we'll hear argument first this morning in case twelve twelve eighty one the national labor relations board versus nor can it general verrilli mr chief justice and made please the court interpretation of the recess appointments clause that respondent urges would r eight the constitutional legitimacy of thousands of appointments by presidents going back to george washington and going forward it would diminish presidential authority in a way that is flatly at odds with the constitutional structure the frame respondent simply has not advanced the compelling case that would be needed to strip presidents of their traditional authority to make appointments during interest session recesses and to fill preexisting baked sees you sitting you say that it would  the constitutionality of appointments you don't suggest that those the actions of those appointees would be invalid going back however far you want to go back to you know but they no i don't mr chief justice but it certainly would r board decisions and perhaps many hundreds of board decisions that are under a cloud as a result of the d c circuits ruling in this case and so the board will have a considerable amount of work to do  parent authority argument so so that would all have to be sorted out with respect to the board's will what would happen if under the reasoning of this case what would happen to the decisions of recess appointed judges why think about when stairs in quite a few that would be a very serious question just to sort of agree and i think it does point up the difficulty with the position respondent is urging surely you would you would argue the de facto office or doctor yes we would of course you  cases not of us but you know really think we're going to go back and rip out every decision made well i would certainly hope not your honor but it certainly casts a serious cloud over the legitimacy of all those actions and it does point up the fact that the recess power including appointments during interest session recesses and to fill preexisting vacancies has been used to fill the office is of great importance to say you started off by saying you know it would it would class repudiate so many  actions that have been taken i have a very very stark question suppose i agree with the court of appeals that the only the only interpretation of the constitution is that the flatly contradicts a clear text of the constitution which which of the two prevails now i think the practice has to prevail you want to but i do but i thought if you ignore the constitution but i don't think often enough for it meaning changes but your honor of course in this situation the meaning of the clause with respect to the timing of the bacon c has been a matter of contention since the first place where you're questioning my hypothesis you have to accept m subject to contention as to its meaning since the first days of the republican let me ask you about the promise of vacancy is something that begins at a particular point in time and then it continues for some period and i was trying to think of some other things that might fall into the same category one would be an appointment to a federal office so you were appointed as solicitor general at a particular point in time and the appoint it continues another example might be a marriage  that happens at a particular point in time and it continues for a period of time now would we say that you were appointment as solicitor general is happening today and will happen again tomorrow and happened yesterday is that the way the english language is used but the word happens may not always be an apt phrase the phrase may happen because usually phrase but it is a natural use not and and i'm if i may just as we'll give you a counter example of congress and enact a statute in the summer of two thousand and eight that said the federal reserve reserve is invested with all powers necessary to deal with any financial emergency that may happen in two thousand and nine if that emergency first arose in the amber of two thousand and eight i don't think anybody would interpret that statute as denying the federal reserve the authority that congress conferred and that's because may happen may happen won't cover every situation with persisting state but it's certainly a natural reading of it that cover some and it's jefferson said it's two points to make in response to the question what to do the first one is that with respect to the original understanding we do think that the the term recess and the phrase recess certainly at the time of the founding did in compass recesses that occurred during a session of congress during a session of the legislature and not just in between sessions of the legislature i would point the court to jefferson's manual of parliamentary procedure which describes a recess by a german as occurring within a session i would point to the adjournment clause itself which says if the one house of congress wants to take a break of longer than three days during the session it needs the consent of the other house which indicates that the framers contemplated the possibility of a break wonga than three days appoint the court to the parliamentary practice of the house of commons where the speaker of the house of commons had authority to call thought about this a three day break a one week break one month break how do how do you resolve that problem for i think the way we resolve that problem is by looking to the adjournment clause we think if it's a break that is sufficiently short that it wouldn't work quire would require the one house to get the consent of the other but that's a de minimus recess and that's not a recess in which the president wants that order what about a pro forma session  well they don't recall or correct me if i'm wrong they don't require the consent of there that well but the problem with the pro forma sessions i think justice kennedy isn't thinking about the length of the recess the recess we would submit and this is based on the formal dictionary definition of recess at the time of the founding and now which is a suspension of business the recess was from january third from when the session started until january twenty third and the reason i think that so you think there's no recess during pro forma session there is a recess and the reason is because the senate has issued a formal order that no business shall be conducted and that's a following let's just talk and repeat let's focus on that but instead of saying no business shall be conducted the order said it is not anticipated that any business will be conducted is that suffice to eliminate that period as a rece think that it's a that's a different case and it can see i think conceivably a significantly harder case for the executive because here it's difficult and harder but it also suggests that you're just talking about a couple of magic words that the senate can just change at the drop of a so maybe the point is not that significant i think it is significant mr chief justice it's a formal action by the senate by rule saying no business shall be conducted and then addition there are other formal actions that the senate took during this period that are confirming  senate passed a resolution that gave committees the authority to submit reports and report bills it passed a resolution giving the president pro tempore the be back here with the same essential problem that you are asking us to peg this on a formality that the senate could easily evade and that suggests that it really is the senate's job to determine whether they're in recess or whether they're  think there has to be a limit to that point justice kagan because after all talking about here is a power the constitution gives to the president of power in article two and the president's got to make the determination of when the law says you're making an assumption which is that the senate has to take a recess but the senate to choose if it wanted to and i think there might be some citizens that would encourage it to to never research or of course it could and to work every day with ash that's of people do that's true they could they could decide to take so it's absolutely true but the but it seems to me that that is the choice of the