, Presidents have made intra-session recess appointments for a
`century and a half, and the Senate has never taken formal action to
`oppose them. That practice is long enough to entitle it to “great
`weight in a proper interpretation” of the constitutional provision.
`The Pocket Veto Case, supra, at 689.
`
`The Clause does not say how long a recess must be in order to fall
`within the Clause, but even the Solicitor General concedes that a 3-
`day recess would be too short. The Adjournments Clause, Art. I, §5,
`
`cl. 4, reflects the fact that a 3-day break is not a significant interrup-
`tion of legislative business. A Senate recess that is so short that it
`does not require the consent of the House under that Clause is not
`
`long enough to trigger the President’s recess-appointment power.
`Moreover, the Court has not found a single example of a recess ap-
`pointment made during an intra-session recess that was shorter than
`10 days. There are a few examples of inter-session recess appoint-
`ments made during recesses of less than 10 days, but these are
`anomalies. In light of historical practice, a recess of more than 3
`
`
`days but less than 10 days is presumptively too short to fall within
`the Clause. The word “presumptively” leaves open the possibility
`that a very unusual circumstance could demand the exercise of the
`
`recess-appointment power during a shorter break. Pp. 9–21.
`
`
`(c) The phrase “vacancies that may happen during the recess of
`
`the Senate,” Art. II, §2, cl. 3, applies both to vacancies that first come
`into existence during a recess and to vacancies that initially occur be-
`fore a recess but continue to exist during the recess. Again, the text
`is ambiguous. As Thomas Jefferson observed, the Clause is “certain-
`ly susceptible of [two] constructions.” Letter to Wilson Cary Nicholas
`(Jan. 26, 1802), in 36 Papers of Thomas Jefferson 433. It “may mean
`‘vacancies that may happen to be’ or ‘may happen to fall’ ” during a
`
`
`recess. Ibid. And, as Attorney General Wirt wrote in 1821, the
`broader reading is more consonant with the “reason and spirit” of the
`Clause. 1 Op. Atty. Gen. 632. The purpose of the Clause is to permit
`
`
`the President, who is always acting to execute the law, to obtain the
`assistance of subordinate officers while the Senate, which acts only in
`
`
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`
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`
`3
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`
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`
`
`
`
`

`
`
`NLRB v. NOEL CANNING
`
`
`Syllabus
`
`intervals, is unavailable to confirm them. If a vacancy arises too late
`in the session for the President and Senate to have an opportunity to
`select a replacement, the narrower reading could paralyze important
`functions of the Federal Government, particularly at the time of the
`founding. The broader interpretation ensures that offices needing to
`be filled can be filled. It does raise a danger that the President may
`attempt to use the recess-appointment power to circumvent the Sen-
`
`
`ate’s advice and consent role. But the narrower interpretation risks
`undermining constitutionally conferred powers more seriously and
`more often. It would prevent a President from making any recess
`
`appointment to fill a vacancy that arose before a recess, no matter
`who the official, how dire the need, how uncontroversial the appoint-
`ment, and how late in the session the office fell vacant.
`
`Historical practice also strongly favors the broader interpretation.
`
`The tradition of applying the Clause to pre-recess vacancies dates at
`least to President Madison. Nearly every Attorney General to con-
`sider the question has approved the practice, and every President
`since James Buchanan has made recess appointments to pre-existing
`vacancies. It is a fair inference from the historical data that a large
`proportion of recess appointments over our Nation’s history have
`filled pre-recess vacancies. The Senate Judiciary Committee in 1863
`did issue a report disagreeing with the broader interpretation, and
`Congress passed a law known as the Pay Act prohibiting payment of
`
`recess appointments to pre-recess vacancies soon after. However, the
`Senate subsequently abandoned its hostility. In 1940, the Senate
`amended the Pay Act to permit payment of recess appointees in cir-
`cumstances that would be unconstitutional under the narrower in-
`terpretation. In short, Presidents have made recess appointments to
`
`preexisting vacancies for two centuries, and the Senate as a body has
`not countered this practice for nearly three-quarters of a century,
`perhaps longer. The Court is reluctant to upset this traditional prac-
`tice where doing so would seriously shrink the authority that Presi-
`dents have believed existed and have exercised for so long. Pp. 21–
`
`33.
`
`
`2. For purposes of the Recess Appointments Clause, the Senate is
`
`
`in session when it says that it is, provided that, under its own rules,
`
`it retains the capacity to transact Senate business.
`
`This standard is consistent with the Constitution’s broad delega-
`
`tion of authority to the Senate to determine how and when to conduct
`its business, as recognized by this Court’s precedents. See Art. I, §5,
`
`
`cl. 2; Marshall Field & Co. v. Clark, 143 U. S. 649, 672; United States
`v. Ballin, 144 U. S. 1, 5, 9. Although the Senate’s own determination
`of when it is and is not in session should be given great weight, the
`Court’s deference cannot be absolute. When the Senate is without
`
`
`
`
`
`
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`
`
`
`
`4
`
`
`
`
`

