SCOTUS NLRB v NOEL
Number of Pages:108
Date Created:June 26, 2014
Date Uploaded to the Library:July 31, 2014
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Slip Opinion) OCTOBER TERM, 2013 Syllabus NOTE: Where feasible, syllabus (headnote) will released, isbeing done connection with this case, the time the opinion issued.The syllabus constitutes part the opinion the Court but has beenprepared the Reporter Decisions for the convenience the reader. See United States Detroit Timber Lumber Co., 200 321, 337. SUPREME COURT THE UNITED STATES Syllabus NATIONAL LABOR RELATIONS BOARD NOEL CANNING AL. CERTIORARI THE UNITED STATES COURT APPEALS FOR THE DISTRICT COLUMBIA CIRCUIT No. 121281. Argued January 13, 2014Decided June 26, 2014 Respondent Noel Canning, Pepsi-Cola distributor, asked the Circuit set aside order the National Labor Relations Board, claiming that the Board lacked quorum because three the five Board members had been invalidly appointed. The nominations the three members question were pending the Senate when passed December 17, 2011, resolution providing for series pro forma session[s], with no business transacted, every Tuesday and Friday through January 20, 2012. J., 112th Cong., 1st Sess., 923. Invoking the Recess Appointments Clausewhich gives the President the power to fill all Vacancies that may happen during the Recess the Senate, Art. II, 2, cl. 3the President appointedthe three members question between the January and January pro forma sessions. Noel Canning argued primarily that the appointments were invalid because the 3-day adjournment between those two sessions was not long enough trigger the Recess Appointments Clause. The Circuit agreed that the appointmentsfell outside the scope the Clause, but different grounds. held that the phrase the recess, used the Clause, does not includeintra-session recesses, and that the phrase vacancies that may happen during the recess applies only vacancies that first come intoexistence during recess. Held: The Recess Appointments Clause empowers the President fillany existing vacancy during any recessintra-session intersessionof sufficient length. Pp. 533. (a) Two background considerations are relevant the questions here. First, the Recess Appointments Clause subsidiary method Syllabus for appointing officers the United States. The Founders intended the norm the method appointment Article II, 2, cl. 2,which requires Senate approval Presidential nominations, leastfor principal officers. The Recess Appointments Clause reflects the tension between the Presidents continuous need for the assistance subordinates, Myers United States, 272 52, 117, and the Senates early practice meeting for single brief session each year.The Clause should interpreted granting the President the power make appointments during recess but not offering the President the authority routinely avoid the need for Senate confirmation. Second, interpreting the Clause, the Court puts significantweight upon historical practice. The longstanding practice the government, McCulloch Maryland, Wheat. 316, 401, can inform this Courts determination what the law is separation-ofpowers case, Marbury Madison, Cranch 137, 176. See also, e.g., Mistretta United States, 488 361, 401; The Pocket Veto Case, 279 655, 689690. There great deal history considerhere, for Presidents have made recess appointments since the beginning the Republic. Their frequency suggests that the Senate and President have recognized that such appointments can both necessary and appropriate certain circumstances. The Court, interpreting the Clause for the first time, must hesitate upset the compromises and working arrangements that the elected branches ofGovernment themselves have reached. Pp. 59. (b) The phrase the recess the Senate applies both intersession recess (i.e., breaks between formal sessions the Senate) andintra-session recesses (i.e., breaks the midst formal session) substantial length. The constitutional text ambiguous. Foundingera dictionaries and usages show that the phrase the recess can encompass intra-session breaks. And this broader interpretation isdemanded the purpose the Clause, which allow the President make appointments ensure the continued functioningof the Government while the Senate away. The Senate equally away and unavailable participate the appointments process during both inter-session and intra-session recess. History offers further support for this interpretation. From the founding until the Great Depression, every time the Senate took substantial, nonholiday intra-session recess, the President made recess appointments. President Andrew Johnson made the first documented intrasession recess appointments 1867 and 1868, and Presidents madesimilar appointments 1921 and 1929. Since 1929, and particularlysince the end World War II, Congress has shortened its intersession breaks and taken longer and more frequent intra-session Syllabus breaks; Presidents accordingly have made more intra-session recessappointments. Meanwhile, the Senate has never taken any formal action deny the validity intra-session recess appointments. 1905, the Senate Judiciary Committee defined the recess the period time when the Senate absent and cannot participate asa body making appointments, Rep. No. 4389, 58th Cong., 3dSess., and that functional definition encompasses both intrasession and inter-session recesses. 1940 law regulating the payment recess appointees has also been interpreted functionally bythe Comptroller General (an officer the Legislative Branch). sum, Presidents have made intra-session recess appointments for acentury and half, and the Senate has never taken formal action oppose them. That practice long enough entitle greatweight proper interpretation the constitutional provision. The Pocket Veto Case, supra, 689. The Clause does not say how long recess must order fall within the Clause, but even the Solicitor General concedes that 3day recess would too short. The Adjournments Clause, Art. 5, cl. reflects the fact that 3-day break not significant interruption legislative business. Senate recess that short that does not require the consent the House under that Clause not long enough trigger the Presidents recess-appointment power.Moreover, the Court has not found single example recess appointment made during intra-session recess that was shorter than10 days. There are few examples inter-session recess appointments made during recesses less than days, but these areanomalies. light historical practice, recess more than days but less than days presumptively too short fall withinthe Clause. The word presumptively leaves open the possibilitythat very unusual circumstance could demand the exercise therecess-appointment power during shorter break. Pp. 921. (c) The phrase vacancies that may happen during the recess the Senate, Art. II, 2, cl. applies both vacancies that first comeinto existence during recess and vacancies that initially occur before recess but continue exist during the recess. Again, the text ambiguous. Thomas Jefferson observed, the Clause certainly susceptible [two] constructions. Letter Wilson Cary Nicholas (Jan. 26, 1802), Papers Thomas Jefferson 433. may mean vacancies that may happen be may happen fall during recess. Ibid. And, Attorney General Wirt wrote 1821, thebroader reading more consonant with the reason and spirit theClause. Op. Atty. Gen. 632. The purpose the Clause permitthe President, who always acting execute the law, obtain theassistance subordinate officers while the Senate, which acts only intervals, unavailable confirm them. vacancy arises too latein the session for the President and Senate have opportunity select replacement, the narrower reading could paralyze important functions the Federal Government, particularly the time the founding. The broader interpretation ensures that offices needing tobe filled can filled. does raise danger that the President mayattempt use the recess-appointment power circumvent the Senates advice and consent role. But the narrower interpretation risks undermining constitutionally conferred powers more seriously and more often. would prevent President from making any recess appointment fill vacancy that arose before recess, matterwho the official, how dire the need, how uncontroversial the appointment, and how late the session the office fell vacant. Historical practice also strongly favors the broader interpretation.The tradition applying the Clause pre-recess vacancies dates atleast President Madison. Nearly every Attorney General consider the question has approved the practice, and every President since James Buchanan has made recess appointments pre-existingvacancies. fair inference from the historical data that large proportion recess appointments over our Nations history havefilled pre-recess vacancies. The Senate Judiciary Committee 1863did issue report disagreeing with the broader interpretation, andCongress passed law known the Pay Act prohibiting payment ofrecess appointments pre-recess vacancies soon after. However, the Senate subsequently abandoned its hostility. 1940, the Senate amended the Pay Act permit payment recess appointees circumstances that would unconstitutional under the narrower interpretation. short, Presidents have made recess appointments topreexisting vacancies for two centuries, and the Senate body has not countered this practice for nearly three-quarters century, perhaps longer. The Court reluctant upset this traditional practice where doing would seriously shrink the authority that Presidents have believed existed and have exercised for long. Pp. 21 33. For purposes the Recess Appointments Clause, the Senate isin session when says that is, provided that, under its own rules,it retains the capacity transact Senate business. This standard consistent with the Constitutions broad delegation authority the Senate determine how and when conductits business, recognized this Courts precedents. See Art. 5, cl. Marshall Field Co. Clark, 143 649, 672; United States Ballin, 144 Although the Senates own determinationof when and not session should given great weight, the Courts deference cannot absolute. When the Senate without Syllabus the capacity act, under its own rules, not session even itso declares. Under the standard set forth here, the Senate was session during the pro forma sessions issue. said was session, and Senate rules make clear that the Senate retained the power conduct business. The Senate could have conducted business simply bypassing unanimous consent agreement. fact, did so; passed bill unanimous consent during its pro forma session December 23, 2011. See 2011 924; Pub. 11278. The Court will not, the Solicitor General urges, engage in-depth factual appraisal what the Senate actually did during its pro forma sessions order determine whether was recess session for purposes the Recess Appointments Clause. Because the Senate was session during its pro forma sessions, the President made the recess appointments issue during 3-day recess. Three days too short time bring recess within the scope the Clause, the President lacked the authority makethose appointments. Pp. 3341. 