constitution which is what you say about the twentieth amendment which says that that january third was a meeting you saying they violated the twentieth amendment january third that says the congress of the united states shall meet on january third every year unless they appointed different that yes and they hadn't and therefore they met in pro forma session or do you think it wasn't a meeting and what do you think about the other part of the constitution says they can't adjourn for more than three days without the approval of the house which they didn't have so are you saying that the senate violated those other two amendments of the two parts of the constitution or are pro forma sessions on january third they violate the twentieth amendment to the constitution you are saying that if they had a pro forma session on january third that since their meeting that their recess was still on and lasted more than three days it was a violation of that journal clause of the constitution now that that's one way to interpret it over a long period of time they have apparently met pro forma on those days the constitution i don't think you need to write that opinion just that why not because you might perhaps give the senate some deference with respect to requirements that apply only internally to the congress but when what you're talking about why is that what my briley basic question is why is this an important case in your opinion now you've said ok is there thousands of recess appointments not on the happen clause you listed seventy six hundred or so really on the recess part but and we got some more members they dealt with the problem they ratified all those opinions they dealt with it it didn't take them too much time so we have different political parties taking absolutely opposite sides it seems to me or some members there of depending on the political party of the president and we have a clause that had to do with the constitution and the problem of intra intercession recess is when they were seven months and nobody could me ok that isn't true anymore so explain to me i'm not saying you're wrong i just want to hear from your mouth rot this is an important case though it's important for multiple reasons with respect to practicalities and fundamental questions of constitutional structure let me start with practicalities and with that the happens point to may happen point that are pending it doesn't purport to be comprehensive or anything like comprehensive part of the reason why it can't be comprehensive is that there  really aren't records when they can see first the rows with respect to huge numbers of recess appointments and that's because i submit it wasn't considered material but second i can there are there are numerous practical examples in our history when it made a very great deal of difference that the president had the authority to make an appointment to vacancy that craigslist did the recess we mentioned the one nine hundred forty eight example the secretary of labor dies on the verge of a very extended interest session recess by the by the senate they're going to be out for a month back for twelve days and then out all the way from in june back then they go out in june they're out for a month they're back for twelve days and then they're out all the way and told the summer thirty first the secretary of labor guys just in advance of them going out in june and this is number one nine hundred forty eight is a period of significant labor unrest in need of the secretary of labor  employment and what would you agree that this close now it's not mostly used to deal with emergencies arising from congressional absence that most modern presidents and i say this sort of going going back to president reagan presidents of both parties essentially have used this clause as a way to deal not with congressional absence but with congressional intransigence with a congress that simply does not want to approve appointments that the president thinks ought to be approved you know absence in this day and age this is not the horse and buggy era anymore there's no real is no such thing truly as congressional absence anymore and that makes me wonder whether we're dealing here essentially a historic relic something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have well two answers i don't think it's a original purpose has disappeared i mean the n l r b was going to go dark it was going to lose its cause form and its president result of congressional refusal not as a result of congressional not objects to the second point which is that it may be true as a matter of raw power that the senate has the ability to sit on nominations for months and years at a time but that is one hundred miles from what the framers would have expected if you look at what hamilton said in federal seventy six about the advice and consent role of the senate and said that he thought it would be a power that was rarely exercised in would operate if at all in invisibly or silently and in the early days of the republic it was advice and consent was a matter of days not what amazing you're a very very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the senate is in session are not you're just saying when the senate acts in your view irresponsibly and refuses to confirm nominations then the president must be able to fill those not fill those positions that's what you're arguing i don't see what that has to do with whether the you know it perhaps it sounds like this is an aggressive assertion of executive authority but i ask the court to think back to federalist fifty one and what the framers were most concerned about was that congress in the separation of powers calculus was going to amass authority and drain authority and energy from the executive and therefore the executive needed to be fortified against those actions by congress and one specific way in which the framers decided to fortify the executive was by rejecting the notion that the appointment power should reside with the senate the framers considered that and they rejected it and the reason they were was was to protect the executive against uncrowded it was light sleep with a compromise they settled on in moving away from that is that the president will nominate in the senate if it so chooses can confirm a nominee you spoke of of the senate where they haven't absolute right not to confirm nominees that the president submits and it seems to me that following up on justice kagan's point you're latching on to the recess appointment clause as a way to combat that intransigence rather than to deal with the happenstance that the senate is not in session when a vacancy becomes open well what those things it's there are often situations in which the senate is not in session when a vacancy becomes becomes open or needs to be the executive have come together to address those sorts of problems in a vast number of cases by providing that there can be an acting general counsel of the n l r b to deal with that situation well but actually mr ch about your nine hundred forty eight emergency secretary of labor did there was a vacancy in that post that the president has the authority to convene congress and whatever was the hundred forty eight or in or in seventeen eighty nine congress can be back here in one day article two section three says he may on extraordinary occasions convene both houses and that's true justice scalia so what so that's like a frame up if there is indeed you know this terrible emergency you're talking about the president has the power to call them back well i think seems to me the framers made it different judgment because they gave the president both the power to call back in extraordinary circumstances and the recess appointment power and if the framers had intended the power to call back to be the way to deal with vacancies during absences of the senate but i only be doing is what what the recess appointment power consists of cannot be determined on the basis that well they're going to be terrible emergencies so it must enable the president to do this or that extraordinary emergencies are handled in the constitution you don't have to expand the vacancy appointment power in order to handle those stroke what i