morning the first matter of the day is national labor relations board versus various are saying is we can rely upon the herbes ministerial entry on the docket of an order as accurate but we cannot rely upon the accuracy of the date of the you were as entered by members can see that this was not your strongest argument there are numerous issues of great import in this case don't you think your time would be spent to have some of those me looking back at what hamilton said in the federalist papers obviously the nineteen zero five report from the senate judiciary committee that you can make the exact opposite argument that it is in fact clear that when the senate is not able to provide advice and consent to the president that's where the recess is on so that these two just sort of skip ahead these pro forma  ability to approve these three members the president was basically told that center was not going to movies members under the constitution and the way the war's been interpreted for the past two years we had to wait until as well wait a minute you know you keep saying the past two hundred years are actually a republican world but the but my point is this is not something the of of new moment here i mean you go back you know washington made recess appointment of president washington with recess appointments many presidents over the course of time and certainly through our reading to prepare for today we know that the last five or six presidents have each engaged in making recess appointments so you know this is not of recent vintage and with the presumption of constitutionally with regard to presidential actions why would we say that this least a practice that was not followed the car of the founding for quite sometime thereafter where the senate acts in a way that really t to frustrate the president and really doesn't taint what it would define as recess solely for purposes of not allowing him the opportunity to make recess appointments well that's clearly what's going and my question to president now you've said that the senate has no recourse well the constitution provides the recourse right because any of these recess appointments are for a time certain which means that the president as a court looking at the the the substance of the pro forma session to say that somebody banging in gavel and saying we're in session and then then and then gavel twenty seconds later and saying we're out of session that that really means that they're really in any time for rebuttal but would give you some later on this is an important case and i know there are two people who will be arguing on the other side so the panel will make a determination as to how much time to put on  at a search can help me with an example where the republicans would be a risk because a particular cabinet officer was not in place despite the continued operation that these assistance the entire bureaucracy that apartment door agency  i would like to distinguish between first the jurisdiction of the court and the authority of the national labor relations board to exercise your stash of authority on the latter point if there's a problem with the national labor relations board exercising their stash of thorley that doesn't go to the just because there's some problem with the order doesn't mean it doesn't exist we we also thought that your questions really focused on exactly from the court's perspective what needs to be decided in this case and we found that very helpful i think that the discussion earlier in the port indicated really what is before the court and all the court does reconsideration have been denied and actually wanted to marred by properly appointed people now we don't think that when you do it if unless you were to review some kind of additional rationale or something that was done by those actual members and this is why are going back to the first motion for reconsideration with the only one that involved any challenges to talk of twenty six already there were two challenges one has been abandoned that was the labor law one about an argument there been change there is nothing for you to that's abandoned the only other issue that was raised in that first motion for reconsideration was the issue about member lehman retiring the next day in a row a three day late mailing could undo the validity if you decide that directly on your own under general principles of the ministry to plot that the august twenty sixth order is valid if however you looked and i still don't understand we if if there was an improper  reconsideration why because it makes clear under one sixty either that when we file a petition for enforcement it best this court with jurisdiction to review that we don't really have jurisdiction to we get the record right filed the record with the court then you have exclusive jurisdiction there's no question about the court's jurisdiction if there was some question about that the validity of the composition of the members which we think there is and that would just go to whether or not you enforce the august most denial of reconsideration then if you're actually reviewing that decision then you would have to look to the questions of the validity of that first four and that would be the challenge appears and the challenge to one member back term expired but even that doesn't raise the the pro forma issue to the challenge of the january point that those were only for the later to deny and we just think that becomes irrelevant if you go back and look at the original order and instead of reviewing the denial of the first motion for reconsideration the one issues abandon the elimination you can decide under any standard or view here we think that that means if we're only looking at understood you correctly  session no your honor if i could clarify the if you were looking at the first if you look at the leman issue on your own we don't think you need to look at the composition of the board they deny the reconsideration because you're not reviewing the but members backers term expired is a very straightforward issue we think if you get to this point he himself was a recess appointee that's why this issue comes up with  well but on the challenge they have raised and i should say rethink all of the other issues past pro forma that happened and the interest session our w back to the question about the first motion the denial of the reconsideration motion to challenge appears and then the challenge to back her has to do with when his term expired and i didn't read that the point in class and appointees term expires at the end of the next session so that's what we want to know you want to know when that first session of the hundred twelve congress and it right but there was no border here and journey and seen a da because there was no order ideologically my question i think i get the whole december seventeenth before january third the second session together but if we were to interpret the only valid session as i presume  that new vista brings on that is to the gene or a twenty twelve appointment even then they never challenge the appointment a backer but your right and you know it gets complex when you go back to the records but there are issues that could possibly a question for the discretion of the court certainly to weigh into that and i think here there's you know the all the more reason that it seems unnecessary to reach these constitutional questions and there could be an avoidance issue here in the very honestly i could find absolutely