PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3440

_____________

NATIONAL LABOR RELATIONS BOARD,

 Petitioner

1199 SEIU UNITED HEALTHCARE WORKERS 

EAST, N.J. REGION,

 Intervenor

v.

NEW VISTA NURSING AND REHABILITATION,

 Respondent

_____________

Nos. 12-1027 & 12-1936

_____________

NEW VISTA NURSING AND REHABILITATION, 

LLC,

 Petitioner

v.
2

NATIONAL LABOR RELATIONS BOARD,

 Respondent

1199 SEIU UNITED HEALTHCARE WORKERS 

EAST, N.J. REGION, 

 Intervenor 

_______________________

On Application for Enforcement of an Order of the

National Labor Relations Board &

Cross-Petition for Review

(NLRB No. 22-CA-29988)

________________________

Argued March 19, 2013

Before: SMITH, GREENAWAY JR, and 

VAN ANTWERPEN, Circuit Judges

(Filed: May 16, 2013)

Beth S. Brinkmann [ARGUED]

United States Department of Justice

Civil Division

Room 3135

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Julie B. Broido

Linda Dreeben
3

National Labor Relations Board

1099 14th Street, N.W.

Washington, DC 20570

Sarang V. Damle

United States Department of Justice

Civil Division

Room 7217

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Scott R. McIntosh

United States Department of Justice

Civil Division

Room 7259

950 Pennsylvania Avenue, N.W

Washington, DC 20530

Melissa N. Patterson

United States Department of Justice

Civil Rights Division

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Milakshmi V. Rajapakse [ARGUED]

National Labor Relations Board

Appellate and Supreme Court Litigation

Branch, Division of Enforcement

Room 8114
4

1099 14th Street, N.W.

Washington, DC 20570

Benjamin M. Shultz

United States Department of Justice

Civil Division

Room 7211

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Petitioner

William S. Massey

Gladstein, Reif & Meginniss

817 Broadway 

6th Floor

New York, NY 10003

Counsel for Intervenor-Petitioner

Louis J. Capozzi [ARGUED]

Capozzi & Assoc.

P.O. Box 5866

Harrisburg, PA 17110

Morris Tuchman

2nd floor

134 Lexington Avenue

New York, NY 10016

Counsel for Respondent
5

Victor Williams

Catholic University of America

School of Law

Faculty Suite 480

3600 John McCormack Road, N.E.

Washington, DC 20064

Counsel for Amicus-Petitioner

________________ 

 OPINION

________________ 

SMITH, Circuit Judge.

The Recess Appointments Clause in the 

Constitution provides that ―[t]he President shall have 

Power to fill up all Vacancies that may happen during the 

Recess of the Senate, by granting Commissions which 

shall expire at the End of their next Session.‖ U.S. Const. 

art. II, § 2, cl. 3. The central question in this case is the 

meaning of ―the Recess of the Senate,‖ which is the only 

time in which the president may use his power to recess 

appoint officers. Three definitions have been offered: (1) 

breaks between sessions of the Senate (i.e., ―intersession 

breaks‖); (2) these intersession breaks as well as breaks 

within a session (i.e., ―intrasession breaks‖) that last for a 

non-negligible time, or (3) any break in Senate business 

that makes the body unavailable to provide advice and 

consent on the president‘s nominations. This is a difficult 
6

question that has never been addressed by our Court or 

the Supreme Court. We hold that ―the Recess of the 

Senate‖ in the Recess Appointments Clause refers to only 

intersession breaks. As a consequence, we conclude that 

the National Labor Relations Board panel below lacked 

the requisite number of members to exercise the Board‘s 

authority because one panel member was invalidly 

appointed during an intrasession break. We will therefore 

vacate the Board‘s orders.

I

New Vista operates a nursing and rehabilitative 

care center in Newark, New Jersey. On January 25, 2011, 

a healthcare workers‘ union petitioned the National 

Labor Relations Board (―the Board‖) for certification as 

the representative for New Vista‘s licensed practical 

nurses (―LPN‖). New Vista opposed this certification on 

the grounds that its LPNs are supervisors who cannot 

unionize under the National Labor Relations Act 

(―NLRA‖), 29 U.S.C. § 152(3), (11). See NLRB v. 

Kentucky River Cmty. Care, Inc., 532 U.S. 706, 709 

(2001) (explaining that supervisors do not fall within the 

NLRA‘s definition of a bargaining unit). On March 9, 

2011, the Board‘s regional director determined that New 

Vista‘s LPNs were not supervisors and thus certified the 

union as well as ordered an election. New Vista appealed 

to the Board, which affirmed the regional director‘s 

order.
7

The union won a majority in the ensuing election. 

New Vista refused to bargain with the union,

1 which then 

filed a charge of unfair labor practices against New Vista 

before the Board. On behalf of the union, the Board‘s 

general counsel moved for summary judgment against 

New Vista, which New Vista opposed. The Board 

unanimously granted summary judgment in favor of the 

Union and against New Vista in a ―decision and order‖ 

dated August 26, 2011.

This order was issued by a three-member ―delegee 

group‖ of the Board. The NLRA establishes that the 

Board is composed of up to five members, appointed by 

the president and confirmed with the advice and consent 

of the Senate. 29 U.S.C. § 153(a). Section 153(b) 

authorizes the Board to ―delegate to any group of three or 

more members any or all of the powers which it may 

itself exercise.‖ Id. § 153(b). These delegee groups must 

 

1 Refusal to bargain is a common way to obtain judicial 

review of representation determinations like the Board‘s 

affirmation of the regional director‘s March 9, 2011 

decision for which direct review is unavailable. NLRB v. 

Kentucky River Cmty. Care Inc., 532 U.S. at 709 

(explaining that ―direct judicial review of representation 

determinations is unavailable‖ but that indirect review 

may be obtained by refusing to bargain and thereby 

inducing the Board to file an unfair labor practice claim 

(citing AFL v. NLRB, 308 U.S. 401, 409–11 (1940)).
8

―maintain a membership of three in order to exercise the 

delegated authority of the Board.‖ New Process Steel, 

L.P. v. NLRB, 130 S. Ct. 2635, 2644 (2010). 

Importantly, this three-member-composition 

requirement is distinct from § 153(b)‘s quorum 

requirements. The quorum requirements speak to the 

number of members who must be present to exercise the 

Board‘s powers for either the Board itself or a properly 

constituted three-member (or more) delegee group. See 

id. at 2642–43 (explaining that the ―group quorum 

provision‖ ―authorizes two members to act as a . . . group 

of at least three members‖ but does not ―authorize two 

members to constitute a valid delegee group‖); see also 

id. at 2642 (defining quorum as ―the number of members 

of a larger body that must participate for the valid 

transaction of business‖). To have a quorum, a delegee 

group must have at least two of its three members present 

and the Board must have at least three of its five

members present. 29 U.S.C. § 153(b). 

In contrast, the three-member-composition 

requirement speaks to how many members are required 

for a delegee group to be a properly constituted body that 

can exercise the Board‘s powers. These different 

requirements are certainly related, but this case simply 

turns on whether the delegee group that issued the 

August 26 Order and the subsequent reconsideration 

orders had three members.
9

On September 7, 2011, New Vista filed a motion 

with the Board to reconsider the August 26 Order. The 

company argued that the three-member delegee group

acted ultra vires because although the order is dated 

August 26—one day before one member, Wilma 

Liebman, resigned—it was not issued until it was mailed 

during the week of August 29. This would mean, 

according to New Vista, that the panel had only two 

members when the order was issued, thereby violating 

29 U.S.C. § 153(d)‘s three-member-composition 

requirement. The company also argued that the 

August 26 Order was substantively incorrect. Meanwhile, 

on September 13, 2011, the Board filed with this Court 

an application for enforcement of the August 26 Order. 

We granted an uncontested motion to hold in abeyance 

the filing of the administrative record pending resolution 

of the motion for reconsideration. This functionally acted 

as a stay of the proceedings before us. 

On December 30, 2011, the Board denied New 

Vista‘s motion for reconsideration. New Vista took two 

actions. First, it filed a second motion for reconsideration 

on January 3, 2012. In this motion, the company argued 

that the three-member December 30 delegee group was 

improperly constituted and thus without power to issue 

the order because one of the panelists was recused from 

the case. The company also argued in a March 14 

―further motion for reconsideration‖ that the December 

30 Reconsideration Order delegee group was improperly 
10

constituted because one of the panelists was a recess 

appointee whose term concluded at the end of the 

Senate‘s 2011 session—which New Vista contended was 

December 17, 2007, thirteen days before the December 

30 Reconsideration Order was issued.

Second, on January 9, 2012, New Vista filed a 

petition for review of the December 30 Reconsideration 

Order with this Court. We have treated this petition as a 

cross-petition for review opposing the Board‘s petition 

for enforcement of the August 26 Order. We also granted

another Board motion to hold in abeyance the filing of 

the administrative record for these petitions until New 

Vista‘s second motion for reconsideration was resolved. 

This, again, functionally acted as a stay of the 

proceedings before us.

On March 15, 2012, the Board denied New Vista‘s 

second motion for reconsideration. This order did not 

address the company‘s March 14 argument that the term 

of one panelist had ended on December 17. On March 

22, 2012, New Vista filed a third motion for 

reconsideration. This motion reiterated the company‘s 

March 14 argument that the December 30 delegee group

was improperly constituted because the Senate‘s session 

had ended on December 17. The motion also argued that 

the three-member delegee group that issued the March 15 

Reconsideration Order lacked three members because 

two of its members were invalidly appointed to the Board

under the Recess Appointments Clause while the Senate 
11

was not in ―recess.‖ In sum, New Vista argued that if the 

Senate‘s session had ended when it began using pro 

forma sessions, then the December 30 panel had only two 

members because the term of one of its members expired. 

But if the Senate‘s session did not end at that time, then 

the March 15 panel was improperly constituted because 

the president‘s recess appointments were invalidly made 

while the Senate was not in recess. The Board denied this 

motion on March 27, 2012. The Board also filed the 

administrative record with this Court on that date, 

thereby stripping itself of jurisdiction. See 29 U.S.C. 

§ 160(e) (―Upon the filing of the record with it the 

jurisdiction of the court shall be exclusive and its 

judgment and decree shall be final.‖).

On April 4, 2012, New Vista filed a petition for 

review of the March 15 and March 27 Reconsideration 

Orders. We granted New Vista‘s request that this petition 

be consolidated with New Vista‘s earlier petition for 

review for all purposes. These consolidated petitions for 

review are collectively a cross petition opposing the 

Board‘s petition for enforcement of the August 26 Order.

II

We consider sua sponte whether the delegee group 

that issued the August 26 Order had jurisdiction. See 

Bender v. Williamsport Area Sch. Bd., 475 U.S. 534, 541 

(1986) (explaining that ―every federal appellate court has 

a special obligation to  ̳satisfy itself not only of its own 
12

jurisdiction, but also that of the lower courts in a cause 

under review,‘ even though the parties are prepared to 

concede it‖ (quoting Mitchell v. Maurer, 293 U.S. 237, 

244 (1934))). In their initial briefs, the parties contended

that the delegee group had subject-matter jurisdiction 

under 29 U.S.C. § 160(a), which ―empower[s]‖ the Board 

(and its three-member delegee groups) ―to prevent any 

person from engaging in any unfair labor practice . . . 

affecting commerce.‖ We do not doubt that § 160(a) 

provides one jurisdictional requirement for the Board to 

adjudicate a case. But that does not preclude others. We

have thus inquired whether 29 U.S.C. § 153(b)‘s threemember-composition requirement is jurisdictional. We 

hold that it is.

This Court has previously explained that ―the 

overall authority of the Board to hear [a] case under the 

NLRA‖ is a jurisdictional question that ― ̳may be raised 

at any time.‘‖ NLRB v. Konig, 79 F.3d 354, 360 (3d Cir. 

1996) (quoting NLRB v. Peyton Fritton Stores, Inc., 336 

F.2d 769, 770 (10th Cir. 1964)); see also Polynesian 

Cultural Center, Inc. v. NLRB, 582 F.2d 467, 472 (9th 

Cir. 1978). Under § 153(b) and New Process Steel, 

delegee groups of the Board do not have statutory 

authority to act if they have fewer than three members. 

New Process Steel, 130 S. Ct. at 2644; Teamsters Local 

Union No. 523 v. NLRB, 624 F.3d 1321, 1322 (10th Cir. 

2010) (holding that a ―two-member NLRB group that 

issued the order in this case lacked statutory authority to 
13

act‖ (emphasis added)). The three-member-composition 

requirement is thus jurisdictional because it goes to the 

Board‘s authority ―to hear [a] case under the NLRA.‖ 

Konig, 79 F.3d at 360.

Nevertheless, the Supreme Court ―has endeavored 

in recent years to  ̳bring some discipline‘ to the use of the 

term  ̳jurisdictional.‘‖ Gonzalez v. Thaler, 132 S. Ct. 641, 

648 (2012) (quoting Henderson v. Shinseki, 131 S. Ct. 

1197, 1202–03 (2011)). So there may be reason to 

believe that Konig‘s analysis and the subsequent 

jurisdictional conclusion for this case are no longer valid. 

Lebanon Farms Disposal, Inc. v. Cnty. of Lebanon, 538 

F.3d 241, 249 n.16 (3d Cir. 2008) (explaining that ―[a]n 

intervening decision of the Supreme Court is a sufficient 

basis for us to overrule a prior panel‘s opinion without 

referring the case for an en banc decision‖). Our review 

of the Court‘s recent clarification shows that Konig

remains good law and that the three-membercomposition requirement is jurisdictional. The Court has 

explained that jurisdiction ―refers to a court‘s 

adjudicatory authority.‖ Reed Elsevier, Inc. v. Muchnick, 

130 S. Ct. 1237, 1243 (2010) (quoting Kontrick v. Ryan, 

540 U.S. 443, 455 (2004)). Subject-matter jurisdiction 

―refers to  ̳the courts‘ statutory or constitutional power to 

adjudicate the case.‘‖ Id. (quoting Steel Co. v. Citizens 

for Better Env’t, 523 U.S. 83, 89 (1998) (emphasis in 

original)). 
14

Although these statements refer to Article III 

courts, jurisdictional issues are just as important for 

administrative adjudicative bodies. ―It is well settled that 

an administrative agency,‖ like an Article III court, ―is a 

tribunal of limited jurisdiction.‖ Pentheny Ltd. v. Gov’t of 

Virgin Islands, 360 F.2d 786, 790 (3d Cir. 1966). An 

administrative agency ―may exercise only the powers 

granted by the statute reposing power in it.‖ Id.; see also

2 Am. Jur. 2d Administrative Law § 282 (2013) 

(―Administrative agencies are tribunals of limited 

jurisdiction . . . . As a general rule, agencies have only 

such adjudicatory jurisdiction as is conferred on them by 

statute.‖). These powers are limited by the scope of the 

jurisdictional statute in the same way that a federal 

court‘s powers are limited by the Constitution and 

statute. Compare 2 Am. Jur. 2d Administrative Law § 

282, with Exxon Mobil Corp. v. Allapattah Servs., Inc., 

545 U.S. 546, 552 (2005) (―The district courts of the 

United States, as we have said many times, are  ̳courts of 

limited jurisdiction. They possess only that power 

authorized by Constitution and statute.‘‖ (quoting 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 

375, 377 (1994))). The fact that this case deals with an 

administrative agency does not eliminate the requirement 

that a delegee group satisfy all jurisdictional 

requirements before it may exercise the Board‘s powers.

In Henderson v. Shinseki, the Supreme Court 

stated that ―a rule should not be referred to as 
15

jurisdictional unless it governs a court‘s adjudicatory 

capacity, that is, its subject-matter or personal 

jurisdiction.‖ 131 S. Ct. at 1202. As noted, subject-matter 

jurisdiction is ―statutory or constitutional power to 

adjudicate the case.‖ Steel Co., 523 U.S. at 89 (emphasis 

in original). Furthermore, in Arbaugh v. Y&H Corp., 546 

U.S. 500 (2006), the Supreme Court provided a ―readily 

administrable bright line‖ rule: ―If the Legislature clearly 

states that a threshold limitation on a statute‘s scope shall 

count as jurisdictional, then courts and litigants will be 

duly instructed and will not be left to wrestle with the 

issue.‖ Id. at 515–16. ―But when Congress does not rank 

a statutory limitation on coverage as jurisdictional, courts 

should treat the restriction as nonjurisdictional in 

character.‖ Id. at 516. ―Congress, of course, need not use 

magic words in order to speak clearly on this point,‖ so 

context can show that a requirement is jurisdictional. 

Henderson, 131 S. Ct. at 1203.

The Supreme Court‘s recent decision in New 

Process Steel indicates that § 153(b)‘s three-membercomposition requirement is jurisdictional. In that case, 

the Board had delegated its power to a three-member 

delegee group. Three days after the delegation became 

effective, the term expired for one of the three members 

of the delegated group. This left the group with only two 

members. 130 S. Ct. at 2638–39. The Supreme Court 

held that § 153(b)‘s three-member-composition 

requirement meant that the ―two remaining Board 
16

members cannot exercise‖ the authority of the Board. Id. 

at 2638, 2644 (―We thus hold that the delegation clause 

requires that a delegee group maintain a membership of 

three in order to exercise the delegated authority of the 

Board.‖). The presence of three Board members in a 

delegee group is a necessary condition for the Board to 

exercise its power to adjudicate a matter before it.

New Process Steel renders the three-membercomposition requirement ―a threshold limitation‖ on the 

scope of the power delegated to the Board by the NLRA: 

the Board cannot exercise its power through a delegee 

group if that group has fewer than three members. This 

statutory mandate is therefore jurisdictional. See 

Arbaugh, 546 U.S. at 515 (explaining that ―threshold 

limitation[s] on a statute‘s scope‖ imposed by Congress 

are jurisdictional); Teamsters Local Union No. 523, 624 

F.3d at 1322 (holding that a ―two-member NLRB group 

that issued the order in this case lacked statutory 

authority to act‖ (emphasis added)). By explaining that 

three members are required ―in order to exercise the 

delegated authority of the Board,‖ New Process Steel, 

130 S. Ct. at 2644, the Supreme Court has in essence

declared that the three-member-composition requirement 

goes directly to the board‘s ―power to hear a case,‖ which 

is exactly what jurisdictional questions relate to. United 

States v. Cotton, 535 U.S. 625, 630 (2002); see also Noel 

Canning v. NLRB, 705 F.3d 490, 497 (D.C. Cir. 2013) 

(―[T]he objections before us concerning lack of a quorum 
17

raise questions that go to the very power of the Board to 

act.‖).2

The Board relies on three cases3as authority 

providing that ―a claim that a federal officer was 

 

2

The D.C. Circuit appears to have conflated the quorum 

requirement with the three-member-composition 

requirement. See generally Noel Canning, 705 F.3d

at 490 (discussing challenge as one based on the quorum 

requirement); id. at 499 (stating that New Process Steel

―holds that the Board cannot act without a quorum of 

three members‖ and ―[i]t is undisputed that the Board 

must have a quorum of three in order to take action‖). 

Notwithstanding the semantics, the substance of the D.C. 

Circuit‘s conclusion was that when less than three 

members purport to exercise the adjudicative authority of 

the Board, it ―raise[s] questions that go to the very power 

of the Board to act.‖ Id. at 497. We agree.

3

The Board also argues that Vermont Agency of Natural 

Resources v. United States, 529 U.S. 765 (2000), 

describes the Appointments Clause as nonjurisdictional. 

Id. at 778 n.8. That case, however, states no such thing. 

Instead, it illustrates the very point we make here. It 

describes the question in which the appointments issue

arose, rather than the Appointments Clause itself, as 

nonjurisdictional. Id. (stating that ―the validity of qui tam

suits‖ is not ―a jurisdictional issue‖). And because that 

question was nonjurisdictional, the appointments issue 
18

appointed unconstitutionally is not a jurisdictional 

challenge.‖ NLRB Ltr. Br. at 2 (Feb. 28, 2013) (citing 

Freytag v. Commissioner of Internal Revenue, 501 U.S. 

868 (1991); Intercollegiate Broad. Sys., Inc. v. Copyright 

Royalty Bd., 574 F.3d 748 (D.C. Cir. 2009); Evans v. 

Stephens, 387 F.3d 1220 (11th Cir. 2004) (en banc) 

(emphasis in original). These cases hold that 

Appointments Clause challenges are nonjurisdictional

when brought independently. Freytag, 501 U.S. at 878–

79; Intercollegiate Broad. Sys., 574 F.3d at 755–56; 

Evans, 387 F.3d at 1222 n.1. Those holdings are not 

relevant to the jurisdictional conclusion we reach today.

We do not hold that challenges under the Appointments 

or Recess Appointments Clauses are jurisdictional. We 

instead hold that the NLRA‘s three-member-composition

requirement is jurisdictional and must be met before the 

Board can exercise its power over a case. Because this 

requirement is jurisdictional, any reason for which the 

delegee group consists of fewer than three members—

including whether one member is invalidly appointed 

 

within the question was not treated as jurisdictional. See 

id. Our conclusion in relation to the three-membercomposition requirement for delegee groups is the 

opposite: it is jurisdictional. Accordingly, the 

appointments issue here must be treated as jurisdictional 

because it is one reason that there may not have been 

three members. 
19

under the Recess Appointments Clause—can be raised by 

a party or by this Court at any point in litigation as a 

jurisdictional defect. See Henderson, 131 S. Ct. at 1202. 

The jurisdictional nature of the three-membercomposition requirement is especially important in this 

case because it requires us to analyze whether Craig 

Becker—one of the three-member delegee group that 

decided the August 26 Order—held a valid appointment 

under the Recess Appointments Clause. This question is 

distinct from the recess-appointments question initially 

briefed by the parties. The parties‘ briefs address whether 

Richard Griffin and Sharon Block—who were members 

of the delegee group that decided the March 15 and 

March 27 Reconsideration Orders—were invalidly recess 

appointed because their January 9, 2012 appointments 

were made while the Senate was holding so-called pro 

forma sessions.4 Member Becker was not appointed 

when the Senate was holding pro forma sessions but, 

instead, was appointed on March 27, 2010, one day after

the Senate ―adjourn[ed]‖ for two weeks. 156 Cong. Rec. 

S2180 (daily ed. Mar. 26, 2010) (statement of Sen.

Kaufman) (reporting Senator Ted Kaufman‘s motion for 

and the Senate‘s unanimous consent of the body being

―adjourned until Monday April 12, 2010 at 2 p.m.‖). As 

will be seen in Part V, this means that our consideration 

 

4

The characteristics of pro forma sessions are described 

in Part V.
20

of Member Becker‘s appointment entails evaluation of at 

least one more definition of ―recess‖ than the evaluation 

of Members Griffin and Block‘s appointments. Before 

delving into the difficult constitutional task of defining 

―recess,‖ however, we must first address two preliminary 

questions: whether the delegee group that issued the 

August 26 Order lacked three members as a result of 

Chairman Liebman‘s resignation and whether the 

definition of recess is a nonjusticiable political question.

III

―We have a longstanding practice of avoiding 

constitutional questions in cases where we can reach a 

decision upon other grounds.‖ Egolf v. Witmer, 526 F.3d 

104, 109 (3d Cir. 2008). That practice leads us first to 

consider New Vista‘s nonconstitutional argument that 

the August 26 Order was issued by a delegee group of 

fewer than three members. New Vista contends that one 

of the three members resigned before the order was 

issued. The delegee group that issued the order consisted 

of Chairman Liebman, Member Becker, and Member 

Hayes. The face of the order is dated August 26, 2011.

New Vista Nursing & Rehab., 367 N.L.R.B. No. 69 (Aug.

26, 2011). The Board docket also reflects August 26, 

2011 as the date that the order was issued. New Vista 

Nursing & Rehab., NLRB No. 22-CA-029988 (Aug. 26, 

2011), http://www.nlrb.gov/case/22-CA-029988. On 

August 27, Chairman Liebman resigned. New Vista 

argues that the order was actually entered after Liebman 
21

resigned because the order ―was mailed, received by the 

Regional Board Agent, and was posted on the Board‘s

Summary of Decisions Website on August 31, 2012.‖ 

Pet‘r‘s Br. at 31. The Board does not dispute that the 

order was mailed to interested parties after August 27 but 

contends that the order was issued on August 26—the 

date that appears on the face of the order.

―Agency action is entitled to a presumption of 

regularity.‖ Frisby v. U.S. Dep’t of Hous. & Urban Dev., 

755 F.2d 1052, 1055 (3d Cir. 1985). ―Acts done by a 

public officer which presuppose the existence of other 

acts to make them legally operative, are presumptive 

proofs of the latter.‖ R.H. Stearns Co. of Boston, Mass. v. 

United States, 291 U.S. 54, 63 (1934). Here, the act done 

was the issuance of the August 26 Order, which 

presupposes that the members listed as having made the 

decision did in fact make that decision. The issuance of 

the order creates a presumption that all three members 

listed on the order decided it. See id. It is New Vista‘s 

burden to rebut that presumption.

New Vista offers only a single piece of evidence in 

rebuttal: that the order was not mailed until after August 

26. This is insufficient, and Braniff Airways, Inc. v. Civil 

Aeronautics Bd., 379 F.2d 453 (D.C. Cir. 1967),

demonstrates why that is so. In that case, Braniff Airways 

argued that the Civil Aeronautics Board lacked a quorum 

because one of its members had resigned before the order 

was issued. Id. at 459. The order in that case was issued 
22

on June 1, the same day the member in question resigned. 

The Court found that the Board had a quorum solely on 

the basis that the order ―on its face indicated that it was 

concurred in and signed on June 1, 1965.‖ Id. The Court

reached that conclusion despite payroll records with 

conflicting accounts, one of which showed that the 

member was on the payroll only through May 31, 1965. 

Id. Notably, the Court also discounted that the order ―was 

not served until June 2,‖ on the basis that ―[i]n [their] 

view it is plain that once all members have voted on an 

award and caused it to be issued the order is not nullified 

because of incapacity, intervening before the ministerial 

act of service, of a member needed for a quorum.‖ Id. 

(emphasis added).

The D.C. Circuit‘s reasoning is equally persuasive 

here. The only evidence New Vista puts forth is that the 

order was mailed after it was dated and posted on the 

docket. This falls short even of what Braniff Airways

presented. It relied not only on a delay in service but also 

on payroll records. New Vista presents even weaker 

grounds to doubt the order‘s date than Braniff offered the 

D.C. Circuit. New Vista cannot overcome the 

presumption of regularity.

New Vista also argues that it is entitled to seek 

further discovery into when the members voted on the 

August 26 Order. The company acknowledges, however, 

that ―the NLRB may not be required to enter for the 

record the time, place, and content of their deliberations,‖ 
23

Pet‘r‘s Br. at 53, and the Board has stated that the 

minutes sought do not exist, Resp. Br. at 29. Yet New 

Vista persists, asserting ―that the record of the time of 

their votes on agency actions under review is essential to 

determine‖ the validity of the August 26 Order. Pet‘r‘s 

Br. at 53. The company fails to explain why the date 

listed on the order itself is not evidence ―of the time of 

their vote.‖ Absent a reason to doubt the date listed, the 

presumption of regularity requires that we consider the 

date as the record of when the delegee group caused the 

opinion to be issued, which presupposes that they voted 

on or before that date. Accordingly, New Vista has failed 

to show that one of the members resigned prior to the

issuance of the August 26 Order.