would say about this and also to your point mr chief justices we have i would submit  stable equilibrium that has emerged over the course of this country's history between the two grandkids after all what we're advocating for here is the status quo it is the equilibrium that has emerged since congress since the senate started taking monkey interest session recesses presidents started making recess appointments during those recesses that began in the civil war days it's continued to the present general i think that's a really strong argument but i have to say i'm not sure it applies consistently throughout each of the three claims that you make because if you're going to rely on history and on the development of an equilibrium with respect to what happens means and if you're going to do that again with respect to whether interest session recesses or are included then it seems to me you also have to look to history and the development of an ethical librium with respect to congress's definition of its own power to determine whether they're in recess or not another words you third argument about pro forma sessions the history is entirely on the senate side not on your side and if we're going to take a kind of continuing practice in the development of a liberal i'm seriously you might win on questions one and two and then lose on question three well winning on courses want to would be of great importance to the executive but we also should without question three and here's why there isn't a long history reflecting equilibrium with respect to the use of pro forma sessions in order to restrict the president's ability to use that we says appointment power there really is no history before two thousand and seven of this daisy chaining one pro forma session after another after another in conjunction with an order that no business shall be conducted or there's no practice what there's no long practice of doing it there's also no long practice of projecting it but the fact to take you back to that you said that the pro forma sessions may know i think the right way to think about that is the same way that you would think about it senate declares that it's in recess from august first of september fifteenth and then comes back early because of a and an emergency as happened for example  hurricane katrina once they're back in doing business they're doing business now that the senate did on that that were speculated station your honor identified with they came out a pro forma session they passed legislation that went back in to they went back in under the order pro forma session so that but if they did they could act it seems it seems to me that we're searching here for a proper interpretation of the word session which after all is in the provision that we're looking at talked about next session and we have a long tradition of congress defining what that session is they have the first this is what the hundred thirteenth congress i think something like that and they have the first and second session that's how their records are based this is a considered judgment by both houses of the legislative branch as to what session means and it seems to me that that  it's very powerful bearing on the question of enter and intrust session appointments that were i can forget the the the when the vacancy happens to run and so why don't why don't we defer to congress as to what the term session means and say that this gives us guidance as to when the there is a recess there's a recess between those sessions i don't think that  that's an interpretation that really could be squared with the the body of contemporaneous evidence from the time of the framing and i would start with the text of the constitution itself in the german clause which is at page ninety one a the appendix to our brief and it's one thing it says is that neither house during the session of the congress shall without consent of the other adjourn for more than three days seems clear from that language that the session of the congress is referring to the period that commences on the constitution prescribe date and continues until the congress adjourned seen india because otherwise these recesses wouldn't be during the session of the congress it's also clear from this language that the framers at least contemplate the possibility of breaks longer than three days within sessions because they provided a mechanism to get permission to do it and we're just this freedom but you're relying on adjournment for that that's right but that does not have the recess you know that's right that's right but i'm going going back now to think about what session means in the recess appointment clause where the session is also used i would submit your honor that means the same thing as it means here which is a full if it means i should to see and reading them w you're tying the two together which actually might have some validity but wouldn't that require the definition of a recess to be a period in which both houses have chosen to consent to adjournment no i don't think so because of that that the dictionary definition then and now recess is a suspension of business and you could have recesses of that kind suspensions of business within session such jefferson together right but with respect to putting the pro forma issue aside for a second with respect to intrust session recesses the meaning of the session seems to me is the session the from the first session because you can have interim can have recesses by german  parliamentary man was said and as i think i said earlier there's quite substantial evidence that the term recess at the time of the framing could refer to a break during a session and not just breaks between sessions so i just don't think there's contemporaneous evidence on the plane from the framing generation that would lead you to conclude that interest session recesses are not within the meaning where it is most surprising to me that you've said and it's important to you is not just the view of language at the time of the of the frame but what the purpose of this clause was i mean this is a very well briefed case and i have looked at them i've read them actually and i'll tell you by i cannot find anything so far and i may have missed it i'm asking i can't find anything that says the purpose of this clause has anything at all to do with political fights between congress and the president to the contrary hamilton says that the way we're going to appoint people in this country is congress and the president have to agree now that's a political problem not a constitutional problem that agreement and it was just as much true of president george bush  supplement to the basic laws to take care of the timing problem so what have i missed where is it in the history of this clause in its origination that it has a purpose to allow the president to try to overcome political disagreement and i go i don't think that that's it i don't think that that you get it and i think that's its purpose but it is in the constitution the president here the number of appointments on happen is few if you're worried about james tobin congress has passed a law that can be taken as looking at a vacancy occurring when it occurs within thirty days of the beginning of the recess which would have taken care of that open so look at the language difficulty look at the comparatively small practice in that area look at the other ways to get around the problem and then give me another example in the constitution where you have both language and purpose pointing one place and yet this court because of practices come to the opposite well i don't think that language points unambiguous lean one direct opposite i don't think of course battles happen and with respect to the question of the practice in there being i don't think it's correct to assume that because there are a certain number of identified examples of preexisting vacancies being filled in appendix that that's a sum total i think this  what has been the understanding since the framing that there is ambiguity here and there your argument your friend on the other side says one flaw with your argument is that it makes the words it may happen or happen during  but the cause would mean exactly what