This is a guest post from David Arkush of the University of Richmond School of Law. He has written and article and an essay on the Recess Appointments Clause, and he is joining us to blog about NLRB v. Noel Canning.
I plan to comment on a few different aspects of NLRB v. Noel Canning in the coming days—the extent of formalism and pragmatism in the majority opinion, the roles of historical practice and original meaning, the quality and nature of the originalist analysis, and a way in which the Court could have reached a similar conclusion by slightly better means.
To take the first of those issues, the decision is already being characterized as a victory for pragmatism over formalism. I think that’s an overstatement. The pragmatism is clear enough. The Court’s foremost pragmatist, Justice Breyer, wrote the opinion, and it steers a middle path between polar extremes. The Solicitor General argued that the President has the power to determine whether the Senate is in recess, a rule that would apparently permit the President to sidestep the Senate’s advice and consent routinely. Noel Canning argued that the Recess Appointments Clause authorizes appointments only during the annual recess between official Senate sessions and only for vacancies that arise during that break, a position that would virtually write the Clause out of the Constitution. Breyer, joined by Kennedy and the remaining liberals, rejects both of these arguments. The majority codifies a reasonable, pragmatic-seeming middle ground on which the political branches had more-or-less settled in recent decades: A constitutional “recess” is not limited to any particular type of break, but it has a minimum duration. Three days is too short. Nine days is also too short—unless there is a genuine, qualifying emergency.
All this said, there are striking exceptions to the Court’s pragmatism. First is the three-day minimum for recesses, which contradicts the Court’s pragmatic reasoning without a (pragmatic) justification. Three days appears to be a strict limit, with no exceptions. See Slip. Op. 19 (“We agree with the Solicitor General that a 3-day recess would be too short.”). By contrast, the Court holds that ten days is only “presumptively” too short. In some “very unusual” circumstance, such as a “national catastrophe . . . that renders the Senate unavailable but calls for an urgent response,” the President could make unilateral appointments during a break shorter than ten days but longer than three. Id. at 21. The Court’s reasoning here applies no less to three-day breaks. One might respond that the Senate can reconvene more readily on a mere weekend because Senators are still in Washington. But that is mistaken. Many senators, if not most, go home on the weekends.
So what is the justification for the three-day minimum? Will Baude might say it’s a countervailing pragmatic concern—the Court is preventing the president from making appointments on “nights and weekends.” But the majority doesn’t say that. To the contrary, it expresses some skepticism that the President would engage in unbridled abuse, id. at 25, and in another context, some faith that the political branches can usually work things out among themselves despite inevitable frictions, id. at 39-40. The Court says only that a three-day recess is de minimis, analogizing to the Adjournments Clause, which requires each house of Congress to obtain the other’s permission before adjourning for more than three days. Id. at 19-20. So the majority’s decision is pragmatic to a point—three days—before it tosses out its pragmatic reasoning and draws a hard rule that apparently rests on a loose constitutional analogy. This move isn’t formalist. But it’s an abrupt, unexplained, and inviolable exception to the Court’s otherwise pragmatic reasoning. Perhaps it’s the result of an internal compromise.
Second, the Court’s analysis of the Senate’s pro forma sessions is unambiguously formalist. The Court states that it must defer heavily to the Senate’s authority to determine “how and when to conduct its business,” Slip. Op. at 34, a conclusion that flows directly from the Constitution, which expressly grants the Senate control over “the Rules of its Proceedings.” Then the Court reads the Senate rules carefully and strictly, concluding that under its own rules, the Senate’s pro forma sessions were sessions as a matter of law. Slip Op. at 35-59. It expressly rejects the Solicitor General’s request that the Court “engage in a more realistic appraisal of what the Senate actually did.” Id. at 38.
I was pleased to see the Court take deference to the Senate seriously—at least on the question of pro forma sessions. Gerard and I were some of the lone voices arguing that the Court should defer to the Senate’s view of its own proceedings. Gerard argued that the Court should take the Senate at its word when it said it held sessions, and therefore the appointments were invalid. I argued that the Court should look beyond procedural appearances and recognize that, in this instance, deference to the Senate likely meant approving the appointments. The Senate majority appears to have supported the appointments. It held pro forma sessions not because it wanted to block them, but because the Speaker of the House of Representatives forced it to (moreover, in my view, it is probably unconstitutional for the House to interfere with appointments in this manner). But the fact that I had to qualify my position with “likely” reveals its major shortcoming. The Court reasonably declined to question official Senate records, which could be a messy and uncertain business. It cited both Marshall Field & Co. v. Clark and United States v. Ballin in holding that it should take official Senate records at face value. In short, it sided with Gerard. I think he has the honor of being the sole commentator to nail this point.
And it was a critical point. These two aspects of the opinion—the hard, three-day minimum for recesses and the formalist decision that pro forma sessions count as “sessions”—were actually adequate to resolve the case. The Court could have left open the questions regarding the type of recess and the timing of vacancies. I’ll turn to those issues in a future post, but in a sense they are surprisingly formalist as well. Despite the majority’s emphasis on historical practice, it comes much closer than the dissent-like concurrence to following what we know about the original meaning of the word “recess,” and possibly “happen” as well.