IV

The amicus argues that we should decline to define 

the word ―recess‖ within the Recess Appointments

Clause because it is a nonjusticiable political question. 

―Questions of justiciability are distinct from questions of 

jurisdiction, and a court with jurisdiction over a claim 

should nonetheless decline to adjudicate it if it is not 

justiciable.‖ Gross v. German Found. Indus. Initiative, 

456 F.3d 363, 376 (3d Cir. 2006) (citing Baker v. Carr, 

396 U.S. 186, 198 (1962)). An issue presents a 

nonjusticiable political question when one of the 

following characteristics is ―inextricable from the case‖:
24

a textually demonstrable constitutional 

commitment of the issue to a coordinate 

political department; or a lack of judicially 

discoverable and manageable standards for 

resolving it; or the impossibility of deciding 

without an initial policy determination of a 

kind clearly for nonjudicial discretion; or the 

impossibility of a court's undertaking 

independent resolution without expressing 

lack of the respect due coordinate branches 

of government; or an unusual need for 

unquestioning adherence to a political 

decision already made; or the potentiality of 

embarrassment from multifarious 

pronouncements by various departments on 

one question.

Baker, 369 U.S. at 217. Amicus‘s principal contentions

are that the recess-appointments claim by New Vista is 

nonjusticiable because (1) ― ̳the issue is textually 

committed‘ to the president,‖ Amicus Br. at 4 (quoting 

Nixon v. United States, 506 U.S. 224, 228 (1993)), and 

(2) there are ―no  ̳manageable standards‘ to solve the 

partisan argument between the Executive and Congress 

. . . regarding dysfunctional Senate confirmation 

processes,‖ id.

5 Neither argument is persuasive.

 

5

The amicus also briefly refers to two other bases for 

concluding this is a political question: that (1) resolving 
25

Nothing in the language of the Recess 

Appointments Clause textually commits to the president

 

the issue is impossible ― ̳without expressing lack of the 

respect due coordinate branches of government,‘‖ id. at 5 

(quoting Baker, 369 U.S. at 217), and (2) ―the nation‘s 

extreme need for finality in the president‘s recess 

appointment practice,‖ id. (emphasis in original). Neither 

is persuasive. Defining recess in the Recess 

Appointments Clause does not express a lack of respect 

for coordinate branches of government because defining 

the word is merely an exercise of our judicial authority 

―to say what the law is,‖ which sometimes requires an 

evaluation of whether one branch is aggrandizing its 

power at another‘s expense. See Zivotosky v. Clinton, 132 

S. Ct. 1421, 1427–28 (2012); see also Nixon v. 

Fitzgerald, 457 U.S. 731, 753–54 (1982) (explaining, 

when discussing appropriate exercise of judicial review 

of executive action, that ―[w]hen judicial action is 

needed to serve broad public interest—as when the Court 

acts, not in derogation of the separation of powers, but to 

maintain their proper balance . . . the exercise of 

jurisdiction has been warranted‖ (citations omitted)). Nor 

is the constitutionality of the president‘s recessappointments practice the type of question implicating an 

extreme need for finality that would make it 

nonjusticiable. Cf. Baker, 369 U.S. at 213 (discussing the 

need for finality in the context of the president‘s war 

power to end a conflict).
26

the task of defining ―recess.‖ The Clause states that 

―[t]he President shall have Power to fill up all Vacancies 

that may happen during the Recess of the Senate, by 

granting Commissions which shall expire at the End of 

their next Session.‖ U.S. Const. art. II, § 2, cl. 3. This 

language lacks the explicit assignment of power to any 

one branch, such as the assignment found in the 

Constitution‘s Impeachment Trial Clause which states 

that ―[t]he Senate shall have the sole Power to try all 

Impeachments.‖ U.S. Const. art. I, § 3, cl. 6 (emphasis 

added); Nixon, 506 U.S. at 228–35 (concluding that the 

explicit assignment, along with drafting history 

indicating that the assignment was intentional, meant that 

the power to try impeachments was textually committed 

to the Senate). The Recess Appointments Clause also

does not contain an imperative to either branch to craft a 

rule regarding the meaning of recess—or, more broadly, 

when the president may use his recess appointments 

power. The Clause is thus also distinguishable from the 

Naturalization Clause‘s grant to Congress of the authority 

to ―establish an uniform Rule of Naturalization.‖ U.S. 

Const. art. I, § 8, cl. 4; New Jersey v. United States, 91 

F.3d 463, 469 (3d Cir. 1996) (stating that this Clause 

represents a textual commitment to Congress).6

 

6

Even Congress‘ plenary authority over immigration and 

naturalization does not render its actions in this area 

immune from judicial review under the political-question
27

Finally, the Clause does not provide unqualified 

power to either the Senate or the president that would

suggest it makes a textual commitment to either. It limits 

the president‘s recess-appointment power by requiring 

that the Senate be in recess, and it limits the Senate‘s 

ordinary advice-and-consent power by eliminating that 

power while the Senate is in recess. The Clause thus 

cannot be read to invariably favor one branch‘s interests

in such a way that it makes a textual commitment to one 

of them. See Freytag, 501 U.S. at 880 (―Because it 

articulates a limiting principle, the Appointments Clause 

does not always serve the Executive‘s interests.‖); Ryder 

v. United States, 515 U.S. 177, 182 (1995) (―The 

[Appointments] Clause is a bulwark against one branch 

aggrandizing its power at the expense of another branch, 

but it is more: it  ̳preserves another aspect of the 

Constitution‘s structural integrity by preventing the 

diffusion of the appointment power.‘‖ (quoting Freytag, 

 

doctrine. In INS v. Chadha, for example, the Supreme 

Court held that Congress‘ plenary authority over 

immigration did not render any challenge to that 

authority to be a nonjusticiable political question. 462 

U.S. 919, 940–41 (1983). The Court explained that ―[t]he 

plenary authority of Congress over aliens . . . is not open 

to question‖ except when it is alleged that the means 

chosen ― ̳offend[s] some other constitutional restriction‘‖

on Congress. Id. (quoting Buckley v. Valeo, 424 U.S. 1, 

132 (1976)).
28

501 U.S. at 878)); The Federalist No. 76 (Alexander 

Hamilton) (explaining the Constitution‘s rejection of 

unitary power in either the president or the Senate in 

favor of one that divides power between them).

The amicus disputes this, arguing that the Clause 

makes a textual commitment by providing the president

―unilateral appointment authority when the Senate [is]

unavailable to render its advisory consent vote.‖ Amicus

Br. at 12. This argument reveals the tendency of the 

political-question doctrine ―to obscure the need for case 

by case inquiry.‖ Gross, 456 F.3d at 377–78 (quoting 

Baker, 369 U.S. at 210–11). We have cautioned against

this tendency, instructing that our inquiry must ―avoid 

 ̳resolution by any semantic cataloguing,‘‖ and must 

instead ―undertake a  ̳discriminating inquiry into the 

precise facts and posture of the particular case.‘‖ Id.

(quoting Baker, 369 U.S. at 217). The amicus‘s argument 

runs afoul of our instruction because it merges the issue 

present in this case (when the president can use his 

recess-appointments power) with an issue not in this case

(how the president can use that power). The amicus‘s 

characterization of the power speaks to both issues: it 

states how the president can use his recess-appointment 

power (―unilateral authority‖) and assumes the answer to 

the question in this case of when he can use that power

(―when the Senate [is] unavailable to render its advisory 

consent vote‖). The greater power the president has 

during a recess does not shed light on what the word 
29

―recess‖ means or who decides what it does mean and 

thus does not provide a reason to conclude that the 

Clause makes a textual commitment to the president. Cf. 

INS v. Chadha, 462 U.S. 919, 940–41 (1983) (explaining 

that Congress‘ plenary authority over immigration does 

not immunize it from judicial review for violations of 

other constitutional restrictions on its power committed 

while exercising that authority).

The amicus‘s concerns regarding the lack of 

judicially manageable standards for defining ―the Recess 

of the Senate‖ are similarly unfounded. There are several 

judicially manageable standards for defining ―the Recess 

of the Senate‖ and, correspondingly, for when the 

president may use his recess-appointments power. The 

parties present two different standards: according to New 

Vista, any time after both houses have agreed to adjourn 

for more than three days, Pet‘r‘s Br. at 40–41, and

according to the Board, any time the Senate is not 

available to conduct regular business, Resp. Br. at 44. Cf. 

Zivotofsky, 132 S. Ct. at 1428–30 (relying on the 

―detailed legal arguments‖ provided by the parties

regarding whether the statute at issue was constitutional

to show the existence of judicially manageable 

standards). The D.C. Circuit has provided another: 

intersession breaks that follow adjournments sine die of 

the Senate. Noel Canning, 705 F.3d at 506–07. Of these 

standards, those provided by the D.C. Circuit and New 

Vista are judicially manageable because they rely on 
30

regular procedures employed in the Senate and found in 

the Senate‘s record. The Board‘s more open-ended 

definition of recess might very well be unmanageable 

because it does not rely on any particular Senate 

procedure and would require judicial ―explor[ation] [of] 

communications between the Senate Minority and the 

president‖ in addition to review of the ―scheduling 

schemes of the Senate Minority and House Majority.‖

Amicus Br. at 20–24 (arguing, after rejecting the standard 

offered by New Vista, that the Board‘s standard is 

unmanageable). But this only cautions against selecting 

the Board‘s standard rather than showing that there are 

no judicially manageable standards available.

Of course, if the question is framed—as the amicus

has—as a need to derive a judicially manageable 

standard ―to resolve [ ] the underlying cycles of partisan 

confirmation obstruction payback which caused the 

NLRB vacancies,‖ Amicus Br. at 25, then there is likely 

no judicially manageable standard. See also Evans, 387 

F.3d at 1227 (rejecting as nonjusticiable an argument that 

the president unconstitutionally used the recessappointment power because the appointee had been 

previously rejected by the Senate and thus constituted a 

circumvention of the Senate‘s advice and consent role). 

But that is not the question we face. Instead, we must 

define the phrase ―the Recess of the Senate,‖ which is a 

question distinct from resolving the ―cycles of partisan 

confirmation obstruction payback.‖ See id. at 1224–26, 
31

1227 (defining recess to include intrasession breaks 

despite holding that the political argument made was 

nonjusticiable).

This task falls within the ― ̳province and duty of 

the judicial department to say what the law is.‘‖

Zivotosky, 132 S. Ct. at 1427–28 (quoting Marbury v. 

Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). This ―duty 

will sometimes involve the  ̳[r]esolution of litigation 

challenging the constitutional authority of one of the 

three branches,‘ but courts cannot avoid their 

responsibility merely  ̳because the issues have political 

implications.‘‖ Id. at 1428 (quoting Chadha, 462 U.S. 

at 943) (alteration in original). Thus, ―the fact that the 

resolution of the merits of a case would have  ̳significant 

political overtones does not automatically invoke the 

political question doctrine.‘‖ Khouzam v. Att’y Gen., 549 

F.3d 235, 249–50 (3d Cir. 2008) (quoting Chadha, 462 

U.S. at 942–43). That the issue presented here touches on 

political events of the day is not dispositive of whether 

this case presents a nonjusticiable question. Because 

there are manageable standards and because the Clause 

does not make a textual commitment to the Senate or the 

president, we hold that interpreting the phrase ―the 

Recess of the Senate‖ is a justiciable question.

V

Having determined that the Recess Appointments 

question is justiciable, we now begin our analysis of the 
32

recess-appointment issue. Member Becker is the only 

member of the delegee group that issued the August 26 

Order who was recess appointed and thus the only one 

whose appointment is in question. As noted, he was 

appointed during an intrasession break that began on 

March 26, 2010, and ended on April 12, 2010. This break 

lasted seventeen days and the Senate was indisputably 

not open for business. His appointment will be invalid if 

the Recess Appointments Clause does not empower

presidents to make recess appointments during these 

types of breaks.

The Clause provides that ―[t]he President shall 

have Power to fill up all Vacancies that may happen 

during the Recess of the Senate, by granting 

Commissions which shall expire at the End of their next 

Session.‖ U.S. Const. art. II, § 2, cl. 3. This is understood 

to allow the president to use his recess appointment 

power only ―during the Recess of the Senate,‖ thereby 

rendering the definition of recess, along with its temporal 

reach, of pivotal consequence to the controversy now 

before us. See Noel Canning, 705 F.3d at 499–500;

Evans, 387 F.3d at 1224. Three possible definitions have 

been presented. The D.C. Circuit defines the term to 

mean only intersession breaks, which are ―the period 

between sessions of the Senate when the Senate is by 

definition not in session and therefore unavailable.‖ Noel 

Canning, 705 F.3d at 499–500, 506. The end of a session 

is typically demarcated by a particular type of Senate 
33

adjournment—an adjournment sine die—which is the 

procedure used to end a Senate session. Id. at 512–13.7

An intersession break is the period between an 

adjournment sine die and the start of the next session.

David H. Carpenter et al., Cong. Research Serv., R42323, 

President Obama’s January 4, 2012, Recess 

Appointments: Legal Issues 4 n.23 (2012).

A second definition, one which the Eleventh 

Circuit has adopted, is that recess includes intersession 

breaks as well as some ―intrasession‖ breaks, which are 

breaks in Senate business during a session. Evans, 387 

F.3d at 1224. An intrasession break is demarked by a 

Senate adjournment of any type—other than adjournment 

sine die—and lasts until the next time the Senate 

convenes, which is set by the motion to adjourn. See, 

e.g., Cong. Rec. S2180 (daily ed. Mar. 26, 2010) 

 

7

Senate practice also ends sessions automatically 

through its understanding of the Constitution‘s 

requirement that they ―shall assemble at least once in 

every year‖ in a meeting that begins ―at noon on the 3d 

day of January.‖ U.S. Const. Amend. XX. Under this 

practice, if a session of Congress has not ended by noon 

on January 3 of a given year, then the session 

automatically ends and another begins at noon of that 

day. See Thomas Jefferson, A Manual of Parliamentary 

Practice: For the Use of the Senate of the United States

166 (2d ed. 1812).
34

(statement of Sen. Kaufman) (reporting Senator 

Kaufman‘s March 26, 2010 motion for and the Senate‘s 

unanimous consent of the body being ―adjourned until 

Monday April 12, 2010 at 2 p.m.‖). From 1921 until 

recently, there was a consensus that an intrasession break 

was not ―the Recess of the Senate‖ unless the break 

lasted for a non-negligible number of days. The first 

attorney general to adopt this view suggested that the 

minimum duration was ten days. 33 U.S. Op. Att‘y Gen. 

20, 24–25 (1921) (rejecting the proposition that ―an 

adjournment for 5 or even 10 days can be said to 

constitute the recess intended by the Constitution,‖ but 

advising the president that a break of 28 days is within 

the meaning of recess). All presidents, at least in practice, 

followed this ten-day minimum until January 2012. 

Carpenter et al., supra, at 15 & n.97 (stating that no 

presidents until 2012 made a recess appointment during 

an intrasession break shorter than ten days). Accordingly, 

the second definition includes only those intrasession 

breaks that last for a significant duration, which 

historically has been ten days or more.

8

 

8 Others have argued that a three-day break is sufficient 

to constitute ―the Recess of the Senate.‖ See, e.g., 

Edward A. Hartnett, Recess Appointments of Article III 

Judges: Three Constitutional Questions, 26 Cardozo L. 

Rev. 377, 419–21 (2005). This number is drawn from the 

Adjournments Clause, which requires the Senate and the 
35

The third and final possible definition is of more 

recent vintage. In January 2012, President Barack Obama 

made several recess appointments while the Senate was 

holding pro forma sessions every three or four days. 

These sessions are considered recesses under the third 

definition. Pro forma sessions are formal meetings of the 

Senate in which usually only one Senator is present to 

convene the body briefly before adjourning it until the 

next pro forma session. Id. at 2; see also, e.g., 157 Cong. 

Rec. S8787 (daily ed. Dec. 20, 2011) (statement of Sen. 

Warner) (recording Senator Mark Warner‘s convening 

and adjournment of the Senate in a span of thirty-five 

seconds). Before such sessions are held, the Senate

agrees by unanimous consent that there will be ―no 

business conducted‖ except business that was previously 

agreed to, such as convening a new session of the Senate. 

See, e.g., 157 Cong. Rec. S8783–84 (daily ed. Dec. 17, 

2011) (statement of Sen. Wyden) (recording the schedule 

of pro forma sessions to be held between December 17, 

2011 and January 23, 2012). However, these consent 

agreements can, and have been, subsequently altered to 

allow initially unplanned business—including the passing 

of legislation—during a pro forma session. See, e.g., 157 

 

House to concur on any adjournment lasting longer than 

three days. U.S. Const. art. I, § 5, cl. 4. The argument is 

that any intrasession break of less than three days is de 

minimis and thus not adequate to constitute ―the Recess 

of the Senate.‖ Hartnett, supra, at 419–20.
36

Cong. Rec. S8789 (daily ed. Dec. 23, 2011) (statement of 

Sen. Reid) (obtaining unanimous consent that a bill ―be 

considered read three times and passed‖ if an identical 

version is passed by the House, which the House

subsequently did, during a pro forma session); see also

Carpenter et al., supra, at 18 & n.108. Importantly, these 

sessions prevent the Senate from being adjourned for 

more than three or four days at a time, which means the 

adjournment never reaches the ten-day minimum 

discussed above. See, e.g., 157 Cong. Rec. S8784 (daily 

ed. Dec. 17, 2011) (statement of Sen. Wyden) (recording 

Senator Ron Wyden‘s motion, and the Senate‘s

unanimous concurrence therewith, that the Senate be 

―adjourned until Tuesday, December 20, 2011, at 11 

a.m.‖); 157 Cong. Rec. S8787 (daily ed. Dec. 20, 2011) 

(statement of Sen. Warner) (recording the Senate‘s 

adjournment ―until Friday, December 23, 2011, at 9:30 

a.m.‖).

The third definition of recess, which is offered by 

the Board, allows the president to make recess 

appointments while the Senate is holding these pro forma 

sessions. The Board argues that a recess occurs when 

―the Senate is not open to conduct business‖ and thus 

unavailable to ―provid[e] advice and consent on 

nominations.‖ Resp. Br. at 44. The Board argues that this 

definition follows from Attorney General Harry 

Daugherty‘s 1921 opinion, which adopted a partially

functionalist definition of ―the Recess of the Senate‖:
37

[T]he essential inquiry, it seems to me, is 

this: Is the adjournment of such duration that 

the members of the Senate owe no duty of 

attendance? Is its chamber empty? Is the 

Senate absent so that it can not [sic] receive 

communications from the President or 

participate as a body in making 

appointments?

33 U.S. Op. Att‘y Gen. at 25. The Board contends that 

these criteria decide whether the Senate is open to 

conduct business and available to provide its advice and 

consent. Unlike Attorney General Daugherty‘s opinion, 

the Board appears to consider these criteria controlling in 

themselves, such that there is no requirement for a 

minimum, non-negligible period of time to pass in order 

for the Senate to be in recess.

9

Id.

 

9

The Board does note that if pro forma sessions are 

ignored, then more than ten days passed during the break 

in which the president recess appointed two Board 

members who sat on the March 15 and 27 delegee group. 

Resp. Br. at 46 (noting that twenty days passed between 

when the second session of the Senate was convened on 

January 3, 2012 and when the Senate held its first non–

pro forma session). This might suggest that the Board 

believes a period of time greater than ten days between 

non–pro forma sessions is still required, but such a 

contention is absent from its briefs and was not suggested 
38

Based on these criteria, the Board contends that

periods in which the Senate holds pro forma sessions

only constitute a recess. This is because during these 

sessions, the body is neither doing business nor available 

to provide its advice and consent. This means, per the 

third definition, that these sessions do not interrupt what 

would otherwise be an intrasession break that begins with 

the adjournment before the first pro forma session and 

lasts until the next convening of the Senate in a non–pro 

forma session.

In sum, the parties argue that ―the Recess of the 

Senate‖ has one of three meanings: (1) intersession 

breaks; (2) intersession and intrasession breaks that last a 

non-negligible period, which has historically been ten 

days (―long intrasession breaks‖ hereinafter); or (3) any 

time in which the Senate is not open for business and is 

 

at oral arguments when asked for limiting principles to its 

definition. Resp. Br. at 43–45 (defining recess in only 

functionalist terms), 58 (rejecting the relevance of a 

three-day requirement derived from the Adjournment 

Clause because nothing shows that it is related to the 

Recess Appointments Clause); Oral Arg. Tr. at 48:11 to 

50:1 (explaining that ―unavailability of the Senate to 

provide advice and consent‖ is the limiting principle on 

the functionalist definition of recess).
39

unavailable to provide its advice and consent.10 We hold 

 

10 We disagree with the dissent that the second and third

definitions of recess should be combined into one 

―intrasession recess‖ definition. Dissenting Op. at 1–2. 

Distinguishing between these definitions provides 

necessary nuance to the analysis. First, as has been 

discussed, these two definitions have starkly different 

historical pedigrees: Until 2012, presidents and their 

attorneys general have always tied intrasession breaks to 

a non-negligible period of time. See, e.g., 33 U.S. Op. 

Att‘y Gen. at 25. In fact, the Office of Legal Counsel‘s 

2012 memorandum on President Obama‘s recess 

appointments during pro forma sessions begins by 

emphasizing that the period between the non–pro forma

sessions was of sufficient length to be a recess. 36 Op. 

O.L.C. *4–9 (Jan. 6, 2012). The availability-based 

definitions of recess that reject any need for a fixed 

number of days to pass thus represent a significant 

departure from past practice. Combining the unavailablefor-business definition with the long-intrasession-break 

definition glosses over important historical differences 

between the two.

Second, as will be shown, the unavailable-for-business 

definition has significantly less support than the longintrasession-break definition from the historical meaning 

of ―recess‖ as well as the purpose of the Recess 

Appointments Clause. Accordingly, we reject each 

definition for somewhat different reasons.
40

that ―the Recess of the Senate‖ means only intersession 

breaks, and so we conclude that Member Becker‘s 

appointment was invalid.

A. ―[T]he Recess of the Senate‖

1. The Literal Meaning of Recess

When interpreting the Constitution, ―we begin 

with its text.‖ City of Boerne v. Flores, 521 U.S. 507, 519

(1997). In doing so, ―we are guided by the principle that 

 ̳[t]he Constitution was written to be understood by the 

voters; its words and phrases were used in their normal 

and ordinary as distinguished from technical meaning.‘‖

District of Columbia v. Heller, 554 U.S. 570, 576 (2008) 

(quoting United States v. Sprague, 282 U.S. 716, 731 

(1931)). The ―[n]ormal meaning may of course include 

an idiomatic meaning, but it excludes secret or technical 

meanings that would not have been known to ordinary 

citizens in the founding generation.‖ Id. at 576–77.

The word ―recess‖ lacks a natural meaning that 

clearly identifies whether it includes only intersession 

breaks or also includes intrasession breaks, whether they 

be of a certain duration or a period of unavailability. 

Dictionaries from the time of ratification provide 

definitions that can be read to support any of these 

definitions. Samuel Johnson‘s dictionary defines recess 

to mean ―[r]etirement; retreat; withdrawing; secession‖ 

as well as ―[d]eparture‖ and ―[r]emoval to distance.‖ 
41

Samuel Johnson, 2 A Dictionary of the English Language

469 (6th ed. 1785).11 All of these definitions contain 

some connotation of permanence or, at least, longevity. 

―Secession,‖ for example, means ―[t]he act of departing‖ 

or ―[t]he act of withdrawing from councils or actions.‖ 

Id. at 589; see also Merriam-Webster’s Collegiate 

Dictionary 1121 (11th ed. 2003) (defining ―secession‖ to 

mean ―formal withdrawal from an organization‖). And 

―departure‖ is defined by Johnson to mean ―[a] going 

away,‖ the ―[d]eath; . . . the act of leaving the present 

state of existence,‖ and ―an abandoning.‖ Samuel 

Johnson, 1 A Dictionary of the English Language 568 

(6th ed. 1785); see also Merriam-Webster’s at 334

(defining ―departure‖ to mean ―the act or an instance of 

departing,‖ ―a setting out (on a new course)‖); 1 William 

Blackstone, Commentaries *187–88 (defining one 

method of terminating parliamentary business, the 

 

11 The entire definition found in Johnson‘s dictionary is:

1. Retirement; retreat; withdrawing; 

secession. 2. Departure. 3. Place of 

retirement; place of secrecy; private abode. 

4. Perhaps an abstract of the proceedings of 

an imperial diet. 5. Departure into privacy. 

6. Remission or suspension of any 

procedure. 7. Removal to distance. 8. 

Privacy; secrecy of abode. 9. Secret part.

Johnson, 2 A Dictionary of the English Language at 469.
42

dissolution, as ―the civil death of the parliament‖). The 

implication of permanence supports an understanding of 

recess to mean only intersession breaks because these are 

followed by an adjournment sine die, which are 

adjournments without a set date for reconvening. And the 

implication of longevity supports the idea that recess 

includes long intrasession breaks. 

Neither of these implications is consistent with the 

Board‘s unavailable-for-business definition of recess, but 

other entries in Johnson‘s dictionary provide some 

support for that definition. Johnson‘s definition of recess 

includes ―[r]emission or suspension of any procedure.‖

Johnson, 2 A Dictionary of the English Language at 469.

And, of course, words such as ―departure‖ also have less 

permanent implications than death. Johnson, 1 A 

Dictionary of the English Language at 568 (defining 

―departure‖ as ―[a] going away‖). The term ―recess,‖ by 

itself, thus lacks a literal meaning that unambiguously 

supports one of the three definitions.

2. The Historical Use of Recess

Importantly, though, the Constitution does not say 

only ―Recess.‖ Rather, it limits the president‘s recessappointments power to the ―Recess of the Senate.‖ The 

words ―of the Senate‖ provide some context for our 

analysis: parliamentary procedure at the time of 

ratification. Deal v. United States, 508 U.S. 129, 132 

(1993) (―[T]he meaning of a word cannot be determined 
43

in isolation, but must be drawn from the context in which 

it is used.‖).

American colonial legislatures and the first Senate 

largely derived their parliamentary procedures from the 

procedures used by the English Parliament. See Henry M. 