you say it means if you took those like words out and your response the only one i could see reply your reply brief page thirteen is that those words were put in there to quote confine the president to filling vacancies that actually exist at the time of appointment now is that if you really think that they put that language in there because they were afraid the president would fill appointments that don't exist i don't know why they put the language in there mr chief justice but it doesn't it was because it does serve that function whatever they are in tatters one reason they could have put the language in is because they were afraid otherwise the president would have the power simply when somebody died two or three years before and they got a big fight in congress to save up all the controversy all nominations and then put them through this recess appointments that could be one thing they didn't want to happen i don't know this is the same problem  and we don't disagree with that we think it was just woodward said it's just no violence to the language and it's consistent with the purpose of the of the clause and from the from the perspective of the purpose of the clause the office is equally vacant whether that vacancy or rose the day before the day after the senate went to recess the senate is equally unavailable to act because they're dispersed whether the vacancy arose the day before or the day after and the public's need that the office be justice ginsburg and but there are two things one is the formalities do matter and to going back to the point you made earlier justice kagan i think it's not an accident that there's no business order in place it's because that's what gives the senators the protection to know that they can leave town without you know miss consent to name a post office the post office is named so they can do you know trivial business in each of these sessions would that make a constitutional difference well i think if they did business each of the three days then you wouldn't have a situation in which that this really is the question of how to define a recess really does belong to the senate you know i think the problem with looking at it that way justice kagan is that that's the end of the recess appointment power you write it out of the constitution if you look at it that way because all the senate needs to do is stay in pro forma session until eleven fifty nine am on january third when that term ends in the next term starts and then there are no interest i personally take your point on that but what i'm suggesting is they could just come back  by name and post offices have the same effect that they would write it out of the of the constitution as much as you say this does well this does if this does and whether something else might or might not i guess we  to fight that out of the senate wherever to do it but i just assume that this court were to hold a pro forma sessions of this kind are not real and they don't defeat the president's recess appointment power that maybe the senate would think twice before it was a significant is whether they're available to confirm nominees isn't that right yes suppose they say instead of no business will be conducted no nominations will be considered that would be a different case because they would i know would be they would be it would be here you know they're not there there is some  point of the question is whether they're available to consider nominations so if they say well do other business but no nominations will be considered why isn't it exactly the same for purposes of the recess appointments clause it's not because of the recess or the definition of recess is when no business shall be conducted that's exactly what the senate said if i may reserve the balance of my time thank you general mr chief justice and what may please the court the advice and consent clause imposes an important check on executive power each of or three arguments preserves that check and provides a separate and independent basis for a firm in the court below the government's position in contrast would have this great that check creating a unilateral appointment power available for every vacancy at virtually any time with advice and consent to be used only when convenient to the president but you only when the senate chooses to trigger it by ending its session and beginning its recess so the senate always has the power to prevent recess appointments the constitution however gives the president corresponding powers if the president thinks that the senate is being derelict in its duties he can convene an emergency session and he can force the senate to consider is nominees and if they refuse you can subject them to withering criticism for being derelict in their responsibilities but one the one thing that the president may not do i of the question that justice scalia asked joe suppose we think that the language of the constitution is perfectly clear on some respect but that there is a two hundred year old consistent practice agreement by the president going back to washington and by the senate that the language actually means something else what would we do in that situation you know and i think that the language has to govern and i would like to address the issue about the consequences of ruling in our favor in this case of course if you were to rule on the third question presented it wouldn't call into question any past recess appointments at all given the unprecedented nature of the appointments at issue in this case but frankly if you ruled on the first two questions i don't think it would be particularly disruptive in terms of calling into question the decisions of past appointees justice sotomayor to take the article three courts for example since one nine hundred sixty there have only been four potentially improper appointments to the article three courts recess appointments each of them served approximately a year or less three were to the court of appeals one to a federal district court judge in one thousand is going to school i'm sorry but could we go back to justice alito is question because i really have the same issue with your argument that you know suppose that on one let's say the happens argument that your it's at least the most natural reading of the statute at least the way we understand the word happen today and may be compelled reading but that the history points so much in the other direction and that that history brings with it a whole set of practices and traditions and ways of dealing with each other that has grown around a certain interpretation of what happens means right the idea that we would wake up one fine morning and chuck all of that because all of a sudden we happened to read the clause i mean that's at least needs to be defended yes your honor and i believe that the relevant history actually supports us that is the look at it points the other way yes your honor i would dispute the premises but out of all except the premises for the purposes of the question the political branches of the government have no authority to give or take away the structural protections of the constitution they don't exist to protect the senate from the president or the president from the senate these are liberty protecting provisions that protect the people from the government as a whole so if the constitution is quite clear as to what those structural protections are but the political branches assuming for the sake of argument have conspired to deplete them that it's illegitimate and it should be rejected by this at work without assume something which is let's go back to the happening words that is so unambiguous that they knew it biggest but two hundred year history starting with president washington who fill two vacancies that are heard before the senate broke to every almost every president thereafter has done the sa so why should we conclude that today's understanding is the same as the understanding of the founding fathers yet why don't we take their unbroken practice as giving us that definition yes your honor a couple of different responses first of all we dispute the government's historical account of president washington's in the first four presidents position actions but