134 S. Ct. 2550 (2014)
The National Labor Relations Board found that Noel Canning, a Pepsi-Cola distributor, had unlawfully refused to reduce to writing and execute a collective-bargaining agreement with a labor union.1
The Board ordered the distributor to execute the agreement and to make employees whole for any losses.2 Noel Canning asked the Court of Appeals for the District of Columbia Circuit to set the Board's order aside, claiming that three of the five Board members had been invalidly appointed, leaving the Board without the three lawfully appointed members necessary for it to act.3
The three members in question were Sharon Block, Richard Griffin, and Terence Flynn.4 In 2011 the President had nominated each of them to the Board.5 As of January 2012, Flynn's nomination had been pending in the Senate awaiting confirmation for approximately a year, while the nominations of the other two had been pending for a few weeks.6
On December 17, 2011, the Senate by unanimous consent adopted a resolution providing that it would take a series of brief recesses beginning the following day, holding pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23, 2012.7 On January 4, 2012, the President, invoking the Recess Appointments Clause, appointed all three to the Board between the January 3 and January 6 pro forma sessions.8
Noel Canning argued that the appointments were invalid because each pro forma session terminated the immediately preceding recess, leaving only a 3-day adjournment.9 The D.C. Circuit agreed that the appointments fell outside the scope of the Clause on different grounds and set aside the order because the Board lacked a quorum of validly appointed members.
The Supreme Court granted the Solicitor General's petition for certiorari and asked the parties to address whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.10 The fact that the Board now has a quorum does not moot the controversy about the validity of the previously entered Board order.11
Whether the phrase 'the recess of the Senate' in the Recess Appointments Clause includes intra-session recesses of substantial length?12
The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess of sufficient length, whether intra-session or inter-session.13
Yes. The case arose from a labor dispute.14 The National Labor Relations Board found that Noel Canning, a Pepsi-Cola distributor, had unlawfully refused to reduce to writing and execute a collective-bargaining agreement with a labor union. The Board ordered the distributor to execute the agreement and to make employees whole for any losses. Noel Canning asked the Court of Appeals for the District of Columbia Circuit to set the Board's order aside.15 It claimed that three of the five Board members had been invalidly appointed, leaving the Board without the three lawfully appointed members necessary for it to act.16
The three members in question were Sharon Block, Richard Griffin, and Terence Flynn. In 2011 the President had nominated each of them to the Board. As of January 2012, Flynn's nomination had been pending in the Senate awaiting confirmation for approximately a year.17 The nominations of each of the other two had been pending for a few weeks.18 On January 4, 2012, the President, invoking the Recess Appointments Clause, appointed all three to the Board.19
On December 17, 2011, the Senate, by unanimous consent, had adopted a resolution providing that it would take a series of brief recesses beginning the following day.20 Pursuant to that resolution, the Senate held pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23, 2012.21 The President's January 4 appointments were made between the January 3 and January 6 pro forma sessions.22 In the distributor's view, each pro forma session terminated the immediately preceding recess.23 Accordingly, the appointments were made during a 3-day adjournment, which is not long enough to trigger the Recess Appointments Clause.24
The Court of Appeals agreed that the appointments fell outside the scope of the Clause.25 But the court set forth different reasons.26 It held that the Clause's words 'the recess of the Senate' do not include recesses that occur within a formal session of Congress, i.e., intra-session recesses.27 Rather those words apply only to recesses between those formal sessions, i.e., inter-session recesses.28 The Court of Appeals added that, in any event, the phrase 'vacancies that may happen during the recess' applies only to vacancies that come into existence during a recess.29 The vacancies that Members Block, Griffin, and Flynn were appointed to fill had arisen before the beginning of the recess during which they were appointed.30 For this reason too the President's appointments were invalid.31 And, because the Board lacked a quorum of validly appointed members when it issued its order, the order was invalid.32
We granted the Solicitor General's petition for certiorari.33 We asked the parties to address not only the Court of Appeals' interpretation of the Clause but also the distributor's initial argument, namely, whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.34 The fact that the Board now has a quorum does not moot the controversy about the validity of the previously entered Board order. The constitutional text is ambiguous.35 Founding-era dictionaries and usages show that the phrase 'the recess' can encompass intra-session breaks.36 This broader interpretation is demanded by the purpose of the Clause, which is to allow the President to make appointments so as to ensure the continued functioning of the Government while the Senate is away.37 History offers further support for this interpretation.38 From the founding until the Great Depression, every time the Senate took a substantial, non-holiday intra-session recess, the President made recess appointments.39
The Recess Appointments Clause applies to intra-session recesses of substantial length.40
Related opinions on this issue
Joined by Chief Justice Roberts And Justices Thomas And Alito
Justice Scalia concurs in the judgment but maintains that the Recess Appointments Clause applies only to inter-session recesses between formal sessions of Congress.41 He argues that the text and original understanding limit the power to breaks between sessions and not to intra-session breaks.42 Scalia contends that the majority's broader reading transforms the clause from a narrow tool into a weapon that allows the President to circumvent the Senate's advice-and-consent role.43
He emphasizes that the Framers intended the recess-appointment power to be exercised only during the gap between formal sessions, as evidenced by founding-era practice and the clause's structure.44 Scalia rejects the majority's reliance on historical practice as insufficient to override the plain text, warning that the decision aggrandizes executive power at the expense of the separation of powers.45
Whether the phrase 'vacancies that may happen during the recess of the Senate' applies to vacancies that first arise before a recess but continue to exist during the recess?46
The phrase 'vacancies that may happen during the recess of the Senate' applies both to vacancies that first come into existence during a recess and to vacancies that initially occur before a recess but continue to exist during the recess.47 The text is ambiguous.