705 490, affirmed. BREYER, J., delivered the opinion the Court, which KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed opinion concurring the judgment, which ROBERTS, J., and THOMAS and ALITO, JJ., joined. Opinion the Court NOTICE: This opinion subject formal revision before publication the preliminary print the United States Reports. Readers are requested notify the Reporter Decisions, Supreme Court the United States, Washington, 20543, any typographical other formal errors, order that corrections may made before the preliminary print goes press. SUPREME COURT THE UNITED STATES No. 121281 NATIONAL LABOR RELATIONS BOARD, PETITIONER NOEL CANNING, AL. WRIT CERTIORARI THE UNITED STATES COURT APPEALS FOR THE DISTRICT COLUMBIA CIRCUIT [June 26, 2014] JUSTICE BREYER delivered the opinion the Court. Ordinarily the President must obtain the Advice and Consent the Senate before appointing Office[r] the United States. Const., Art. II, 2, cl. But the Recess Appointments Clause creates exception. gives the President alone the power to fill all Vacancies that may happen during the Recess the Senate, granting Commissions which shall expire the End their next Session. Art. II, 2, cl. here consider three questions about the application this Clause. The first concerns the scope the words recess the Senate. Does that phrase refer only inter-session recess (i.e., break between formal sessions Congress), does also include intra-session recess, such summer recess the midst session? conclude that the Clause applies both kinds recess. The second question concerns the scope the words vacancies that may happen. Does that phrase refer only vacancies that first come into existence during recess, does also include vacancies that arise prior recess but continue exist during the recess? conclude that Opinion the Court the Clause applies both kinds vacancy. The third question concerns calculation the length recess. The President made the appointments here issue January 2012. that time the Senate was recess pursuant December 17, 2011, resolution provid ing for series brief recesses punctuated pro forma session[s], with no business transacted, every Tuesday and Friday through January 20, 2012. J., 112th Cong., 1st Sess., 923 (2011) (hereinafter 2011 J.). calculating the length recess are ignore the pro forma sessions, thereby treating the series brief recesses single, month-long recess? conclude that cannot ignore these pro forma sessions. Our answer the third question means that, when the appointments before took place, the Senate was the midst 3-day recess. Three days too short time bring recess within the scope the Clause. Thus conclude that the President lacked the power make the recess appointments here issue. The case before arises out labor dispute. The National Labor Relations Board (NLRB) found that Pepsi-Cola distributor, Noel Canning, had unlawfully refused reduce writing and execute collectivebargaining agreement with labor union. The Board ordered the distributor execute the agreement and make employees whole for any losses. Noel Canning, 358 No. (2012). The Pepsi-Cola distributor subsequently asked the Court Appeals for the District Columbia Circuit set the Boards order aside. claimed that three the five Board members had been invalidly appointed, leaving the Board without the three lawfully appointed members necessary for act. See 160(f) (providing for judicial review); 153(a) (providing for 5-member Opinion the Court Board); 153(b) (providing for 3-member quorum); New Process Steel, NLRB, 560 674, 687688 (2010) (in the absence lawfully appointed quorum, the Board cannot exercise its powers). The three members question were Sharon Block, Richard Griffin, and Terence Flynn. 2011 the President had nominated each them the Board. January 2012, Flynns nomination had been pending the Senate awaiting confirmation for approximately year. The nominations each the other two had been pending for few weeks. January 2012, the President, invoking the Recess Appointments Clause, appointed all three the Board. The distributor argued that the Recess Appointments Clause did not authorize those appointments. pointed out that December 17, 2011, the Senate, unanimous consent, had adopted resolution providing that would take series brief recesses beginning the following day. See 2011 923. Pursuant that resolution, the Senate held pro forma sessions every Tuesday and Friday until returned for ordinary business January 23, 2012. Ibid.; 158 Cong. Rec. S1S11 (Jan. 320, 2012). The Presidents January appointments were made between the January and January pro forma sessions. the distributors view, each pro forma session terminated the immediately preceding recess. Accordingly, the appointments were made during 3-day adjournment, which not long enough trigger the Recess Appointments Clause. The Court Appeals agreed that the appointments fell outside the scope the Clause. But the court set forth different reasons. held that the Clauses words the recess the Senate not include recesses that occur within formal session Congress, i.e., intra-session recesses. Rather those words apply only recesses between those formal sessions, i.e., inter-session recesses. Opinion the Court Since the second session the 112th Congress began January 2012, the day before the Presidents appointments, those appointments occurred during intrasession recess, and the appointments consequently fell outside the scope the Clause. 705 490, 499507 (CADC 2013). The Court Appeals added that, any event, the phrase vacancies that may happen during the recess applies only vacancies that come into existence during recess. Id., 507512. The vacancies that Members Block, Griffin, and Flynn were appointed fill had arisen before the beginning the recess during which they were appointed. For this reason too the Presidents appointments were invalid. And, because the Board lacked quorum validly appointed members when issued its order, the order was invalid. 153(b); New Process Steel, supra. granted the Solicitor Generals petition for certiorari. asked the parties address not only the Court Appeals interpretation the Clause but also the distributors initial argument, namely, [w]hether the Presidents recess-appointment power may exercised when the Senate convening every three days pro forma sessions. 570 ___ (2013). shall answer all three questions presented. recognize that the President has nominated others fill the positions once occupied Members Block, Griffin, and Flynn, and that the Senate has confirmed these successors. But, the parties recognize, the fact that the Board now unquestionably has quorum does not moot the controversy about the validity the previously entered Board order. And there are pending before petitions from decisions other cases involving challenges the appointment Board Member Craig Becker. The President appointed Member Becker during intrasession recess that was not punctuated pro forma ses Opinion the Court sions, and the vacancy Becker filled had come into existence prior the recess. See Congressional Research Service, Hogue, Carey, Greene, Bearden, The Noel Canning Decision and Recess Appointments Made from 19812013, (Feb. 2013) (hereinafter The Noel Canning Decision); NLRB, Members the NLRB since 1935, online http://www.nlrb.gov/ who-we-are/board/members-nlrb-1935 (all Internet materials visited June 24, 2014, and available Clerk Courts case file). Other cases involving similar challenges are also pending the Courts Appeals. E.g., NLRB New Vista Nursing Rehabilitation, No. 113440 etc. (CA3). Thus, believe important answer all three questions that this case presents. Before turning the specific questions presented, shall mention two background considerations that find relevant all three. First, the Recess Appointments Clause sets forth subsidiary, not primary, method for appointing officers the United States. The immediately preceding ClauseArticle II, Section Clause 2 provides the primary method appointment. says that the President shall nominate, and and with the Advice and Consent the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges the supreme Court, and all other Officers the United States (emphasis added). The Federalist Papers make clear that the Founders intended this method appointment, requiring Senate approval, the norm (at least for principal officers). Alexander Hamilton wrote that the Constitution vests the power nomination the President alone because one man discernment better fitted analise and estimate the peculiar qualities adapted particular offices, than body men equal, perhaps even superior discern Opinion the Court ment. The Federalist No. 76, 510 (J. Cooke ed. 1961). the same time, the need secure Senate approval provides an excellent check upon spirit favoritism the President, and would tend greatly preventing the appointment unfit characters from State prejudice, from family connection, from personal attachment, from view popularity. Id., 513. Hamilton further explained that the ordinary power appointment confided the President and Senate jointly, and can therefore only exercised during the session the Senate; but would have been improper oblige this body continually session for the appointment officers; and vacancies might happen their recess, which might necessary for the public service fill without delay, the succeeding clause evidently intended authorise the President singly make temporary appointments. Id., No. 67, 455. Thus the Recess Appointments Clause reflects the tension between, the one hand, the Presidents continuous need for the assistance subordinates, Myers United States, 272 52, 117 (1926), and, the other, the Senates practice, particularly during the Republics early years, meeting for single brief session each year, see Art. 4, cl. Amdt. 20, 2 (requiring the Senate assemble only once every year); Story, Commentaries the Constitution the United States 1551, 410 (1833) (it would burthensome the senate, and expensive the public require the Senate perpetually session). seek interpret the Clause granting the President the power make appointments during recess but not offering the President the authority routinely avoid the need for Senate confirmation. Second, interpreting the Clause, put significant weight upon historical practice. For one thing, the inter Opinion the Court pretive questions before concern the allocation power between two elected branches Government. Long ago Chief Justice Marshall wrote that a doubtful question, one which human reason maypause, and the human judgment suspended, the decision which the great principles liberty are not concerned, but the respective powers those who areequally the representatives the people, are adjusted; not put rest the practice the government, ought receive considerable impressionfrom that practice. McCulloch Maryland, Wheat. 