Robert III, et al., Robert’s Rules of Order: Newly Revised 

xxxiv–xxxv (11th ed. 2011) (recounting the migration of 

English procedures to the American colonies); Thomas 

Jefferson, A Manual of Parliamentary Practice: For the 

Use of the Senate of the United States (2d ed. 1812) 

(relying heavily on English precedents in providing 

procedural rules for the Senate). English parliamentary 

procedure at the time had three types of breaks: 

adjournments, which were ―continuances of the session 

from one day to another . . . and sometimes a fortnight or 

a month together‖; prorogations, which were

―continuances of the parliament from one session to 

another‖ initiated by the king; and dissolutions, which 

were terminations of a Parliament initiated by the king‘s 

order, his death, or a length of time that necessitated new 

elections before another Parliament could be convened. 1 

William Blackstone, Commentaries *186–89; see also

Jefferson, supra, § 51 at 164–65; Michael B. Rappaport, 

The Original Meaning of the Recess Appointments 

Clause, 52 U.C.L.A. L. Rev. 1487, 1550–51 (2005). The 

Parliament thus had three breaks: adjournments for 

intrasession breaks and prorogations as well as 

dissolutions for intersession breaks.
44

At first blush, these three types of breaks appear to 

correspond with the three mechanisms for breaks referred 

to in our Constitution. ―Adjournment,‖ or its verbal form 

―adjourn,‖ is the same phrase the Constitution uses to 

denote day-to-day and longer breaks within sessions of 

either chamber. U.S. Const. art. I, § 5, cl. 1 (allowing a 

minority of members to ―adjourn from day to day‖); id.

art. I, § 5, cl. 4 (requiring concurrence between both 

chambers if, ―during the session of Congress,‖ they are to 

―adjourn for more than three days‖).12 The word 

―dissolution‖ does not appear in the Constitution,

 

12 The words adjourn or adjournment appear six times in 

five clauses of the Constitution. U.S. Const. art. I, § 7, cl. 

2 (―If any bill shall not be returned by the President 

within ten days (Sundays excepted) after it shall have 

been presented to him, the same shall be a law, in like 

manner as if he had signed it, unless the Congress by 

their adjournment prevent its return, in which case it shall 

not be a law.‖); id. at art. I, § 7, cl. 3 (―Every order, 

resolution, or vote to which the concurrence of the Senate 

and House of Representatives may be necessary (except 

on a question of adjournment) shall be presented to the 

President of the United States‖); id. at art. II, § 3 (―[The 

President] may, on extraordinary occasions, convene 

both Houses, or either of them, and in case of 

disagreement between them, with respect to the time of 

adjournment, he may adjourn them to such time as he 

shall think proper.‖).
45

probably because the president does not have the power 

to dissolve Congress. See id at art. II, § 3 (providing that 

the president, at most, ―may adjourn [Congress] to such 

time as he shall think proper‖ if they cannot agree on ―the 

time of adjournment‖); The Federalist No. 69 (Alexander 

Hamilton) (explaining the powers of the president and 

how they are less than those of the king and even the 

governor of New York by contrasting the president‘s 

power to ―only adjourn the national legislature‖ with the 

―British monarch[‘s]‖ power to ―prorogue or even 

dissolve the Parliament‖). But the concept of dissolution 

is still present in the Constitution: Congress is 

automatically dissolved—and any ongoing session 

ended—every two years by termination of the terms of 

one-third of Senators and all members of the House. U.S. 

Const. art. I, § 2, cl. 1; id. art. I, § 3, cls. 1–2. These 

dissolutions end a session and, following elections, begin 

another session in a new Congress, see Jefferson, supra, 

§ 51 at 166 (―A dissolution certainly closes one session; 

and the meeting of the new Congress begins another.‖)—

just as the king‘s dissolution, or the dissolution by the 

passage of time, did for the English Parliament, 1 

William Blackstone, Commentaries *189. 

In light of these parallels, it is tempting to say that 

―Recess of the Senate‖ corresponds with prorogations 

and thus must refer only to terminations of sessions and 

the intersession breaks that follow them. But this 

argument proves too much. Even though the Constitution 
46

uses ―adjournment‖ to mean breaks within a session, it 

also uses the term to mean breaks between sessions. The 

Supreme Court held in the Pocket Veto Case, 279 U.S. 

655 (1929), that ―adjournment‖ in Article I, § 7, clause 2 

of the Constitution is any break in business ―that prevents

the President from returning the bill to the House in 

which it originated within the time allowed.‖ Id. at 680

(internal quotation marks omitted); see also U.S. Const. 

art. I, § 7, cl. 2 (providing that a bill passed by Congress 

becomes law after ten days after presentment to the 

president ―unless the Congress by their adjournment 

prevent its return‖). This definition does not distinguish 

between breaks within sessions and those between 

sessions. See id.; accord Rappaport, supra, at 1551 n.198 

(explaining that ―the Framers used the term 

 ̳adjournment‘ with a broader meaning than it had 

traditionally under English law‖). This means that the 

Constitution does not simply adopt ―adjournment‖ as it 

was used in Parliament and correspondingly suggests that 

―Recess of the Senate‖ is not simply prorogation by 

another name.

Understanding the differences between prorogation 

and adjournment is helpful, however, to make sense of 

ratification-era state constitutions.13 Eight of these 

 

13 The dissent argues that our discussion of state 

constitutions and early American practice transforms our 

definition of recess into a technical one. Dissenting Op. 
47

constitutions use the word ―recess.‖ Six contain the same 

ambiguity found in the federal Constitution.14 The word 

 

at 16–18 & n.11. These sources are, however, frequently 

relied on by the Supreme Court to decide the meaning of 

Constitution. See, e.g., Heller, 128 S. Ct. at 585–86; 

Collins v. Youngsblood, 497 U.S. 37, 42 (199). We, too, 

consider such reliance to be appropriate because the 

average citizen likely would have understood the 

Constitution in reference to the state constitutions and 

practices at the time. 

14 See Del. Const. of 1776 art. 7; Md. Const. of 1776 

pt. 2, art. XIII; N.C. Const. of 1776 pt. 2, arts. XVIII–

XX; Pa. Const. of 1776 pt. 2, § 20; S.C. Const. of 1778 

arts. IX, XVIII, XXXV; Vt. Const. of 1777 ch. II, §§ 

XVII–XVIII.

Of these provisions, the North Carolina Constitution‘s 

Recess Appointments Clause has been argued to be the 

most relevant to the federal Recess Appointments Clause 

because the federal clause is thought by some to be 

modeled after the North Carolina one. Noel Canning, 705 

F.3d at 501. The North Carolina Constitution gives the 

governor power to ―grant[] temporary commission[s]‖ of 

officers ―whose appointment[s] [were] by [the North 

Carolina] Constitution vested in the General Assembly 

. . . during their recess.‖ N.C. Const. of 1776, pt. 2, art. 

XX. Recess here is essentially used in the same manner 

that it is in the federal constitution, which limits the 
48

―recess‖ in the Massachusetts and New Hampshire

constitutions, however, includes only intersession breaks. 

See Rappaport, supra, at 1552. These constitutions have 

similar provisions that provided their respective

governors with different powers depending on whether

the legislature was in ―session‖ or ―in recess.‖ Mass. 

Const. of 1780, pt. 2, ch 2, § 1, art. V; N.H. Const. of 

1792 pt. 2, § L. When the legislatures were in ―session,‖ 

the governors had the power either to prorogue or to 

adjourn them. See, e.g., Mass. Const. of 1780, pt. 2, ch. 2, 

§ 1 (―The Governor . . . shall have full power and 

authority, during the session of the General Court [i.e., 

the Massachusetts legislature], to adjourn or prorogue the 

same to any time the two Houses shall desire‖). But when 

 

recess-appointment power to ―the Recess of the Senate.‖ 

Both constitutions thus contain the same ambiguity. 

The D.C. Circuit concluded that this ambiguity is 

clarified for the North Carolina constitution by a North 

Carolina Supreme Court decision that the D.C. Circuit 

argues implicitly distinguishes between session and 

recess. Noel Canning, 705 F.3d at 501. We disagree. The 

North Carolina Supreme Court opinion is not informative 

because—as the Board argues—the question in the case 

was not the meaning of ―recess‖ but whether a recessappointed judge‘s court had jurisdiction to determine 

whether he was properly appointed. Beard v. Cameron, 3 

Mur. 181, 184–86 (N.C. 1819).
49

the legislatures were ―in recess,‖ the governors only had 

the power to prorogue them—or, in simpler terms, extend 

the duration of the intersession recess, see Johnson, 2 A 

Dictionary of the English Language 412 (defining 

―prorogue‖ as ―to withhold a session of parliament to a 

distant time.‖). See, e.g., Mass. Const. of 1780, pt.2, ch 2, 

§ 1 (providing the governor, ―in the recess of the said 

Court,‖ the power ―to prorogue the same from time to 

time‖). These provisions make sense only if the 

legislature is not in ―session‖ when it is ―in recess.‖ 

Otherwise, the provisions are in conflict, stating that the 

governors both had and did not have the power to 

adjourn the legislature during intrasession breaks. These 

two constitutions thus used recess to mean intersession 

breaks only.15

 

15 The intersession-breaks-only definition of recess is 

also seen in a second way. As explained, the governors 

only had the power to prorogue when their respective 

legislatures were ―in recess‖; but they had the power to 

both adjourn as well as to prorogue the legislatures when 

they were in session. See Mass. Const. of 1780, pt. 2, 

ch 2, § 1, art. V; N.H. Const. of 1792 pt. 2, § L. This is 

telling because if recess included intrasession breaks as 

well as intersession breaks, then the power to adjourn 

ought to also be included. Recall that one central 

difference between adjournments and prorogations is that 

the former do not end all business such that it need be 
50

There are, however, examples of state executives

assuming that a constitutional recess includes

intrasession breaks. Vermont and Pennsylvania‘s former 

constitutions, for example, provided their respective 

executives power to ―lay embargoes . . . in the recess of 

the house only.‖ Vt. Const. of 1777, ch. 2, § XVIII; Pa. 

Const. of 1776, pt. 2, § 20. Governors of both states 

imposed embargos during intrasession breaks,

16 which 

 

started anew when the legislature reconvenes while the 

latter do end business. Jefferson, supra, at 164–65. So in 

these constitutions, while the legislatures were in session, 

the governors had the option of either ending business 

through prorogation or, through adjournment, merely 

ending their meetings but without ending their business. 

There is no obvious reason that if recess included 

intrasession breaks—after which business that was

ongoing before the break would continue—the governors 

would lose their power to end that business. The most 

plausible explanation of the differing powers in each 

situation is that recesses were only constituted of 

intersession recesses, which made it unnecessary to 

provide the governors the power to adjourn the 

legislatures because there was no business that could be 

continued. The Massachusetts and New Hampshire 

constitutions thus used recess to mean intersession 

recesses only.

16 For the Vermont example, see 3 J. & Proceedings of 

the General Assemb. of the State of Vt. 235 (P.H. Gobia 
51

 

Press 1924) (recording the Vermont Assembly‘s 

―adjourn[ment] until the second Wednesday of June‖ on 

April 16, 1781); 2 Records of the Governor and Council 

of the State of Vt. 164 (E.P. Walton ed., 1874) (recording 

the May 1781 imposition of an embargo by the 

executive). This was an intrasession break because the 

legislature had not adjourned without day, as they often 

did to end the last meeting of the year. See, e.g., 3 J. & 

Proceedings of the General Assemb. of the State of Vt. 

at 31 (adjourning on June 17, 1778 ―until his Excellency 

the Governor commands them to meet‖), 73 (adjourning 

―without day‖ on June 4, 1779); 123 (adjourning 

―without day‖ on March 16, 1780); 271 (adjourning 

―without day‖ on June 28, 1781).

For the Pennsylvania example, see J. & Minutes of the

Pa. Assembly 212 (1778) (recording the Pennsylvania 

House of Representatives‘ adjournment on May 25, 1778 

―to meet on the 9th day of September next‖ and its 

subsequent reconvening on August 4, 1778 pursuant to 

the summons of the ―vice-president and [s]upreme 

executive council‖); 11 Minutes of the Supreme Exec. 

Council of Pa. 544–45 (Theo Fenn & Co., 1852) 

(recording the August 1, 1778 imposition of an embargo 

by the executive). The Board has stated that this 

intrasession break lasted until September 9, 1778. This 

does not take into account the Pennsylvania House of 

Representative‘s being recalled on August 4, however. 

This discrepancy does not undermine the Board‘s general 
52

suggests they understood that such breaks were included 

in the meaning of recess. 

The New Jersey governor acted similarly. He

relied on the Senate Vacancies Clause in the federal 

Constitution to appoint a senator on December 19, 1798. 

8 Annals of Cong. 2197 (1798). Prior to the Twentieth 

Amendment, this Clause allowed state executives to 

make temporary appointments of Senators ―during the 

Recess of the Legislature of [that] State.‖ U.S. Const. art.

I, § 3, cl. 2. His appointment of a senator on December 

19, 1798, shows that he construed recess to include 

intrasession breaks because the New Jersey General 

Assembly was in an intrasession break from November 8, 

1798, until January 16, 1799.17

 

point that the embargo was set by the executive during an 

intrasession break because the May 25 adjournment was 

not an adjournment sine die and the August 1 embargo 

imposition is before the Assembly‘s August 4 

reconvening date. 

17 Votes and Proceedings of the Twenty-Third General 

Assemb. of the State of N.J, 1st sitting, 64 (1798–99) 

(recording the adjournment of the New Jersey General 

Assembly); J. of Proceedings of the Legis. Council of the 

State of N.J., 23d Sess., 1st sitting 20 (1798–99) 

(recording the adjournment of the New Jersey Legislative 

Council).
53

This history shows that recess had at least two 

meanings at the time of ratification: either intersession 

breaks only or intersession breaks plus long intrasession 

breaks. The state constitutions favor the former, while the 

governors‘ actions favor the latter. To be sure, the

executive‘s actions should be viewed with some 

skepticism because an expansive definition of recess 

served their institutional self-interest by expanding their

powers. See Steven G. Calabresi & Saikrishna B. 

Prakash, The President’s Power to Execute the Laws, 104 

Yale L.J. 541, 558–59 (1994) (explaining that postenactment actions by the first Congress must be viewed 

cautiously because of their institutional interest in 

limiting the president‘s power). But it would be 

erroneous to reject their understanding on this basis 

alone. Nothing in the historical record affirmatively

rejects their understanding for purposes of the federal

Constitution.

18 But neither is there anything affirmatively 

 

18 Besides state-executive practice, the Board also points 

to the Continental Congress‘s understanding of the 

meaning as revealed by its practices. NLRB Ltr. Br. at 6 

& n.3. Under the Articles of Confederation, the Congress 

could only convene a ―Committee of the States‖ during 

―the recess of Congress.‖ Articles of Confederation of 

1781, art. IX, para. 5; id. art. X, para 1. Such a committee 

was convened during the period that followed the 

Continental Congress‘s adjournment on June 3, 1784 

until October 30, 1784. 27 J. of Continental Congress 
54

establishing that it adopted this definition of recess in lieu 

of the definition found in the Massachusetts and New 

Hampshire constitutions. Standing alone, ―Recess of the 

Senate‖ is thus ambiguous. Edwards v. A.H. Cornell & 

Son, Inc., 610 F.3d 217, 222 (3d Cir. 2010) (―Words or 

provisions are ambiguous when  ̳they are reasonably 

susceptible of different interpretations.‘‖ (quoting 

Dobrek v. Phelan, 419 F.3d 259, 263 (3d Cir. 2005))).

Importantly, though, neither of these possibilities

is similar to the unavailable-for-business definition put 

forth by the Board. Every example discussed thus far has 

two common characteristics. First, each break lasted for a 

considerable period of time. The intrasession breaks in 

 

555 (1784). That this adjournment was until a fixed date 

suggests that the period after ought to have been an 

intrasession break because it was not an adjournment sine 

die, which would be denoted by the absence of a fixed 

reconvening date. Subsequent proceedings, however, call 

this understanding into question because the Continental 

Congress‘s journal does not record their reconvening on 

October 30 but instead shows them convening when the 

Articles of Confederation required they meet again, 28 J. 

of Continental Congress 639–41 (1784) (convening 

―[p]ursuant to the Articles of Confederation,‖ rather than 

pursuant to the prior adjournment), which is consistent 

with having adjourned sine die. We decline to rely on this 

practice one way or another because of the uncertainty.
55

which the governors of Vermont and Pennsylvania used 

their powers were 57 and 71 days, respectively. See 

supra note 10. And the intrasession break in which the 

New Jersey governor appointed a senator was 69 days.

See supra note 11. As far as we are aware, the shortest 

break referred to as a recess lasted 14 days, 2 A 

Documentary History of the English Colonies in North 

America 1346–48 (Peter Force, ed., 1839), which 

conforms with the modern practice equating recess with

breaks lasting at least 10 days. These durations suggest

that a recess was more than the day-to-day adjournment 

of a legislature and likely held the connotation of long 

duration. This is contrary to the Board‘s current view that 

breaks in business need not be of any particular duration 

to constitute a recess. 

The second notable trait of these breaks is that the 

beginning of each was determined solely by when the 

legislature adjourned—rather than by some functionalist 

definition of when the body was unavailable for business. 

The Board has pointed to no examples of the word

―recess‖ turning on factors such as whether members 

were required to attend, the legislative chamber was 

empty, and the body could receive messages. The 

examples instead show that recess was tied to the type, or 

possibly the duration, of the legislature‘s self-defined 

adjournment. Accord Jefferson, supra, at 51 at 165 

(explaining that Senate ―Committees may be appointed to 

sit during a recess by adjournment, but not by 
56

prorogation‖).

In short, the natural meaning of recess does not 

help us decide between intersession breaks and 

intrasession breaks of a fixed duration, but the relevant 

context does undermine the Board‘s current position.19

 

19 The dissent refers to our reliance on state constitutions 

and contemporary interpretations of recess as a ―dubious‖ 

method of interpretation. Dissenting Op. at 20. To be 

clear, these historical examples demonstrate that the use 

of recess at the time of ratification was consistent with 

either the intersession-break definition of recess or the 

intersession-plus-long-intrasession-break definition. We 

discuss these only to show the ordinary meanings of the 

word ―recess‖ for the founding generation, as 

demonstrated by their usage. Heller, 554 U.S. at 576. We 

do not use them as conclusive evidence that recess means 

intersession breaks only, which cannot be done because 

there is not sufficient historical evidence on which 

meaning was intended in the Constitution.

These historical practices do, however, cast doubt on the 

unavailable-for-business definition argued for by the 

Board, a version of which is adopted by the dissent. This 

is not so much because of what the practices were but 

what they were not. Namely, the Board and the dissent 

cannot point to a single example from the period of 

ratification in which a legislative body or executive 

defined recess exclusively using a functionalist definition 
57

To resolve the remaining ambiguity, one might argue that 

the Constitution uses a definitive article: ―the Recess of 

the Senate.‖ The word ―the‖ might mean that the phrase 

refers to a specific thing, possibly suggesting that recess

refers to the one recess that follows every session, an 

intersession break. See Noel Canning, 705 F.3d at 499–

500. But ―the‖ also can denote a particular class of 

something as well. Indeed, that is how the D.C. Circuit 

ultimately interpreted ―the Recess,‖ holding that it means 

all intersession breaks. Id. But even conceding that ―the‖ 

is meant to denote a specific class of something, there is 

nothing in the word ―the‖ itself that necessarily requires 

that class to be intersession breaks. ―[T]he Recess‖ 

might, for example, simply refer to times in which the 

Senate is in a recess. See Evans, 387 F.3d at 1224–25. 

There is nothing that shows what ―the‖ means in the 

Recess Appointments Clause, especially because the 

Constitution uses ―the‖ in several manners. See, e.g., U.S. 

Const. art. I, § 3, cl. 4 (providing that ―[t]he Vice 

President . . . shall be President of the Senate‖); art. I, 

§ 3, cl. 5 (providing that the Senate shall select a 

president pro tempore ―in the Absence of the Vice 

President‖). Accordingly, we are convinced that use of 

―the‖ is uninformative. We must therefore look to the 

 

based on availability. If such a definition of recess were a 

―normal and ordinary‖ meaning for the ―founding 

generation,‖ Heller, 554 U.S. at 576, there ought to be at 

least one example of its use from that period.
58

broader textual context in which ―the Recess of the 

Senate‖ was ratified.

B. Textual Context

1. Constitutional Context and the Unavailable-forBusiness Definition

―If, from the imperfection of human language, 

there should be serious doubts respecting the extent of 

any given power, it is a well settled rule, that the objects 

[i.e., the purpose] for which it was given . . . should have 

great influence on the construction.‖ Gibbons v. Ogden, 

22 U.S. 1, 188–89 (1824). The purpose of the Recess 

Appointments Clause is most evident in its relation to the 

Appointments Clause. The text and structure of the 

Constitution demonstrate that the Recess Appointments 

Clause is a secondary, or exceptional, method of 

appointing officers, while the Appointments Clause 

provides the primary, or general, method of appointment.

The Appointments Clause provides the general rule for 

appointing officers through presidential nomination and 

senatorial advice and consent. U.S. Const. art. II, § 2, 

cl. 2. The Clause lacks any limitation on when this power 

is operative—the president always has the power to fill 

vacancies through nomination and the advice and consent 

of the Senate. See id. (―[The President] shall nominate, 

and by and with the Advice and Consent of the Senate, 
59

shall appoint . . .‖).20 This perpetual power stands in 

contrast to the power given to the president in the Recess 

Appointments Clause, which explicitly allows him to fill 

vacancies unilaterally only ―during the Recess of the 

Senate.‖ Id. at art. II, § 2, cl. 3. The clauses thus reveal a 

constitutional preference for divided power over the 

 

20 The Appointments Clause states in full:

He shall have Power, by and with the 

Advice and Consent of the Senate, to make 

Treaties, provided two thirds of the Senators 

present concur; and he 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, whose Appointments are not 

herein otherwise provided for, and which 

shall be established by Law: but the 

Congress may by Law vest the Appointment 

of such inferior Officers, as they think 

proper, in the President alone, in the Courts 

of Law, or in the Heads of Departments.

U.S. Const. art. II, § 2, cl. 2.
60

appointments process, which is deviated from only in 

specified situations.21

Alexander Hamilton echoed this understanding of 

the Constitution. He explained in Federalist 67 that the 

Appointments Clause ―declares the general mode of 

appointing officers of the United States.‖ The Federalist 

No. 67 (Alexander Hamilton). The Recess Appointments 

Clause, however, is ―nothing more than a supplement to 

the [the Appointments Clause], for the purpose of 

establishing an auxiliary method of appointment, in cases 

to which the general method was inadequate.‖ Id. 

Accordingly, the ―ordinary power of appointment is 

confined to the president and the Senate jointly, and can 

therefore only be exercised during the session of the 

Senate.‖ Id. (emphasis in original). But ―in [the Senate’s] 

recess,‖ the ―President, singly,‖ has power to make 

temporary appointments. Id. (emphasis in original). This 

deviation is necessary, Hamilton argues, because it is 

―improper to oblige this body to be continually in 

session‖ and because ―it might be necessary for the 

 

21 Besides the exception found in the Recess 

Appointments Clause, the Appointments Clause also 

creates an exception for ―inferior Officers.‖ These 

officers can be appointed either through the ordinary 

process or, if specified by statute, unilaterally by the 

President, courts, or department heads. See U.S. Const. 

art. II, § 2, cl. 2.
61

public service to fill without delay.‖ Id. 

The ―main purpose‖ of the Recess Appointments 

Clause, therefore, is not—as the Eleventh Circuit held 

and the Board argues—only ―to enable the President to 

fill vacancies to assure the proper functioning of our 

government.‖ Evans, 387 F.3d at 1226. This formulation 

leaves out a crucial aspect of the Clause‘s purpose: to 

preserve the Senate‘s advice-and-consent power by 

limiting the president‘s unilateral appointment power.

Accord Noel Canning, 705 F.3d at 505 (explaining that 

the Eleventh Circuit‘s statement of the Clause‘s purpose 

―omits a crucial element of the Clause, which enables the 

president to fill vacancies only when the Senate is unable 

to provide advice and consent‖ (emphasis in original)).

The importance of this aspect of the Clause‘s 

purpose is difficult to understate. At the time of 

ratification, skepticism in executive unilateral 

appointments power was firmly established. ― ̳[T]he 

power of appointments to offices‘ was deemed  ̳the most 

insidious and powerful weapon of eighteenth century 

despotism.‘‖ Freytag, 501 U.S. at 883 (quoting Gordon 

Wood, The Creation of the American Republic 1776–

1787 79 (1969)). But the framers‘ skepticism concerning

unilateral power was not limited to the executive. They 

also rejected unilateral legislative control of 

appointments out of concern for ―diversity of views, 

feelings, and interests, which frequently distract and warp 

the resolutions of a collective body.‖ The Federalist No. 
62

76 (Alexander Hamilton). As a consequence of these 

concerns, the framers sought to ―ensure that those who 

wielded [appointments powers] were accountable to 

political force and the will of the people‖ by limiting the 

power of any one person or body. They did so by 

dividing that power between the executive and legislative 

branches. Freytag, 501 U.S. at 883–84; see also Ryder, 

515 U.S. at 182 (―The [Appointments] Clause is a 

bulwark against one branch aggrandizing its power at the 

expense of another branch, but it is more: it preserves 

another aspect of the Constitution‘s structural integrity by 

preventing the diffusion of the appointment power.‖). To 

ignore this division of power is to neglect a central 

principle that underlies the two Appointments Clauses.22

 

22 The dissent understands this principle to mean that one 

purpose of the Recess Appointments Clause is ―to 

provide a check on the Senate‘s control over the 

appointment of officers by sharing the power of 

confirmation with the executive.‖ Dissenting Op. at 28. 

While we agree that the Clause is intended to preserve 

the balance of power struck in the Appointments Clause, 

we disagree that it does this by limiting the Senate‘s 

power to provide its advice and consent. The Recess 

Appointments Clause preserves the balance of power by 

limiting the instances in which the president has 

unilateral authority to appoint officers, which is 

illustrated by its explicit limitation of that power to ―the 
63

 

Recess of the Senate.‖ Nothing in the text of the Clause 

or the historical record suggests that it is intended to be a 

type of pressure valve for when the president cannot 

obtain the Senate‘s consent, whether that be because it 

has become dysfunctional or because it rejects a 

president‘s nominations. Cf. The Federalist No. 67 

(Alexander Hamilton) (explaining that the Clause is 

needed because it is ―improper to oblige this body to be 

continually in session‖ or because ―it might be necessary 

for the public service to fill without delay‖ rather than 

because it is a necessary tool to check the Senate‘s 

power).