`
`5
`
`
`
`
`
`
`
`
`
` Cite as: 573 U. S. ____ (2014)
`
`
`Syllabus
`the capacity to act, under its own rules, it is not in session even if it
`so declares.
`
`Under the standard set forth here, the Senate was in session dur-
`ing the pro forma sessions at issue. It said it was in session, and
`Senate rules make clear that the Senate retained the power to con-
`duct business. The Senate could have conducted business simply by
`passing a unanimous consent agreement. In fact, it did so; it passed
`
` a bill by unanimous consent during its pro forma session on Decem-
`ber 23, 2011. See 2011 S. J. 924; Pub. L. 112–78. The Court will not,
`
` as the Solicitor General urges, engage in an in-depth factual apprais-
`al of what the Senate actually did during its pro forma sessions in or-
`der to determine whether it was in recess or in session for purposes of
`the Recess Appointments Clause.
`
`Because the Senate was in session during its pro forma sessions,
`
`
`the President made the recess appointments at issue during a 3-day
`recess. Three days is too short a time to bring a recess within the
`
`scope of the Clause, so the President lacked the authority to make
`
`those appointments. Pp. 33–41.
`
`705 F. 3d 490, affirmed.
`BREYER, J., delivered the opinion of the Court, in which KENNEDY,
`
`
`GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed an
`
`
`
`opinion concurring in the judgment, in which ROBERTS, C. J., and
`
`THOMAS and ALITO, JJ., joined.
`
`
`
`
`
`
`

`
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`
` Cite as: 573 U. S. ____ (2014)
`
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`
` 1
`
`Opinion of the Court
` Opinion of the Court
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash­
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`
` 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]
`
`
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` JUSTICE BREYER delivered the opinion of the Court.
`
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` Ordinarily the President must obtain “the Advice and
`
` Consent of the Senate” before appointing an “Office[r] of
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`
`
`
` the United States.” U. S. Const., Art. II, §2, cl. 2. But the
`
`
`
`
`
`
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`
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` Recess Appointments Clause creates an exception.
`It
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` gives the President alone the power “to fill up all Vacan­
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`
`
`
`
` cies that may happen during the Recess of the Senate, by
`
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`
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`
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`
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` granting Commissions which shall expire at the End of
`
` their next Session.” Art. II, §2, cl. 3. We here consider
`
`
`
`
`
`
`
` three questions about the application of this Clause.
`
`
`
`
`
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` The first concerns the scope of the words “recess of the
`
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`
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` Senate.” Does that phrase refer only to an inter-session
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` recess (i.e., a break between formal sessions of Congress),
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`
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` or does it also include an intra-session recess, such as a
`
`
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` summer recess in the midst of a session? We conclude
`
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`
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` that the Clause applies to both kinds of recess.
`
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`
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` The second question concerns the scope of the words
`
`
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`
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` “vacancies that may happen.” Does that phrase refer only
`
`
`
`
` to vacancies that first come into existence during a recess,
`
`
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` or does it also include vacancies that arise prior to a recess
`
`
`
` but continue to exist during the recess? We conclude that
`
`
`
`
`

