Noel Canning and the Definition of the Senate’s Recess

The Supreme Court will soon hear Noel Canning, and there is a great new paper from David Arkush analyzing the issues in the case.  He and I are alone (I think) in arguing that the Court should defer to the Senate’s understanding of when it is in recess rather than creating a constitutional definition of the recess.  Where we disagree is on the conclusion follows from this approach.  I contend that the pro-forma sessions held by the Senate around the time President Obama made his nominations to the NLRB mean that the Senate was not in recess.  Arkush argues the opposite, in part by looking at why the Senate decided to hold these sessions.  Take a look and see what you think.

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5 Responses

  1. Joe says:

    The various sides here provide reasonable possible understandings of the clause. I think the question should be left to the political processes unless there is a more clear agreement on the question.

  2. Ken Rhodes says:

    Joe, I have to respectfully disagree with you here.

    Article 2, Section 2, of the Constitution states “The President shall have power to fill up all vacancies that may happen during the recess of the Senate.” There is no statement that defines what a recess is, or how to recognize it when it happens.

    Article 1 relates to the Legislature. It, too, uses the word “recess” but again, there is no statement that defines what a recess is, or how to recognize it when it happens.

    Apparently, back in the day our Founding Fathers thought this was obvious, not a complicated question. Now, apparently it isn’t obvious, since reasonable arguments appear on both sides. In that sort of case, I don’t think the right venue to decide what the Founding Fathers meant is to take a political vote. Rather, that’s why we have a Supreme Court, and that’s why I think it’s a subject for the Supreme Court to decide–i.e., what the heck did they mean when they wrote “recess” into the Constitution?

  3. Will Baude says:


    Just wondering: Do you have a similar view about the constitutional term, “Session”? That is, do you think it’s possible for the Senate to be in “Session” and in “Recess” at the same time, or is that another question on which the Court should defer?

  4. Gerard says:


    I think I would have to say yes. If that creates problems, then my position on the recess would probably not stand.

  5. Joe says:

    Both sides in their briefs (including amici), Ken Rhodes, cited what “back in the day our Founding Fathers thought” and came to different conclusions. Different courts have found different meanings for what the text means.

    To the degree “no statement that defines” the specific meaning of the words, including in modern day contexts where like “equal protection” or various other things that “our Founding Fathers” might view things differently applying the same general principles (intentionally open-ended in the drafting to apply to changing events and knowledge), is unclear.

    Like what “try” means in impeachments, what “faithfully executing” the law means for executives, what a “high crime or misdemeanor” is for impeachments and a range of other things, these have been found to be political questions fought over by the political branches. Here, e.g., as noted by Dan Arkush, the Senate did not challenge it. It could have. What the “heck” they meant can be handled there.

    And, I didn’t say courts should never get involved even here. If there is a crystal clear violation such as something that there really is no doubt was not a recess appointment, the courts might get involved. Also, in effect, the courts can get involved — they can state the political question point I made or note the breadth of meaning so that these cases are not violations.

    But, the end result will be the same in the long term.