316, 401 (1819). And later confirmed that [l]ong settled and established practice consideration great weight proper interpretation constitutional provisions regulating the relationship between Congress and the President. The Pocket Veto Case, 279 655, 689 (1929); see also id., 690 ([A] practice least twenty years duration on the part the executive department, acquiesced the legislative department, entitled great regardin determining the true construction constitutional provision the phraseology which any respect ofdoubtful meaning (quoting State South Norwalk, Conn. 257, 264, 759, 761 (1904))). recognize, course, that the separation powerscan serve safeguard individual liberty, Clinton City New York, 524 417, 449450 (1998) (KENNEDY, J., concurring), and that the duty the judicial departmentin separation-of-powers case any othertosay what the law is, Marbury Madison, Cranch 137, 177 (1803). But equally true that the longstanding practice the government, McCulloch, supra, 401, can inform our determination what the law is, Marbury, supra, 177. That principle neither new nor controversial. Opinion the Court James Madison wrote, was foreseen the birth the Constitution, that difficulties and differences opinion might occasionally arise expounding terms phrases necessarily used such charter and that might require regular course practice liquidate settle the meaning some them. Letter Spencer Roane (Sept. 1819), Writings James Madison 450 (G. Hunt ed. 1908). And our cases have continually confirmed Madisons view. E.g., Mistretta United States, 488 361, 401 (1989); Dames Moore Regan, 453 654, 686 (1981); Youngstown Sheet Tube Co. Sawyer, 343 579, 610611 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, supra, 689690; parte Grossman, 267 87, 118119 (1925); United States Midwest Oil Co., 236 459, 472474 (1915); McPherson Blacker, 146 (1892); McCulloch, supra; Stuart Laird, Cranch 299 (1803). These precedents show that this Court has treated practice important interpretive factor even when the nature longevity that practice subject dispute, and even when that practice began after the founding era. See Mistretta, supra, 400401 (While these [practices] spawned spirited discussion and frequent criticism, traditional ways conducting government give meaning the Constitution (quoting Youngstown, supra, 610) (Frankfurter, J., concurring)); Regan, supra, 684 ([E]ven the pre-1952 [practice] should disregarded, congressional acquiescence practice] since that time supports the Presidents power act here); The Pocket Veto Case, supra, 689690 (postfounding practice entitled great weight); Grossman, supra, 118119 (postfounding practice strongly sustains construction the Constitution). There great deal history consider here. Presidents have made recess appointments since the beginning the Republic. Their frequency suggests that the Senate Opinion the Court and President have recognized that recess appointments can both necessary and appropriate certain circumstances. have not previously interpreted the Clause, and, when doing for the first time more than 200 years, must hesitate upset the compromises and working arrangements that the elected branches Government themselves have reached. III The first question concerns the scope the phrase the recess the Senate. Art. II, 2, cl. (emphasis added). The Constitution provides for congressional elections every two years. And the 2-year life each elected Congress typically consists two formal 1-year sessions, each separated from the next inter-session recess. Congressional Research Service, Hogue, Recess Appointments: Frequently Asked Questions (2013). The Senate the House Representatives announces inter-session recess approving resolution stating that will adjourn sine die, i.e., without specifying date return (in which case Congress will reconvene when the next formal session scheduled begin). The Senate and the House also take breaks the midst session. The Senate the House announces any such intra-session recess adopting resolution stating that will adjourn fixed date, few days weeks even months later. All agree that the phrase the recess the Senate covers inter-session recesses. The question whether includes intra-session recesses well. our view, the phrase the recess includes intrasession recess substantial length. Its words taken literally can refer both types recess. Founding-era dictionaries define the word recess, much today, simply a period cessation from usual work. The Oxford English Dictionary 322323 (2d ed. 1989) (hereinafter OED) (citing 18th-and 19th-century sources for that Opinion the Court definition recess); Webster, American Dictionary the English Language (1828) ([r]emission suspension business procedure); Johnson, Dictionary the English Language 16021603 (4th ed. 1773) (hereinafter Johnson) (same). The Founders themselves used the word refer intra-session, well intersession, breaks. See, e.g., Records the Federal Convention 1787, (M. Farrand rev. 1966) (hereinafter Farrand) (letter from George Washington John Jay using the recess refer intra-session break the Constitutional Convention); id., 191 (speech Luther Martin with similar usage); Jefferson, Manual Parliamentary Practice LI, 165 (2d ed. 1812) (describing recess adjournment which did not end session). recognize that the word the the recess might suggest that the phrase refers the single break separating formal sessions Congress. That because the word the frequently (but not always) indicates a particular thing. Johnson 2003. But the word can also refer to term used generically universally. OED 879. The Constitution, for example, directs the Senate choose President pro tempore in the Absence the Vice-President. Art. 3, cl. (emphasis added). And the Federalist Papers refer the chief magistrate ancient Achaean league who administered the government the recess the Senate. The Federalist No. 18, 113 (J. Madison) (emphasis added). Reading the generically this way, there linguistic problem applying the Clauses phrase both kinds recess. And, fact, the phrase the recess was used refer intra-session recesses the time the founding. See, e.g., Farrand (letter from Washington Jay); New Jersey Legislative-Council Journal, 5th Sess., 1st Sitting 70, Sitting (1781) (twice referring 4-month, intra-session break the Recess); see also Brief for Petitioner 1416 (listing Opinion the Court examples). The constitutional text thus ambiguous. And believe the Clauses purpose demands the broader interpretation. The Clause gives the President authority make appointments during the recess the Senate that the President can ensure the continued functioning the Federal Government when the Senate away. The Senate equally away during both inter-session and intra-session recess, and its capacity participate the appointments process has nothing with the words uses signal its departure. History also offers strong support for the broad interpretation. concede that pre-Civil War history not helpful. But shows only that Congress generally took long breaks between sessions, while taking significant intrasession breaks all (five times took break week Christmas). See Appendix infra. Obviously, there are significant intra-session recesses, there will intra-session recess appointments. 1867 and 1868, Congress for the first time took substantial, nonholiday intra-session breaks, and President Andrew Johnson made dozens recess appointments. The Federal Court Claims upheld one those specific appointments, writing [w]e have doubt that vacancy occurring while the Senate was thus temporarily adjourned during the first session the Fortieth Congress was legally filled appointment the President alone. Gould United States, Ct. Cl. 593, 595596 (1884) (emphasis added). Attorney General Evarts also issued three opinions concerning the constitutionality President Johnsons appointments, and apparently did not occur him that the distinction between intra-session and inter-session recesses was significant. See Op. Atty. Gen. 449 (1868); Op. Atty. Gen. 455 (1868); Op. Atty. Gen. 469 (1868). Similarly, though the 40th Congress impeached President Johnson charges relating his appointment power, Opinion the Court was not accused violating the Constitution making intra-session recess appointments. Hartnett, Recess Appointments Article III Judges: Three Constitutional Questions, Cardozo Rev. 377, 409 (2005). all, between the founding and the Great Depression, Congress took substantial intra-session breaks (other than holiday breaks) four years: 1867, 1868, 1921, and 1929. Appendix infra. And each those years the President made intra-session recess appointments. See App. Brief for Petitioner 1a11a. Since 1929, and particularly since the end World War II, Congress has shortened its inter-session breaks has taken longer and more frequent intra-session breaks; Presidents have correspondingly made more intra-session recess appointments. Indeed, include military appointments, Presidents have made thousands intrasession recess appointments. Id., 11a64a. President Franklin Roosevelt, for example, commissioned Dwight Eisenhower permanent Major General during intra-session recess; President Truman made Dean Acheson Under Secretary State; and President George Bush reappointed Alan Greenspan Chairman the Federal Reserve Board. Id., 11a, 12a, 40a. JUSTICE SCALIA does not dispute any these facts. Not surprisingly, the publicly available opinions Presidential legal advisers that have found are nearly unanimous determining that the Clause authorizes these appointments. 