Our disagreement with our dissenting colleague is rooted 

in a difference in understanding of the president‘s and the 

Senate‘s respective powers. Regarding the president, the 

dissent contends that we must interpret the president‘s 

recess-appointment power broadly because to do 

otherwise would ―eviscerat[e] his appointments 

prerogative‖ so that he may ―be able to surround himself 

with the people he believed best fit to help him fulfill his 

duty.‖ Dissenting Op. at 23–24. But the president does 

not have an ―appointments prerogative‖ or the 

constitutional right to surround himself with those he 

believes are ―best fit to help.‖ That is exactly what the 

drafters rejected when they rejected unilateral 

appointments authority in the executive. The president 

has a prerogative to nominate whomever he likes, and the 

Senate has the prerogative to reject or confirm whomever 
64

And therein lies the implausibility of the 

unavailable-for-business definition. As explained above, 

the Board argues that a recess occurs any time members 

 

the president nominates. To construe the Recess 

Appointments Clause as providing presidents these rights 

is to promote it from an auxiliary appointments device to 

an additional one, which we know from Hamilton is 

exactly what it is not. See Federalist No. 67 (Alexander 

Hamilton).

Regarding the Senate‘s advice-and-consent power, the 

dissent analogizes it to the president‘s veto power. 

Dissenting Op. at 21–23 & nn.14–15. This analogy is 

inaccurate. The drafters of the Constitution rejected an

approval mechanism proposed by Madison that gave the 

Senate only the power to veto presidential nominees by a 

majority vote in favor of ―advice and consent.‖ 2 The 

Records of the Federal Convention of 1787 at 80–83 

(Max Farrand ed., 1911); see also Matthew C. 

Stephenson, Can the President Appoint Principal 

Executive Officers without a Senate Confirmation Vote?, 

122 Yale L.J. 940, 964–95 (2013). This means there is no 

reason to think that the balance of powers created 

through provisions of the advice-and-consent power to 

the Senate is anything like the president‘s veto power. As 

we have explained, the balance is much more equitable 

between the branches and provides each the ability to 

negate the role of the other.
65

of the Senate do not have a duty to attend, the Senate 

chamber is empty, and the Senate is unavailable to 

receive communications from the president. See Resp.

Br. at 44–45; 33 U.S. Op. Att‘y Gen. at 21–22, 25. The 

problem with this definition is that the Senate fulfills 

these criteria whenever its members leave for the 

weekend, go home for the evening, or even take a break 

for lunch. In each of these instances, the senators have no 

duty to attend, the Senate chamber is empty, and the 

body cannot receive messages from the president.

Defining recess in this way would eviscerate the 

divided-powers framework the two Appointments 

Clauses establish. If the Senate refused to confirm a

president‘s nominees, then the president could 

circumvent the Senate‘s constitutional role simply by 

waiting until senators go home for the evening. The 

exception of the Recess Appointments Clause would 

swallow the rule of the Appointments Clause.

The Board appears to recognize this difficulty with 

its definition. Oral Arg. Tr. at 48:6–9 (stating that ―[t]he 

executive branch has not claimed authority to make 

recess appointments during lunch‖). Accordingly, the 

Board argues that there is a limitation in addition to the 

three open-for-business criteria: unavailability to provide 

advice and consent. Oral Arg. Tr. at 49:15–18. But the 

Board does not clearly define unavailability in a way that 

distinguishes it from the Board‘s discussion of when the 

Senate is open for business. At times, its brief treats the 
66

two requirements as one. Resp. Br. at 44 (―[T]he Clause 

authorizes appointments when the Senate is not open to 

conduct business and thus not providing advice and 

consent on nominations.‖).

Perhaps the best indication of what the Board 

means by unavailability is its reliance on the Senate‘s

unanimous-consent agreement that established the 

schedule for the pro forma sessions from December 20, 

2011, through January 23, 2012. This resolution provided 

that there would be ―no business conducted‖ during the 

sessions. 157 Cong. Rec. at S8783 (statement of Sen. 

Wyden). This resolution might be understood to mean 

that during the pro forma sessions the Senate was open 

for business but unavailable to provide advice and 

consent on nominations because of the body‘s prior 

agreement. 

The first problem with this argument is that the 

Senate‘s actions under the resolution reveal that it could 

have provided advice and consent during these pro forma 

sessions if it had desired to do so. On December 23, 

2011, during one of the pro forma sessions stipulated in 

the unanimous-consent agreement, the Senate passed a 

bill that provided ―a 2-month extension of the reduced 

payroll tax, unemployment insurance, TANF, and the 

Medicare payment fix.‖ 157 Cong. Rec. at S8789 

(statement of Sen. Reid). That same day, the Senate also 

―agree[d] to the request for a conference‖ from the House 

in relation to related bills passed by both chambers. Id. If 
67

the Senate could pass a bill and agree to a request from 

the House to create a conference for another bill, then the 

Senate likely could have provided its advice and consent

but chose not to—as they are entitled to under the 

Appointments Clause.23

 

23 The dissent rejects this conclusion on the ground that if 

the Senate is available any time it could act on 

nominations ―if it had the desire[] to do so,‖ then the 

Senate would logically always be available. Dissenting 

Op. at 51. This misses one central feature of pro forma

sessions: the Senate has convened. We do not hold that 

the Senate is available any time when it could confirm 

nominations if it wanted to. Instead, we are pointing out

that the Board cannot distinguish pro forma sessions 

from ordinary sessions on the basis of the Senate‘s 

availability because during pro forma sessions the Senate 

convenes in a manner that allows it to consent to 

nominations if it desires to. This is evidenced by the 

Senate‘s passing of legislation during these sessions. 

Holding that the Senate is unavailable during these 

sessions requires a definition of availability that allows 

the counterintuitive situation in which the Senate is 

available to enact legislation while simultaneously 

unavailable to provide its advice and consent.

The dissent suggests one possibility, which is that the 

Senate is not available to provide its advice and consent 

during pro forma sessions because ―business via 
68

Besides this factual difficulty, the Board‘s limiting 

principle has another, larger problem: it still does not 

foreclose day-to-day adjournments from constituting 

 

unanimous consent agreement . . . is not the type of 

business that yields the advice and consent envisioned by 

the Framers.‖ Id. at 29. Underlying this is the assertion 

that advice and consent requires a vote by the Senate‘s 

members. Id. at 7. This is a complicated question. See 

Adam J. White, Toward the Framers’ Understanding of 

“Advice and Consent”: A Historical and Textual Inquiry, 

29 Harv. J.L. & Pub Pol‘y 103, 107–08, 147–48 (2005) 

(collecting sources arguing the Senate is required to act 

on nominations before analyzing the text and convention 

debates to conclude that the Senate has no obligation to 

act on presidential nominees). We are reluctant to express 

an opinion on it, especially because it has not been 

briefed. 

Assuming that a vote is required to provide the Senate‘s 

advice and consent, however, it is also the case that the 

Senate must vote to ―pass‖ a bill. See Chadha, 462 U.S. 

at 980–81 (equating pass with vote). Why unanimousconsent agreements are sufficient to pass legislation, and 

thus constitute a vote, yet are inadequate to constitute a 

vote for the purpose of advice and consent is unclear. The 

dissent‘s definition thus suffers from the same flaw as the 

Board‘s: it cannot provide a principled method of 

defining availability.
69

recesses. The important feature of the Senate‘s 

scheduling agreement that the Board emphasizes is the 

provision that there would be ―no business conducted.‖ 

Resp. Br. at 45–47; Oral Arg. Tr. at 49:21–24. This, 

however, is indistinguishable from a daily adjournment. 

At the end of the day, the Senate adjourns, which 

represents an agreement that it will do no business until it

reconvenes the next day. In fact, when the Senate agrees 

to adjourn, it agrees that no senator can even be 

recognized to speak on the floor. See Riddick’s Senate 

Procedure: Precedents and Practices, S. Doc. No. 101-

28, at Adjournment 2 (1992) (―Once the Chair has 

announced that the Senate stands in adjournment, there is 

no recourse available to the Senator seeking recognition 

until the Senate reconvenes.‖). The only distinction is 

formalistic—day-to-day adjournments are embodied in a 

motion to adjourn (that is often unanimously agreed to)

rather than a unanimous consent agreement—but there is 

no reason to believe that makes an actual difference 

under the Board‘s approach. Therefore, the Board‘s 

limiting principle fails to limit the meaning of recess and 

must be rejected to prevent the Recess Appointment 

Clause‘s exception from swallowing the rule of divided 

power.

Now that we have established what ―the Recess of 

the Senate‖ does not mean, we must establish what it 

does mean. The Recess Appointments Clause‘s 

preservation of the Senate‘s advice-and-consent power
70

does not help us decide between the remaining two

possibilities because the requirement that an intrasession

break last a certain duration would prevent the exception

from swallowing the rule. We must therefore look to 

provisions of the Constitution.

Several constitutional provisions appear relevant to 

our analysis, such as those that use the word 

―adjournment.‖ See Noel Canning, 705 F.3d at 500. 

Adjournment, as discussed above, is an instance in which 

Congress or one of its chambers takes a break of any type 

or length. See, e.g., Pocket Veto Case, 279 U.S. at 680 

(interpreting ―adjournment‖ in the Pocket Veto Clause to 

include both types of breaks). Thus, if the framers had 

intended for the president to be able to appoint officers 

during intrasession breaks, then the Recess Appointments 

Clause could have been worded differently, allowing 

recess appointments ―during the Adjournment of the 

Senate.‖ See Noel Canning, 705 F.3d at 500, 505–06. 

Because the Constitution uses recess instead of 

adjournment, we presume that recess has a meaning 

different from adjournment. Kelo v. City of New London, 

Connecticut, 545 U.S. 469, 496 (2005) (―When 

interpreting the Constitution, we begin with the 

unremarkable presumption that every word in the 

document has independent meaning,  ̳that no word was 

unnecessarily used, or needlessly added.‘‖) (quoting

Wright v. United States, 302 U.S. 583, 588 (1938)).

That the words have different meanings, however, 
71

does not necessarily tell us what those meanings are and 

whether they might overlap. The Eleventh and D.C. 

Circuits provide two different possibilities. On the one 

hand, adjournment could mean the act of adjourning (i.e., 

ending business) for any period of time, while recess 

could refer to the period of time that follows an 

adjournment. Evans, 387 F.3d at 1225. On the other 

hand, adjournment could again mean the act of 

adjourning for any period of time, while recess might 

refer to breaks of a more limited nature—whether that be 

limited by the duration of the break or the type of break. 

Noel Canning, 705 F.3d at 500. In both instances, 

adjournment and recess have different meanings but 

nothing about the dichotomy between the words tells us 

which meaning was intended.

When these possibilities are considered in light of 

the purpose of the Recess Appointments Clause, 

however, the dichotomy must be that adjournment results 

in more breaks than recess does. If the Eleventh Circuit is 

correct that the sole reason for using recess instead of 

adjournment was to recognize a difference between the 

act of adjourning and the period that follows, then recess 

would mean any break in Senate business regardless of 

the break‘s length. This is a broad definition that no one, 

including the Board, adopts because it would result in the 

exception swallowing the rule. So the dichotomy does 

reveal that recess must mean something narrower than 

any break that follows an adjournment.
72

But what this narrower definition is cannot be 

derived from the dichotomy between adjournment and 

recess alone. Nothing about the words tells us whether 

recess is limited by the duration of the break (as the 

intrasession definition does) or by the type of break (as 

the intersession definition does). Contra Noel Canning, 

705 F.3d at 500, 505–06 (using the dichotomy plus the 

fact that recess is preceded by ―the‖ as support for its 

conclusion that ―the Recess‖ must mean intersession 

breaks only). The dichotomy between adjournment and 

recess therefore leaves us in the same place as the Recess 

Appointments Clause‘s purpose: rejecting an all inclusive 

definition of recess but without a basis to decide between 

the intersession definition and the intersession-plus-longintrasession-breaks definition.

2. Constitutional Context and the Remaining 

Definitions

We resolve this uncertainty by first noting what is 

absent in the Constitution: a link between ―the Recess of 

the Senate‖ and any particular length of time. Attorney 

General Daugherty, who first suggested a minimum 

duration of ten days, did not tie this duration to any 

constitutional provision. See 33 U.S. Op. Att‘y Gen. 

at 24–25 (―Nor do I think an adjournment for 5 or even 

10 days can be said to constitute the recess intended by 

the Constitution.‖). Some have tried to tie the duration to 

the Adjournment Clause, which requires either chamber 

of Congress to obtain the consent of the other to adjourn 
73

for more than three days, U.S. Const. art. I, § 5, cl. 4.

24

See, e.g., 33 U.S. Op. Att‘y gen. at 24–25 (invoking the 

Adjournment Clause to reject the idea that two days may 

constitute a recess); Edward A. Hartnett, Recess 

Appointments of Article III Judges: Three Constitutional 

Questions, 26 Cardozo L. Rev. 377, 419–21 (2005). The 

argument is that the Adjournment Clause provides a 

measure of what constitutes a de minimis break—one that 

should be read into the Recess Appointments Clause to 

prevent the exception from swallowing the rule. See

Hartnett, supra, at 419–21.25 The central error in this 

 

24 The Clause states:

Neither House, during the session of 

Congress, shall, without the consent of the 

other, adjourn for more than three days, nor 

to any other place than that in which the two 

Houses shall be sitting.

U.S. Const. art. I, § 5, cl. 4.

25 The Adjournment Clause may be thought to create a 

problem for the intersession definition of recess. Namely, 

by requiring that the two chambers of Congress agree on 

any adjournment lasting longer than three days, the 

Clause enables the House to prevent the Senate from 

adjourning sine die. This would be problematic for the 

intersession definition because, as the argument goes, it 

inserts the House into the appointments process even 
74

argument, however, is that ―[n]othing in the text of either 

Clause, the Constitution‘s structure, or its history 

suggests a link between the Clauses.‖ Noel Canning, 705 

F.3d at 504; cf. Atl. Cleaners & Dyers v. United States, 

286 U.S. 427, 433–34 (1993) (demonstrating that the 

context of individual provisions is important to deciding 

the meaning of them by explaining that the same words 

in the Constitution often have different meanings 

depending on their context). Absent some connection, 

there is no reason to believe that the Adjournment 

Clause‘s duration requirement controls the meaning of 

the Recess Appointment Clause. And beyond the 

Adjournment Clause, nothing in the Constitution 

establishes the necessary length of an intrasession break 

 

though the Constitution purposely excludes it from the 

process. 

The problem is eliminated, however, by Article II, § 3 of 

the Constitution. This provision allows the president to 

―adjourn both Houses‖ only ―if the two Houses cannot 

agree on a date of adjournment.‖ U.S. Const. Art. II, § 3. 

Assuming that the Supreme Court would interpret 

adjourn to be the verbal form of adjournment, which it 

has said constitutes both inter- and intra-session breaks, 

Pocket Veto Case, 279 U.S. at 680, this provision allows 

the president to prevent the House from interfering in the 

appointments process if it prevents the Senate from 

adjourning for either an inter- or intra-session break.
75

that would constitute a recess.

26 This is the most 

significant weakness of the long-break intrasession

argument.

Although there is no constitutional basis for any 

sort of durational limit on what constitutes ―the Recess,‖ 

the Recess Appointments Clause does contain a temporal 

characteristic: the Recess Appointment Clause‘s 

specification that recess-appointed officers‘ terms ―shall 

expire at the End of [the Senate‘s] next Session.‖ U.S. 

Const. art. II, § 2, cl. 3. A session of the Senate, everyone 

agrees, begins at the Senate‘s first convening and ends 

either when the Senate adjourns sine die or automatically 

expires at noon on January 3 in any given year. Henry B. 

Hogue, Cong. Research Serv., RS21308, Recess 

Appointments: Frequently Asked Questions 1–2 & n.5 

 

26 Another possible source of a durational limitation on 

recess is the Pocket Veto Clause, which provides that a 

bill passed by Congress becomes a law if the President 

takes no action on it for ten days ―unless the Congress by 

their adjournment prevent its return.‖ U.S. Const. art. I, 

§ 7, cl. 2. The ten-day-duration requirement that might be 

drawn from this fails for the same reason the three-dayduration requirement fails in relation to the Adjournment 

Clause. Namely, the context of the Pocket Veto Clause is 

significantly different from the context of the Recess 

Appointments Clause, which means there is no reason to 

believe the former controls interpretation of the latter.
76

(2012). The expiration of these officers‘ terms at the end 

of the next session implies that their appointments were 

made during a period between sessions. 

This implication follows from the reason for 

making recess appointments expire at the end of the 

―next Session.‖ As discussed, the Recess Appointment 

Clause provides an ―auxiliary‖ method of appointing 

officers. The Federalist No. 67 (Alexander Hamilton)

(explaining that the Clause is ―nothing more than a 

supplement to the [Appointments Clause]‖ that 

―establish[es] an auxiliary method of appointment, in 

cases to which the general method is inadequate‖). The 

durational provision maintains this by limiting recess 

appointees‘ terms to last for only the time needed for the

president and the Senate to have the opportunity to 

undergo the normal process. As Justice Joseph Story 

explained, the Clause authorizes the president ―to make 

temporary appointments during the recess, which should 

expire, when the senate should have had an opportunity 

to act on the subject.‖ 3 Joseph Story, Commentaries on 

the Constitution of the United States § 1551 at 410 

(1833) (emphasis added). Limiting the duration to a 

single opportunity follows from the auxiliary nature of 

the Clause. After all, the Senate‘s decision not to act on a 

nomination effectively is a rejection of that nomination, 

as evidenced by the Senate‘s routine return to the 

president of nominations who have not been acted on. 

Standing Rules of the Senate XXXI, para. 6 
77

(―Nominations neither confirmed nor rejected during the 

session at which they are made shall not be acted upon at 

any succeeding session without being again made to the 

Senate by the President.‖). In fact, a system in which 

Senate silence would allow for the appointment of 

officers was explicitly rejected at the drafting convention. 

2 The Records of the Federal Convention of 1787 at 80–

83 (Max Farrand ed., 1911); see also Adam J. White, 

Toward the Framers’ Understanding of “Advice and 

Consent”: A Historical and Textual Inquiry, 29 Harv. 

J.L. & Pub Pol‘y 103, 117–19 (2005) (explaining the 

drafters‘ rejection of a system in which only the Senate 

had the power to veto nominations); Matthew C. 

Stephenson, Can the President Appoint Principal 

Executive Officers without a Senate Confirmation Vote?, 

122 Yale L.J. 940, 964–95 (2013). The Clause‘s function 

is thus fulfilled once an opportunity for the Senate to act 

has come and gone. 

So if recess includes intrasession breaks, then we 

would expect the recess-appointment term to last only 

until the end of that session. This is because once the 

Senate returned from its break there would be an 

opportunity to undergo the normal process. Yet the 

Constitution provides that the term would last until the 

end of the next session. This suggests that the durational 

provision contemplates a meaning of recess that means 

intersession breaks only.

This is best seen in the process of recess 
78

appointments that results under each definition of recess. 

Under the intersession-only definition, the president

would make a recess appointment between sessions of 

the Senate, which ensures the continued operation of the 

government even though the Senate has not considered 

the president‘s selection. Once the Senate begins its ―next 

Session‖ by reconvening, the primary appointments

process becomes available and—because the Constitution 

requires joint appointment authority—must be 

undertaken by the Senate and the president. However, to 

allow the operation of government to continue, the 

Senate has until the end of this session to consider the 

president‘s selection and confirm or deny it. And if the

body does not act or denies that appointment, then the 

recess appointment ends because the constitutional 

requirement of joint agreement has not been reached. 

Through this process, the Appointments Clause retains its 

primacy as the preferred constitutional method of 

appointing officers, while the Recess Appointments 

Clause retains its auxiliary role that allows the president

to fill positions when the ordinary process is unavailable. 

Under an intrasession definition, the Clause would 

no longer have an auxiliary role. The president would 

make the recess appointment during a break within a 

Senate session. But the Senate‘s reconvening and first 

subsequent adjournment—whether that be for a long 

intrasession break or for the intersession break—would 

have no immediate effect on the recess appointment
79

because the appointment lasts until the ―next Session,‖ as 

demarked by adjournments sine die. The appointment 

would not expire until the Senate reconvened, adjourned 

sine die, reconvened, and then adjourned sine die a 

second time. Thus, the appointment would continue even 

though the opportunity to undergo the ordinary, preferred 

process had come and gone. This shows that when the 

intrasession definition of recess is combined with the 

durational provision, a fundamentally different 

relationship between the clauses is created: the 

intrasession definition makes the Recess Appointments 

Clause an additional rather than auxiliary method of 

appointing officers.

The durational provision thus indicates that the 

most natural reading of the Clause defines recess to mean 

intersession breaks only. Cf. Weinberger v. Hynson, 

Westcott & Dunning, Inc., 412 U.S. 609, 631–32 (1973) 

(―It is well established that our task in interpreting 

separate provisions of a single Act is to give the Act the 

most harmonious, comprehensive meaning possible in 

light of the legislative policy and purpose.‖ (internal 

quotation marks omitted)); Gustafson v. Alloyd, Inc., 513 

U.S. 561, 575 (1995) (―[A] word is known by the 

company it keeps. This rule we rely upon to avoid 

ascribing to one word a meaning so broad that it is 

inconsistent with its accompanying words‖). This is 

supported by the fact that the original Senate Vacancies 

Clause used a different durational provision: ―the next 
80

Meeting.‖ U.S. Const. art. I, § 3, cl. 2, superseded by id. 

Amend. XVII.27 The original language shows that the 

durational provision in the Recess Appointments Clause 

could have been phrased in a manner that would have 

allowed the Senate and president only one opportunity to 

undergo the ordinary process if recess instead included

intrasession breaks. By setting the duration to the ―next 

Meeting,‖ it becomes irrelevant what type of break the 

legislature took because once it convenes, the 

appointment expires and the legislature must act.28 That 

 

27 The Senate Vacancies Clause stated in full:

[I]f Vacancies [in the Senate] happen by 

Resignation, or otherwise, during the Recess 

of the Legislature of any State, the 

Executive thereof may make temporary 

Appointments until the next Meeting of the 

Legislature, which shall then fill such 

Vacancies.

U.S. Const. art. I, § 3, cl. 2, superseded by id. Amend. 

XVII.

28 Correspondingly, this could mean that the break before 

that meeting—i.e., ―the Recess of the Legislature‖—did 

not necessarily have to be an intersession break. If this is 

the case, it is unlikely that recess was used in the same 

manner in the Senate Vacancies Clause as it is in the 

Recess Appointments Clause. Some words in the 

Constitution have different meanings ―according to the 
81

the Clause uses ―next Session‖ rather than ―next 

Meeting‖ thus shows that recess contemplates a 

particular type of break. And, in light of the competing 

operations of the definitions, that type is the intersession 

break.

The Board disagrees with this characterization. It 

argues that the duration provision conforms with an 

intrasession definition of recess because if recess 

appointees‘ tenures did not extend until the end of the 

next session, then the Senate would lack an opportunity

to consider a recess appointee when an intrasession break 

coincides with the end of a session. NLRB Ltr. Br. at 12–

13. After all, if the appointment lasted until the end of the 

Senate‘s session, and the intrasession break in which he 

was appointed lasted until the end of that session, then 

the appointee‘s term would expire at the end of that break 

and the Senate would not have a chance to consider the

appointment. So, according to the Board, fixing the 

duration to the next session might ensure that the Senate 

has an opportunity to provide its advice and consent.

 

connection in which [they are] employed‖ and ―the 

character of the function‖ in which the word is found.

Atlantic Cleaners & Dryers v. United States, 286 U.S. 

427, 433–34 (1932). The different meanings of recess 

would likely be necessary here to account for varying 

state procedures that may or may not have had formal 

sessions similar to the Senate.
82

This argument is unpersuasive for two reasons. 

First, the problem arises only if one adopts an 

intrasession definition of recess. If recess is limited to 

intersession breaks, then there will never be any doubt 

that the Senate will have its single chance to weigh in: 

once it reconvenes for its next session. Avoiding this 

problem is yet another reason to define recess to mean 

intersession breaks. Cf. Am. Tobacco Co. v. Patterson, 

456 U.S. 63, 71 (1982) (explaining that ―[s]tatutes should 

be interpreted to avoid untenable distinctions and 

unreasonable results whenever possible‖).

Second, we acknowledge that the durational 

provision can be read consistently with an intrasession 

definition. But the Board‘s point does not show that the 

most natural reading of the Clause‘s duration provision 

supports this definition. Instead, it tends to show the 

opposite. We doubt that the phrase ―next Session‖ is 

intended to address an unusual situation—one that the 

drafters‘ of the Constitution were unlikely to 

contemplate. An intrasession break has extended until the 

end of one of the Senate‘s 296 completed sessions only 

once, in 1992. (And even if we were to adopt the Board‘s 

contention that pro forma sessions constitute a recess—

which we do not—then the number increases to three

times, in 2008 and 2011).

29 In other words, if fixing the 

 

29 The Official Congressional Directory records fourteen 

sessions of Congress that have ended within a day of the 
83

 

Constitution‘s automatic termination date. See 

Congressional Directory for the 112th Congress 522–38 

(2011). This directory was completed before the end of 

the 2011 session of Congress, so the inclusion of the 

session that ended on January 3, 2012, brings the total to 

fifteen. A session automatically ended the first Monday 

of December until the Twentieth Amendment changed it 

to January 3 in 1933. U.S. Const. art. I, § 4, cl. 2; Amend. 

XX. These are the only relevant terminations of Senate 

sessions because if the Senate ends their session by 

convening and then adjourning sine die, then the Senate 

has a chance to consider nominations while they are 

convened. For example, in 2003, the Senate had an 

intrasession break that lasted from November 25 until 

December 9. 149 Cong. Rec. 31985 (Nov. 25, 2003) 

(statement of Sen. McConnell). On December 9, they 

convened and adjourned sine die. 149 Cong. Rec. 32404 

(Dec. 9, 2003) (statement of Sen. Frist). The Board points 

to this as one example of a session ending before the 

Senate has the chance to consider a president‘s recess 

appointments. NLRB Ltr. Br. at 12–13. But, even though 

the recess ended on the same day the session did, when 

the Senate convened to adjourn sine die they conducted 

quite a bit of business—including the confirmation of 

fifty-two people as officers of the United States. 149 

Cong. Rec. at 32404–05.

Only in one instance has an intrasession break ended at 

the same time that a Senate session has. See 137 Cong. 
84

 

Rec. 36362–64 (Nov. 27, 1991 through Jan. 3, 1992) 

(recording the Senate‘s November 27, 1991 adjournment 

until January 3, 1992). Even there, however, the Senate 

still convened before the session ended and had the 

opportunity to conduct business if it had wanted to. For 

example, it received messages from the president 

regarding nominations, though it did not confirm anyone 

before adjourning sine die. See 137 Cong. Rec. at 36364.

Two were preceded by a series of pro forma Senate 

sessions. See 157 Cong. Rec. S8783–84 (daily ed. Dec, 

17, 2011) (recording the unanimous consent agreement to 

a schedule of pro forma session); 154 Cong. Rec. 24802–

08 (Dec. 12, 2008; Dec. 12, 2008; Dec. 16, 2008; Dec. 

19, 2008; Dec. 23, 2008; Dec. 26, 2008; Dec. 30, 2008; 

Jan. 2, 2009) (holding a series of pro forma sessions from 

Dec. 13, 2008 through Jan. 2, 2009). 