`
`
`
`NLRB v. NOEL CANNING
`2
`
`
`Opinion of the Court
`
`
`the Clause applies to both kinds of vacancy.
` The third question concerns calculation of the length of
`a “recess.” The President made the appointments here at
`issue on January 4, 2012. At that time the Senate was in
`recess pursuant to a December 17, 2011, resolution provid-
`ing for a series of brief recesses punctuated by “pro forma
`session[s],” with “no business . . . transacted,” every Tues-
`day and Friday through January 20, 2012. S. J., 112th
`Cong., 1st Sess., 923 (2011) (hereinafter 2011 S. J.). In
`calculating the length of a recess are we to ignore the pro
`forma sessions, thereby treating the series of brief recesses
`as a single, month-long recess? We conclude that we
`cannot ignore these pro forma sessions.
` Our answer to the third question means that, when the
`appointments before us took place, the Senate was in the
`midst of a 3-day recess. Three days is too short a time to
`bring a recess within the scope of the Clause. Thus we
`conclude that the President lacked the power to make the
`recess appointments here at issue.
`I
` The case before us arises out of a labor dispute. The
`National Labor Relations Board (NLRB) found that a
`Pepsi-Cola distributor, Noel Canning, had unlawfully
`refused to reduce to writing and execute a collective-
`bargaining agreement with a labor union. The Board
`ordered the distributor to execute the agreement and to
`make employees whole for any losses. Noel Canning, 358
`N. L. R. B. No. 4 (2012).
` The Pepsi-Cola distributor subsequently asked the
`Court of Appeals for the District of Columbia Circuit to set
`the Board’s order aside. It claimed that three of the five
`Board members had been invalidly appointed, leaving the
`Board without the three lawfully appointed members
`necessary for it to act. See 29 U. S. C. §160(f) (providing
`for judicial review); §153(a) (providing for a 5-member
`
`

`
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`
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`
` Cite as: 573 U. S. ____ (2014)
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` 3
`
`Opinion of the Court
`Appendix A to opinion of the Court
` Opinion of the Court
`
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`
` Board); §153(b) (providing for a 3-member quorum); New
`
` Process Steel, L. P. v. NLRB, 560 U. S. 674, 687–688
`
`
`
`
`
`
`
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` (2010) (in the absence of a lawfully appointed quorum, the
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` Board cannot exercise its powers).
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` The three members in question were Sharon Block,
`
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` Richard Griffin, and Terence Flynn. In 2011 the President
`
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` had nominated each of them to the Board. As of January
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` 2012, Flynn’s nomination had been pending in the Senate
`
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` awaiting confirmation for approximately a year. The
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`
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` nominations of each of the other two had been pending for
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`
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` a few weeks. On January 4, 2012, the President, invoking
`
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` the Recess Appointments Clause, appointed all three to
`
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`
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` the Board.
`
`
`
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` The distributor argued that the Recess Appointments
`
`
` Clause did not authorize those appointments. It pointed
`
`
` out that on December 17, 2011, the Senate, by unanimous
`
`
`
`
` consent, had adopted a resolution providing that it would
`
`
`
` take a series of brief recesses beginning the following day.
`
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` See 2011 S. J. 923. Pursuant to that resolution, the Sen­
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` ate held pro forma sessions every Tuesday and Friday
`
`
`
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` until it returned for ordinary business on January 23,
`
`
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` 2012. Ibid.; 158 Cong. Rec. S1–S11 (Jan. 3–20, 2012). The
`
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` President’s January 4 appointments were made between
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` the January 3 and January 6 pro forma sessions. In the
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` distributor’s view, each pro forma session terminated the
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` immediately preceding recess. Accordingly, the appoint­
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`
`
` ments were made during a 3-day adjournment, which is
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`
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` not long enough to trigger the Recess Appointments
`
`
`
` Clause.
`
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`
`
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` The Court of Appeals agreed that the appointments fell
`
`
` outside the scope of the Clause. But the court set forth
`
`
`
`
`
`
` different reasons. It held that the Clause’s words “the
`
`
`
`
`
`
` recess of the Senate” do not include recesses that occur
`
`
`
`
`
` within a formal session of Congress, i.e., intra-session
`
`
`
`
` recesses. Rather those words apply only to recesses be-
`
`
`
`
`
`
` tween those formal sessions, i.e., inter-session recesses.
`
`
`
`
`
`