1921, for example, Attorney General Daugherty advised President Harding that could make intra-session recess appointments. reasoned: If the Presidents power appointment defeated because the Senate takes adjournment specified date, the painful and inevitable result will measurably prevent the exercise governmental functions. can not bring myself believe that the Opinion the Court framers the Constitution ever intended such catastrophe happen. Op. Atty. Gen. 20, 23. have found memoranda offering similar advice President Eisenhower and every President from Carter the present. See Opinion Office Legal Counsel (Op. OLC) ___, ___ (2012), online www.justice.gov/ olc/opiniondocslpro-forma-sessions-opinion.pdf; Op. OLC 182 (2001); Op. OLC 124, 161 (1996); Op. OLC (1992); Op. OLC 271 (1989); Op. OLC 585, 586 (1982); Op. OLC 314, 316 (1979); Op. Atty. Gen. 463, 466 (1960). must note one contrary opinion authored Presi dent Theodore Roosevelts Attorney General Philander Knox. Knox advised the President that the Clause did not cover 19day intra-session Christmas recess. Op. Atty. Gen. 599 (1901). But doing relied heavily upon the use the word the, linguistic point that not find determinative. See supra, 10. And Knox all but confessed that his interpretation ran contrary the basic purpose the Clause. For would permit the Senate adjourn for several months, fixed date, and thereby seriously curtail the Presidents power making recess appointments. Op. Atty. Gen., 603. Moreover, only three days before Knox gave his opinion, the Solicitor the Treasury came the opposite conclusion. Reply Brief therefore not think Knoxs isolated opinion can disturb the consensus advice within the Executive Branch taking the opposite position. What about the Senate? Since Presidents began making intra-session recess appointments, individual Senators have taken differing views about the proper definition the recess. See, e.g., 130 Cong. Rec. 23234 (1984) (resolution introduced Senator Byrd urging limits the length applicable intra-session recesses); Brief for Sen. Mitch McConnell al. Amici Curiae (an intra Opinion the Court session adjournment does not count the recess); Brief for Sen. Edward Kennedy Amicus Curiae Franklin United States, 2004, No. 045858, (same). But neither the Senate considered body nor its committees, despite opportunities express opposition the practice intra-session recess appointments, has done so. Rather, the extent that the Senate Senate committee has expressed view, that view has favored func tional definition recess, and functional definition encompasses intra-session recesses. Most notably, 1905 the Senate Committee the Judiciary objected strongly President Theodore Roose velts use the Clause make more than 160 recess appointments during fictitious inter-session recess. Rep. No. 4389, 58th Cong., Sess., (hereinafter 1905 Senate Report). noon December 1903, the Senate President pro tempore had declare[d] formal, extraordinary session the Senate adjourned without day, and the next formal Senate session began immediately afterwards. Cong. Rec. 544 (1903). President Roosevelt made over 160 recess appointments during the instantaneous inter-session interval. The Judiciary Committee, when stating its strong objection, defined recess functional terms the period time when the Senate not sitting regular extraordinary session branch the Congress when its members owe duty attendance; when its Chamber empty; when, because its absence, can not receive communications from the President participate body making appointments. 1905 Senate Report, (emphasis deleted). That functional definition encompasses intra-session, well inter-session, recesses. JUSTICE SCALIA right that the 1905 Report did not specifically address the dis tinction between inter-session and intra-session recesses. But the animating principle the Reportthat recessshould practically construed mean time when theSenate unavailable participate the appointments processis inconsistent with the formalistic approach thatJUSTICE SCALIA endorses. Similarly, 1940 the Senate helped enact law regulating the payment recess appointees, and the Comptroller General the United States has interpretedthat law functionally. earlier 1863 statute had denied pay individuals appointed fill vacancies first arising prior the beginning recess. The Senate Judiciary Committee then believed that those vacancies fell outside the scope the Clause. See infra, 30. 1940, however, the Senate amended the law permitmany those recess appointees paid. Act July 11,54 Stat. 751. Interpreting the amendments 1948, the Comptroller Generalwho, unlike the Attorney General, officer the Legislative Branch, Bowsher Synar, 478 714, 731 (1986)wrote: I think clear that [the Pay Act amendments]primary purpose was relieve recess appointees the burden serving without compensation duringperiods when the Senate not actually sitting and isnot available give its advice and consent respectto the appointment, irrespective whether the recess the Senate attributable final adjournment sine die adjournment specified date. Comp. Gen. 30, 37. recognize that the Senate cannot easily registeropposition body every governmental action that many, perhaps most, Senators oppose. But the Senate has not been silent passive regarding the meaning the Clause: Senate Committee did register opposition toPresident Theodore Roosevelts use the Clause, and the Opinion the Court Senate whole has legislated effort discourage certain kinds recess appointments. And yet are not aware any formal action has taken call into question the broad and functional definition recess first set out the 1905 Senate Report and followed the Executive Branch since least 1921. Nor has JUSTICE SCALIA identified any. All the while, the President has made countless recess appointments during intra-session recesses. The upshot that restricting the Clause inter-session recesses would frustrate its purpose. would make the Presidents recess-appointment power dependent formalistic distinction Senate procedure. Moreover, the President has consistently and frequently interpreted the word recess apply intra-session recesses, and has acted that interpretation. The Senate body has done nothing deny the validity this practice for least three-quarters century. And three-quarters century settled practice long enough entitle practice great weight proper interpretation the constitutional provision. The Pocket Veto Case, 279 S., 689. are aware of, but are not persuaded by, three important arguments the contrary. First, some argue that the Founders would likely have intended the Clause apply only inter-session recesses, for they hardly knew any other. See, e.g., Brief for Originalist Scholars Amici Curiae 2729. Indeed, from the founding until the Civil War inter-session recesses were the only kind significant recesses that Congress took. The problem with this argument, however, that does not fully describe the relevant founding intent. The question not: Did the Founders the time think about intra-session recesses? Perhaps they did not. The question is: Did the Founders intend restrict the scope the Clause the form congressional recess then prevalent, did they intend Opinion the Court broader scope permitting the Clause apply, where appropriate, somewhat changed circumstances? The Founders knew they were writing document designed apply ever-changing circumstances over centuries. After all, Constitution intended endure for ages come, and must adapt itself future that can only seen dimly, all. McCulloch, Wheat., 415. therefore think the Framers likely did intend the Clause apply new circumstance that clearly falls within its essential purposes, where doing consistent with the Clauses language. Second, some argue that the intra-session interpretation permits the President make illogic[ally] long recess appointments. Brief for Respondent Noel Canning 13; post, (SCALIA, J., concurring judgment). recess appointment made between Congress annual sessions would permit the appointee serve for about year, i.e., until the end the next Senate session. Art. II, 2, cl. But intra-session appointment made the beginning the middle formal session could permit the appointee serve for 1 almost years (until the end the following formal session). agree that the intra-session interpretation permits somewhat longer recess appointments, but not agree that this consequence illogical. President who makes recess appointment will often also seek make regular appointment, nominating the appointee and securing ordinary Senate confirmation. And the Clause ensures that the President and Senate always have least full session through the nomination and confirmation process. That process may take several months. See OConnell, Vacant Offices: Delays Staffing Top Agency Positions, Cal. Rev. 913, 967 (2009) (from 1987 2005 the nomination and confirmation process took average 236 days for noncabinet agency heads). recess appointment that lasts somewhat longer than NLRB CANNING Opinion the Court year will ensure the President the continued assistance subordinates that the Clause permits him obtain while and the Senate select regular appointee. appointment should last until the Senate has an opportunity act the subject, Story, 1551, 410, and the Clause embodies determination that full session needed select and vet replacement. Third, the Court Appeals believed that application the Clause intra-session recesses would introduce vagueness into Clause that was otherwise clear. 705 3d, 504. One can find problems uncertainty, however, either way. 1867, for example, President Andrew Johnson called special session Congress, which took place during lengthy intra-session recess. Consider the period time that fell just after the conclusion that special session. Did that period remain intra-session recess, did become inter-session recess? Historians disagree about the answer. Compare Hartnett, Cardozo Rev., 408409, with Brief for Constitutional Law Scholars Amici Curiae 2324. suppose that Congress adjourns sine die, but does conditionally, that the leadership can call the members back into session when the public interest shall warrant it. E.g., 155 Cong. Rec. 33429 (2009); 152 Cong. Rec. 2373123732 (2006); 150 Cong. Rec. 2592525926 (2004). the Senate Majority Leader were reconvene the Senate, how would characterize the preceding recess? still inter-session? the narrower interpretation the label matters; the broader does not. The greater interpretive problem determining how long recess must order fall within the Clause. break week, day, hour too short count recess? The Clause itself does not say. And JUSTICE SCALIA claims that this silence itself shows that the Framers intended the Clause apply only intersession recess. Post, 1213. Opinion the Court disagree. For one thing, the most likely reason the Framers did not place textual floor underneath the word recess that they did not foresee the need for one. They might have expected that the Senate would meet for single session lasting most half year. The Federalist No. 84, 596 (A. Hamilton). And they might not have anticipated that intra-session recesses would become lengthier and more significant than inter-session ones. The Framers lack clairvoyance that point not dispositive. Unlike JUSTICE SCALIA, think most consistent with our constitutional structure presume that the Framers would have allowed intra-session recess appointments where there was long history such practice. Moreover, the lack textual floor raises problem that plagues both interpretationsJUSTICE SCALIAs and ours. Today brief inter-session recess just possible brief intra-session recess. And though JUSTICE SCALIA says that the notion that the Constitution empowers the President make unilateral appointments every time the Senate takes half-hour lunch break absurd self-refuting, must immediately concede (in footnote) that the President can make recess appointments during any break between