Eleven were preceded by the Senate conducting business. 

See 158 Cong. Rec. S8637–68 (daily ed. Jan. 2, 2013) 

(confirming presidential nominees and completing 

business from days immediately prior before adjourning 

pursuant to the Constitution); 141 Cong. Rec. 38549–

38608 (Dec. 29, 1995; Dec. 30, 1995; Jan. 2, 1996; Jan. 

3, 1996); 116 Cong. Rec. 43999–44129, 44346–44597 

(Dec. 30, 1970; Dec. 31, 1970; Jan. 2, 1971) (adjourning 

sine die one day before the constitutional deadline of 

January 3 after completing business); 96 Cong. Rec. 

17022–17121 (Jan. 2, 1951) (same); 87 Cong. Rec. 
85

duration until the Senate‘s next session (rather than the 

end of that session) is meant only to ensure the Senate 

has a chance to provide its advice and consent without 

regard to its effect on the broader framework, then the 

duration provision‘s purpose has only become important 

 

10138–10143 (Dec. 26, 1941; Dec. 30, 1941; Jan. 2, 

1942) (same); 86 Cong. Rec. 13997–14000, 14003–07, 

14011–46, 14058–59 (Dec. 26, 1940; Dec. 30, 1940; Jan. 

2, 1941; Jan. 3, 1941) (conducting business several days 

before the session terminated by function of the 

Constitution on January 3, 1941); 63 Cong. Rec. 440–48, 

450–52 (Dec. 2, 1922; Dec. 4, 1922) (conducting 

business on the first Monday of December, and the days 

preceding it, before adjourning sine die as required by the 

Constitution); 50 Cong. Rec. 6030–37, 6041–44, 6050–

53 (Nov. 26, 1913; Nov. 29, 1913; Dec. 1, 1913) (same); 

37 Cong. Rec. 520–25; 529–31; 542–44 (Dec. 4, 1903; 

Dec. 5, 1903; Dec. 7, 1903) (same); 6 Cong. Rec. 764–

98, 799–805, 816–17 (Nov. 30, 1877; Dec. 1, 1877; Dec. 

3, 1877) (same); 38 Cong. Globe, 40th Cong., 1st Sess. 

793–95, 802, 810–11, 816–17 (Nov. 26, 1867; Nov. 27, 

1867; Nov. 29, 1867; Dec. 2, 1867) (same).

And one of these terminations of Congress‘s session was 

due to continued business by the House, even though the 

Senate had adjourned sine die earlier. See 125 Cong. Rec. 

37605–06 (Dec. 20, 1979) (recording the Senate‘s sine 

die adjournment on December 20, 1979). 
86

one time. And even during this recent instance, the 

Senate convened before their constitutionally imposed 

deadline and could have considered nominations if they 

had chosen to do so. See 137 Cong. Rec. 36364 (Jan. 3, 

1992). The complete absence of the problem described 

by the Board in the last 225 years suggests that the 

Constitution most likely was not written with such a 

problem in mind. Cf. Marozsan v. United States, 852 

F.2d 1469, 1498 (7th Cir. 1988) (en banc) (Easterbrook, 

J., dissenting) (―The terror of extreme hypotheticals 

produces much bad law.‖). This implies that the 

durational provision was most likely written simply to 

reinforce the auxiliary nature of the Recess Appointment 

Clause by limiting recess appointees‘ terms to last only 

as long as necessary to afford the Senate one opportunity 

to undergo the ordinary process.

The Constitution thus shows that the more limited 

definition of recess—that is necessitated by the purpose 

of the Recess Appointments Clause and the adjournmentrecess dichotomy—includes only intersession breaks. 

Nothing within the broader context of the Constitution 

supports the Board‘s definition. As for the intersessionplus-long-intrasession definition, although it could 

conform with the relationship between the Clauses, there 

is no constitutional basis for defining ―long‖ and the 

definition is unsupported by the other relevant 
87

constitutional provisions.

30 The relationship between the 

 

30 The dissent argues that our interpretation of recess 

reads the modifier ―intersession‖ into the Constitution, 

contrary to the Supreme Court‘s admonition to avoid 

doing so. Dissenting Op. at 12–14. This misunderstands 

our reasoning. As we have shown, the ordinary meaning 

of recess could support any of the definitions asserted, 

including the intersession definition. Through analysis of 

historical usage, application of the Recess Appointment 

Clause‘s purpose, and analysis of the relevant 

constitutional context, we hold that of the ordinary 

meanings, the Constitution uses the intersession 

definition of recess. In short, we do not read 

―intersession‖ into the Constitution because—as the word 

is used in the document—―recess‖ means only 

intersession breaks.

This method is also seen in the dissent‘s reasoning, 

which defines recess to mean when the Senate is 

unavailable to provide its advice and consent. Id. at 2. Per 

the dissent‘s logic, Judge Greenaway‘s definition would 

read the Clause to be ―the Recess of the Senate [in which 

it cannot provide its advice and consent].‖ This is best 

illustrated by the dissent‘s acknowledgement that the 

Senate recesses when it goes to lunch but that these 

recesses do not fall within ―Recess‖ as it is meant in the 

Constitution. Id. at 8–10. Adding ―in which it cannot 

provide its advice and consent‖ to the Clause is not what 

we understand the dissent to do. Instead, our colleague 
88

Appointments Clauses, the duration of recess 

appointments, and the Constitution‘s use of adjournment 

elsewhere all show that ―the Recess of the Senate‖ 

includes only breaks between sessions of the Senate.

C. Historical Practice

Our conclusion is supported by early historical 

practice. From ratification until 1921, there was a rough 

consensus that recess appointments could be made only 

during intersession breaks. See Rappaport, supra, 

at 1572–73. Before 1867, no president made a recess 

appointment during an intrasession break of the Senate. 

Id.; Hartnett, supra, at 408–10. In 1867 and 1868, 

President Andrew Johnson made several recess 

appointments during intrasession breaks of the Senate.

Hartnett, supra, at 408–10. His use of the appointments 

powers, however, was a cause of significant turmoil at 

the time and it served a not insignificant role in his 

eventual impeachment. Id. at 409; Rappaport, supra, 

at 1572. Accordingly, it is unclear whether President 

Johnson‘s actions were based on a consensus view of the 

Constitution. There is evidence that it was not. U.S.

 

argues that recess itself means moments in which the 

Senate cannot provide advice and consent. While we 

disagree with this conclusion, both the majority opinion 

and the dissent are engaged in the same task—defining 

the word ―recess.‖
89

Attorney General Philander Knox—the first attorney 

general to directly address the meaning of recess—

advised President Theodore Roosevelt that he could not

make a recess appointment during intrasession breaks. 23 

U.S. Op. Att‘y Gen. 599, 604 (1901). For over onehundred years following ratification, recess was generally 

understood to mean intersession breaks only.

To be sure, this practice arose when intrasession 

breaks were generally no longer than two weeks. 

Rappaport, supra, at 1572; Hartnett, supra, at 410. But 

that is no reason to discount the practice. As modern 

practice has shown, it is sometimes in the interest of 

presidents to make recess appointments during breaks as 

short as two weeks. See, e.g., Evans, 387 F.3d at 1221

(describing President George W. Bush‘s recess 

appointment of Judge William Pryor to the Eleventh 

Circuit during an eleven-day intrasession break). That 

presidents did not assert this power for over 100 years—

despite this interest—suggests that they do not, in fact, 

have this power. Cf. Printz v. United States, 521 U.S. 

898, 907–08 (1997) (explaining that an absence of 

examples of Congress ―impress[ing] the state executive 

into its service . . . suggests an assumed absence of such 

power‖ (emphasis in original)); see also Noel Canning, 

705 F.3d at 502.

Executive practice changed in 1921 when 

President Warren Harding made an intrasession recess 

appointment. Michael A. Carrier, Note, When is the 
90

Senate in Recess for Purposes of the Recess 

Appointments Clause?, 92 Mich. L. Rev. 2204, 2235 

(1994). As explained above, this act was supported by 

U.S. Attorney General Daugherty, who reversed the 

opinion offered by Attorney General Knox a mere twenty 

years earlier. 33 U.S. Op. Att‘y Gen. at 21–22. Attorney 

General Daugherty explained that ―whether the Senate 

has adjourned or recessed . . . is whether in a practical 

sense the Senate is in session so that its advice and 

consent can be obtained.‖ Id. This conclusion was based 

on a Senate Judiciary Committee report, which argued 

that practical considerations should prevent a president

from using his recess-appointment power during 

intersession breaks that last mere seconds. Id. at 24. From 

this report, he drew the practical considerations that the 

Board urges us to adopt today, explaining that the Senate 

is not in session when its members have no duty to 

attend, the chamber is empty, and the Senate cannot 

receive communications. Id. 

Importantly, Attorney General Daugherty

explicitly rejected the ―all recesses‖ implication of this 

test. He recognized that the practical considerations 

identified could allow presidents to use their power for 

―an adjournment for only 2 instead of 28 days‖ but 

rejected the idea that 2 days were sufficient to constitute 

a recess within the meaning of the Constitution. Id. 

at 24–25 (answering ―unhesitatingly‖ that two days did 

not amount to a recess). He explained that not ―even 10 
91

days can be said to constitute the recess intended by the 

Constitution.‖ Id. at 25. As discussed above, though, this 

suggestion of ten days is not linked to any text in the 

Constitution.

Since issuance of Attorney General Daugherty‘s 

opinion, the executive has claimed the authority to recess 

appoint officers during intrasession breaks. Before World 

War II, however, the power was used only one other 

time. Carrier, supra, at 2211–12. After World War II, 

intrasession appointments remained relatively rare for 

some time: President Harry Truman made twenty, 

President Dwight Eisenhower made nine, President 

Richard Nixon made eight, and President Jimmy Carter 

made seventeen; but Presidents John Kennedy, Lyndon 

Johnson, and Gerald Ford made none. Id. at 2212–13. 

The practice grew dramatically under President Ronald 

Reagan, who made 73 intrasession appointments, and it 

has seen significant use ever since: President George 

H.W. Bush made 37, President Bill Clinton made 53, and 

President George W. Bush made 141; President Barack 

Obama made 26 as of January 5, 2012. Id. at 2214–15; 

Henry B. Hogue et al., Cong. Research Serv., The Noel 

Canning Decision and Recess Appointments Made from 

1981–2013 *4 (2013). Thus, it has been only over the last 

thirty years that presidents began relying so heavily on 

such recess appointments.

Notably, this relatively recent practice supports 

only an intrasession definition that is associated with a 
92

long duration. It does not support the Board‘s 

functionalist definition. The executive has maintained 

from 1921 until 2012, at least in practice, that a certain 

number of days must pass before an intrasession 

appointment could be made. See Carpenter et al., supra,

at 15 (―The length of the recess may be of great 

importance, as it appears that no President, at least in the 

modern era, has made an intrasession recess appointment 

during a recess of less than 10 days.‖); see also 36 Op. 

O.L.C. *1 (Jan. 6, 2012) (―This Office has consistently 

advised that a recess during a session of the Senate, at 

least if it is sufficient length, can be a  ̳Recess.‘‖

(citation and internal quotation marks omitted)). The 

Board now seeks to abandon this limitation, which is

completely unsupported by modern practice.

More important, however, recent practices cannot 

alter the structural framework of the Constitution. The 

Eleventh Circuit relied on a presumption that actions by 

the president are constitutional. Evans, 387 F.3d 

at 1222.31 We doubt that the presumption applies in 

 

31 The Eleventh Circuit also implicitly derives this 

presumption from the framework explained by Justice 

Jackson in Youngstown Sheet & Tube Company v. 

Sawyer, 343 U.S. 579 (1952). See Evans, 387 F.3d 

at 1222. Evans does not discuss Youngstown, but it cites 

United States v. Allocco, 305 F.2d 704, 713 (2d Cir. 

1962), as support for the presumption. Evans, 387 F.3d 
93

separation-of-powers cases. In Clinton v. New York City, 

524 U.S. 417 (1998), for example, the Supreme Court 

analyzed the constitutionality of the line-item veto 

without ever expressing the need to defer to the other 

 

at 1222. Allocco, in turn, relies on Youngstown to defer to 

executive practice regarding the meaning of ―happens‖ in 

the Recess Appointments Clause. 305 F.2d at 713–14. 

Specifically, Allocco relied on Youngstown by using it as 

support for its interpretation of ―happen‖ since the 

Second Circuit believed its interpretation as ― ̳a 

systematic, unbroken, executive practice, long pursued to 

the knowledge of the Congress and never before 

questioned,‘‖ which ― ̳may be treated as a gloss on 

 ̳Executive Power‘ vested in the President by § 1 of Art. 

II.‘‖ Id. (quoting Youngstown, 343 U.S. at 610–11). 

While we are unsure whether the executive practice 

before the Allocco Court regarding the meaning of 

―happen‖ is actually ―systematic‖ and ―unbroken,‖ we 

are sure that the executive practice regarding the meaning 

of ―the Recess of the Senate‖ is not. As discussed, the 

modern executive practice is contrary to executive 

practice before 1921 and has only become commonly 

used in the past thirty years. Furthermore, Congress has 

questioned presidents‘ practices by, for example, holding 

pro forma sessions in an effort to stop it. We consider the 

Eleventh Circuit‘s reliance on Allocco as support for a 

presumption of constitutionality in separation-of-power 

cases unpersuasive.
94

branches‘ constitutional judgments. And in Morrison v. 

Olson, 487 U.S. 654 (1988), Justice Scalia noted in his 

dissent that one could ―not find anywhere in the Court‘s 

opinion the usual, almost formulary caution that we owe 

great deference to Congress‘ view that what it has done is 

constitutional.‖ Id. at 704–05 (Scalia, J., dissenting). The 

absence of deference is also found in the Supreme 

Court‘s most recent separation-of-powers case, Free 

Enterprise Fund v. Public Company Accounting 

Oversight Board, 130 S. Ct. 3138 (2010). There, the 

Court pointedly explained that ―the separation of powers 

does not depend on the views of individual Presidents, 

nor on whether  ̳the encroached-upon branch approves 

the encroachment.‘‖ Id. at 3155 (quoting New York v. 

United States, 505 U.S. 144, 182 (1992)). This is because 

―[t]he Constitution‘s division of power among the three 

branches is violated where one branch invades the 

territory of another, whether or not the encroached-upon 

branch approves the encroachment.‖ New York, 505 U.S. 

at 182.

The lack of deference to executive and legislative 

judgments on these issues follows from the fact that 

―separation-of-powers jurisprudence generally focuses on 

the danger of one branch‘s aggrandizing its power at the 

expense of another branch.‖ Freytag, 501 U.S. at 878. 

Giving deference to either branch is inconsistent with this 

concern because a presumption could prevent us from 

stopping one branch from ―aggrandizing its power at the 
95

expense of another branch,‖ or ensuring that ―the 

carefully defined limits on the power of each Branch‖ are 

not eroded, Chadha, 462 U.S. at 957–58. Our role as the 

―ultimate interpreter of the Constitution‖ requires that we 

ensure its structural safeguards are preserved. Baker, 369 

U.S. at 211. It is a role that cannot be shared with the 

other branches anymore than the president can share his 

veto power or Congress can share its power to override 

vetoes. See United States v. Nixon, 418 U.S. 683, 704–05 

(1974). This ―requires that [we] on occasion interpret the 

Constitution in a manner at variance with the 

construction given the document by another branch.‖

Powell v. McCormack, 395 U.S. 486, 549 (1969).

The Supreme Court has stated as much in respect 

to the appointments provisions of the Constitution. In 

Freytag, the Supreme Court explained that the 

Appointments Clause represents an independent restraint 

on both branches—one that does not exclusively serve 

either branch‘s interests. 501 U.S. at 880. This is equally 

true for the Recess Appointments Clause: just as ―[t]he 

structural interests protected by the Appointments Clause 

are not those of any one branch of Government but of the 

entire Republic,‖ id., the structural protections of the 

Recess Appointments Clause belong to no single branch. 

Accordingly, ―[t]he assent of the Executive to a bill 

which contains a provision contrary to the Constitution 

does not shield it from judicial review.‖ Id. (quoting 

Chadha, 462 U.S. at 942 n.13). This applies equally to 
96

the legislature‘s assent to executive practice. Any 

acquiescence between the branches remains subject to the 

constraints imposed by the Constitution. There is ―no 

statute of limitations for interpreting and enforcing the 

Constitution.‖ Evans, 387 F.3d at 1237 (Barkett, J., 

dissenting).

Furthermore, our analysis of recent practice is 

―sharpened rather than blunted by the fact that [the 

practice in question is] appearing with increasing 

frequency.‖ Chadha, 462 U.S. at 944. Our analysis has 

shown that defining recess to mean intersession plus long 

intrasession breaks is incompatible with the Constitution. 

Although this definition is consistent with one possible 

meaning of ―recess‖ in isolation, it is unsupported by the 

rest of the Constitution. The Constitution provides no 

measure of a ―long‖ duration and limits the duration of 

recess appointees‘ terms in a manner that indicates an 

intersession-only definition. This means that the current 

practice is contrary to the structural framework set out in 

the Constitution and must be held unconstitutional.

D. Additional Considerations

Our conclusion that recess includes only 

intersession breaks is supported by the Supreme Court‘s 

direction that ―the doctrine of separation of powers is a 

structural safeguard‖ which has as one of ―its major 

feature[s]‖ the ―establish[ment] [of] high walls and clear 

distinctions because low walls and vague distinctions will 
97

not be judicially defensible in the heat of interbranch 

conflict.‖ Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 

239 (1995) (emphasis in original). This bolsters our 

rejection of the Board‘s definition because the 

unavailable-for-business criteria are almost by definition 

a ―low wall‖ that contain ―vague distinctions‖ which will 

make them difficult for the Senate and the president to 

predictably apply. The vagueness of the Board‘s 

definition is perhaps best captured by its argument that 

the Senate is not available for business during pro forma 

sessions even though there are documented examples of 

the Senate conducting business during such sessions. Its 

definition thus falls far short of containing the ―major 

feature‖ of separation-of-powers structural safeguards. 

This is also true for the intrasession definition that 

limits recess to long breaks. This definition is not 

―judicially defensible‖ because whatever duration is 

selected as long would be based on something other than 

the Constitution. See Maryland v. Shatzer, 559 U.S. 98, 

__, 130 S. Ct. 1213, 1228 (2010) (Thomas, J., concurring 

in part, dissenting in part) (explaining that ―an otherwise 

arbitrary rule is not justifiable merely because it gives 

clear instruction‖). Furthermore, although an arbitrary 

number of days at first seems to erect a high wall and 

clear distinction, further review reveals that it is also 

fraught with ambiguity. For example, if we were to hold 

that an intrasession break of over ten days constitutes a 

recess, it is unclear at which point the adjournment
98

evolves into a recess. Assume the Senate initially agrees 

to adjourn for twelve days but provides the majority 

leader the power to recall the body earlier, as it often 

does. See, e.g., H. Con. Res. 307, 111th Cong. (2010) 

(providing the House of Representative‘s concurrence 

with the Senate that the latter would take a month-long 

recess starting in August 2010 that ended on September 

13, 2010 unless ―[t]he Majority Leader of the Senate . . . , 

after consultation with the Minority Leader of the Senate, 

shall notify the Members of the Senate to reassemble at 

such place and time as he may designate if, in his 

opinion, the public interest shall warrant it‖). Does this

adjournment become a recess at the moment the Senate 

votes for the adjournment or must ten days first elapse? 

If the former, then assume the majority leader reconvenes 

the body after eight days of the adjournment. At this 

point, would a recess appointment made on the first day 

of the adjournment become invalid because it was not 

made during ―the Recess‖ of the Senate? The 

Constitution provides no clear answer to these difficult 

questions. The long-intrasession break definition thus 

lacks the clear distinctions required by the Supreme 

Court, which means that the intersession definition is the 

only one that provides high walls and clear distinctions 

rooted in the text of the constitution.

The Board nevertheless argues that the rule we 

adopt today creates too powerful an opportunity for 
99

mischief by the Senate.32 The intersession definition 

 

32 The dissent makes a form of this argument as well, 

arguing that the intersession-break definition of recess is

―unworkable,‖ ―not judicially manageable,‖ 

impracticable, and leads to absurd results. Dissenting Op. 

at 52–54. We disagree that the definition is unworkable,

unmanageable, or impracticable; whether a break is 

intersession or not is a simple matter of reviewing how 

the Senate has adjourned. We also disagree that the result 

of a president‘s recess appointment being valid one day 

and not the next is absurd, id. at 53–54, because this is a 

necessary result of defining recess. The dissent‘s own 

definition, for example, would have this effect: a 

presidential recess appointment presumably would be 

valid on January 22, 2012, because the Senate did not 

convene at all on that day, see 158 Cong. Rec. S11 (Jan. 

20, 2012) (adjourning until Monday, January 23, 2012); 

but be invalid if made on January 23, 2012, because the 

Senate became available by convening for a non–pro 

forma session, 158 Cong. Rec. S13 (daily ed. Jan. 23, 

2012). Absurdity is also not clearly shown from the 

intersession-break definition‘s allowance of recess 

appointments during intersession recesses that last very 

short periods. Id. at 54. It is a result that has been rejected 

only by one 110-year-old Senate Committee Report—no 

president, court, or scholar has rejected the possibility. 

Cf. Hartnett, supra, at 406 (―All agree that recesses 
100

allows the Senate to prevent the president from 

exercising his recess-appointment powers by 

manipulating the timing and the types of its 

adjournments. See NLRB Ltr. Br. at 10–11. This is true. 

But the opportunity for abuse is present under any 

possible definition of recess. Under the Board‘s 

definition, the Senate might avoid being in recess by 

stopping the practice of agreeing by unanimous consent 

that no business will be done during pro forma sessions;

or it might alter its procedures to allow messages to be 

received during such sessions, thus making itself 

available for business under the Board‘s definition, see 

Resp. Br. at 44. And under the other intrasession 

definition, the Senate could very well adopt scheduling 

orders that prevent a break from lasting longer than 

whatever duration courts selected—as, in fact, pro forma

sessions are designed to do. Yet the potential for abuse is 

not limited to the Senate, as presidents may also abuse 

any definition given to recess. Under the intersession 

definition, as a final example, presidents still could recess 

appoint (and indeed have so appointed33) officers during 

 

between sessions . . . give rise to the President‘s recess 

appointment power.‖).

33 Hartnett, supra, at 416 & nn.176–77 (describing 

President Theodore Roosevelt‘s recess appointment of 

160 officers during an intersession break that lasted mere 

seconds).
101

intersession breaks that last negligible periods of time—

the lack of a constitutional basis for selecting a long

duration in defining intrasession breaks is just as absent 

to define intersession breaks.

All this is to say that the potential for abuse and 

subsequent gridlock lies not in what recess means but in 

the Constitution‘s framework of divided powers. A 

division of powers demonstrates that ―[c]onvenience and 

efficiency are not the primary objectives—or the 

hallmarks—of democratic government.‖ Chadha, 462 

U.S. at 944. We, as federal judges, are not empowered to 

regulate, recommend, or comment on how the two other 

branches of the federal government should use the 

powers the Constitution allocates between them—not 

because we can-but-chose-not-to, but because we lack 

the factual record, institutional tools, and constitutional 

authority to evaluate which branch is more or less likely 

to abuse the powers given to them. We can, however, and 

indeed we must, decide what powers each branch has and 

when they may use them because ―[i]t is emphatically the 

province and duty of the judicial department to say what 

the law is.‖ Marbury v. Madison, 5 U.S. (1 Cranch) 137, 

177 (1803). That is all we do today.

VI

Member Becker was invalidly recess appointed to 

the Board during the March 2010 intrasession break. This 

means that the delegee group had fewer than three 
102

members when it issued the August 26 Order. 

Consequently, the delegee group acted without power

and lacked jurisdiction when it issued the order. Our 

holding makes it unnecessary to interpret the word 

―happen‖ in the Recess Appointments Clause. Accord 

Noel Canning, 705 F.3d at 515 (Griffith, J., 

concurring).34 Furthermore, we need not address whether 

the Board‘s substantive decision was correct or whether 

the delegee groups that decided the subsequent 

reconsideration orders were properly composed. Dir., 

Office of Workers’ Compensation Programs v. Sun Ship, 

Inc., 150 F.3d 288, 291 (3d Cir. 1998). Review of the 

reconsideration orders is also unnecessary because they 

were based on consideration of an invalid order. We will 

therefore vacate the Board‘s orders.

 

34 Accordingly, we do not have to address the conflict 

between the Second, Ninth, and Eleventh Circuits and the 

D.C. Circuit over the definition of ―happen.‖ Compare 

United States v. Allocco, 305 F.2d 704, 709–12 (2d Cir. 

1962) (defining ―happen‖ to mean ―to exist‖; United 

States v. Woodley, 751 F.2d 1008, 1009–13 (9th Cir. 

1985) (same); Evans, 387 F.3d at 1226–27, with Noel 

Canning, 705 F.3d at 507–14 (defining ―happen‖ to mean 

―to occur‖).
1

GREENAWAY, JR., Circuit Judge, dissenting.

The tension between the branches of our government 

reflects the brilliance and prescience of our Founding Fathers 

and is the foundation of our nation‟s democracy. Who may 

exercise power, and under what circumstances, is often 

dependent on our branches‟ interpretation of the wording and 

meaning of the Constitution. In this matter, the Recess 

Appointments Clause of Article II is at issue. My colleagues 

in the Majority have determined that the recess appointment 

of Member Craig Becker on March 27, 2010 is invalid and, 

for the same reasons, would presumably find that the recess 

appointments of Members Sharon Block, Terence Flynn, and 

Robert Griffin on January 4, 2012 are likewise invalid. The 

Majority‟s rationale undoes an appointments process that has 

successfully operated within our separation of powers regime 

for over 220 years.

In defining the scope of the Recess Appointments 

Clause, the critical issue is more straightforward than the 

Majority suggests: The issue is whether “the Recess” includes 

only intersession recesses (those between two regular sessions 

of Congress) or intersession recesses and intrasession recesses 

(those within a regular session of Congress).1 The Majority‟s 

three possible definitions of “Recess” can be distilled into one 

question: Are intrasession recesses included within the ambit 

of “the Recess”? I would hold that “the Recess” refers to 

both intrasession and intersession recesses because the Senate 

 

1 No party argues that “the Recess” should be limited only to 

intrasession recesses, and neither do I. 
2

can be unavailable to provide advice and consent during both. 

The availability of the Senate to provide advice and consent is 

the crux of the Recess Appointments Clause because its 

operation depends on its complementary interplay with the 

Appointments Clause, which requires that the Senate be 

available to provide advice and consent. 