even putting that aside here everyone who actually spoke to an addressed the issue at the time agreed that the text means precisely what it says including president madison who refused to make a recess appointment to andrew jackson the hero of the work of eight hundred twelve precisely because the history is simply too overwhelming to rule in your favor on the happens problem could we still use history to say that we're overlooking history i would say nine hundred forty eight there was a uniform understanding that the recess and the session as used in the clause were interchange and periods you were either in recess or you were in session and so it point an appointment made during the lasted until the end of the next session now in one nine hundred twenty one attorney general doherty's opinion kind of model things a bit because he assumed that if you took a long break in the midst of a long session it broke that break into two recesses for purposes of the re appointments clause but you still had that dichotomous view subject to the arguable and quite ambiguous exception of president andrew johnson so what you see is from the time of the founding until nine hundred twenty one there were some sixty three m session breaks or longer than three days so a recess is under the government's definition that during that entire period with the arguable exception of andrew johnson no president ever attempted to make a recess appointment  tell me if i'm wrong about this but it's seems to me that interest session recesses really only rose in the one nine hundred forty s or so right there is the period it with andrew johnson and andrew johnson used int to interest session recesses to make a lot of appointments other than that interest session recesses of more than three days that are not christmas simply do not exist so that as soon as interest session recesses came to be presidents started making appointments in our let me address it this well i'm not sure i agree with the factual understanding your honor there were session recesses longer than three days prior to one thousand nine hundred sixty seven i think there were some ten of them prior to eight hundred sixty seven including seven that were longer than ten days and there in mind yes they were christmas recesses but so were the ones at issue in this case they were christmas recess appointments but i do take your point that intro session recess appointments did not become very common i should say this way intrust session recess appointments did not become very common until the really they started with truman but then they broke off for a long time with three presidents johnson kennedy and ford making no mid session recess appointments then beginning in the corridor in the reagan administrations when they became very common and particularly a very common so now if we look from one thousand nine hundred seventy on that's fairly common and so all that's happening is that the presidents are appointing recess appointees during periods where they're out for a longer time how are we supposed to go and say that thing of thousands of people in on the recess are is unconstitutional i mean it isn't unheard of that what about the due process clause does that easily cover the language substantive due process mean you probably different judges have different approaches but if i'm concerned about the the basic practicality and the and the basic objective here why would i agree with you yes or i'm certainly not going to attempt to purport to resolve this court's differences  issues but what you're not going to let the other two examples that justice briar gives are examples where we gave it a meaning that was different from what it said that's it and we don't have a case involving this particular issue yet that's precisely correct your honor and it reflects the fact that the recess appointments clause and the appointments clause and all of the structural protections again are not meant to protect the branches if i fight you know i do place more weight on this should i mean i do believe in agree with you to this point that this is basically a matter of politics for all their branches basically that doesn't help me resolve this but it does lead over to this possibility congress did pass the no pay app and then they passed the pay act in that pay act on this happened part which i think is the strongest for a very strong for your side but it defines the vacancy in terms of thirty days prior to the recess and that would take care of most of these you see if they can see could be defined as something that stretches because congress says it stretches in terms of pay for thirty days what answer put in your mind what would have happened in eight hundred thirty if someone when they had a nine month recess close to ten months and someone had the bright idea well you live near washington go show up at the wherever we're holding our sessions and sit there for five minutes and that will stop president andrew jackson from making recess appointments but would we be saying that sure well i put my finger on that question being made either right before or after the session ends so most mid session recess appointees can't get paid under the pact with respect to the second question presented at best it creates three exceptions to the general rule against any pay to any preexisting appointees so you've got somewhat of a compromise i would say that's no more senate that we are since in the president's position than the president that we have since in the senate's position when he signed that law so to me that's a jump ball coming back to your historical example i think it reflects the fact that the recess appointments clause is not about timing it's not a temporal issue it's about procedure what it does is it creates a contingent power that arises when the senate decides to trigger back at the time of the founding the senators wanted to trigger that power it was important to trigger that power because when they were gone the president needed to be able to act unilaterally unless they wanted to be subject to a recall an emergency sessions every time a need to confirm nominees they obviously didn't want that today the situation has changed not the principle but the historical context and today the senators can get back to washington d c very easily there are much less suppose we have the second question presented there would not be very many frequencies in that context because i leave out the second question just on the first question because it seems to me months of course the president has to be able to make the government work but now we're saying that in that time it's only three days they're going to be married to  presented because that's why it explains why it would have been much of a problem very few vacancies would arise during a three day break and so there wouldn't be that much of an opportunity to make those kinds of points what's put that aside i mean assume you were ject my argument on the second question presented then you're really in the world of the one nine hundred five senate report one where they were dealing with president roosevelt's midnight recess appointments where he made them in between gavel drops if you reject the argument on the second question and i do think that you may need to confront the notion that an intersession recess is too short to make recess appointments not at issue in this case because here the appointments came on january fourth the day after congress commenced the second session so by anyone's definition this was an intr session recess appointment not an inter session recess appointment and all of this really reflects the fact that the recess appointments clause is a contingent power that arises only when the senate triggers it which is what gives the senate the power to prevent the president f making recess appointments if i could turn back to the consequences before before you do so in the senate's power in your view so comprehensive that if they passed an order saying we're actually never in recess people can be reached pretty you know we can pull people back so for purposes of the recess clause we're never in recess your honor under the first question presented i think the answer's yes