sessions, matter how short. Post, 11, 15, (emphasis added). Even the Solicitor General, arguing for broader interpretation, acknowledges that there lower limit applicable both kinds recess. argues that the lower limit should three days analogy the Adjournments Clause the Constitution. Tr. Oral Arg. 11. That Clause says: Neither House, during the Session Congress, shall, without the Consent the other, adjourn for more than three days. Art. 5, cl. agree with the Solicitor General that 3-day recess would too short. (Under Senate practice, Sunday generally not considered day, and not counted for Opinion the Court purposes the Adjournments Clause. Doc. No. 10128, Riddick Frumin, Riddicks Senate Procedure: Precedents and Practices 1265 (hereinafter Riddicks).) The Adjournments Clause reflects the fact that 3-day break not significant interruption legislative business. the Solicitor General says, constitutionally minimis. Brief for Petitioner 18. Senate recess that short that does not require the consent the House not long enough trigger the Presidents recessappointment power. That not say that the President may make recess appointments during any recess that more than three days. Art. 5, cl. The Recess Appointments Clause seeks permit the Executive Branch function smoothly when Congress unavailable. And though Congress has taken short breaks for almost 200 years, and there have been many thousands recess appointments that time, have not found single example recess appointment made during intra-session recess that was shorter than days. Nor has the Solicitor General. Reply Brief 23. Indeed, the Office Legal Counsel once informally advised against making recess appointment during 6-day intra-session recess. Op. OLC, 315316. The lack examples suggests that the recessappointment power not needed that context. (The length recess ordinarily calculated counting the calendar days running from the day after the recess begins and including the day the recess ends. Op. OLC, ___, (citation omitted).) There are few historical examples recess appointments made during inter-session recesses shorter than days. have already discussed President Theodore Roosevelts appointments during the instantaneous, fictitious recess. President Truman also made recess appointment the Civil Aeronautics Board during 3-day inter-session recess. Hogue, Recess Appointments: Fre quently Asked Questions, 56. President Taft made few appointments during 9-day recess following his inauguration, and President Lyndon Johnson made several appointments during 8-day recess several weeksafter assuming office. Hogue, The Law: Recess Appointments Article III Courts, Presidential Studies 656, 671 (2004); 106 Exec. (1964); Exec. (1909). There may others which are unaware.But when considered against 200 years settled practice,we regard these few scattered examples anomalies. therefore conclude, light historical practice, that arecess more than days but less than days presumptively too short fall within the Clause. add the word presumptively leave open the possibility that some very unusual circumstancea national catastrophe, for instance, that renders the Senate unavailable but calls for urgent responsecould demand the exercise therecess-appointment power during shorter break. (It should without sayingexcept that JUSTICE SCALIA compels say itthat political opposition the Senate would not qualify unusual circumstance.) sum, conclude that the phrase the recess appliesto both intra-session and inter-session recesses. Senate recess short that does not require the consent ofthe House, too short trigger the Recess Appointments Clause. See Art. 5, cl. And recess lasting less than days presumptively too short well. The second question concerns the scope the phrasevacancies that may happen during the recess the Senate. Art. II, 2, cl. (emphasis added). All agree that thephrase applies vacancies that initially occur during recess. But does also apply vacancies that initially occur before recess and continue exist during therecess? our view the phrase applies both kinds Opinion the Court vacancy. believe that the Clauses language, read literally, permits, though does not naturally favor, our broader interpretation. concede that the most natural meaning happens applied vacancy (at least modern ear) that the vacancy happens when initially occurs. See Johnson 913 (defining happen relevant part meaning [t]o fall out; chance; come pass). But that not the only possible way use the word. Thomas Jefferson wrote that the Clause certainly susceptible [two] constructions. Letter Wilson Cary Nicholas (Jan. 26, 1802), Papers Thomas Jefferson 433 (B. Oberg ed., 2009). may mean vacancies that may happen be may happen fall during recess. Ibid. Jefferson used the phrase the first sense when wrote job seeker that particular position was unavailable, but that (Jefferson) was happy that another vacancy happens wherein can avail the public your integrity talents, for the office Treasurer the US. vacant the resignation Meredith. Letter Thomas Tudor Tucker (Oct. 31, 1801), id., 530 (B. Oberg ed. 2008) (emphasis added). See also Laws Passed the Legislature Florida, No. 31, Act Organize and Regulate the Militia the Territory Florida 13, Exec. Doc. No. 72, 27th Cong., Sess., (1842) ([W]hen any vacancy shall take place the office any lieutenant colonel, shall the duty the colonel the regiment which such vacancy may happen order election held the several precincts the battalion which such vacancy may happen (emphasis added)). Similarly, when Attorney General William Wirt advised President Monroe follow the broader interpretation, wrote that the expression seems not perfectly clear. may mean happen take place: that is, to originate, may mean, also, without violence the sense, happen Opinion the Court exist. Op. Atty. Gen. 631, 631632 (1823). The broader interpretation, added, most accordant with the Constitutions reason and spirit. Id., 632. can still understand this earlier use happen think used together with another word that, like vacancy, can refer continuing state, say, financial crisis. statute that gives the President authority act respect any financial crisis that may happen during his term can easily interpreted include crises that arise before, and continue during, that term. Perhaps that why the Oxford English Dictionary defines happen part chance be, rather than chance occur. OED 1096 (emphasis added); see also OED 383 (defining vacancy the condition office post being vacant). any event, the linguistic question here not whether the phrase can be, but whether must be, read more narrowly. The question whether the Clause ambiguous. The Pocket Veto Case, 279 S., 690. And the broader reading, believe, least permissible reading doubtful phrase. Ibid. consequently consider the Clauses purpose and historical practice. The Clauses purpose strongly supports the broader interpretation. That purpose permit the President obtain the assistance subordinate officers when the Senate, due its recess, cannot confirm them. Attorney General Wirt clearly described how the narrower interpretation would undermine this purpose: Put the case vacancy occurring office, held distant part the country, the last day the Senates session. Before the vacancy made known the President, the Senate rises. The office may important one; the vacancy may paralyze whole line action some essential branch our internal police; the public interests may imperiously demand NLRB CANNING Opinion the Court that shall immediately filled. But the vacancy happened occur during the session the Senate; and the Presidents power limited such vacancies only happen occur during the recess the Senate, the vacancy the case put must continue, however ruinous the consequences may the public. Op. Atty. Gen., 632. Examples are not difficult imagine: ambassadorial post falls vacant too soon before the recess begins for the President appoint replacement; the Senate rejects Presidents nominee just before recess, too late select another. Wirt explained that the substantial purpose the constitution was keep these offices filled, and if the President shall not have the power fill vacancy thus circumstanced, the substance the constitution will sacrificed dubious construction its letter. Ibid. Thus the broader construction, encompassing vacancies that initially occur before the beginning recess, the only construction the constitution which compatible with its spirit, reason, and purposes; while, the same time, offers violence its language. Id., 633. not agree with JUSTICE SCALIAs suggestion that the Framers would have accepted the catastrophe envisioned Wirt because Congress can always provide for acting officers, see 3345, and the President can always convene special session Congress, see Const., Art. II, 3. Acting officers may have less authority than Presidential appointments. Op. OLC 119, 121 (1982). Moreover, rely acting officers would lessen the Presidents ability staff the Executive Branch with people his own choosing, and thereby limit the Presidents control and political accountability. Cf. Free Enterprise Fund Public Company Accounting Oversight Bd., 561 477, 497498 (2010). Special sessions are Opinion the Court burdensome (and would have been especially the time the founding). The point the Recess Appointments Clause was avoid reliance these inadequate expedients. the same time, recognize one important purposerelated consideration that argues the opposite direction. broad interpretation might permit President avoid Senate confirmations matter course. the Clause gives the President the power fill all vacancies that occur before, and continue exist during, the Senates recess, President might not submit any nominations the Senate. might simply wait for recess and then provide all potential nominees with recess appointments. might thereby routinely avoid the constitutional need obtain the Senates advice and consent. Wirt thought considerations character and politics would prevent Presidents from abusing the Clause this way. Op. Atty. Gen., 634. might have added that such temptations should not often arise. often less desirable for President make recess appointment. recess appointee only serves limited term. That, combined with the lack Senate approval, may diminish the recess appointees ability, practical matter, get controversial job done. And even where the President and Senate are odds over politically sensitive appointments, compromise normally possible. Indeed, the 1940 Pay Act amendments represent general compromise, for they foresee payment salaries recess appointees where vacancies occur before the recess began but not too long before (namely, within days before). 