1 (Slip Opinion)
OCTOBER TERM, 2013
Syllabus
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 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
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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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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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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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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.
B
REYER
, J., delivered the opinion of the Court, in which K
ENNEDY
, G
INSBURG
, S
OTOMAYOR
, and K
AGAN
, JJ., joined. S
CALIA
, J., filed an opinion concurring in the judgment, in which R
OBERTS
, C. J., and T
HOMAS
and A
LITO
, JJ., joined.
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Opinion Opinion of of the the Court Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. 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 BREYER delivered the opinion of the Court. Ordinarily the President must obtain “the Advice and Consent of the Senate” before appointing an “Office[r] of the United States.” U. S. Const., Art. II, §2, cl. 2. But the Recess Appointments Clause creates an exception. It gives the President alone the power “to fill up all Vacan cies that may happen during the Recess of the Senate, by 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.
The first concerns the scope of the words “recess of the Senate.” Does that phrase refer only to an inter-session recess (i.e., a break between formal sessions of Congress), or does it also include an intra-session recess, such as a summer recess in the midst of a session? We conclude that the Clause applies to both kinds of recess.
The second question concerns the scope of the words “vacancies that may happen.” Does that phrase refer only to vacancies that first come into existence during a recess, or does it also include vacancies that arise prior to a recess but continue to exist during the recess? We conclude that
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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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Board); §153(b) (providing for a 3-member quorum); New Process Steel, L. P. v. NLRB, 560 U. S. 674, 687–688 (2010) (in the absence of a lawfully appointed quorum, the Board cannot exercise its powers).
The three members in question were Sharon Block, Richard Griffin, and Terence Flynn. In 2011 the President had nominated each of them to the Board. As of January 2012, Flynn’s nomination had been pending in the Senate awaiting confirmation for approximately a year. The nominations of each of the other two had been pending for a few weeks. On January 4, 2012, the President, invoking the Recess Appointments Clause, appointed all three to the Board.
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. See 2011 S. J. 923. Pursuant to that resolution, the Sen ate held pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23, 2012. Ibid.; 158 Cong. Rec. S1–S11 (Jan. 3–20, 2012). The President’s January 4 appointments were made between the January 3 and January 6 pro forma sessions. In the distributor’s view, each pro forma session terminated the immediately preceding recess. Accordingly, the appoint ments were made during a 3-day adjournment, which is not long enough to trigger the Recess Appointments Clause.
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.
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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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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 Before turning to the specific questions presented, we shall mention two background considerations that we find relevant to all three. First, the Recess Appointments Clause sets forth a subsidiary, not a primary, method for appointing officers of the United States. The immediately preceding Clause—Article II, Section 2, Clause 2— provides the primary method of appointment. It says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States” (empha sis added).
The Federalist Papers make clear that the Founders intended this method of appointment, requiring Senate approval, to be the norm (at least for principal officers). Alexander Hamilton wrote that the Constitution vests the power of nomination in the President alone because “one man of discernment is better fitted to analise and estimate the peculiar qualities adapted to particular offices, than a body of men of equal, or perhaps even of superior discern
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