The plain meaning and structure of the text of the 

Constitution, the intent of the Framers, the purpose of the 

Recess Appointments Clause, and the tradition and practice of 

the branches of our government all demand this result. Any 

interpretation of the Recess Appointments Clause is 

incomplete without consideration of the executive power and 

the system of separation of powers devised by the Framers, 

and such consideration leads to the pragmatic conclusion that

the President must be able to make recess appointments 

during intrasession recesses. Since the March 27, 2010 recess 

appointment of Member Becker and the January 4, 2012 

recess appointments of Members Block, Flynn, and Griffin 

were all made during intrasession recesses, I would hold that 

each appointment was a valid exercise of the executive power 

granted to the President in the Recess Appointments Clause 

of Article II of the Constitution.2 I respectfully dissent.3

 

2 Given the procedural posture on appeal and the Majority‟s 

holding, resolving the merits of whether New Vista‟s 

Licensed Practical Nurses (LPNs) are supervisors is 

unnecessary at this time.

3

I also disagree with the Majority‟s conclusion that the group 

quorum requirement (what I believe the Majority refers to as 

the “three-member-composition” requirement) is 

jurisdictional. In New Process Steel, L.P. v. NLRB, 130 S. Ct. 
3

I. “THE RECESS”

A. The Text of the Constitution

Our examination of the Recess Appointments Clause is 

dependent on the interpretation of two words: “the Recess”. 

This examination then begs two inquiries: 1) the meaning of 

“Recess” within the Recess Appointments Clause and 2) the 

significance of “the”, a definite article, as a modifier. 

Recesses fall into two general categories, intersession and 

intrasession, and so unraveling the meaning of “Recess” 

begins and ends with resolving the intersession-intrasession 

dynamic. The Majority posits that this dichotomy 

contemplates that intersession breaks and intrasession breaks 

are both recesses by the Senate that have contrasting effects 

on the President‟s ability to make recess appointments. I 

disagree. 

As a starting point in defining a “recess”, it is helpful 

to define a “session” since the two terms are related. There 

are various types of sessions, including the “daily sessions” of 

Congress, during which it conducts its day-to-day business, as 

well as its “regular sessions”, which are the periods during 

which Congress conducts its business on a regular basis. In 

addition to these sessions, there are also “extraordinary 

sessions” of Congress that can be called by the President 

under Article II.4 U.S. Const. art. II, § 3. And, since the 

 

2635 (2010), the Supreme Court does not use the word 

“jurisdictional”, or any variant thereof, and did not 

characterize the § 153(b) requirement as jurisdictional.

4

The Majority‟s definition of an intersession recess also 

includes recesses preceding and following extraordinary and 
4

House and Senate are not required to match schedules, the 

session or recess of one body may be different than that of the 

other. 

Based on the definition of a regular session, recesses 

can be divided into the two mentioned categories of breaks, 

intersession recesses and intrasession recesses. Intersession 

recesses are those breaks of the Senate that occur between 

two regular sessions of the Senate; they are generally initiated 

by an adjournment sine die. See Henry B. Hogue, Cong. 

Research Serv., Recess Appointments: Frequently Asked 

Questions 1-2 (Jan. 9, 2012). Intrasession recesses are breaks 

that occur during a regular session of the Senate. It had been 

suggested that Congress cannot be in a recess and in a regular 

session concurrently, but the Supreme Court has rejected this 

conclusion. Wright v. United States, 302 U.S. 583, 589 

(1938) (“Plainly the taking of such a recess [by one house] is 

not an adjournment by the Congress. The „Session of 

Congress‟ continues.”); see also Evans v. Stephens, 387 F.3d 

1220, 1225 (11th Cir. 2004) (en banc). From this, it is 

possible for one house to recess while the session of the 

Congress, as a joint body, continues.5

 

special sessions of Congress, but such a holding is beyond the 

facts of our case. See Edward A. Hartnett, Recess 

Appointments of Article III Judges: Three Constitutional 

Questions, 26 Cardozo L. Rev. 377, 408 n.136, 414-15 

(2005). 

5

For one, the regular session of the Senate does not end when 

it takes an intrasession recess. See generally Congressional 

Directory for the 112th Congress (2011) (showing that the 

dates of intrasession recesses occur within the dates spanning 
5

To begin our textual analysis, the Recess 

Appointments Clause must be read in conjunction with the 

Appointments Clause. While the Majority also reads these 

two clauses together, it takes a shortsighted view of their 

interrelation. The Majority contends that the Appointments 

Clause gives the President a “perpetual” power to seek the 

advice and consent of the Senate. (Majority Op. at 58-59.) 

The Majority also contends that the Appointments Clause 

suggests a preference for “divided power” in the 

appointments process. I could not agree more with the 

Majority that every facet of the appointments process must 

reinforce the separation of powers, but the Majority‟s view is 

too narrow. While the Recess Appointments Clause gives the 

President sole authority to make appointments during the 

“Recess” of the Senate, the Recess Appointments Clause 

maintains the separation of powers within the larger 

framework of the appointments process. In The Federalist 

No. 67, which the Majority relies upon for this point, 

Alexander Hamilton emphasized that the recess appointment 

power was only a supplement to the advice and consent

power of the Senate. The Federalist No. 67, at 409 

(Alexander Hamilton) (Clinton Rossiter ed., 1961). The 

Majority misinterprets Hamilton‟s point. The supplemental 

nature of the Recess Appointments Clause helps to maintain 

the separation of powers by preventing the President from 

holding the entire power to appoint in his hands. 

 

the convening date and adjournment date of regular sessions 

of the Senate). For another, the House and the Senate, as one 

Congress, generally share the same regular session and the 

recess of one body, such as the Senate, does not interrupt the 

regular session of the House and Congress as a whole. 
6

The Appointments Clause provides that a nominee 

may only be presented by the President but, on the other 

hand, may only be confirmed to office with the advice and 

consent of the Senate. The Recess Appointments Clause 

thereafter provides an alternate means of confirming 

nominees when the Appointments Clause cannot be 

implemented, namely when the Senate cannot provide advice 

and consent to the President. After all, the Appointments 

Clause and Recess Appointments Clause cannot both operate 

simultaneously — one means of appointment must be used or 

the other. Thus, it can be adduced that the meaning of “the 

Recess” is the converse of when the Senate can provide 

advice and consent to the Senate: The Senate is in “the 

Recess” when it is not available to provide advice and 

consent. See Noel Canning v. NLRB, 705 F.3d 490, 505 

(D.C. Cir. 2013) (observing that there is “a crucial element of 

the [Recess Appointments] Clause, which enables the 

President to fill vacancies only when the Senate is unable to 

provide advice and consent” (emphasis in original)). Since 

the Senate can be unavailable to provide advice and consent 

during either an intrasession recess or an intersession recess, 

“the Recess” naturally encompasses both types of recesses. 

To provide advice and consent, the Senate must be able to 

offer a confirmation vote on nominees, be it up or down.6

 

6

This segues to an inherent weakness in restricting “the 

Recess” to intersession recesses. The House was largely 

responsible for the pro forma sessions because it refused to let 

the Senate take a longer recess due to the Adjournments 

Clause‟s requirement that the House and Senate have the 

other body‟s consent to “adjourn for more than three days.” 

U.S. Const. art. I, § 5, cl. 4; Office of Legal Counsel, 
7

 

Lawfulness of Recess Appointments During a Recess of the 

Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. 

O.L.C. 1, 2-3 (2012). Without doubt, the Framers did not 

intend for the House to single-handedly stall the appointments 

process. The plain and uncontestable text of the 

Appointments Clause makes it clear that only the President 

and the Senate are to consult on appointments. Nowhere in 

the Appointments Clause is the House mentioned. If 

“Recess” were limited to intersession recesses, because that is 

the only time when the Senate is not in a regular session, and 

the Senate is always available to provide advice and consent 

when in a regular session, then the House would be allowed 

to inject its whims into the appointments process by limiting 

even the duration of the intersession recess. This is because 

an adjournment of more than three days requires the 

imprimatur of the House under the Adjournments Clause. 

After all, the purpose of the Adjournments Clause is to make 

sure that one house of Congress cannot abandon the other in

the legislative process, and the House cannot legislate with 

the Senate if it is not in session. See Edward A. Hartnett, 

Recess Appointments of Article III Judges: Three 

Constitutional Questions, 26 Cardozo L. Rev. 377, 379 

(2005). If the Recess Appointments Clause was only 

triggered when the Senate ended a regular session, then a 

recess appointment made during an intersession recess of at 

least three days would effectively be subject to the approval 

of the House. The House could simply deny the Senate leave 

to adjourn in order to thwart the President‟s ability to make 

recess appointments. In at least the last thirty years, the 

President has never made a recess appointment, of either the 

intersession or intrasession variety, during a recess of less 

than ten days. See Henry B. Hogue, Cong. Research Serv., 
8

While courts have not had occasion to articulate a 

standard for advice and consent, it is clear through the plain 

meaning of “advice and consent” that the provision of advice 

and consent cannot be perfunctory. It is only reasonable to 

require that there must be a deliberative process (“advice”), a 

vote (“consent”), and a quorum of Senators actually present 

in the Senate chamber. See Elizabeth Rybicki, Cong. 

Research Serv., Senate Consideration of Presidential 

Nominations: Committee and Floor Procedure 10 (July 1, 

2003) (“A majority of Senators present and voting, a quorum 

being present, is required to approve a nomination.”). It is no 

secret that the advice and consent process is a long and 

arduous ordeal. See Noel Canning, 705 F.3d at 508 (calling 

the advice and consent process “cumbersome”). Various 

forms of “vote” are used frequently elsewhere in the 

Constitution, so the Framers would not have used “Advice 

and Consent” if they only intended for nominees to be 

confirmed by a vote.7 

 

Recess Appointments: Frequently Asked Questions 3 (Jan. 9, 

2012). Based on that empirical data, it is highly improbable 

that, under these circumstances, the President would make a 

recess appointment without needing the House‟s approval. 

This cannot be what the Framers intended. See Noel 

Canning, 705 F.3d at 504 (“Without any evidence indicating 

that [the Recess Appointments Clause and Adjournments 

Clause] are related, we cannot read one as governing the 

other. We will not do violence to the Constitution by ignoring 

the Framers‟ choice of words.”).

7 As for a presence requirement, “presence” is not mentioned 

in the Appointments Clause but it is mentioned explicitly as a 

requirement of advice and consent in the Treaty Clause. U.S. 
9

“Recess”, no doubt, is a malleable term because of the 

several types of breaks that the Senate takes. As far as a 

recess is considered a break of the Senate, all recesses can be 

classified generally as adjournments, in the sense that they are 

suspensions in the business of the Senate until a further date. 

Adjournments, though, come in different species. An 

adjournment sine die usually signifies the end of a regular 

session of Congress. See Henry B. Hogue, Cong. Research 

Serv., Recess Appointments: Frequently Asked Questions 1-2 

(Jan. 9, 2012). An adjournment to a day and time certain will 

conclude the business of one legislative day until the next. 

Floyd M. Riddick & Alan S. Furman, Riddick’s Senate 

Procedure: Precedents and Practice, S. Doc. No. 101-28, at 

14 (1992) (hereinafter “Riddick‟s Senate Procedure”). The 

Senate will also adjourn for lunch by recessing. See, e.g., 159 

Cong. Rec. S1249 (daily ed. Mar. 7, 2013) (“Under the 

previous order, the Senate stands in recess until 2 p.m. 

Thereupon, the Senate, at 12:30 p.m., recessed until 2 p.m. 

and reassembled when called to order by the Presiding 

Officer . . . .”). 

It is telling that the Framers chose to use the term 

“Adjournment” several times elsewhere in the Constitution. 

Accordingly, there must be some reason why the Framers did 

not use “Adjournment” in the Recess Appointments Clause 

and did not use “Recess” where “Adjournment” appears. The 

apparent and plain explanation for this distinction in 

terminology is that, elsewhere in the Constitution, 

 

Const. art. II, § 2, cl. 2 (“[The President] shall have Power, by 

and with the Advice and Consent of the Senate, to make 

Treaties, provided two thirds of the Senators present concur . 

. . .” (emphasis added)).
10

“Adjournment” refers to a certain species of breaks of 

Congress different from the species of breaks referred to by 

the “Recess” in the Recess Appointments Clause. See Noel 

Canning, 705 F.3d at 500 (determining that “the Framers 

intended something specific by the term „the Recess,‟ and that 

it was something different than a generic break in 

proceedings”). 

To illustrate, the scenarios embodied by the clauses 

that employ “Adjournment” could apply to adjournments 

between two daily sessions of Congress — perhaps the 

adjournment that occurs during the weekends of a regular 

session of Congress — whereas “Recess” would not apply to 

such an adjournment if the Senate was still available to 

provide advice and consent. The Majority observes that the 

Supreme Court held that “Adjournment”, as used in the 

Pocket Veto Clause, could refer to any break in business. 

(Majority Op. at 45.) It is true that “Recess” encompasses a 

narrower subcategory of breaks than “Adjournment”. 

(Majority Op. at 71 (“So the dichotomy does reveal that 

recess must mean something narrower than any break that 

follows an adjournment.”).) But, unlike the Majority, I do not 

understand this distinction to be meaningless. (Majority Op. 

at 71 (“But what this narrower definition is cannot be derived 

from the dichotomy between adjournment and recess 

alone.”).) 

As a narrower species of breaks than “Adjournment”, 

“Recess” cannot reasonably be read to include every type of 

adjournment, such as the breaks the Senate takes for lunch, 

for the night between daily sessions, and over the weekends. 

See 3 The Debates in the Several State Conventions on the 

Adoption of the Federal Constitution as Recommended by the 

General Convention at Philadelphia in 1787, at 409-10 
11

(Jonathan Elliott ed., 2d ed. 1836) (hereinafter “Elliott‟s 

Debates”) (statement of James Madison at the Virginia 

convention) (“There will not be occasion for the continual 

residence of the senators at the seat of government. . . . It is 

observed that the President, when vacancies happen during 

the recess of the Senate, may fill them till it meets.”).

In the case of the Adjournments Clause, the 

adjournment contemplated there is also different than “the 

Recess” contemplated by the Recess Appointments Clause. 

To encompass “the Recess” within the adjournment 

contemplated by the Adjournments Clause would submit the 

President‟s recess appointment power to the whims of the 

House because the House must provide its consent if the 

Senate is to adjourn for more than three days. This is a result 

clearly antithetical to the text of the Constitution and the 

intent of the Framers. As Hamilton admonished, the House 

was not to interfere with the appointments process because 

“[a] body so fluctuating and at the same time so numerous 

can never be deemed proper for the exercise of that power [of 

appointments]. Its unfitness will appear manifest to all when 

it is recollected that in half a century it may consist of three or 

four hundred persons.” The Federalist No. 77, at 463 

(Alexander Hamilton) (Clinton Rossiter ed., 1961).

Our analysis must also be educated by the provident 

lesson of the Supreme Court in The Pocket Veto Case, 279 

U.S. 655 (1929), since the mechanism and construction of the 

Pocket Veto Clause closely parallels the Recess 

Appointments Clause in striking ways.8 The Majority relies 

 

8

The Pocket Veto Case and Wright, like other cases on other 

aspects of the executive power, are not wholly applicable to 
12

on The Pocket Veto Case in its analysis but misses the true 

import of that case‟s analysis. (Majority Op. at 45, 69.) Both 

the Pocket Veto Clause and the Recess Appointments Clause 

provide a check on Congress when it is unavailable to 

perform one of its functions by placing a procedural limit on 

the exercise of its power. In that case, the Court considered 

whether the “ten Days” language of the Pocket Veto Clause 

included all days or just “legislative” days. The Court refused 

to read the modifier “legislative” into the Pocket Veto Clause, 

favoring a more expansive reading of the Clause. Id. at 679-

80. The Court then faced a dichotomy similar to our 

intersession-intrasession divide: Whether the use of 

“Adjournment” in the Pocket Veto Clause only applied to 

final adjournments or also to interim adjournments. Id. at 

680-81. The Court again rejected a constricted reading of the 

Clause and favored a broader executive power, holding that 

“adjournment” could apply to either type of adjournment 

because “[t]he power thus conferred upon the President 

cannot be narrowed or cut down by Congress, nor the time 

within which it is to be exercised lessened, directly or 

indirectly.” Id. at 677-78. 

While the Majority focuses on why “the Recess” only 

refers to intersession recesses, there is a bald deficiency in 

these arguments. The Majority‟s intersession limitation reads 

modifiers into the Recess Appointments Clause that are 

plainly not part of the text.9 These modifiers rewrite the 

 

our decision but both certainly provide insight and counsel 

about how we should resolve what is an analogous issue.

9

The Majority attempts to show that I, too, am reading a 

modifier into the Recess Appointments Clause by turning 

“the Recess” into “the Recess in which the Senate cannot 
13

Constitution for the Framers. The imperative set in The 

Pocket Veto Case, where parties attempted to read similar 

modifiers into the Constitution, chides against limiting the 

recess appointment power by inserting a modifier like 

“intersession” before “Recess” and supports including 

multiple types of recesses within the meaning of “the 

Recess”. See 279 U.S. at 679 (“There is nothing whatever to 

justify changing this meaning by inserting the word 

„legislative‟ as a qualifying adjective.”); id. at 680 (“The 

word „adjournment‟ is not qualified by the word „final‟; and 

there is nothing in the context which warrants the insertion of 

such a limitation.”). 

The Recess Appointments Clause does not distinguish 

between intersession and intrasession recesses. See Evans, 

387 F.3d at 1224-25. Accordingly, we should not read such a 

limitation onto the executive power where one has not been 

directly conferred by the Framers. Cf. Myers v. United States, 

272 U.S. 52, 118 (1926) (reasoning that the executive power 

 

provide Advice and Consent”. But there is a distinction 

between our approaches. If my definition can be considered a 

modifier, it only reflects how the Appointments Clause 

modifies the Recess Appointments Clause. While I limit the 

operation of the Recess Appointments Clause, as a whole, 

with another clause (the Appointments Clause), the Majority 

limits the word “Recess” with another word (the modifier). 

As opposed to the modifier that the Majority reads into the 

Constitution, the Appointments Clause already exists in the 

Constitution and is meant to modify the Recess Appointments 

Clause. Under my definition, any type of recess — be it 

intersession or intrasession — is considered “the Recess”, so I 

do not read a new modifier onto “the Recess” itself.
14

is “limited by direct expressions where limitation was needed, 

and the fact that no express limit was placed on the power of 

removal by the executive was convincing indication that none 

was intended”). The Recess Appointments Clause sets forth 

no exceptions defining the type of recesses that may be 

excluded, whereas the Framers provided exceptions 

elsewhere in the Constitution. The only modifier of “Recess” 

is “the” and “the” certainly is not synonymous with 

“intersession”. Evans, 387 F.3d at 1224. Nor is “the” readily 

interpreted as “a single type of”, which would need to be the 

reading if “Recess” is only to refer singularly to intersession 

recesses. Even the Majority, unlike Noel Canning, concedes 

that “the” lacks the necessary specification to limit “Recess” 

to one type of recess.10 (Majority Op. at 57 (observing that 

“there is nothing in the word „the‟ itself that necessarily 

requires . . . intersession breaks”).) 

 

10 The Majority also attempts to extract a sense of 

“permanence” and “longevity” from dictionary definitions of 

“recess” at the time of ratification, but such vague terms lack 

any real substance. (Majority Op. at 40-41.) Even if the 

Majority‟s qualifications, “permanence” and “longevity”, 

were persuasive, they would support recess appointments 

during long intrasession recesses and prohibit recess 

appointments during short intersession recesses. The 

longevity and permanence of a thirty-day intrasession recess 

is no less than that of a thirty-day intersession recess. 

Moreover, as the Majority admits about a similarly vague 

descriptor, “there is no constitutional basis for defining „long‟ 

and the definition is unsupported by the other relevant 

constitutional provisions.” (Majority Op. at 86.)
15

Framed differently, if the text of the Recess 

Appointments Clause was meant to distinguish between 

intersession and intrasession recesses, the Framers would 

have employed some other modifier not as cryptic or 

pedestrian as “the”. If that had been their intent, the Framers 

were certainly deliberate enough to have inserted some 

modifier to indicate that “the Recess” only refers to the recess 

between regular sessions of Congress. See Wright, 302 U.S. 

at 588 (establishing that, as an essential tenet of constitutional 

interpretation, courts must respect “„the high talent, the 

caution, and the foresight of the illustrious men who framed 

[the Constitution]‟” such that “„[e]very word appears to have 

been weighed with the utmost deliberation‟” (quoting Holmes 

v. Jennison, 39 U.S 540, 571 (1840))); United States v. 

Sprague, 282 U.S. 716, 732 (1931) (describing the 

Constitution as an “instrument drawn with such meticulous 

care and by men who so well understood how to make 

language fit their thought”). 

Consequently, it is telling that, despite that possibility, 

they chose not to include such a modifier and chose one of 

the most bland modifiers in the English language. Also, 

congruent with the Framers‟ use of “Adjournment” to refer to 

a broader category of breaks than “Recess”, it is plausible that 

“the” as a modifier serves to emphasize that “Recess” refers 

to a definite, circumscribed class of adjournments. As 

Hamilton assured, there is an “obvious meaning of the terms” 

in the Recess Appointments Clause. The Federalist No. 67, at 

409 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 

This same point about reading modifiers into the 

Constitution applies with equal vigor to arguments that the 

length of “the Recess” should be limited to a certain number 

of days. In relation to the durational limits of intrasession and 
16

intersession recesses, the use of express day limits elsewhere 

in the Constitution suggests that the Framers deliberately 

chose not to include such a modifier in the Recess 

Appointments Clause. In the Pocket Veto Clause, the 

Framers deliberately added a day limitation (rather than 

simply saying that a bill would not become law if it could not 

be returned to the house in which it originated). This shows 

that the Framers could have crafted a similar day limitation 

into the Recess Appointments Clause if they had so desired. 

In addition, there are no time constraints on the Appointments 

Clause itself. As the Majority points out, the Appointments 

Clause “lacks any limitation on when this power is operative” 

such that “the president always has the power to fill vacancies 

through nomination and the advice and consent of the 

Senate.” (Majority Op. at 58 (emphasis in original).) But, 

since the Recess Appointments Clause depends on when the 

Appointments Clause is not operative and similarly lacks any 

explicit limitation, there is no consistency in reading a hard 

time limit into the Recess Appointments Clause without 

reading one into the Appointments Clause. 

The other flaw in the Majority‟s premise that “Recess” 

is restricted to intersession recesses is that it relies on a 

technical definition of “recess” rather than a plain and 

ordinary definition of “recess”. See The Pocket Veto Case, 

279 U.S. at 679 (“The words used in the Constitution are to 

be taken in their natural and obvious sense . . . .”); see also 

District of Columbia v. Heller, 554 U.S. 570, 576-77 (2008) 

(“Normal meaning may of course include an idiomatic 

meaning, but it excludes secret or technical meanings that 

would not have been known to ordinary citizens in the 

founding generation.”). As a document written for the people 

and meant to be accessible to every citizen, we must assume 
17

that the Framers intended for words to be understood by their 

ordinary, rather than their technical, definition. See Heller, 

554 U.S. at 576-77. The Majority admits that “Recess” 

“lacks a natural meaning that clearly identifies whether it 

includes only intersession breaks or also includes intrasession 

breaks.” (Majority Op. at 40.) The logical inference from the 

Majority‟s assessment is that “Recess” lacks a natural 

limitation or natural specification. Thus, the only way to 

delimit “Recess” to intersession recesses would be to shroud 

it in an unnatural meaning, which would not lend an obvious 

or ordinary meaning to the word.11

The narrowing of the term “Recess” by the Majority 

belies the broad latitude of the plain meaning of the word 

used by the Framers. The Framers did not modify the term by 

 

11 The Majority‟s definition is even more technical since it 

intertwines the practices of a hodgepodge of state 

constitutions and state governors‟ practices. It is highly 

unlikely that early citizens would have made such a strained 

correlation; in other words, it would not have been “obvious” 

to an average citizen to look to state constitutions, let alone to 

know which two of the twelve constitutions of the ratifying 

states to analyze. See Heller, 554 U.S. at 576 (“In 

interpreting this text, we are guided by the principle that 

„[t]he Constitution was written to be understood by the voters; 

its words and phrases were used in their normal and ordinary 

as distinguished from technical meaning.‟” (quoting United 

States v. Sprague, 282 U.S. 716, 731 (1931))). It may be 

reasonable to expect the average citizen to have knowledge of 

the words in a dictionary, but it is a very different expectation 

to assume that they would be able to reference state 

constitutions. 
18

describing it as “the intersession Recess” or “the Recess 

between Sessions” — they deliberately used a less qualified 

and, duly, broader term. To interpret the text otherwise also 

seems less plausible since it is far-fetched to suppose that the 

Framers expected for the Recess Appointments Clause to be 

interpreted through the textual hopscotch needed to arrive at 

the intersession interpretation. Such a patchy guesswork does 

not conjure the “obvious meaning” described by Hamilton.12 

The Federalist No. 67, at 409 (Alexander Hamilton) (Clinton 

Rossiter ed., 1961).

The Majority attempts to thread together several 

divergent lines of reasoning for why “the Recess” should be 

limited to intersession recesses, but each of these lines frays 

too easily. To begin with, there is no evidence that the 

Framers based the terms used in the Constitution on 

Jefferson‟s A Manual of Parliamentary Practice and the 

Majority readily admits that the correlation between the 

 

12 In addition, the Framers used the singular “Recess” rather 

than the plural “Recesses” but this distinction reveals little. 

Given the multiple intersession recesses, and multiple 

intrasession recesses, during and between the regular sessions 

of Congress, the singular “Recess” cannot refer literally to a 

single recess of the Senate (for instance, the single Recess 

that happens between the last regular session of one Congress 

and the first regular session of the following Congress). The 

only other use of “Recess” in the Constitution, which appears 

in Article I, Section 3, Clause 2, also does not literally refer to 

a single type of recess. Used in the context of “the Recess of 

the Legislature of any State”, the Article I “Recess” does not 

refer to a particular recess since it was used to generically 

refer collectively to the recesses of every state‟s legislature.
19

Constitution‟s terminology and Jefferson‟s treatise is rather 

tenuous. (Majority Op. at 45.) Further, while it may be 

reasonable to assume that the Framers were aware of the 

parliamentary procedures described by Jefferson in A Manual 

of Parliamentary Practice, it is less reasonable to assume that 

the Framers intentionally based their use of “recess” and 

“adjournment” in the Constitution on particular terms used in 

Jefferson‟s treatise without any reference.13

The Majority‟s discussion of early state constitutions is 

similarly off the mark. Noticeably absent from the Majority‟s 

analysis of state constitutions is any reference to the 

constitution of North Carolina, which is generally accepted as 

a model used by the Framers in drafting the Recess 

Appointments Clause. See Noel Canning, 705 F.3d at 501; 

Office of Legal Counsel, Lawfulness of Recess Appointments 

During a Recess of the Senate Notwithstanding Periodic Pro 

Forma Sessions, 36 Op. O.L.C. 1, 10 n.14 (2012) (“The 

[Recess Appointments] Clause, which was proposed by a 

North Carolina delegate, is generally considered to have been 

based on a similar provision then in the North Carolina 

Constitution.”). Further, despite the Majority‟s reliance, it is 

unclear that the Massachusetts and New Hampshire 

constitutions have any connection to “the Recess” except for 

 

13 The Majority attempts to draw significance from the “of the 

Senate” language but this phrase could not be plainer. 