5503(a)(1); see infra, 32. Moreover, the Senate, like the President, has institutional resources, including political resources, available protect and assert its interests. Goldwater Carter, 444 996, 1004 (1979) (Rehnquist, J., concurring judgment). unusual instance, where matter important enough the Sen ate, that body can remain session, preventing recess appointments refusing take recess. See Part infra. any event, the Executive Branch has adhered tothe broader interpretation for two centuries, and Senate confirmation has always remained the norm for officersthat require it. While concede that both interpretations carry withthem some risk undesirable consequences, believe the narrower interpretation risks undermining constitutionally conferred powers more seriously and more often. would prevent the President from making any recess appointment that arose before recess, matter who the official, matter how dire the need, matter how uncontroversial the appointment, and matter how late inthe session the office fell vacant. Overall, like AttorneyGeneral Wirt, believe the broader interpretation more consistent with the Constitutions reason and spirit. Op. Atty. Gen., 632. Historical practice over the past 200 years strongly favors the broader interpretation. The tradition applying the Clause pre-recess vacancies dates least toPresident James Madison. There undisputed record Presidents George Washington, John Adams, ThomasJefferson making such appointment, though the Solicitor General believes has found records showing thatPresidents Washington and Jefferson did so. know that Edmund Randolph, Washingtons Attorney General,favored narrow reading the Clause. Randolph believed that the Spirit the Constitution favors the participation the Senate all appointments, though hedid not addresslet alone answerthe powerful purposive and structural arguments subsequently made Attorney General Wirt. See Edmund Randolphs Opinion Recess Appointments (July 1792), Papers ofThomas Jefferson 166 (J. Catanzariti ed. 1990). President Adams seemed endorse the broader view Opinion the Court the Clause writing, though are not aware any appointments made keeping with that view. See Letter McHenry (Apr. 16, 1799), Works John Adams 632633 (C. Adams ed. 1853). His Attorney General, Charles Lee, later informed Jefferson that, the Adams administration, whenever office became vacant short time before Congress rose, not give opportunity enquiring for proper character, they let lie always till recess. Papers Thomas Jefferson 433. know that President Jefferson thought that the broad interpretation was linguistically supportable, though his actual practice not clear. But the evidence suggests that James Madisonas familiar anyone with the workings the Constitutional Conventionappointed Theodore Gaillard replace district judge who had left office before recess began. Hartnett, Cardozo Rev., 400401. also appears that 1815 Madison signed bill that created two new offices prior recess which then filled later during the recess. See Act Mar. ch. 95, Stat. 235; 13th Cong., Sess., 689690 (1815); Exec. (1828) (for Monday, Jan. 1816). also made recess appointments territorial United States attorney and marshal positions, both which had been created when the Senate was session more than two years before. Act Feb. 27, 1813, ch. 35, Stat. 806; Exec. 19. JUSTICE SCALIA refers written evidence Madisons own beliefs, post, 36, but fact have direct evidence what President Madison believed. only know that declined make one appointment pre-recess vacancy after his Secretary War advised him that lacked the power. the other hand, did apparently make least five other appointments prerecess vacancies, JUSTICE SCALIA does not dispute. The next President, James Monroe, received and presumably acted upon Attorney General Wirts advice, namely that all vacancies which, from any casualty, Opinion the Court happen exist time when the Senate cannot consulted filling them, may temporarily filled the President. Op. Atty. Gen., 633. Nearly every subsequent Attorney General consider the question throughout the Nations history has thought the same. E.g., Op. Atty. Gen. 525, 528 (1832); Op. Atty. Gen. 186, 223 (1855); Op. Atty. Gen. 356, 356357 (1862); Op. Atty. Gen. 32, (1866); Op. Atty. Gen., 452; Op. Atty. Gen. 562, 564 (1875); Op. Atty. Gen. 207 (1877); Op. Atty. Gen. 522, 524 (1880); Op. Atty. Gen. 521 (1883); Op. Atty. Gen. 29, 2930 (1884); Op. Atty. Gen. 261, 262 (1889); Op. Atty. Gen. 234, 234235 (1907); Op. Atty. Gen. 314, 315 (1914); Op. Atty. Gen. 463, 465 (1960); Op. OLC 314 (1979); Op. OLC 585, 586 (1982); Op. OLC 124, 161 (1996); Op. OLC ___ (2012). Indeed, early 1862, Attorney General Bates advised President Lincoln that his power fill pre-recess vacancies was settled far constitutional question can settled, Op. Atty. Gen., 356, and century later Acting Attorney General Walsh gave President Eisenhower the same advice without any doubt, Op. Atty. Gen., 466. This power important. The Congressional Research Service unaware any official source information tracking the dates vacancies federal offices. The Noel Canning Decision Nonetheless, have enough information believe that the Presidents since Madison have made many recess appointments filling vacancies that initially occurred prior recess. have just said, nearly every 19th-and 20th-century Attorney General expressing view the matter has agreed with William Wirt, and Presidents tend follow the legal advice their chief legal officers. Moreover, the Solicitor General has compiled list 102 (mostly uncontested) recess appointments made Presidents going back the founding. App. Brief for Petitioner 65a89a. Given the Opinion the Court difficulty finding accurate information about vacancy dates, that list undoubtedly far smaller than the actual number. one disputes that every President since James Buchanan has made recess appointments preexisting vacancies. Common sense also suggests that many recess appointees filled vacancies that arose before the recess began. have compared the list intra-session recess appointments the Solicitor Generals brief with the chart congressional recesses. Where specific date appointment can ascertained, more than half those intra-session appointments were made within two weeks the beginning recess. That short window strongly suggests that many the vacancies initially arose prior the recess. See App. Brief for Petitioner 1a64a; Appendix infra. Thus, not surprising that the Congressional Research Service, after examining the vacancy dates associated with random sample inter-session recess appointments since 1981, concluded that [i]n most the cases, the preponderance evidence indicated that the vacancy arose prior the recess during which the appointment was made. The Noel Canning Decision Further, with research assistance from the Supreme Court Library, have examined random sample the recess appointments made our two most recent Presidents, and have found that almost all those appointments filled pre-recess vacancies: sample recess appointments, filled pre-recess vacancies and only filled vacancy that arose during the recess which was appointed. The precise date which the vacancies arose could not determined. See Appendix infra. Taken together, think fair inference that large proportion the recess appointments the history the Nation have filled pre-existing vacancies. Did the Senate object? Early on, there was some sporadic disagreement with the broad interpretation. 1814 NLRB CANNING Opinion the Court Senator Gore said that the vacancy happen another time, not the case described the Constitution. Annals Cong. 653. 1822 Senate committee, while focusing the Presidents power fill new vacancy created statute, used language the same effect. id., 489, 500. And early Congresses enacted statutes authorizing certain recess appointments, see post, 31, fact that may may not suggest they accepted the narrower interpretation the Clause. Most those statutesincluding the one passed the First Congress authorized appointments newly created offices, and may have been addressed the separate question whether new offices are vacancies within the meaning the Clause. See Letter from Alexander Hamilton James McHenry (May 1799), Papers Alexander Hamilton (H. Syrett ed. 1976) (Vacancy relative term, and presupposes that the Office has been once filled); Reply Brief 17. any event, 1862 Attorney General Bates could still refer the unbroken acquiescence the Senate support the broad interpretation. Op. Atty. Gen., 356. Then 1863 the Senate Judiciary Committee disagreed with the broad interpretation. issued report concluding that vacancy must have its inceptive point after one session has closed and before another session has begun. Rep. No. 80, 37th Cong., Sess., And the Senate then passed the Pay Act, which provided that no money shall paid salary, any person appointed during the recess the Senate, fill vacancy which existed while the Senate was session. Act Feb. 1863, 2, Stat. 646. Relying upon the floor statement single Senator, JUSTICE SCALIA suggests that the passage the Pay Act indicates that the Senate whole endorsed the position the 1863 Report. But the circumstances are more equivocal. During the floor debate the bill, not single Senator referred the Report. Cong. Opinion the Court Globe, 37th Cong., Sess. 564565 (1863). Indeed, Senator Trumbull, who introduced the Pay Act, acknowledged that there was disagreement about the underlying constitutional question. Id., 565 ([S]ome other persons think has that power). Further, majority the Senate had believed appointments pre-recess vacancies were unconstitutional, could have attempted far more than temporarily dock the appointees pay. Cf. Tenure Office Act 1867, 5, Stat. 431 (making federal crime for any person accept any appointment certain circumstances). any event, the Senate subsequently abandoned its hostility. the debate preceding the 1905 Senate Report regarding President Roosevelts constructive recess appointments, Senator Tillmanwho chaired the Committee that authored the 1905 Reportbrought the 1863 Report, and another Senator responded: Whatever that report may have said 1863, not think that has been the view the Senate has taken the issue. Cong. Rec. 1606 (1904). Senator Tillman then agreed that the Senate has acquiesced the Presidents power fill pre-recess vacancies. Ibid. And Senator Tillmans 1905 Report described the Clauses purpose terms closely echoing Attorney General Wirt. 1905 Senate Report, (Its sole purpose was render certain that all times there should be, whether the Senate was session not, officer for every office (emphasis added)). 1916 the Senate debated whether pay recess appointee who had filled pre-recess vacancy and had not subsequently been confirmed. Both Senators address the questionone each side the payment debate agreed that the President had the constitutional power make the appointment, and the Senate voted pay the appointee for his service. Cong. Rec. 42914299; Stat. 818819. 