they could because it really is the senate's ability to trigger the power it's in a sense three sets of points clauses of a piece with the inferior officers clause the senate always has the power of advice and consent but what the president can do it what the senate can do is authorize the president to act unilaterally in certain circumstances it can authorize the president to act unilaterally with respect inferior officers and it can authorize the president to act unilaterally in certain time periods where and that session begins its recess so it's always within the senate's power and that's precisely why advice and consent serves as an important check on the third question presented i think where you're deciding whether or not a session is a real session then no i don't think the senate could do that i think that it's for the clerk to look at the senate's journal to see what the facts are and those facts must be taken by this court is undisputed so if those facts show that there was a senator actually gavel them into session each day and that during that period they were capable of conducting business as they were here at every session that they held every three days then this court would have to take those factually gives you tell let's go back to this what's your definition of a recess when the senate actually says we're taking  the consent of the house or not it's when the senate again it depends on which question you're talking about on the first question presented very session of the senate is the period between when the senate says that it is ending its session country is the way that the senate has traditionally signaled to the president that it was ending it sets its session and i think that's what it would have said need the consent of the house to do that yes your honor it does i think so so  does it have to do that in between the two congressional sessions i don't i think no i don't think it has to i think the senate can adopt its own rules for determining how it ends that session and how it begins anew and i think the important point tho has to communicate that to the president so for example during president's men president madison's time the tradition was the senate would dispatch a committee to the president to an orm this president that it had ended its session so the president now knew that it was in recess question does your argument depend on the fact that on the assumption that the possibility of a lengthy interest session break was never even contemplated by those who framed ratified the prostitution because if they had thought about that there's a real chance the senate may take a two month break right over christmas would there be any reason why they wouldn't have wanted to recess appointment power to apply there as well as at the end of the session  your honor our argument does not turn on that because to us it is not a temporal question it's a procedural one back then the senate had the power not to trigger the recess just like today it has the power not to trigger the recess appointments power the difference is not in principle it's an historical context at the time of the framing they wanted to can trigger the recess appointments power because when they left during long periods of time they wanted the parrot president to be able to act unilaterally since it was very difficult for them to get back in if they didn't trigger the power the only way the president could act unilaterally would the only way the president could confirm nominees would be by convening an emergency session highly inconvenient the historical facts today have changed not the princip but the surrounding facts and today it is very easy for the senators to get back to washington d c and so they don't want to trigger a unilateral power they're perfectly willing to be held back if necessary but i'm  stand answer if the purpose is to permit the president to fill vacancies when the senate is unavailable to consider nominations and the country would be harmed by having these offices bacon for a period of time why would that not apply to any lengthy break whether it's at the end of the session or in the middle of the session and so if you're arguing it that it only applies at the end of the session it doesn't that depend on the assumption that they never thought about the possibility that there would be a lengthy break in the middle of the session your honor it is possible that they never thought about it but i if they even if they hand i don't think it would matter because i think that the purpose that you've laid out is not quite the for the purpose of the clause the purpose was also to ensure that the president could not easily do an end run around advice and consent which after all is the principal method of appointment and so what they did as they did with respect to inferior officers is the vested with the senate the power in certain circumstances to authorize the president to act unilaterally with this with respect to recess is that authority was triggered when the senate decided to end its session the senate did for example take seven it mid session breaks of longer than ten days prior to eight hundred sixty seven it is inconceivable to me that the senators that time believed that they were entering into a recess that would have empowered the president to make unilateral  and if you put aside all the history and you look only at the language and you look only at our own modern view of what happens is that surely seems to favor your position but you know given all  the statements in the founding period itself about how this is ambiguous and it might have two meanings if you look at the dictionaries of that time so i went back and looked at the oxford english dictionary and one of the definitions of happens there is chance to be essential to the exact same definition that thomas jefferson said made this ambiguous and i would never use happens in that way now if you look at the examples that the oxford english gives their laughable nobody would ever say that now but it just suggested to me that maybe what we think is pretty clear is only pretty clear because one meaning that happens as you know over two hundred  years lapsed while you're not i actually think the word happens at the same meaning then as it does now which is why at the time of the framing everyone who actually study madison hamilton both of the first two journeys general admin randolph and charles  agreed that it meant what it said as did no i don't think so read especially thomas jefferson says it could mean one thing or the other and the other thing that he said which is happens to exist is sort of exactly this definition which is chances to be we still use it that way but we only use it that way when it is followed by an infinitive i happened to see him it means it chanced that i saw him or you know  eleven the destruction of the twin towers happened to occur on nine eleven but you wouldn't say you wouldn't say it happened on on on nine thirty simply because it and i think we still use it that you know i don't remember them exactly i just remember kind of laughing at them as think they actually i think i did know about what they were and they were fourteen eighty three and fourteen nunky something and then there was an asterisk that said obsolete and in fact in fact i couldn't figure out what they were talking about and yes your honor but in addition there's not just the word happen it's preceded by three other words  that they can seize that make happen and the only purpose that those words serve is to constrain the universe of vacancies that are eligible for a recess appointment to the constitution as that form as  first was it's now been amended is no longer part of the constitution with reference to the appointment of senate yes's the word vacancy in much the same way as the quote we're discussing here and i think favors your position because of a vacancy happens by resignation during the recess of the legislature then the governor can make the appointment and you certainly wouldn't think that that could have been over three days or exactly earlier question say occur over three days and it's even better than that because at the time of the framing a legislator a governor