`
`
`
`NLRB v. NOEL CANNING
`4
`
`
`Opinion of the Court
`
`
`Since the second session of the 112th Congress began on
`January 3, 2012, the day before the President’s appoint-
`ments, those appointments occurred during an intra-
`session recess, and the appointments consequently fell
`outside the scope of the Clause. 705 F. 3d 490, 499–507
`(CADC 2013).
` The Court of Appeals added that, in any event, the
`phrase “vacancies that may happen during the recess”
`applies only to vacancies that come into existence during a
`recess. Id., at 507–512. The vacancies that Members
`Block, Griffin, and Flynn were appointed to fill had arisen
`before the beginning of the recess during which they were
`appointed. For this reason too the President’s appoint-
`ments were invalid. And, because the Board lacked a
`quorum of validly appointed members when it issued its
`order, the order was invalid. 29 U. S. C. §153(b); New
`Process Steel, supra.
` We granted the Solicitor General’s petition for certio-
`rari. We asked the parties to address not only the Court of
`Appeals’ interpretation of the Clause but also the distribu-
`tor’s initial argument, namely, “[w]hether the President’s
`recess-appointment power may be exercised when the
`Senate is convening every three days in pro forma ses-
`sions.” 570 U. S. ___ (2013).
` We shall answer all three questions presented. We
`recognize that the President has nominated others to fill
`the positions once occupied by Members Block, Griffin,
`and Flynn, and that the Senate has confirmed these suc-
`cessors. But, as the parties recognize, the fact that the
`Board now unquestionably has a quorum does not moot
`the controversy about the validity of the previously en-
`tered Board order. And there are pending before us peti-
`tions from decisions in other cases involving challenges to
`the appointment of Board Member Craig Becker. The
`President appointed Member Becker during an intra-
`session recess that was not punctuated by pro forma ses-
`
`

`
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` Cite as: 573 U. S. ____ (2014)
`
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` 5
`
`Opinion of the Court
`Appendix A to opinion of the Court
` Opinion of the Court
`
`
`
` sions, and the vacancy Becker filled had come into exist­
`
`
`
`
`
`
` ence prior to the recess. See Congressional Research
`
` Service, H. Hogue, M. Carey, M. Greene, & M. Bearden,
`
`
`
`
`
`
`
`
` The Noel Canning Decision and Recess Appointments
`
`
`
`
` Made from 1981–2013, p. 28 (Feb. 4, 2013) (hereinaf­
`
`
`
`
`
`
`
` ter The Noel Canning Decision); NLRB, Members of
`
`
`
`
`
`
`
`
` the NLRB since 1935, online at http://www.nlrb.gov/
`
`
`
` who-we-are/board/members-nlrb-1935 (all Internet mate­
`
`
` rials as visited June 24, 2014, and available in Clerk of
`
`
`
`
`
`
`
` Court’s case file). Other cases involving similar challenges
`
`
`
`
` are also pending in the Courts of Appeals. E.g., NLRB v.
`
`
`
`
`
`
`
`
`
` New Vista Nursing & Rehabilitation, No. 11–3440 etc.
`
`
`
`
`
`
` (CA3). Thus, we believe it is important to answer all three
`
`
`
`
`
` questions that this case presents.
`
`
`
`
`
`
`
`
` II
`
`
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`
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`
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` Before turning to the specific questions presented, we
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` shall mention two background considerations that we find
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` relevant to all three. First, the Recess Appointments
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` Clause sets forth a subsidiary, not a primary, method for
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` appointing officers of the United States. The immediately
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` preceding Clause—Article II, Section 2, Clause 2—
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` provides the primary method of appointment. It says that
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` the President “shall nominate, and by and with the Advice
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` and Consent of the Senate, shall appoint Ambassadors,
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` other public Ministers and Consuls, Judges of the supreme
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` Court, and all other Officers of the United States” (empha­
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` sis added).
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` The Federalist Papers make clear that the Founders
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` intended this method of appointment, requiring Senate
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` approval, to be the norm (at least for principal officers).
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` Alexander Hamilton wrote that the Constitution vests the
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` power of nomination in the President alone because “one
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` man of discernment is better fitted to analise and estimate
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` the peculiar qualities adapted to particular offices, than a
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` body of men of equal, or perhaps even of superior discern­
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`

