Originalism in Noel Canning, Part I

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4 Responses

  1. Asher says:

    Doesn’t the clause’s provision that recess appointments expire at the end of the Senate’s “next Session” suggest that the recesses referred to earlier in the clause are recesses between sessions? If so, would you also interpret “Session” colloquially, i.e. as any Senate work period? I don’t quite understand a reading of the clause that says that the President may appoint during an intra-session recess, that that appointment will list through the remainder of the session and through the following inter-session recess, and that it will expire only at the beginning of the next session. The point of appointments expiring at the end of the next session would seem to be that they expire once the Senate is once more available to advise and consent. But if “the Recess” includes intra-session recesses, while “the Session” only refers to formal sessions, the appointments expire not only long after the Senate has made itself available, but after the Senate has again made itself unavailable.

    • David Arkush says:

      It is certainly possible to conclude that “session” means “work period.” (Note that this isn’t a colloquial rather than formal meaning. There were multiple formal meanings, and this is one of them.) Under this view, recess appointments would be much shorter than they are at present. That arrangement is not unreasonable if one expects the Senate to confirm most nominees without incident. That appears to have been the common expectation from the ratification to recent decades.

      That said, I don’t think we can rule out the possibility that “session” refers to annual sessions even if “recess” means the break between work periods. Both “session” and “recess” had multiple possible meanings, and the terms need not be reciprocal. We can reason about the Clause’s meaning based on policy, but I don’t see an obvious answer there.

      Let’s assume “recess” refers to the breaks between work periods. In that case, as you point out, perhaps “next session” should mean the next work period because the goal is just to give the Senate a chance to consider the nomination. That may be right, but there are other ways of thinking about the issue. One might think extremely short appointments are problematic. One might be concerned that they are unduly burdensome on the Senate, sometimes pressuring it to act too quickly, or one might think it undesirable to put the President and the temporary officer at risk of such a rapid reversal.

      For these reasons, you might want “session” to mean something longer than the typical work period even if “recess” means the break between work periods. Of course, there are also potential flaws in having “session” refer to an annual session. Recess appointments may be much longer than is necessary or desirable. Is this arrangement better or worse than the possibility of unduly short appointments? I’m not sure, and I certainly can’t say what the Framers thought.

  2. Brett Bellmore says:

    On top of that, there’s the question of then the vacancy occurred. (Which, IMO, the majority got wrong.)

  3. mls says:

    I think you are basically right, though your position is more consistent with the concurrence than you seem to think. When the Constitution refers to the “session” of the Senate or Congress, it means “the period during which the body is sitting.” Another way of putting it would be “the period during which the body is in session.” That was the ordinary meaning of the word in the legislative context. (Johnson defined “session” as “the space for which an assembly sits, without intermission or recess”).

    We know that a session of Congress cannot end without a concurrent resolution under the Adjournment Clause, proroguement by the President, or the “efflux of their time” (ie, running into the next constitutional meeting date). In the absence of one of these events, the session continues and there is no “recess.” Since none of these events occurred following the commencement of the session on January 3, 2012, it follows that there was no recess and thus the president’s recess appointments were invalid (as the Court unanimously found).

    The only issue, then, is what happens when Congress does adopt a concurrent resolution of adjournment. The possibilities are (1) no recess unless the resolution is sine die, (2) no recess unless the adjournment is of a sufficient length, (3) automatic recess or (4) the president decides if the particular adjournment is a recess.

    Personally, I could live with any of these options, although the first effectively allows the Congress to cut off the president’s recess appointment power, which may be problematic. The president deciding might also seem problematic, but it should be noted that if the president decides there is a recess, he is also deciding that the previous session has ended, thereby ending any previous recess appointments.

    If we are going to go with a minimum time period, I would just note that Senate rules for more than a century have said that when there is an adjournment of 30 days, all nominations submitted by the president are to be automatically returned. If the adjournment is less than 30 days, they remain with the Senate and there is no need to submit new nominations. Its puzzling why this is not used as the line of demarcation (assuming we are going to use a time period).

    So the concurrence was correct that all recesses must be “inter-session” but its choice of option number 1 as the way of distinguishing between recess and session is debatable.