tried to appoint somebody to the senate pursuant to that clause that had arisen where the vacancy had arisen during the legislative session that rather than during the legislative recess in the senators actually refused to seat that individual so yes that further supports our position on what is anything before about the language i on the happen i support but the practice and in particular the practicalities because you say will the president make a appointment make a recess appointment even i mean you know they have much less authority somebody appointed in that way much less than a person who's been confirmed by the senate so if the government won't grind to a halt it still faces a problem and you're on i want to say about that that's a consequence of advice and consent that problem arises not just when the senate takes breaks but when the senate is in session the senate could show up every day for an hour sit at their desks and announce to the president we're not going to do anything no nominations no no legislation because we don't like what you're doing and by the way the only reason we're showing up here at our desks and sitting here for one hour a day is because we don't want you to be able to make recess appointments nobody would claim that the senate was in recess during those sessions well that is effectively what it was doing here i would like to address the practicality issue i talked about how there are only been for recess appointments the article three courts that are potentially invalid since one nine hundred sixty i likewise don't think if you were to rule in our favor on the first two questions that it would be particularly disruptive to the executive branch either if you look at the government's appendix i would hazard to say that most of those officials probably don't exercise much if any agency rulemaking or past actions including for example the six year statute of limitations on challenge and finally agency action various finality rules that would prohibit a party from raising an issue that they could have but failed to raise in an earlier proceeding in  stressed disability doctrines like newt is standing in your honor the de facto office or doctrine at least outside of the context of direct appeal i think this constellation of issues probably explains why this is the first time this issue has reached this court in two hundred  twenty five years this is not to say that a ruling in our favor on the first two questions would have any past impact it would undoubtedly have some but is this court's decisions in cases like the charter and booker in blakely make clear this court has never shied away from enforcing the strictures of the constitution simply because it could have some impact on prior cases here the structural protections of the constitution exists to protect the liberty of the people they were clearly transgressed with these unprecedented appointments and therefore we believe that the court below should be affirmed i'm happy to answer any additional questions that your honors may have thank  mr chief justice in may at least the court of justice kagan recognized earlier in the argument that this case fundamentally is about who gets to decide whether the senate is in recess the senate or the president our submission today is that the senate gets to decide whether the senate is in recess mr strata you said in your brief that that was true within wide limits what are the wide limits this is this is all about how defend the juices dollar range is that  if justice kagan under the rules of proceedings act and what the court said in the bollinger case was that the exercise of rule making authority by congress was almost absolute in beyond the challenge of anybody or violated by the actions of the senate in a range and its own affairs is the notion that this has invaded the court it reaches appointments power of the president and the reason as we say in our brief way that is completely insubstantial is because as the solicitor general recognizes in the closing two pages of its brief the senate by the sign of the constitution the appointments clause the primary method of appointment as an absolute veto over nominations the framers could not have been more stopped on the exercise of the rule making authority is a subsidiary power that only arises if the government if the senate excuse me toos is to recess it is the chief justice's example before if the senate cannot leave you know the chamber and other then with the with the cook consent of the house and maybe if the senate has effectively given up you know the business of let slating in that case maybe the press and could say that it house of the congress to have a journal of its proceedings the journal of the senate which is in relevant part printed in our appendix shows that on each of the dispute is date the senate was called to order and then  it is an official record of the senate it says the senate was called to order and then a drug it doesn't say two guys who happen to be senators met at a bar and had a beer the official records of the senate say  construct the same type of argument that the executive of this problem here would be the court rejected yes but but here it is even a weaker argument because one of the oddities of the case is that as the senate has and the country have all moved into the modern age the rules of the senate to provide for the senate to be available at the drop of a hat if you look for example at room nine you can always get you know the communications from houses from the house or from the executive if you look at rule twenty six of the senate committees can meet whether or not the chamber is actually in  you know the business of the senate is ongoing and therefore in the modern world it is even much much much different than even the hypothetical you say anything that would on this prevent recess appointments simply by having a nearby senator show up for for one second once every three days over a nine month period it seems to me we're goes around body doesn't have a view on whether it was in recess or in session for the reason that i started out by outloud by outlining excuse me the senate's official records to show that the senate was in session on each state and therefore the senate does have an official view but from the practical point of view we do know that the senate has said no on these things and how do we know the president's party controls the senate if the senate wanted to  recess rule twenty second of the senate says that's not a debatable proposition if a majority of the senate wants to recess even before the abolition of the filibuster none debatable proposition so the senate says which is controlled by the president's party says we want to recess we want to go away we don't care if the president has this power they vote for that house s know what happens then article president's nominees and the further we hear about today which has to do with how they have been will fall and the parade of horribles there is no parade and there is no horrible the only thing that will happen is that the because by waiting until the convening of the first session of the second session of one hundred twelve congress by making an appointment on january fourth instead of the morning of january third he gives an extra year to his appointees to serve that shows that this is indeed the bottom of the slippery slope under which disappointments plops it is a complete abuse of the process it is being used for nor the purpose that to with the joint power of appointment was you have to i don't mean you have to play nice and in a country of three hundred million people in the press and want to nominee and the senate does not agree it is always possible for the president to come up with another nominee who is even more qualified and acceptable to the senate the key here is acceptable to the senate he has to be able to proffer someone to the senate that the senate is willing to engage in the  power of appointment mr strout in your external ear example you said that if the senate decides to be since and the house doesn't approve that the president can  it is it your belief that a recess is only something that both houses have agreed to a break in