1927 the Comptroller General, legislative officer, wrote that there question but that the NLRB CANNING Opinion the Court President has authority make recess appointment fill any vacancy, including those that existed while the Senate was session. Comp. Gen. 10, (emphasis added). Meanwhile, Presidents continued make appointments pre-recess vacancies. The Solicitor General has identified between 1863 and 1940, but that number clearly not comprehensive. See, e.g., Op. Atty. Gen. 271272 (1920) (listing appointments that are not the Solicitor Generals appendix); Recess Appointments, Washington Post, July 1880, (noting that President Hayes had made quite number appointments prerecess vacancies). Then 1940 Congress amended the Pay Act authorize salary payments (with some exceptions) where (1) the vacancy arose within thirty days prior the termination the session, (2) at the termination the session nomination was pending, (3) nominee was rejected the Senate within thirty days prior the termination the session. Act July 11, Stat. 751 (codified, amended, 5503). All three circumstances concern vacancy that did not initially occur during recess but happened exist during that recess. paying salaries this kind recess appointee, the 1940 Senate (and later Senates) effect supported the Presidents interpretation the Clause. The upshot that the President has consistently and frequently interpreted the Recess Appointments Clause apply vacancies that initially occur before, but continue exist during, recess the Senate. The Senate body has not countered this practice for nearly threequarters century, perhaps longer. See Amar, The Unwritten Constitution 576577, (2012) (for nearly 200 years the overwhelming mass actual practice supports the Presidents interpretation); Mistretta United States, 488 361, 401 (1989) 200year tradition can give meaning the Constitution (quot ing Youngstown, 343 S., 610 (Frankfurter, J., concurring))). The tradition long enough entitle the practice to great regard determining the true construction the constitutional provision. The Pocket Veto Case, 279 S., 690. And are reluctant upset this traditional practice where doing would seriously shrink the authority that Presidents have believed existed andhave exercised for long. light some linguistic ambiguity, the basic purposeof the Clause, and the historical practice have described, conclude that the phrase all vacancies includes vacancies that come into existence while the Senate session. The third question concerns the calculation the lengthof the Senates recess. December 17, 2011, the Senate unanimous consent adopted resolution convene pro forma session[s] only, with no business transacted, every Tuesday and Friday from December 20,2011, through January 20, 2012. 2011 923. the end each pro forma session, the Senate would adjourn until the following pro forma session. Ibid. During thatperiod, the Senate convened and adjourned agreed. held pro forma sessions December 20, 23, 27, and 30, and January 10, 13, 17, and 20; and the end each pro forma session, adjourned until the time and date the next. Id., 923924; 158 Cong. Rec. S1S11.The President made the recess appointments before uson January 2012, between the January and the January pro forma sessions. must determine the significance these sessionsthat is, whether, for purposes the Clause, should treat them periods when the Senate was session periods when was recess. the former, the period between January and January was 3-day recess, which too short trigger Opinion the Court the Presidents recess-appointment power, see supra, 1921. the latter, however, then the 3-day period was part much longer recess during which the President did have the power make recess appointments, see ibid. The Solicitor General argues that must treat the pro forma sessions periods recess. says that these sessions were sessions name only because the Senate was recess functional matter. The Senate, contends, remained single, unbroken recess from January when the second session the 112th Congress began operation the Twentieth Amendment, until January 23, when the Senate reconvened regular business. our view, however, the pro forma sessions count sessions, not periods recess. hold that, for purposes the Recess Appointments Clause, the Senate session when says is, provided that, under its own rules, retains the capacity transact Senate business. The Senate met that standard here. The standard apply consistent with the Constitutions broad delegation authority the Senate determine how and when conduct its business. The Constitution explicitly empowers the Senate determine the Rules its Proceedings. Art. 5, cl. And have held that all matters method are open the determination the Senate, long there a reasonable relation between the mode method proceeding established the rule and the result which sought attained and the rule does not ignore constitutional restraints violate fundamental rights. United States Ballin, 144 (1892). addition, the Constitution provides the Senate with extensive control over its schedule. There are only limited exceptions. See Amdt. 20, 2 (Congress must meet once year January unless specifies another day law); Art. II, 3 (Senate must meet the President calls into Opinion the Court special session); Art. 5, cl. (neither House may adjourn for more than three days without consent the other). See also Art. II, 3 ([I]n Case Disagreement between [the Houses], with Respect the Time Adjournment, [the President] may adjourn them such Time shall think proper). The Constitution thus gives the Senate wide latitude determine whether and when have session, well how conduct the session. This suggests that the Senates determination about what constitutes session should merit great respect. Furthermore, this Courts precedents reflect the breadth the power constitutionally delegated the Senate. generally take face value the Senates own report its actions. When, for example, the presiding officers the House and Senate sign enrolled bill (and the President approve[s] it), its authentication bill that has passed Congress should deemed complete and unimpeachable. Marshall Field Co. Clark, 143 649, 672 (1892). the same principle, when the Journal the Senate indicates that quorum was present, under valid Senate rule, the time the Senate passed bill, will not consider argument that quorum was not, fact, present. Ballin, supra, The Constitution requires the Senate keep its Journal, Art. 5, cl. (Each House shall keep Journal its proceedings ...), and if reference may had to it, it must assumed speak the truth, Ballin, supra, For these reasons, conclude that must give great weight the Senates own determination when and when not session. But our deference the Senate cannot absolute. When the Senate without the capacity act, under its own rules, not session even declares. See Tr. Oral Arg. (acknowledgment counsel for amici Senators that the Senate had left the Capitol and effectively given the business Opinion the Court legislating then might recess, even said was not). that circumstance, the Senate not simply unlikely unwilling act upon nominations the President. unable so. The purpose the Clause ensure the continued functioning the Federal Government while the Senate unavailable. See supra, 56. This purpose would count for little were treat the Senate though were session even when lacks the ability provide its advice and consent. Art. II, 2, cl. Accordingly, conclude that when the Senate declares that session and possesses the capacity, under its own rules, conduct business, session for purposes the Clause. Applying this standard, find that the pro forma sessions were sessions for purposes the Clause. First, the Senate said was session. The Journal the Senate and the Congressional Record indicate that the Senate convened for series twice-weekly sessions from December through January 20. 2011 923 924; 158 Cong. Rec. S1S11. (The Journal the Senate for 2012 has not yet been published.) And these reports the Senate must assumed speak the truth. Ballin, supra, Second, the Senates rules make clear that during its pro forma sessions, despite its resolution that would conduct business, the Senate retained the power conduct business. During any pro forma session, the Senate could have conducted business simply passing unanimous consent agreement. See Riddicks 1313. The Senate fact conducts much its business through unanimous consent. Id., 13111312. Senate rules presume that quorum present unless present Senator questions it. Id., 10411042. And when the Senate has quorum, agreement unanimously passed if, upon its proposal, present Senator objects. Id., 13291330. consequently unsurprising that the Opinion the Court Senate has enacted legislation during pro forma sessions even when has said that business will transacted. Indeed, the Senate passed bill unanimous consent during the second pro forma session after its December adjournment. 2011 924. And that bill quickly became law. Pub. 11278, 125 Stat. 1280. way contrast, not see how the Senate could conduct business during recess. could terminate the recess and then, when session, pass bill. But that case, course, the Senate would longer recess. would session. And that the crucial point. Senate rules make clear that, once session, the Senate can act even has earlier said that would not. The Solicitor General argues that more required. contends that what counts not the Senates capacity conduct business but what the Senate actually does (or here, did) during its pro forma sessions. And looks for support the functional definition recess set forth the 1905 Senate Report discussed above. See supra, 14. That Report describes recess the Senate the period time when its members owe duty attendance; when its Chamber empty; when, cause its absence, can not receive communica tions from the President participate body making appointments. 