(Majority Op. at 42.) It means exactly what is says and there 

is no indication, whatsoever, that the Framers used that phrase 

to indicate that they were relying on the “recess” as it might 

be defined in Jefferson‟s A Manual of Parliamentary 

Practice. 
20

the fact that representatives from those states ratified the 

Constitution. 

Finally, based on its analysis of a smattering of early 

state practices and state constitutions, the Majority concludes 

that “Recess” must refer to a break of a “considerable period 

of time” and must be marked by when the Senate adjourns. 

This point fares no better. One flaw in these two 

characteristics is that a “considerable period of time” lacks a 

limiting principle since “considerable” is a relative term. 

(Unsurprisingly, the Majority finds such a lack of a limiting 

principle problematic for intrasession recesses.) While I 

agree that “Recess” does not refer to the day-to-day recesses 

between daily sessions of the Senate (or its breaks for lunch 

and the weekend), the Majority‟s method of interpretation is 

dubious. From a mere three instances of intrasession breaks 

by three state governors over 200 years ago, the Majority 

extrapolates this characteristic. (Majority Op. at 54.) But 

three actions by different state governors is thin ice upon 

which to interpret our Constitution. 

B. The Intent of the Framers and the Purpose of the 

Recess Appointments Clause

While the proper starting point, textual interpretation 

of the Recess Appointments Clause is nettlesome because the 

Constitution was not written with a definition of terms 

section. With such difficulty in its textual interpretation, 

other sources, namely the intent of the Framers, the purpose 

of the Constitution and its Recess Appointments Clause, and 

the tradition and practice of the President and the Senate, are 
21

pivotal in arriving at an intelligent and sensible definition of 

“the Recess”. 

1. The Framers’ Intent

The Framers‟ purpose in creating the separation of 

powers was to devise a system of equal give and take, so that 

the President and the Senate, while not beholden to each 

other, would be forced to work with each other and reach 

compromise.14 By protecting the governmental architecture 

that the Framers inscribed in the Constitution, the inclusion of 

intrasession recesses in “the Recess” is most faithful to the 

intent of the Framers. The Majority‟s definition of “the 

Recess” essentially tips that balance in favor of the Senate 

and, therefore, upsets the applecart of the balance of powers. 

The Majority states that the “most significant weakness” of 

 

14 To discern the Framers‟ intent, one reliable source is The 

Federalist Papers. See Dames & Moore v. Regan, 453 U.S. 

654, 659 (1981); Buckley v. Valeo, 424 U.S. 1, 129 (1976); 

see e.g., Heller, 554 U.S. at 595, 598; United States v. Lopez, 

514 U.S. 549, 552, 576-77 (1995); INS v. Chadha, 462 U.S. 

919, 947, 950, 955 n.21 (1983). The Federalist Papers that 

directly comment on the Recess Appointments Clause and the 

Appointments Clause are useful sources of edification, but 

also helpful are those Federalist papers that articulate the 

philosophy and principles guiding the operation of the 

Constitution as a whole, particularly those concerning the 

separation of powers and the system of checks and balances. 

See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

610 (1952) (Frankfurter, J., concurring). 
22

the intrasession recess definition is that it lacks a discrete day 

limit. But nothing in the Constitution or the intent of the 

Framers suggests that such a finite day limit is necessary to 

the definition of the Recess Appointments Clause. The 

fragile balance of power underlying the recess appointments 

process is inconsistent with specific time strictures and 

neither the Constitution nor the Framers contemplated such 

exactitude.

In The Federalist No. 67, Hamilton established that the 

President‟s recess appointment power is “nothing more than a 

supplement” and an “auxiliary method of appointment” to be 

used when “the general method [of seeking the Senate‟s 

advice and consent] was inadequate.” The Federalist No. 67, 

at 409 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 

Beyond these few sentiments, the Recess Appointments 

Clause cannot be fully understood in isolation but only within 

the fabric and spirit of the Constitution as a whole. Other 

Federalist papers, which describe the separation of our 

government‟s powers, instruct that the power of appointment 

must be coordinated so that no branch can “possess, directly 

or indirectly, an overruling influence over the others.” The 

Federalist No. 48, at 308 (James Madison) (Clinton Rossiter 

ed., 1961). The wisdom of this structuring is borne out in the 

appointments process because the recess appointment power 

and the advice and consent power, as any well-defined check, 

are not absolute, but cabined, in their design.

While it cannot function as an absolute negative, the 

recess appointment power must provide some balance to the 

Senate‟s power to provide or withhold advice and consent. 

The Federalist No. 73, at 442 (Alexander Hamilton) (Clinton 

Rossiter ed., 1961) (“From these clear and indubitable 

principles [of legislative overreach] results the propriety of a 
23

negative, either absolute or qualified, in the executive upon 

the acts of the legislative branches.”). Both James Madison 

and Hamilton recognized the zealousness of the legislature 

and the importance of establishing checks to counteract its 

overruling influence. The Federalist No. 51, at 322 (James 

Madison) (Clinton Rossiter ed., 1961) (explaining that, while 

the executive predominates in a monarchy, “[i]n republican 

government, the legislative authority necessarily 

predominates”). Without such a counterbalance, the Senate‟s 

advice and consent power could degenerate into an absolute 

negative that would undermine the President‟s recess 

appointment power, along with the entire appointments 

process.

15

 See The Federalist No. 48, at 309-10 (James 

Madison), No. 51, at 322 (James Madison) (Clinton Rossiter 

ed., 1961). 

Consequently, to protect this separation and balance of 

powers, the President must be formidable enough to 

countermand Congress and prevent the Senate from 

eviscerating his appointments prerogative through its use of 

advice and consent. See Myers, 272 U.S. at 116-17 (“The 

debates in the Constitutional Convention indicated an 

intention to create a strong executive . . . .”). It is critical that 

the President be afforded greater checks to guard against the 

 

15 In this respect, the advice and consent power of the Senate 

mimics the veto power of the President since they are both 

qualified negatives on the other branch‟s inherent power. See 

Myers, 272 U.S. at 120 (calling the advice and consent power 

“the Senate‟s veto on the President‟s power of appointment”). 

Just as the veto power cannot exist without a check, the 

advice and consent power of the Senate cannot exist without a 

check. 
24

coercion of Congress since the executive is the inherently 

weaker branch of government. The Federalist No. 51, at 322-

23 (James Madison) (Clinton Rossiter ed., 1961) (“As the 

weight of the legislative authority requires that it should be 

thus divided, the weakness of the executive may require, on 

the other hand, that it should be fortified.”). 

In many ways, the check of the Recess Appointments 

Clause also resembles the Pocket Veto Clause in Article I, 

Section 7. Interestingly, Justice Joseph Story remarked that 

without the pocket veto “[C]ongress might . . . defeat the due 

exercise of [the President‟s] qualified negative by a 

termination of the session, which would render it impossible 

for the President to return the bill.” 2 Joseph Story, 

Commentaries on the Constitution § 888, at 354-55 (1833). 

Likewise, without intrasession recess appointments, the 

Majority‟s position makes it impossible for the President to 

exert his necessary influence in the appointment of his 

executive officers since the Senate could too easily wrest that 

power from him through procedural machinations.16

 

16 Like the veto power, the recess appointment power is a 

check that the President exerts against the Senate, such that 

both are shaped by the same principles of governmental 

design. Further, the Framers‟ motivation for creating the 

President‟s veto power underlies the other checks it has given 

the President. Primarily, that motivation was the “propensity 

of the legislative department to intrude upon the rights, and to 

absorb the powers, of the other departments [which] has been

already more than once suggested.” The Federalist No. 73, at 

442 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 

Hamilton also believed that giving the President such strong 

checks on Congress would not lead him to abuse his power. 
25

With these considerations in mind, courts must 

proceed carefully in construing the executive power narrowly. 

The stakes are too high and the consequences too dire if the 

executive power is unduly constricted. See Marshall Field & 

Co. v. Clark, 143 U.S. 649, 670 (1892) (assessing the severe 

consequences of the judiciary interceding in the actions of the 

other branches of government); Baker v. Carr, 369 U.S. 186, 

211 (1962); Youngstown Sheet & Tube Co. v. Sawyer, 343 

U.S. 579, 640 (1952) (Jackson, J., concurring) (“However, 

because the President does not enjoy unmentioned powers 

does not mean that the mentioned ones should be narrowed 

by a niggardly construction.”).

Ultimately, the executive power must be strong 

enough to allow the President to “take Care that the Laws be 

faithfully executed” and “Commission all the Officers of the 

United States.” U.S. Const. art. II, § 3, cl. 1. The central role 

of the President in appointing the officers serving his branch 

of government was devised by the Framers with great 

 

He surmised that, “[i]f a magistrate so powerful and so well

fortified as a British monarch would have scruples about the 

exercise of the [veto power], how much greater caution may 

be reasonably expected in a President of the United States, 

clothed for the short period of four years with the executive 

authority of a government wholly and purely republican?” Id. 

at 444. “[A]s a rule,” Hamilton wrote, “one man of 

discernment is better fitted to analyze and estimate the 

peculiar qualities adapted to particular offices, than a body of 

men of equal or perhaps even of superior discernment” since 

the legislature is more easily captured by private interests. 

The Federalist No. 76, at 455-56 (Alexander Hamilton) 

(Clinton Rossiter ed., 1961). 
26

purpose. See Myers, 272 U.S. at 117-19. By having a hand 

in choosing the officers serving in his branch, the President 

would be able to surround himself with the people he 

believed best fit to help him fulfill his duty to faithfully 

execute the laws under the Take Care Clause. See id. Not 

only does he need to have input in the officers chosen, but the 

President needs the power to keep offices occupied in order to 

keep his branch and the government, as a whole, running. 

Therefore, ensuring that the Senate does not unduly encroach 

upon the President‟s role in the appointments process is 

integral to ensuring that the President is able to faithfully 

execute his duties. Id. at 117-18 (“[The President‟s] selection 

of administrative officers is essential to the execution of the 

laws by him . . . .”).

2. The Purpose of the Recess Appointments Clause

The purpose of the Recess Appointments Clause, 

which is much more ascertainable than the textual 

interpretation of “the Recess”, offers further guidance in this 

construction of the Recess Appointments Clause and the 

meaning that should be ascribed to “the Recess”. In The 

Federalist No. 67, Hamilton pinpointed the dual purposes of 

the Recess Appointments Clause, which are 1) to allow the 

Senate to take breaks and 2) to keep offices filled (since “it 

might be necessary for the public service to fill [vacancies] 

without delay”).17 The Federalist No. 67, at 410 (Alexander 

 

17 In addition, other contemporaneous writings reveal that the 

reason why the Senate was given the check of providing 

advice and consent on appointments was that representatives 

of the smaller states were worried that the larger states would 
27

Hamilton) (Clinton Rossiter ed., 1961). To Madison, this 

meant that the Senate would be recessed for purposes of the 

Recess Appointments Clause when Senators were not in 

“continual residence” in the Capitol. 3 Elliott‟s Debates 409-

10 (statement of James Madison at the Virginia convention).

Thus, as imagined by the Framers, the Recess 

Appointments Clause had a two-part purpose: to allow the 

Senate to break from its usual business and, in that absence, 

to allow vacant offices to be filled in order to keep the 

machinery of government running. See Evans, 387 F.3d at

1226 (“[W]hat we understand to be the main purpose of the 

Recess Appointments Clause—to enable the President to fill 

vacancies to assure the proper functioning of our 

government—supports reading both intrasession recesses and 

intersession recesses as within the correct scope of the 

Clause.”). 

The Majority claims that a “crucial” purpose of the 

Recess Appointments Clause is to preserve the Senate‟s 

advice and consent power by limiting the President‟s 

unilateral appointment power. (Majority Op. at 60-61.) This 

misses the intent of the Framers. It is indisputable that the 

Recess Appointments Clause gives the President additional 

power, so why would the Framers limit the President‟s power 

by giving him additional power? There is no dispute that 

there are limitations written into the Recess Appointments 

Clause, but all the separate powers of the appointments 

 

be favored in the appointments process. See Myers, 272 U.S. 

at 119-20. This purpose is not served any more or less by 

intrasession recess appointments than intersession recess 

appointments.
28

process have limitations despite being drafted to give a 

branch enhanced power. Further, nothing in the 

contemporaneous writings, especially The Federalist Papers, 

claims that this was a “crucial” purpose of the Recess 

Appointments Clause, let alone any other purpose. 

In the words of Justice Story, the purpose of the 

Recess Appointments Clause was “convenience, promptitude 

of action, and general security.” 3 Joseph Story, 

Commentaries on the Constitution § 1551, at 410 (1833). 

Moreover, consistent with the Framers‟ principles underlying 

the framework of our republic, the purpose of the Recess 

Appointments Clause was also to provide a check on the 

Senate‟s control over the appointment of officers by sharing 

the power of confirmation with the executive branch. 

Allowing the advice and consent of the Senate to act as an 

absolute negative on the President‟s nominations without a 

check would defeat the dual purposes of the Recess 

Appointments Clause and allow “advice and consent” to be 

aggrandized into the “mandate and order” of the Senate. See 

Myers, 272 U.S. at 118 (characterizing the Senate‟s advice 

and consent as a “limitation[] upon the general grant of the 

executive power, and as such, being [a] limitation[], should 

not be enlarged beyond the words used”). 

As a check, though, the Recess Appointments Clause 

is by no means absolute. Thus, although allowing the 

President to make intrasession recess appointments increases 

his clout in the appointments process, his power to make 

recess appointments has embedded limitations. First, the 

recess appointment power can only be used when the Senate 

is recessed. If the Senate wants to curb the President‟s use of 

recess appointments, it can simply remain available to 

provide advice and consent, thereby forcing the President to 
29

rely on its advice and consent in making appointments.18 

Second, recess appointments have a temporary duration since 

they only last until “the End of [the Senate‟s] next Session.” 

At most, this allows the term of a recess appointee to last the 

length of two regular sessions (under current Senate practices, 

this equates to a maximum of approximately two years). 

Third, as evidenced by the structure of Article II, Section 2, 

the recess appointment power can only be a secondary means 

of appointing officers and can never be used as a primary 

means of doing so as long as the Senate is available to 

provide advice and consent. 

Nevertheless, the Majority concludes that intrasession 

recess appointments would allow the President to circumvent 

the Senate‟s role in the appointments process; however, 

protection against such circumvention is built into the Recess 

Appointments Clause. By these three limiting principles, 

alone, the President pays a steep price for using his recess 

appointment power. See United States v. Woodley, 751 F.2d 

1008, 1014 (9th Cir. 1985) (en banc) (observing that a recessappointed Article III judge “lacks life tenure and is not 

protected from salary diminution” such that the “[recess 

appointment] power is not unfettered . . . but is subject to its 

own limitations and safeguards”). Indeed, these strictures on 

the President‟s recess appointment power prevent him from 

usurping the Senate‟s power to provide advice and consent. 

Moreover, use of the recess appointment power during 

intrasession recesses does not undermine the reason why the 

 

18 Of course, reference to advice and consent in this context 

does not include pro forma sessions, which clearly do not 

provide an opportunity for the Senate to provide its advice 

and consent. This point will be elaborated further infra. 
30

Framers granted the Senate the power of advice and consent, 

which was preventing larger states from having a 

disproportionate influence on appointments, any more than 

use of the recess appointment power during intersession 

recesses. See Myers, 272 U.S. at 119-20. With these 

strictures, the Majority‟s concern about the President making 

unannounced recess appointments “by waiting until [the 

Senators] go home for the evening” is not fathomable. 

(Majority Op. at 64.)

But these are not the only limiting principles cabining 

the President‟s recess appointment power. In addition to 

these express checks, there are implicit checks on the use of 

his recess appointment power that were recognized by the 

Framers. Firstly, as explained in The Federalist Papers, the 

structure of the branches of government, as conceived by the 

Constitution, give the President a very strong interest in 

maintaining the favor of the Senate and not stoking its ire. 

The Federalist No. 77, at 459 (Alexander Hamilton) (Clinton 

Rossiter ed., 1961) (“[A] new President would be restrained 

from attempting a change in favor of a person more agreeable 

to him by the apprehension that a discountenance of the 

Senate might frustrate the attempt, and bring some degree of 

discredit upon himself.”). Secondly, the President is 

beholden to public opinion. See The Federalist No. 73, at 444 

(Alexander Hamilton) (Clinton Rossiter ed., 1961); 3 Joseph 

Story, Commentaries on the Constitution § 1523, at 375 

(1833) (“He will be compelled to consult public opinion in 

the most important appointments . . . . If he should act 

otherwise, and surrender the public patronage into the hands 

of profligate men, or low adventurers, it will be impossible 

for him long to retain public favour.”); Myers, 272 U.S. at

123. Because of public opinion, the President is incentivized 
31

to use his recess appointment power sparingly, lest the public 

perceive that he is trying to thwart the advice and consent of 

the Senators that they have elected to office, or lest the public 

lack faith in his appointees because they have not been vetted 

by the Senators that they have elected to office. Thirdly, as 

far as mechanics, the Senate can check the President‟s use of 

his recess appointment power during intrasession recesses by 

controlling when it recesses and how long it stays in regular 

sessions. As a result, it can control if the President is able to 

use his recess appointment power at all and how long his 

recess appointees will remain in office. 

What the Majority overlooks is the following: The 

problem with limiting the Recess Appointments Clause to 

intersession recesses is that such an interpretation disarms the 

reciprocal checks that the President needs to have on the 

Senate. While the President pays a steep price for foregoing 

the advice and consent of the Senate, the Senate pays a 

relatively low price for thwarting the President‟s power to 

make recess appointments by, for example, reducing its 

intersession recesses to negligible periods of time (for 

instance, one day). Consequently, the safeguard against the 

encroachment of the Senate on the power of the President is 

much weaker. The great harm is that the Senate may engage 

in machinations, as some would argue is the case with pro 

forma sessions, to avoid voting on nominees in order to 

strong-arm the President into capitulating to its demands, 

forcing the President to nominate the Senate‟s preferred 

candidates or else leave offices vacant, as Hamilton expressly 

feared. It is inconceivable that the Framers intended such 

strong-arming by the Senate; of equal, and possibly greater, 

concern is the House‟s involvement in the strong-arming, 
32

which surely was not intended by the Framers.19 See The 

Federalist No. 51, at 322 (James Madison), No. 73, at 442-43 

(Alexander Hamilton), No. 76, at 455-56 (Alexander 

Hamilton), No. 77, at 463 (Alexander Hamilton) (Clinton 

Rossiter ed., 1961). 

Therefore, the President must be able to exercise his 

recess appointment power whenever the Senate is not 

available to provide advice and consent, including when the 

Senate is holding pro forma sessions, when it is not readily 

available to be present to deliberate and vote on nominees. 

Just as it is incredulous to suggest that the President can make 

recess appointments during the Senate‟s lunch, it is equally 

incredulous for the Majority to suggest that advice and 

consent can be provided in thirty-second increments once 

every three days. (In fact, it may be more incredulous since it 

presumably takes longer than thirty seconds for 100 Senators 

to act on a nomination.) Further, conducting business via 

unanimous consent agreement, as the Senate did on 

 

19 The Majority suggests that the issue of the House exerting 

influence over recess appointments is remedied by the 

President‟s ability to adjourn both houses if they cannot agree 

on a date of adjournment. U.S. Const. art. II, § 3. This 

assertion misses the mark. This power of the President does 

not address the issue of the House essentially creating pro 

forma sessions to corrupt the intersession-intrasession 

dynamic. The Majority‟s remedy is tantamount to saying that 

the President can initiate an adjournment sine die to create an 

intersession recess of more than three days whenever he 

wishes to utilize the Recess Appointments Clause. This is not 

true. Moreover, this clearly would not be a supplemental use 

of his recess appointment power.
33

December 23, 2011, is not the type of business that yields the 

advice and consent envisioned by the Framers.20 

The Constitution does not contemplate that the Senate 

may have it both ways. The Senate cannot be both 

unavailable and yet force the President to submit to its advice 

and consent. This dynamic acts as a check on Senate 

coercion (and House coercion) because, in order to take 

recesses and breaks from its regular business, the Senate will 

either have to cooperate with the President and figure out 

mutually acceptable nominees or will have to yield its advice 

and consent power to the President‟s recess appointment 

power.

Along these lines, the Supreme Court has applied a 

functional approach in determining the scope of executive 

powers. It did so in determining when the Senate is available 

to receive a bill from the President for the purposes of the 

Pocket Veto Clause, concluding that having a secretary of the 

 

20 The Majority assumes that the Senate could have simply 

remained available to provide advice and consent by not 

agreeing to not conduct business during the pro forma 

sessions or “alter[ing] its procedures to allow messages to be 

received during such sessions.” (Majority Op. at 99.) First, it 

is a stretch to suggest that the receipt of messages from the 

President equates to providing advice and consent. In that 

respect, the Senate could remain available to provide advice 

and consent even during intersession recesses by leaving an 

agent of the Senate to receive messages. Second, the 

Majority identifies the danger of its own definition of 

“Recess”: The Senate‟s procedures are too easily 

manipulated.
34

Senate present was sufficient, even if the members of the 

Senate had already departed to their home states. See The 

Pocket Veto Case, 279 U.S. at 680 (holding that “the 

determinative question in reference to an „adjournment‟ is not 

whether it is a final adjournment of Congress or an interim 

adjournment, such as an adjournment of the first session, but 

whether it is one that „prevents‟ the President from returning 

the bill to the House in which it originated within the time 

allowed”). 

Of course, providing advice and consent on nominees 

likely requires more on the part of Congress than receiving a 

bill from the President — unlike with the Pocket Veto Clause, 

one person cannot generally provide advice and consent on 

behalf of all 100 Senators. If this functional approach is used 

to effect the purposes of the Recess Appointments Clause, 

then the President must be able to make recess appointments 

when the Senate cannot provide advice and consent, and it is 

certainly possible for the Senate to lack that capacity to 

provide advice and consent during intrasession recesses when 

its members are not present in the Senate chamber to vote. 

Pro forma sessions, if accepted as valid, undeniably 

frustrate the purposes of the Recess Appointments Clause. 

The pro forma sessions, and Congress‟s other attempts to 

manipulate the appointments process, appear to be the type of 

legislative overreaching chronicled by the Framers. See The 

Federalist No. 48, at 309 (James Madison) (Clinton Rossiter 

ed., 1961) (“The legislative department is everywhere 

extending the sphere of its activity and drawing all power into 

its impetuous vortex.”). From Madison‟s sentiments, it is 

also evident that the legislature was not the “more feeble” 

branch that would need a “more adequate defense” but, 

rather, the branch that would enfeeble the other branches and 
35

require that they be more adequately defended against such 

machinations. See id.

Moreover, under a functional approach, pro forma 

sessions cannot prevent the Senate from recessing for the 

purposes of the Recess Appointments Clause. When a pro 

forma session is held for approximately thirty seconds by a 

single Senator, the Senate is not able to accomplish the 

function of deliberating about and voting on the President‟s 

nominees.21 

Indeed, the Framers could have faced the same 

dilemma faced by the President in 2010 and 2012 since it was 

entirely possible for the Senate to take short intrasession 

recesses early in our republic. In such an event, how would 

the Framers have intended for the Recess Appointments 

Clause to operate? They did not condition the Recess 

Appointments Clause on how far away Senators were from 

the Capitol when they recessed, or how long it would take 

them to return to the Capitol — they simply and only 

conditioned the Recess Appointments Clause on whether the 

Senate was in a recess, breaking from its regular business, 

and unable to provide advice and consent. Or what if the 

 

21 For the exact lengths of the pro forma sessions, see 157 

Cong. Rec. S8787 (daily ed. Dec. 20, 2011), 157 Cong. Rec. 

S8789-90 (daily ed. Dec. 23, 2011), 157 Cong. Rec. S8791 

(daily ed. Dec. 27, 2011), 157 Cong. Rec. S8793 (daily ed. 

Dec. 30, 2011), 158 Cong. Rec. S1 (daily ed. Jan. 3, 2012), 

158 Cong. Rec. S3 (daily ed. Jan. 6, 2012), 158 Cong. Rec. 

S5 (daily ed. Jan. 10, 2012), 158 Cong. Rec. S7 (daily ed. Jan. 

13, 2012), 158 Cong. Rec. S9 (daily ed. Jan. 17, 2012), 158 

Cong. Rec. S11 (daily ed. Jan. 20, 2012).
36

Senate remained in pro forma sessions while it broke for six 

to nine months, as was its routine at the time of ratification, 

hoping that this would prevent the President from making 

recess appointments?

In such scenarios, the Framers would have empowered 

the President to make recess appointments. An empty office 

is an empty office. It makes no sense that the Framers would 

have differentiated between intrasession and intersession 

recesses in effectuating the purpose of the Recess 

Appointments Clause. See Evans, 387 F.3d at 1226 (“The 

purpose of the Clause is no less satisfied during an 

intrasession recess than during a recess of potentially even 

shorter duration that comes as an intersession break.”). The 

atrophy of agencies and other offices caused by the Senate‟s 

absence did not then, and does not now, depend on whether 

the Senate is unavailable due to an intersession recess or 

intrasession recess — all that matters is the length of time that 

the Senate is away from its usual business, unable to provide 

advice and consent, while vacancies persist.22

 

22 The other purpose of the Recess Appointments Clause, 

allowing the Senate to recess without leaving offices vacant, 

is also diminished by the Majority‟s definition of “Recess”. 

Under the Majority‟s limited reading, the Senate might feel 

obliged not to take intrasession recesses when nominations 

are pending, and not feel at liberty to break, as Hamilton and 

the Framers desired, lest it cause a vacancy to remain open 

for the duration of its recess. This would have been traumatic 

during the era of the Framers: Imagine Senators packed and 

ready for their long journeys to their home states, only to find 

out that a cabinet secretary has suddenly resigned office. 

Rather than leaving the office of a secretary vacant for six to 
37

Accordingly, the lack of an exact limiting principle, 

such as a day limit, does not provide sufficient reason to 

exclude intrasession recesses from “the Recess”. First of all, 

any limit would be arbitrary. The ten-day limit proposed by 

Attorney General Daugherty, who issued the 1921 opinion in 

support of intrasession recess appointments, was not based on 

any identifiable principle; such a hard limit could be tied to 

the Pocket Veto Clause but there is no proof of a relationship 

between it and the Recess Appointments Clause and the 

processes of each are different, as conceived by the Framers 

and in the Constitution. The only day limit that might not be 

arbitrary is the three-day limit based on the Adjournments 

Clause but, as discussed, there is no real connection between 

 

nine months, the Senators might very well feel compelled to 

remain in the Capitol to provide advice and consent for the 

new appointment, a process which could take weeks or 

months. Surely, this is not what the Framers envisioned, nor 

intended. This would also put undue pressure on the Senate 

to rush in making its appointment decisions when the Framers 

clearly intended that officers be appointed with careful 

deliberation. 