business and both have agreed to i don't think stroll it is usually the case can the president appoint at least in your view any vacancy that occurs during that research if this senate has been at recess without the so that the session of the senate is over even was that the recess would be the period of time that intervened between the ending of a session of the congress and the beginning of the next here to date as we knew january third was the new session longer than three days but it needn't be if the senate finish all of its legislative business for example in this year on december thirtieth twenty eleven and then  not again meet until the beginning of the second session of the congress in january third that will be an intersection re says even though it would not be one that would require the consent of the house but in the usual case in which a recess is taken for an extended period of to accomplish the business of the people if the house is working on something and the senate wants to go away or vice versa they need the consent of each other because they may need each other to frame out ongoing legislative projects and if the house in his own judgment things that the senate is sufficiently available to the house in our by chemical system so that it so that it has been for compliance with the agreement clause is a very difficult to see how in the agreement to both houses of congress that the senate is in fact effectively a bailable that that that is that there with its full power of unanimous consent every third day if the house thinks that that is adequate for the discharge of its constitutional functions and the constitutional function of the senate is very difficult to see how the press and gets to second guess that one final point the have to do with this  any time without notice and by unanimous consent and so that effectively what we have here is merely an announcement by the senate that between december seventeenth and january twenty third only unanimous consent business would be agreed to thank you counsel general really six minutes thank you mr chief justice let me begin with a couple points on the interest session recesses and with respect to the question that justice alito raised it would have been perfectly familiar to the framers that the legislative body could take an interest session recess jefferson's parliamentary manual written while he was vice president and provide them presiding over the senate specifically refers to recesses by adjournment that occur within a session and the session resumes when they're over the adjournment clause itself contemplates the need for approval by the other branch and a period longer than three days during the session i think it's difficult to imagine that if if justice alito is hypothetical suggested that the senate had in the first  years under president washington decided to take a two month interest session break that president washington wouldn't have been able to staff the offices of the fledgling fledgling republic using the recess appointment power or if we agree with you on the first question then there to be a number or a functional test and i don't know where the number would come from and i don't know how the functional test would play out so maybe you could say just a word about what we think the number should should be the number in the germans clause three days or less presidents have exercise restraint and there haven't been recess appointment of theories below ten days but we think that would be the line now with us now to the presence of that in the germans clause but the absence of any number in the recess appointments clause how do you explain that well i  think that there there isn't really a need for explanation and we says is a suspension of business and what the what the germ across says is if you're gone for three days or less you're not really suspending your business but if you're gone for more than three days you that and i think that's quite consistent of the argument that my friends on the other side i'm making now with respect to the history on that on interest session recess appointments really if you look at the congressional directory which is a document that we cite in our grief and you just look at the column that says introspection we such as you'll see page after page of blank blank space until you get to the civil war era when introspection recess it become more frequent and intercession recess appointments really just precisely parallel the increasing use by the senate of interest session recess ins and you argue that the senate sort of acquiesced in that in everybody's come together but what would what would you expect the senator to do well if they can you know the president appoint somebody during a recess contrary to their respondents view what's the senator who objects to that supposed to do well a couple things about that mr chief justice the pay act of course was first in acted in this improper they could have done what they didn't a ten year of office act and passed it passed a statute making it a crime for somebody to to take one of these appointments they didn't do anything like you would have direct is that wouldn't you in the same or the same grounds that you're objecting here what we would but in terms of something that's not something that subjective for the somebody to do if you think it's what constituted in terms of an expression of their disagreement as opposed to acquiescence it would certainly be an expression of disagreement and it didn't happen or that i'm still in the senate says we don't agree with your recess appointment and you say well it's too bad the well senator it would just can say whatever the senator wants but we don't have a historic record of objection we have historical record of acquiescence so i suppose the senator says look i object to that i think it's unconstitutional but i'm not going to what can i do the only thing to do is impeach the president right for violating the constitution and he says it's not worth it for that one of the well if the officers on the end if the congress is a body thought that these were appropriate they could take legislative action to try to limit the president's authority and they just never half what would you say that action would be totally ineffective well there we don't we agree on the we certainly agree on the on criminalising point but in terms of the payback for example they just never in all in their original consideration the fact that subsequent never tried to address this now if i could turn to the take that charge comprehensively said in our brief it's not we think there are many more in of course thirty nine presidents have made those appointments now the purposes of the clause as we discussed earlier think are far better served by our reading those sites jefferson gave a hypothetically at least a real matter for the political reporter answers to resolve among themselves we have to decide this so i thought well why not look and see what congress objects to the least and i got that thirty of the united states the i'm really interested in how you think the thirty day idea if practical plays out in terms of your uncertainties well i think it as i said i think there's an equilibrium here in the thirty days doesn't fully capture it and let me just talk about that if i could briefly yes thank you mr chief justice briefly you know the vast majority of appointees are submitted for advice and consent that is true historically it's true now the vast majority of recess appointees are subsequently confirmed so it's just not the case that this is an end run around the advice and consent role of the senate and they're powerful reasons of course why presidents do that they don't want to have temporary points that they've got to then deal with vacancies again they don't want to necessarily create into a branch friction the real problem i would submit here is that if you go with respondents on the pro forma issue  under or under the on the two underlying issues that the d c circuit will then you really are writing the recess appointment power out of the constitution and that's antithetical to the liberty enhancing properties of session separation of powers that madison describ