the executive branch has not claimed authority to make recess appointments during lunch there is a limit and i think it goes what is the limiting principle the question goes back to how we defined what a executive greed hear what it was when the senate entered its order for the period from january thirty january twenty third the border set no business to be conducted and indeed on that same be no business conducted and that is what they are go out with are the permission of the house but this is what the structure of the recess appointments clause is about the senate has a choice they can stay in session and be available to provided by seconds and all times then there is no presidential independent authority to appoint but if as the framers realized there would be times when this and it would be unavailable for a device at that because of their duty to their constituents if nothing else then those times that only those times the president had they limited a limited authority to make temporary appointments that was the balance that the framers struck and i should urge iran or otherwise there would be a vacuum of and there were all kinds of issues running when you go back into the store or rather there being a lot of questions about the legislature acting in that role and he did that with wide more power was given to the president for those very reasons that there is a balance there and i have to say question presented because under the senate's own words holding the standard their words there was no business to be conducted during this entire period and in the same order as that day they refer to this period as recess so i think that question is here because actually the all i think it's strange dan and work and had mentioned about the adjournment clause which is a different provisions in the relationship with the house and whether or not these would meet that requirement that's a very interesting question actually i think the better reading is that they did it jerry then you have the question about whether the house consented but that that's different than the recess appointments by and certainly when this is an enumerated power of the president we do think that would be the deference given to the president's reasonable interpretation and it certainly is a reasonable approach when the senate has said they are unavailable they are out on business for this period time so we think there it is the president's determination of whether it's recess i would say it's not one of these merits challenges to that where there were two in the first motion for reconsideration once been abandoned and the only other one is leaving and we don't think that member mean that plane is something that you need to look to the ground that the board denied that we consideration that argument about how we don't get the schools we get to be sure what what's your focus response on the the manner in which the d c circuit one about teasing apart the recess appointments happen sort of teasing each of them apart what would be your approach to uscis to what we should think about that approach to discerning what the framers me s necessarily there's always more even if you're talking interest section so we don't think either of those ways in favor of interception and we use the word session and action no you were on it well i don't the employer there had mentioned these issues they had told the court they did not need to reach either the the interim happens issues they were focused on proforma so they said here's a little background you don't need to reach it you should hold the was well understood to be an interest session recess was due to recess when you use that term generically both in trade enter we have evidence from the british parliament jefferson's manual on the british parliament the articles of confederation opinion on that i don't know if you want me to address the happen issue also yes ok maybe help for you ok and they have been issue that is the question really about when the vacancy arises and here we go back to the team twenty three with attorney general words is opinion given to president monroe himself one of the founders that holies the part supports our interpretation here there is a present washington as the president's actions however he didn't even act consistent with that when he for example appointed the u s attorney to kentucky in we know that he knew that that position had been over for years because the reason the earlier appointment actually came about after an intervening session so we have an eighteen twenty three opinion that resolved any ambiguity we think that there could be finally i would say on both of these points we actually also have evidence of legislative acquiescence the pay act which can be traced back to the nitty hundreds and was amended in the twentieth century also was a an act it meant by congress which authorized the pay for recess appointees and some points you couldn't get paid until you perhaps were later nominated all of this in and it was later amended clearly there was no exception for people who are appointed or an interest session and the comptroller general has interpret it consistent with our views and the congress there was not saying that the president of authority to make these various types of appointments but they control the counsel for the national labor relations board as mr bergman mentioned the board is seeking enforcement of its august twenty sixth decision in order and i just like to talk about some of the labor law issues underlying the back order the first of all in the board proceedings new vista have the burden of being the supervisory status of itself and as the board found vista fail to center but if you look at the thirty three forms nineteen of them were prepared by someone who i could do all and had greater authority than the other l p s in the unit and there are actually only thirteen forms that were to the three forms that they're associated with so to that they filled out a fact statement they then passed the form on without any recommendation to a higher level official at the epicenter and that higher level  complete investigation which then was passed on all of the paperwork was passed on to the director of nursing and the director of nursing would in her district russia and determine what discipline should issue so at no point right if there is anything in the record of two of the p n's testified that they can and issue discipline or make recommendations that they were unable to point to any specific incident in healthy has to do is supervise has to have a supervisory authority they don't have to actually discipline c n a but in this particular case you have thirty three instances over a six year dictated on january third by a member backer who if you by the and a lot of these arguments should have been off the board a month before i was a because that there was a conflict between more decisions on the issue that we raise an opposition for reconsideration that was never abandoned by us that was always raised by us so that that issue was never reconciled when when judge those are all those facts accurate yes yes yes ok so so then please tell me why is it that it's the it's the seventeenth in your view because that's the end of the the the board they said that when they made those recess appointments it was because the session had ended the session had ended and they can say that member becker's position continued because the senate was in recess and the way th