Even with a less extreme example, we can imagine the 

same imposition on the Senate. As mentioned, it is no secret 

that the advice and consent process is a lengthy and strenuous 

process. See Noel Canning, 705 F.3d at 508 (calling the 

advice and consent process “cumbersome”); United States v. 

Allocco, 305 F.2d 704, 710 (2d Cir. 1962) (noting that the 

appointments process is onerous because of the “difficult task 

of securing a competent replacement”). 
38

the Adjournments Clause and the Recess Appointments 

Clause. 

An alternative explanation for such a three-day limit 

would be that a recess of two days, over a weekend, should 

not constitute a recess sufficient to take the Senate away from 

its business. See Edward A. Hartnett, Recess Appointments of 

Article III Judges: Three Constitutional Questions, 26 

Cardozo L. Rev. 377, 419-20 (2005). This would also 

prevent the extreme situation of lunchtime appointments and 

overnight appointments between daily sessions, which no 

party, and no court, has suggested is reasonable.

Due to this lack of a limiting principle, the Majority 

blithely asserts that intrasession recesses would betray the 

purpose of the Recess Appointments Clause because it would 

allow the President to make recess appointments any time the 

Senate breaks from its usual business, such as when it 

recesses for lunch or adjourns at the end of a daily session. 

The Majority is mistaken because there is no evidence that 

the Framers intended for the Recess Appointments Clause to 

be used this way and there is no evidence that any President 

ever has. It is beyond contention that the President cannot 

use his recess appointment power during the Senate‟s lunch 

break, when it adjourns nightly between daily sessions, or 

when it adjourns for the weekend. See Noel Canning, 705 

F.3d at 500 (determining that “the Framers intended 

something specific by the term „the Recess,‟ and that it was 

something different than a generic break in proceedings”). 

All of these recesses are regular breaks of the Senate, which 

do not impede its normal business. It would be preposterous 

to suggest that the Framers intended for the Senate to be held 

hostage in its chamber in order to retain its power to provide 

advice and consent. 
39

The Majority‟s concern about the “temporal reach” 

and duration of intrasession recesses also overlooks the 

reality that there is little difference between the temporality of 

intersession recesses and intrasession recesses in theory or in 

practice. If the concern is that intrasession recesses may be 

too short, then one must also recognize that intersession 

recesses can be just as short or shorter than intrasession 

recesses. Similarly, if the concern is that “the Recess” must 

last a “non-negligible” number of days, then one must 

recognize that either an intersession or intrasession recess can 

last a “negligible” number of days. Consequently, it is 

indisputable that intersession recess appointments are 

vulnerable to the same uncertainties and lack of limiting 

principles as intrasession recess appointments. This 

conclusion cannot be saved by the magic words — the Senate 

“adjourned sine die”. 

The need to exclude recess appointments during the 

Senate‟s adjournments for lunch, the night, and the weekend 

would explain why the Framers chose to use the limited term 

“Recess” rather than the all-encompassing term 

“Adjournment” in the Recess Appointments Clause. 

“Recess” allows the Senate some leeway to take brief 

adjournments without recessing in a way that permits the 

President to make appointments without its advice and 

consent. As the Majority itself contends, “the dichotomy 

[between the use of „Adjournment‟ and „Recess‟] must be that 

adjournment results in more breaks than recess does.” 

(Majority Op. at 71.)

Further, it would appear unconstitutional for the 

President to use his recess appointment power to make 

appointments during those routine breaks of the Senate. As 

detailed below, by sitting on his nominations and sabotaging 
40

the Senate in such a way, the President would not be using the 

advice and consent of the Senate as his primary means of 

appointing officers, in contravention of the plain structure and 

clear intent of the Framers. 

The Majority also suggests that the purpose would be 

betrayed by allowing intrasession recess appointments 

because they are subject to variable lengths: An intrasession 

recess appointment made at the beginning of a regular session 

would last two regular sessions, while an intrasession recess 

appointment made at the end of a session would only last one 

regular session. But nothing in the text of the Constitution, 

the intent of the Framers, or the purpose of the Recess 

Appointments Clause provides evidence that such variability 

is violative. Firstly, variable lengths are not inherently 

forbidden by the Constitution. The check on the Recess 

Appointments Clause, by the plain language of the text of the 

Constitution, is that recess appointments have a fixed end, not 

necessarily a fixed length. There is no language to intuit that 

the Framers had intended otherwise. Secondly, intersession 

recess appointments are also prone to variable lengths: An 

intersession recess appointment made at the beginning of a 

three-month recess will last three months longer than an 

appointment made at the end of that intersession recess. Of 

course, post-ratification, when intersession recesses routinely 

lasted six months or longer, the lengths of recess 

appointments could have been even more disparate.

The Majority claims that the “End of their next 

Session” language in the Constitution also excludes 

intrasession recesses from the definition of “the Recess” 

because that language allows the Senate only a “single 

chance” to weigh in on appointments. (Majority Op. at 75-

81.) But nothing in the language of the Constitution or the 
41

intent of the Framers limits the Senate to a “single chance” at 

providing advice and consent. Even in the passage quoted by 

the Majority, Justice Story only requires that the Senate have 

“an opportunity” to act, rather than a “single opportunity”. 

(Majority Op. at 76.) What if an appointment is pending 

during one regular session and the President does not make 

any recess appointments during the ensuing intersession 

recess — is the Senate no longer able to provide advice and 

consent in the next regular session because it has already had 

a “single chance” to provide advice and consent? 

In this manner, including both intersession and 

intrasession recesses within the scope of the recess 

appointment power best realizes the purpose of the Recess 

Appointments Clause, i.e., to keep offices filled and allow the 

Senate to break from its regular business.

C. The Branches’ Historical Tradition and Practice

The historical tradition and practice of the branches of 

government is also very persuasive evidence of the meaning 

of the Constitution and endorses the propriety of including 

intrasession recesses in “the Recess”. See Mistretta v. United 

States, 488 U.S. 361, 401 (1989); The Pocket Veto Case, 279 

U.S. at 688-89; Freytag v. Comm’r of Internal Revenue, 501 

U.S. 868, 890 (1991) (faulting an interpretation of the 

Constitution that “would undermine longstanding practice”); 

Youngstown, 343 U.S. at 610 (Frankfurter, J., concurring) 

(“Deeply embedded traditional ways of conducting 

government cannot supplant the Constitution or legislation, 

but they give meaning to the words of a text or supply 

them.”). But see INS v. Chadha, 462 U.S. 919, 944-45 (1983) 
42

(noting that the long-term practice of the one-house 

legislative veto could not save it from being held 

unconstitutional). Moreover, as I have, the Supreme Court 

found its more expansive reading of the Pocket Veto Clause 

corroborated by the “[l]ong settled and established practice” 

of the President, which it said is to be accorded “great weight 

in a proper interpretation of constitutional provisions of this 

character.” The Pocket Veto Case, 279 U.S. at 689. 

Further, in reviewing the tradition and practice of the 

President, presidential actions are entitled to a presumption of

constitutionality.23 The Majority rejects any such notion that 

presidential actions deserve special regard, but the Supreme 

Court has repeatedly embraced such a principle. United 

States v. Nixon, 418 U.S. 683, 703, 710 (1974) (recognizing 

that “courts have traditionally shown the utmost deference to 

Presidential responsibilities”); Chadha, 462 U.S. at 951 

(“When any Branch acts, it is presumptively exercising the 

 

23 Moreover, the early dearth of intrasession recess 

appointments does not provide convincing proof of their 

unconstitutionality. The President does not lose his 

constitutional powers because he does not use them. See 

Freytag, 501 U.S. at 880 (affirming that the President cannot 

“waive” his executive powers which provide the structural 

protections of the Constitution); New York v. United States, 

505 U.S. 144, 182 (1992) (determining that the branches of 

government cannot cede their constitutional powers even if 

they voluntarily consent to do so and have done so for a 

substantial period of time). Constitutional powers do not 

become unconstitutional simply because they go unused. 
43

power the Constitution has delegated to it. When the 

Executive acts, it presumptively acts in an executive or 

administrative capacity as defined in Art. II.” (citing J.W. 

Hampton & Co. v. United States, 276 U.S. 394, 406 (1928)));

see also Evans, 387 F.3d at 1222 (“And when the President is 

acting under the color of express authority of the United 

States Constitution, we start with a presumption that his acts 

are constitutional. . . . Just to show that plausible 

interpretations of the pertinent constitutional clause exist 

other than that advanced by the President is not enough.”); 

United States v. Allocco, 305 F.2d 704, 713-14 (2d Cir. 

1962). Not only does the President take an oath of fealty to 

the Constitution, and not only is his most important 

constitutional duty to “take Care that the Laws be faithfully 

executed,” but such a presumption is integral to the operation 

of the executive branch. See Youngstown, 343 U.S. at 610-11 

(Frankfurter, J., concurring) (establishing that a practice 

“engaged in by Presidents who have also sworn to uphold the 

Constitution . . . may be treated as a gloss on „executive 

Power‟”). 

The Majority carves out its own exception, suggesting 

that, in particular, no such presumption applies in separation 

of powers cases, but this presumption should apply with the 

most force in such cases. In executing the duties of his office, 

the President must not be hindered because the 

constitutionality of his actions is held in doubt. See Baker v. 

Carr, 369 U.S. 186, 210-11 (1962) (emphasizing the 

importance of respecting the finality of the actions of the 

political branches); Nixon v. United States, 506 U.S. 224, 236 

(1993) (same). For a host of self-evident reasons, the 

judiciary should avoid upending longstanding practices of the 

other branches unless they are plainly unconstitutional. See 
44

Noel Canning, 705 F.3d at 515 (Griffith, J., concurring); 

Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345-48 

(1936) (Brandeis, J., concurring) (acknowledging principles 

of judicial restraint regarding constitutional questions).

1. The Tradition and Practice of the President

The tradition and practice of the President, especially 

since 1947, unequivocally shows that intrasession recess 

appointments have been continuously accepted as a 

constitutional use of the executive power. Since 1947, 

Presidents have made nearly 400 intrasession recess

appointments without significant rebuke or controversy. See 

Henry B. Hogue et al., Cong. Research Serv., The Noel 

Canning Decision and Recess Appointments Made from 1981-

2013, at 4 (Feb. 4, 2013). As it stands, intrasession recess 

appointments have been made as often as intersession recess 

appointments. Id. In addition, intrasession recess 

appointments have been condoned by the executive branch 

since at least 1921, even if they did not come into more 

common use until the 1940s. Despite this historical

precedent, the Majority concludes that each of these 

Presidents has misinterpreted the Constitution. 

Recess appointments have been used by Presidents 

ever since the birth of our republic. President Washington, 

himself, made several recess appointments. See Edward A. 

Hartnett, Recess Appointments of Article III Judges: Three 

Constitutional Questions, 26 Cardozo L. Rev. 377, 385, 387 

(2005). The recess practices of the Senate have evolved, 

though, which has caused recess appointment practices to 

evolve in response. Early in our republic, the Senate did not 
45

take intrasession recesses and took much longer intersession 

recesses than it does currently. See Congressional Directory 

for the 112th Congress 522-38 (2011).24 According to the 

Congressional Directory, only five intrasession recesses were 

taken before 1860 and, of those five, the two longest were 

thirteen days. Id. After 1860, there was a surge in 

intrasession recesses and, since the 37th Congress, there has 

been at least one intrasession recess in each Congress, with 

the exception of approximately five sessions of Congress (out 

of approximately 150 regular sessions of Congress). Id. 

Thus, intrasession recesses have been the norm since 1860. 

Currently, the Senate takes between five and ten intrasession 

recesses each Congress, meaning that intrasession recesses far 

outnumber intersession recesses. See Henry B. Hogue, Cong. 

Research Serv., Recess Appointments: Frequently Asked 

Questions 2 (Jan. 9, 2012).

Despite the relatively early appearance of intrasession 

recesses, intrasession recess appointments did not come into 

vogue until the 1940s.25 As mentioned, Presidents have made 

 

24 The Congressional Directory only lists recesses of “three or 

more days, excluding Sundays,” so it is possible that the 

Senate took brief intrasession recesses early on. 

Congressional Directory for the 112th Congress 538 n.2 

(2011). If so, then the dearth of early intrasession recess 

appointments would serve to confirm that intrasession recess 

appointments should not include intrasession recesses of less 

than three days.

25 There is only an unexplained lack of intrasession recess 

appointments for the eighty years between 1867 and 1947. 

One possible reason for the near-absence of intrasession 

recess appointments during that period may be that 
46

nearly 400 intrasession recess appointments since then. See 

Henry B. Hogue et al., Cong. Research Serv., The Noel 

Canning Decision and Recess Appointments Made from 1981-

2013, at 4 (Feb. 4, 2013). Prior to 1947, there were only three 

recorded intrasession recess appointments. Noel Canning, 

705 F.3d at 502 (citing Michael A. Carrier, Note, When Is the 

Senate in Recess for Purposes of the Recess Appointments 

Clause?, 92 Mich. L. Rev. 2204, 2209-12, 2235 (1994)). The 

 

intersession recesses were still rather lengthy, often spanning 

several months, which gave the President ample time to make 

recess appointments during intersession recesses, compared to 

the relatively short duration of early intrasession recesses. 

Another possible explanation is that the passage of the 

Twentieth Amendment in 1933 forever changed the practices 

of Congress, especially the timing and length of their sessions 

and recesses. Louis Fisher, Cong. Research Serv., The Pocket 

Veto: Its Current Status 2-3 (Mar. 30, 2001). Before that 

amendment, there was usually a long first session (often over 

200 days) and a shorter second session (lasting between 80 

and 90 days). Id. at 2. As a result, prior to 1934, “a new 

Congress typically would not convene for regular business 

until 13 months after being elected” but, since passage of the 

amendment, “the time from the election to the beginning of 

Congress‟s term as well as when it convened was reduced to 

two months.” Congressional Directory for the 112th 

Congress 522 (2011). In addition, as the Congressional 

Directory notes, prior to the Twentieth Amendment, “special 

sessions of the Senate were convened, principally for 

confirming Cabinet and other executive nominations,” which 

could have made intrasession recess appointments less 

important. Id.
47

first is believed to have been made by President Andrew 

Johnson in 1867, which coincides with the surge in 

intrasession recesses that began in the 1860s. See Noel 

Canning, 705 F.3d at 501. As such, there is no reasonable 

inference that can be drawn about intrasession recesses except 

that the practices of the Senate prior to the Twentieth 

Amendment made the timing of recesses less of an issue than 

is the case now.

In the modern day, intrasession recesses are not only 

more frequent but also longer than they had been in the past. 

In fact, they are sometimes longer than some intersession 

recesses, which can be as short as a day.26 With the large 

number of intrasession recesses taken, the net duration of 

intrasession recesses during a session of the Senate will often 

dwarf the net duration of intersession recesses, which means 

that the Senate is on break more often during sessions than 

between sessions.

As reflected earlier, given that recess appointments 

have been made for over 220 years and that no intrasession 

(or intersession) recess appointment has been made during a 

 

26 A close inspection of the Congressional Directory reveals 

that there have been approximately thirteen one-day 

intersession recesses — while not frequent, they are not 

unprecedented and are certainly not an abstract or 

hypothetical possibility. See Congressional Directory for the 

112th Congress 522 (2011). (This number excludes one-day 

intersession recesses between a regular session of Congress 

and a special session of Congress.) The last two one-day 

intersession recesses occurred on January 3, 2012, during the 

series of pro forma sessions, and January 3, 2013. 
48

recess of less than ten days in at least the last thirty years, 

critics are wanting to allege that the President would abuse 

his executive power and make a recess appointment while the 

Senate broke for lunch or the end of the day. In the history of 

our republic, there has been no inkling that any President has 

engaged in that practice and, so, there is no reason to think 

that will happen now. See Allocco, 305 F.2d at 714 (“We 

have not been directed to a single instance of behavior by any 

President which might be termed an „abuse‟ of the recess 

power.”). 

2. The Tradition and Practice of the Senate

The tradition and practice of the Senate also affirms 

that “the Recess” includes both intrasession and intersession 

recesses. In 1903, President Roosevelt made 160 recess 

appointments during what is literally described as a 

momentary intersession recess between the 1st and 2nd 

sessions of the 58th Congress. T.J. Halstead, Cong. Research 

Serv., Recess Appointments: A Legal Overview 10 (July 26, 

2005). In response to these recess appointments by President 

Roosevelt, the Senate Judiciary Committee engaged in a 

project to opine on whether such a “constructive recess” of 

the Senate constituted “the Recess” of the Recess 

Appointments Clause. The committee concluded that it did 

not. Most telling was the 1905 report, which presented the 

Senate‟s view of the meaning of “recess”, as used in the 

Recess Appointments Clause. The 1905 Report determined 

that “[t]he word „recess‟ is one of ordinary, not technical, 

signification” and is used in the Recess Appointments Clause 

“in its common and popular sense.” S. Rep. No. 58-4389, at 

1 (1905) (emphasis added). 
49

This report, if nothing else, endorses a broader, rather 

than a narrower, reading of the term “Recess” in the Recess 

Appointments Clause. Specifically, the 1905 Report 

explained that “recess” was “evidently intended by the 

[F]ramers of the Constitution that it should mean something 

real, not something imaginary; something actual, not 

something fictitious.” Id. at 2 (emphasis added). Very 

pragmatically, the 1905 Report set forth four criteria for 

qualifying a “recess”: 1) the Senate is “not sitting in regular 

or extraordinary session as a branch of the Congress, or in 

extraordinary session for the discharge of executive 

functions,” such that 2) “its members owe no duty of 

attendance,” 3) “its Chamber is empty,” and 4) “it can not 

receive communications from the President or participate as a 

body in making appointments” “because of its absence.” Id.

(emphasis in original). 

In addition to the intent of the Framers and the 

tradition and practice of the President, this definition from the 

1905 Report forecloses the possibility of the President 

making recess appointments when the Senate breaks for 

lunch, for the night, and for the weekend. During those 

breaks, the Senate‟s capacity to participate as a body in the 

appointments process is not hampered any more than usual. 

In the same way that one of these brief, routine breaks does 

not make the Senate unavailable to provide advice and 

consent, a brief session does not make the Senate available to 

provide advice and consent, which is why the Senate cannot 

possibly provide advice and consent during pro forma 

sessions. 

The 1905 Report also postulated that the Framers 

intended for the Recess Appointments Clause to serve dual 

purposes that could not be served if those criteria were met: to 
50

prevent “grave inconvenience and harm to the public interest” 

and to ensure that “at all times there should be, whether the 

Senate was in session or not, an officer for every office, 

entitled to discharge the duties thereof.” Id. at 2 (emphasis 

added). This accords with the purposes established by 

Hamilton in The Federalist No. 67. 

The Senate has not officially changed positions since 

the issuance of this report. See Nippon Steel Corp. v. Int’l 

Trade Comm’n, 239 F. Supp. 2d 1367, 1374 n.13 (Ct. Int‟l 

Trade 2002) (citing Michael A. Carrier, Note, When Is the 

Senate in Recess for Purposes of the Recess Appointments 

Clause?, 92 Mich. L. Rev. 2204 (1994)).

Additionally, in an act of legislative acquiescence, 

Congress has passed legislation that observes the possibility 

of intrasession recess appointments.27 By its own choice, 

Congress passed, and has not since repealed, the Pay Act, a 

statute that allows recess appointees to be paid and does not 

differentiate between intersession and intrasession recess 

appointees. 5 U.S.C. § 5503; see Evans, 387 F.3d at 1226; 

Woodley, 751 F.2d at 1013. 

 

27 The Senate Manual also adopts a broader understanding of 

“the Recess” that is conditioned only on the length of a 

recess, rather than whether it occurs intrasession or 

intersession. According to the Senate Manual, motions to 

reconsider confirmation votes on nominees become moot 

after a thirty-day break, be it an adjournment or recess. 

Senate Manual, S. Doc. No. 112-1, at 58 (2012) (“Standing 

Rules of the Senate”).
51

II. THE VALIDITY OF THE MARCH 27, 2010 AND JANUARY 

4, 2012 RECESS APPOINTMENTS

Based on the foregoing analysis, in my judgment, the 

recess appointments of Member Becker on March 27, 2010 

and Members Block, Flynn, and Griffin on January 4, 2012 

are valid. Both sets of appointments were made during 

intrasession recesses when the Senate was not available to 

provide advice and consent. The President appropriately 

exercised his discretion, relying on the supplemental power of 

the Recess Appointments Clause to keep those offices filled 

for the sanctity of the public. The exclusion of intrasession 

recesses from the definition of “the Recess” denies him the 

ability to fulfill his constitutional duty and leads to a number 

of absurd results.

The Majority claims that the Senate was available to 

provide advice and consent during the pro forma sessions 

because it could have acted on the Members‟ nominations “if 

it had desired to do so.” (Majority Op. at 66.) But this is an 

assumption with dangerous logical extensions. Under the 

Majority‟s logic, the Senate would always be available to 

provide advice and consent and the President would never be 

able to make recess appointments. Even during intersession 

recesses, the Senate could plausibly provide advice and 

consent “if it [] desired to” by simply cutting its intersession 

recess short. It is not as if the Senate is paralyzed while in an 

intersession recess. 

To demonstrate another absurd result, Riddick‟s 

Senate Procedure documents that there is such a thing as a 

conditional sine die adjournment, which could allow the 

Senate Majority leader to call the Senate back into session on 

24 hours‟ notice to resume the previous session — would 
52

such a conditional sine die adjournment to start an 

intersession recess prevent the Senate from fulfilling its desire 

to provide advice and consent? See Riddick‟s Senate 

Procedure 18; Henry B. Hogue, Cong. Research Serv., Recess 

Appointments: Frequently Asked Questions 1-2 (Jan. 9, 2012)

(“These adjournment resolutions today usually authorize 

leaders of each chamber to call it back into session after the 

sine die adjournment. If this power is exercised, the previous 

session resumes and continues until the actual sine die 

adjournment is determined, usually pursuant to another 

concurrent resolution of adjournment.” (emphasis added)). 

Under the Majority‟s interpretation of “the Recess” as 

an intersession recess, the Recess Appointments Clause is 

essentially neutered and the President‟s ability to make recess 

appointments would be eviscerated. A Senate opposed to the 

President‟s nominees would simply limit its intersession 

recesses to a day, or less, and use its power to provide advice 

and consent as an absolute negative to the President‟s power 

of appointment. It could then simply convert what would 

have been its intersession recess, when Senators would depart 

to their home states and not conduct business, into an 

intrasession recess. Thus, by this simple procedural change in 

title, the Senate would strip the President of this essential 

counterbalance in the exercise of his executive power and 

upset the balance of power. In a worst-case scenario, some 

offices could remain vacant for an entire administration, 

which could be as long as eight years. In addition, the Senate 

would have a disproportionate amount of influence on the 

President‟s nominees, since he would likely have to accede to 

the demands of the Senate‟s absolute negative.

If anything, the Majority‟s test — that an adjournment 

sine die marks an intersession recess — is unworkable and 
53

not judicially manageable. Under the Majority‟s rationale, 

the President could make a recess appointment during any 

intersession recess, even if it only lasted a nanosecond, yet 

could not make a recess appointment during a six-month 

intrasession recess. This defies common sense and common 

logic. The Majority itself recognizes that intersession 

recesses suffer from the same lack of an exact durational limit 

as intrasession recesses, which undercuts its suggestion that 

intersession recesses are somehow immune to its criticism of 

intrasession recesses. (Majority Op. at 100 (“[T]he lack of a 

constitutional basis for selecting a long duration in defining 

intrasession breaks is just as absent to define intersession 

breaks.”).) 

The Majority further undercuts its distinction between 

intersession and intrasession recesses by stating, without 

reservation, that “the potential for abuse and subsequent 

gridlock lies not in what recess means but in the 

Constitution‟s framework of divided powers.” (Majority Op. 

at 100.) This admits that the problem, and solution, lies not in 

the technical, procedural classification of the Senate‟s 

adjournment, but in whether the separation of powers is 

maintained. Thus, tying the definition of “Recess” to the 

availability of the Senate to provide advice and consent 

achieves the proper focus. It does so by basing the definition 

on the presence of the Senate‟s mechanism for maintaining 

the separation of powers in the appointments process —

advice and consent — rather than the procedural 

classification of the recess.

Worse, by basing the recess appointment power on the 

Senate‟s procedure, the Majority has committed the Recess 

Appointments Clause to the Senate‟s discretion and 

procedural manipulations. The impracticability of the 
54

Majority‟s standard is shown by the fact that the January 4, 

2012 appointments issue could have simply been avoided if 

the appointments had been made a day earlier, on January 3, 

during the intersession recess.28 Not only that, but the 

Majority‟s standard would also allow the President to make 

an unlimited number of recess appointments during the type 

of “fictional” intersession recess exploited by President 

Roosevelt in 1903. With such absurd results, the Majority‟s 

standard is an artifice that would clearly upset the separation 

of powers integral to a sound appointments process.

Under my standard, the entire period during which the 

Senate held pro forma sessions, from December 17, 2011 

until January 23, 2012, would be treated the same. Thus, the 

Senate would have been no more able to provide advice and 

 

28 The Majority attempts to displace the absurdity of its 

holding by showing that my standard also yields absurd 

results, but the Majority misses my point. My point is only to 

show that it is absurd to suggest that a one-day intersession 

recess is somehow different than a long intrasession recess. 

Thus, the Majority‟s holding that the President could have 

made a recess appointment on January 3, but not on January 4 

or January 22, means that the one-day intersession recess on 

January 3 was somehow intrinsically different than January 4 

or January 22. I contend that January 3 is only different 

because it technically has a different definition than January 4 

or January 22 — functionally, all three of those days were the 

same. Further, there is nothing absurd about treating January 

23 differently than January 22. There were no Senators who 

owed attendance in the Senate chamber on January 22 but, 

presumably, 100 Senators owed their attendance on January 

23. 
55

consent on January 4, 2012 than it was on January 3, 2012. 

And the President would not be able thwart the Senate, as 

President Roosevelt did, by making well over a hundred 

recess appointments during a fictional intersession recess of 

infinitesimal duration.

III. CONCLUSION

Defining the executive role in our system of checks 

and balances is one of the most challenging problems of our 

republic and, consequently, not so easily resolved. The 

inclusion of intrasession recesses in the ambit of the Recess 

Appointments Clause is the interpretation most faithful to the 

text of the Constitution, the intent of the Framers, the purpose 

of recess appointments, and the tradition and practice of both 

the President and the Senate. It is for this reason that the 

Majority cannot articulate a constitutional impediment to the 

inclusion of intrasession recesses, or make a constitutional 

case for the categorical exclusion of all intrasession recesses. 

Interpreting “the Recess” to include intrasession recesses best 

maintains the balance of power integral to preserving the 

appointments process intended by the Framers.