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`NLRB v. NOEL CANNING
`6
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`
`Opinion of the Court
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`
`Opinion of the Court
`ment.” The Federalist No. 76, p. 510 (J. Cooke ed. 1961).
`At the same time, the need to secure Senate approval
`provides “an excellent check upon a spirit of favoritism in
`the President, and would tend greatly to preventing the
`appointment of unfit characters from State prejudice, from
`family connection, from personal attachment, or from a
`view to popularity.” Id., at 513. Hamilton further ex-
`plained that the
`“ordinary power of appointment is confided to the
`President and Senate jointly, and can therefore only
`be exercised during the session of the Senate; but as it
`would have been improper to oblige this body to be
`continually in session for the appointment of officers;
`and as vacancies might happen in their recess, which
`it might be necessary for the public service to fill
`without delay, the succeeding clause is evidently in-
`tended to authorise the President singly to make tem-
`porary appointments.” Id., No. 67, at 455.
` Thus the Recess Appointments Clause reflects the ten-
`sion between, on the one hand, the President’s continuous
`need for “the assistance of subordinates,” Myers v. United
`States, 272 U. S. 52, 117 (1926), and, on the other, the
`Senate’s practice, particularly during the Republic’s early
`years, of meeting for a single brief session each year, see
`Art. I, §4, cl. 2; Amdt. 20, §2 (requiring the Senate to
`“assemble” only “once in every year”); 3 J. Story, Commen-
`taries on the Constitution of the United States §1551, p.
`410 (1833) (it would be “burthensome to the senate, and
`expensive to the public” to require the Senate to be “per-
`petually in session”). We seek to interpret the Clause as
`granting the President the power to make appointments
`during a recess but not offering the President the author-
`ity routinely to avoid the need for Senate confirmation.
` Second, in interpreting the Clause, we put significant
`weight upon historical practice. For one thing, the inter-
`
`

`
`
`
` Cite as: 573 U. S. ____ (2014)
`
`Opinion of the Court
`Opinion of the Court
`pretive questions before us concern the allocation of power
`between two elected branches of Government. Long ago
`Chief Justice Marshall wrote that
`“a doubtful question, one on which human reason may
`pause, and the human judgment be suspended, in the
`decision of which the great principles of liberty are not
`concerned, but the respective powers of those who are
`equally the representatives of the people, are to be ad-
`justed; if not put at rest by the practice of the gov-
`ernment, ought to receive a considerable impression
`
`from that practice.” McCulloch v. Maryland, 4 Wheat.
`
`316, 401 (1819).
`And we later confirmed that “[l]ong settled and estab-
`lished practice is a consideration of great weight in a
`proper interpretation of constitutional provisions” regulat-
`ing the relationship between Congress and the President.
`The Pocket Veto Case, 279 U. S. 655, 689 (1929); see also
`id., at 690 (“[A] practice of at least twenty years duration
`‘on the part of the executive department, acquiesced in by
`the legislative department, . . . is entitled to great regard
`in determining the true construction of a constitutional
`provision the phraseology of which is in any respect of
`
`doubtful meaning’” (quoting State v. South Norwalk, 77
`Conn. 257, 264, 58 A. 759, 761 (1904))).
`
`We recognize, of course, that the separation of powers
`can serve to safeguard individual liberty, Clinton v. City of
`New York, 524 U. S. 417, 449–450 (1998) (KENNEDY, J.,
`concurring), and that it is the “duty of the judicial depart-
`ment”—in a separation-of-powers case as in any other—“to
`
`say what the law is,” Marbury v. Madison, 1 Cranch 137,
`
`177 (1803). But it is equally true that the longstanding
`“practice of the government,” McCulloch, supra, at 401,
`can inform our determination of “what the law is,” Mar-
`bury, supra, at 177.
`That principle is neither new nor controversial. As
`
`
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`
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`
`
`
`
`7
`
`
`
`