Yes. The text is ambiguous.48 As Thomas Jefferson observed, the Clause is 'certainly susceptible of [two] constructions.'49 The purpose of the Clause is to permit the President, who is always acting to execute the law, to obtain the assistance of subordinate officers while the Senate, which acts only in intervals, is unavailable to confirm them.50
If a vacancy arises too late in the session for the President and Senate to have an opportunity to select a replacement, the narrower reading could paralyze important functions of the Federal Government, particularly at the time of the founding.51 The broader interpretation ensures that offices needing to be filled can be filled.52 Historical practice also strongly favors the broader interpretation.53 The tradition of applying the Clause to pre-recess vacancies dates at least to President Madison.54
Nearly every Attorney General to consider the question has approved the practice, and every President since James Buchanan has made recess appointments to pre-existing vacancies.55
The Recess Appointments Clause applies to vacancies that arise before a recess but continue during the recess.56
Related opinions on this issue
Joined by Chief Justice Roberts And Justices Thomas And Alito
Justice Scalia concurs in the judgment that the appointments are invalid but on the ground that the Recess Appointments Clause does not authorize appointments to fill pre-existing vacancies.57 He argues that the text limits the power to vacancies that arise during the recess itself.58 Scalia maintains that the majority's broader reading allows the President to evade Senate confirmation for any vacancy that happens to exist during a recess, undermining the constitutional design.59
He relies on early interpretations by Attorneys General Randolph and Lee, as well as the Senate's 1863 rejection of the broad view, to show that the original meaning restricts the clause to vacancies originating in the recess.60 Scalia warns that the majority's approach permits routine circumvention of the advice-and-consent requirement.61
Whether the Senate is in session for purposes of the Recess Appointments Clause when it holds pro forma sessions every three days pursuant to a resolution stating that no business will be transacted?62
For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.63
Yes. The standard is consistent with the Constitution's broad delegation of authority to the Senate to determine how and when to conduct its business.64 Under the standard set forth here, the Senate was in session during the pro forma sessions at issue.65 It said it was in session, and Senate rules make clear that the Senate retained the power to conduct business.66
The Senate could have conducted business simply by passing a unanimous consent agreement.67 In fact, it did so; it passed a bill by unanimous consent during its pro forma session on December 23, 2011.68 Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess.69 Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.70
The judgment of the Court of Appeals is affirmed.71
The appointments were invalid because they were made during a 3-day recess.72
Related opinions on this issue
Joined by Chief Justice Roberts And Justices Thomas And Alito
Justice Scalia concurs in the judgment that the appointments are invalid but on the ground that the Recess Appointments Clause does not authorize appointments during intra-session recesses, regardless of the pro forma sessions.73 He argues that the Senate's pro forma sessions do not change the fact that the clause applies only to inter-session recesses.74 Scalia contends that the majority's functional approach to determining when the Senate is in session improperly allows judicial second-guessing of Senate rules.75
He maintains that the text limits the power to the recess between formal sessions, rendering any analysis of pro forma sessions unnecessary under his view.76 Scalia emphasizes that the clause's original meaning prevents the President from using short breaks within a session to bypass Senate confirmation.77