`
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`NLRB v. NOEL CANNING
`8
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`
`Opinion of the Court
`
`
`James Madison wrote, it “was foreseen at the birth of the
`Constitution, that difficulties and differences of opinion
`might occasionally arise in expounding terms & phrases
`necessarily used in such a charter . . . and that it might
`require a regular course of practice to liquidate & settle
`the meaning of some of them.” Letter to Spencer Roane
`(Sept. 2, 1819), in 8 Writings of James Madison 450 (G.
`Hunt ed. 1908). And our cases have continually confirmed
`Madison’s view. E.g., Mistretta v. United States, 488 U. S.
`361, 401 (1989); Dames & Moore v. Regan, 453 U. S. 654,
`686 (1981); Youngstown Sheet & Tube Co. v. Sawyer, 343
`U. S. 579, 610–611 (1952) (Frankfurter, J., concurring);
`The Pocket Veto Case, supra, at 689–690; Ex parte Gross-
`man, 267 U. S. 87, 118–119 (1925); United States v. Mid-
`west Oil Co., 236 U. S. 459, 472–474 (1915); McPherson v.
`Blacker, 146 U. S. 1, 27 (1892); McCulloch, supra; Stuart
`v. Laird, 1 Cranch 299 (1803).
` These precedents show that this Court has treated
`practice as an important interpretive factor even when the
`nature or longevity of that practice is subject to dispute,
`and even when that practice began after the founding era.
`See Mistretta, supra, 400–401 (“While these [practices]
`spawned spirited discussion and frequent criticism, . . .
`‘traditional ways of conducting government . . . give mean-
`ing’ to the Constitution” (quoting Youngstown, supra, at
`610) (Frankfurter, J., concurring)); Regan, supra, at 684
`(“[E]ven if the pre-1952 [practice] should be disregarded,
`congressional acquiescence in [a practice] since that time
`supports the President’s power to act here”); The Pocket
`Veto Case, supra, at 689–690 (postfounding practice is
`entitled to “great weight”); Grossman, supra, at 118–119
`(postfounding practice “strongly sustains” a “construction”
`of the Constitution).
` There is a great deal of history to consider here. Presi-
`dents have made recess appointments since the beginning
`of the Republic. Their frequency suggests that the Senate
`
`

`
`
`
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`
` Cite as: 573 U. S. ____ (2014)
`
`
`
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`
`
` 9
`
`Opinion of the Court
`Appendix A to opinion of the Court
` Opinion of the Court
`
`
`
`
`
` and President have recognized that recess appointments
` can be both necessary and appropriate in certain circum­
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`
`
`
`
` stances. We have not previously interpreted the Clause,
` and, when doing so for the first time in more than 200
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` years, we must hesitate to upset the compromises and
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` working arrangements that the elected branches of Gov­
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` ernment themselves have reached.
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`
`
` III
`
` The first question concerns the scope of the phrase “the
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` recess of the Senate.” Art. II, §2, cl. 3 (emphasis added).
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` The Constitution provides for congressional elections
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` every two years. And the 2-year life of each elected Con­
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` gress typically consists of two formal 1-year sessions, each
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` separated from the next by an “inter-session recess.”
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` Congressional Research Service, H. Hogue, Recess Ap­
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` pointments: Frequently Asked Questions 2 (2013). The
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` Senate or the House of Representatives announces an
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` inter-session recess by approving a resolution stating that
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` it will “adjourn sine die,” i.e., without specifying a date to
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` return (in which case Congress will reconvene when the
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` next formal session is scheduled to begin).
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` The Senate and the House also take breaks in the midst
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` of a session. The Senate or the House announces any such
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` “intra-session recess” by adopting a resolution stating that
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` it will “adjourn” to a fixed date, a few days or weeks or
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` even months later. All agree that the phrase “the recess of
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` the Senate” covers inter-session recesses. The question is
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` whether it includes intra-session recesses as well.
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` In our view, the phrase “the recess” includes an intra­
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` session recess of substantial length.
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` Its words taken
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` literally can refer to both types of recess. Founding-era
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` dictionaries define the word “recess,” much as we do today,
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` simply as “a period of cessation from usual work.” 13 The
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` Oxford English Dictionary 322–323 (2d ed. 1989) (herein­
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`
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` after OED) (citing 18th- and 19th-century sources for that
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`
`
`

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`NLRB v. NOEL CANNING
`10
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`
`Opinion of the Court
`
`
`d

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