1905 Senate Report, Even were we, for arguments sake, accept all these criteria authoritative, they would here met. Taking the last criterion first, could the Senate, during its pro forma sessions, participate body making appointments? could. could confirm nominees unanimous consent, just passed the bill mentioned above. See Riddicks 1313. Could the Senate receive communications from the President? could. The Congressional Record indicates that the Senate received message from the President Opinion the Court January 12, during 3-day adjournment between two pro forma sessions. See 158 Cong. Rec. S37 (Jan. 23, 2012). the Senate could receive Presidential messages between two pro forma sessions, could receive them during pro forma session. Was the Senates Chamber empty? was not. its official rules, the Senate operates under the presumption that quorum present until present Senator suggests the absence quorum, Riddicks 10411042, and nothing the Journal the Senate the Congressional Record reflects any such suggestion. Did Senators owe [a] duty attendance? They did. The Senates rules dictate that Senators are under duty attend every session. See Riddicks 214; Standing Rule the Senate VI(2), Doc. No. 1121, (2011) (No Senator shall absent himself from the service the Senate without leave). Nothing excused the Senators from this duty during the Senates pro forma sessions. any present Senator had raised question the presence quorum, and roll call had become clear that quorum was missing, the Senators attendance could have directed the Sergeant Arms bring the missing Senators. Rule VI(4). The Solicitor General asks engage more realistic appraisal what the Senate actually did. argues that, during the relevant pro forma sessions, business was not fact conducted; messages from the President could not received any meaningful way because they could not placed before the Senate; the Senate Chamber was, according C-SPAN coverage, almost empty; and practice attendance was not required. See Brief for Petitioner 4849, 5455. not believe, however, that engaging the kind factual appraisal that the Solicitor General suggests either legally practically appropriate. From legal perspective, this approach would run contrary prece Opinion the Court dent instructing respect coequal and independent departments by, for example, taking the Senatesreport its official action its word. Field, 143 S., 672; see Ballin, 144 S., From practical perspective, judges cannot easily determine such matters whois, and who not, fact present the floor during particular Senate session. Judicial efforts engage these kinds inquiries would risk undue judicial interference with the functioning the Legislative Branch. Finally, the Solicitor General warns that our holding may disrup[t] the proper balance between the coordinate branches preventing the Executive Branch from accomplishing its constitutionally assigned functions. Brief for Petitioner (quoting Morrison Olson, 487 654, 695 (1988); alteration original). not see, however, how our holding could significantly alter theconstitutional balance. Most appointments are not controversial and not produce friction between the branches.Where political controversy serious, the Senate unquestionably has other methods preventing recess appointments. the Solicitor General concedes, the Senate could preclude the President from making recess appointments holding series twice-a-week ordinary (not pro forma) sessions. And the nature the business conducted those ordinary sessionswhether, for example, Senators must vote nominations, may return totheir home States meet with their constituentsis matter for the Senate decide. The Constitution also gives the President (if has enough allies Congress) away force recess. Art. II, 3 ([I]n Case Disagreement between [the Houses], with Respect the Time Adjournment, [the President] may adjourn them such Time shall think proper). Moreover, the President and Senators engage with each other many different ways and have variety methods encouraging eachother accept their points view. Opinion the Court Regardless, the Recess Appointments Clause not designed overcome serious institutional friction. simply provides subsidiary method for appointing officials when the Senate away during recess. Here, other contexts, friction between the branches inevitable consequence our constitutional structure. See Myers, 272 S., 293 (Brandeis, J., dissenting). That structure foresees resolution not only through judicial interpretation and compromise among the branches but also the ballot box. The Recess Appointments Clause responds structural difference between the Executive and Legislative Branches: The Executive Branch perpetually operation, while the Legislature only acts intervals separated recesses. The purpose the Clause allow the Executive continue operating while the Senate una vailable. believe that the Clauses text, standing alone, ambiguous. does not resolve whether the President may make appointments during intra-session recesses, whether may fill pre-recess vacancies. But the broader reading better serves the Clauses structural function. Moreover, that broader reading reinforced centuries history, which are hesitant disturb. thus hold that the Constitution empowers the President fill any existing vacancy during any recessintra-session inter-sessionof sufficient length. JUSTICE SCALIA would render illegitimate thousands recess appointments reaching all the way back the founding era. More than that: Calling the Clause anachronism, would basically read out the Constitution. Post, 12. performs this act judicial excision the name liberty. fail see how excising the Recess Appointments Clause preserves freedom. fact, Alexander Hamilton observed the very first Feder Opinion the Court alist Paper that the vigour government essential the security liberty. The Federalist No. And the Framers included the Recess Appointments Clause topreserve the vigour government times when animportant organ Government, the United States Senate,is recess. JUSTICE SCALIAs interpretation the Clausewould defeat the power the Clause achieve thatobjective. The foregoing discussion should refute JUSTICE SCALIAs claim that have embrace[d] adverse-possessiontheory executive power. Post, 48. Instead, all cases, interpret the Constitution light its text, purposes, and our whole experience Nation. Missouri Holland, 252 416, 433 (1920). And look the actual practice Government inform our interpretation. Given our answer the last question before us, conclude that the Recess Appointments Clause does not give the President the constitutional authority makethe appointments here issue. Because the Court Appeals reached the same ultimate conclusion (though for reasons reject), its judgment affirmed. ordered. NLRB CANNING Appendix opinion the Court APPENDIXES The following table contains the dates all the intrasession and inter-session recesses that Congress has taken since the founding. The information (including the footnotes) taken from 20112012 Official Congressional Directory, 112th Cong., 522539. SESSIONS CONGRESS, 1st112th CONGRESSES, 17892011 Congress Session Convening Date Adjournment Date Length days1 Recesses Senate House Representatives 1st Mar. 1789 Sept. 29, 1789 210 Jan. 1790 Aug. 12, 1790 221 Dec. 1790 Mar. 1791 Mar. 1791 Mar. 1791 Oct. 24, 1791 May 1792 197 Nov. 1792 Mar. 1793 119 Mar. 1793 Mar. 1793 Dec. 1793 June 1794 190 Nov. 1794 Mar. 1795 121 4th June 1795 June 26, 1795 Dec. 1795 June 1796 177 Dec. 1796 Mar. 1797 5th Mar. 1797 Mar. 1797 1E May 15, 1797 July 10, 1797 July 17, 1798 July 19, 1798 Nov. 13, 1797 July 16, 1798 246 Dec. 1798 Mar. 1799 6th Dec. 1799 May 14, 1800 164 Nov. 17, 1800 Mar. 1801 107 Dec. 23Dec. 30, 1800 Dec. 23Dec. 30, 1800 7th Mar. 1801 Mar. 1801 Dec. 1801 May 1802 148 Dec. 1802 Mar. 1803 8th 1E Oct. 17, 1803 Mar. 27, 1804 163 Nov. 1804 Mar. 1805 119 9th Dec. 1805 Apr. 21, 1806 141 Dec. 1806 Mar. 1807 10th 1E Oct. 26, 1807 Apr. 25, 1808 182 Nov. 1808 Mar. 1809 117 11th Mar. 1809 Mar. 1809 May 22, 1809 June 28, 1809 Nov. 27, 1809 May 1810 156 Dec. 1810 Mar. 1811 12th 1E Nov. 1811 July 1812 245 Nov. 1812 Mar. 1813 122 13th May 24, 1813 Aug. 1813 Dec. 1813 Apr. 18, 1814 134 3E Sept. 19, 1814 Mar. 1815 166 14th Dec. 1815 Apr. 30, 1816 148 Dec. 1816 Mar. 1817 15th Mar. 1817 Mar. 1817 Dec. 1817 Apr. 20, 1818 141 Dec. 24Dec. 29, 1817 Dec. 24Dec. 29, 1817 Nov. 16, 1818 Mar. 1819 108 16th Dec. 1819 May 15, 1820 162 Nov. 13, 1820 Mar. 1821 111 17th Dec. 1821 May 1822 157 Dec. 1822 Mar. 1823 18th Dec. 1823 May 27, 1824 178 Dec. 1824 Mar. 1825 19th Mar. 1825 Mar. 1825 Dec. 1825 May 22, 1826 169 Cite as: 573 ____ (2014) Appendix opinion the Court Congress Session Convening Date Adjournment Date Length days1 Recesses Senate House Representatives Dec. 1826 Mar. 1827 20th Dec. 1827 May 26, 1828 175 Dec. 1828 Mar. 1829 Dec. 24Dec. 29, 1828 Dec. 24Dec. 29, 1828 21st Mar. 1829 Mar. 17, 1829 Dec. 1829 May 31, 1830 176 Dec. 1830 Mar. 1831 22d Dec. 1831 July 16, 1832 225 Dec. 1832 Mar. 1833 23d Dec. 1833 June 30, 1834 211 Dec. 1834 Mar. 1835 24th Dec. 1835 July 1836 211 Dec. 1836 Mar. 1837 25th Mar. 1837 Mar. 10, 1837 1E Sept. 1837 Oct. 16, 1837 Dec. 1837 July 1838 218 Dec. 1838 Mar. 1839 26th Dec. 1839 July 21, 1840 233 Dec. 1840 Mar. 1841 27th Mar. 1841 Mar. 15, 1841 1E May 31, 1841 Sept. 13, 1841 106 Dec. 1841 Aug. 31, 1842 269 Dec. 1842 Mar. 1843 28th Dec. 1843 June 17, 1844 196 Dec. 1844 Mar. 1845 29th Mar. 1845 Mar. 20, 1845 Dec. 1845 Aug. 10, 1846 253 Dec. 1846 Mar. 1847 30th Dec. 1847 Aug. 14, 1848 254 Dec. 1848 Mar. 1849 31st Mar. 1849 Mar. 23, 1849 Dec. 1849 Sept. 30, 1850 302 Dec. 1850 Mar. 1851 32d Mar. 1851 Mar. 13, 1851 Dec. 1851 Aug. 31, 1852 275 Dec. 1852 Mar. 1853 33d Mar. 1853 Apr. 11, 1853 Dec. 1853 Aug. 1854 246 Dec. 1854 Mar. 1855 34th Dec. 1855 Aug. 18, 1856 260 2E Aug. 21, 1856 Aug. 30, 1856 Dec. 1856 Mar. 1857 35th Mar. 1857 Mar. 14, 1857 Dec. 1857 June 14, 1858 189 Dec. 23, 1857Jan. 1858 Dec. 23, 1857Jan. 1858 June 15, 1858 June 16, 1858 Dec. 1858 Mar. 1859 Dec. 23, 1858Jan. 1859 Dec. 23, 1858Jan. 1859 36th Mar. 1859 Mar. 10, 1859 Dec. 1859 June 25, 1860 202 June 26, 1860 June 28, 1860 Dec. 1860 Mar. 1861 37th Mar. 1861 Mar. 28, 1861 1E July 1861 Aug. 1861 Dec. 1861 July 17, 1862 228 Dec. 1862 Mar. 1863 Dec. 23, 1862Jan. 1863 Dec. 23, 1862Jan. 1863 38th Mar. 1863 Mar. 14, 1863 Dec. 1863 July 1864 209 Dec. 23, 1863Jan. 1864 Dec. 23, 1863Jan. 1864 Dec. 1864 Mar. 1865 Dec. 22, 1864Jan. 1865 Dec. 22, 1864Jan. 1865 39th Mar. 1865 Mar. 11, 1865 Dec. 1865 July 28, 1866 237 Dec. 6Dec. 11, 1865 Dec. 21, 1865Jan. 1866 Dec. 6Dec. 11, 1865 Dec. 21, 1865Jan. 1866 Dec. 1866 Mar. 1867 Dec. 20, 1866Jan. 1867 Dec. 20, 1866Jan. 1867 40th Mar. 1867 Dec. 1867 273 Mar. 30July 1867 July 20Nov. 21, 1867 Mar. 30July 1867 July 20Nov. 21, 1867 Apr. 1867 Apr. 20, 1867 Dec. 1867 Nov. 10, 1868 345 Dec. 20, 1867Jan. 1868 July 27Sept. 21, 1868 Dec. 20, 1867Jan. 1868 July 27Sept. 21, 1868 NLRB CANNING Appendix opinion the Court Congress Session Convening Date Adjournment Date Length days1 Recesses Senate House Representatives Sept. 21Oct. 16, 1868 Oct. 16Nov. 10, 1868 Sept. 21Oct. 16, 1868 Oct. 16Nov. 10, 1868 Dec. 1868 Mar. 1869 Dec. 21, 1868Jan. 1869 Dec. 21, 1868Jan. 1869 41st Mar. 1869 Apr. 10, 1869 Apr. 12, 1869 Apr. 22, 1869 Dec. 1869 July 15, 1870 222 Dec. 22, 1869Jan. 10, 1870 Dec. 22, 1869Jan. 10, 1870 Dec. 1870 Mar. 1871 Dec. 23, 1870Jan. 1871 Dec. 22, 1870Jan. 1871 42d Mar. 1871 Apr. 20, 1871 May 10, 1871 May 27, 1871 Dec. 1871 June 10, 1872 190 Dec. 21, 1871Jan. 1872 Dec. 21, 1871Jan. 1872 Dec. 1872 Mar. 1873 Dec. 20, 1872Jan. 1873 Dec. 20, 1872Jan. 1873 43d Mar. 1873 Mar. 26, 1873 Dec. 1873 June 23, 1874 204 Dec. 19, 1873Jan. 1874 Dec. 19, 1873Jan. 1874 Dec. 1874 Mar. 1875 Dec. 23, 1874Jan. 1875 Dec. 23, 1874Jan. 1875 44th Mar. 1875 Mar. 24, 1875 Dec. 1875 Aug. 15, 1876 254 Dec. 20, 1875Jan. 1876 Dec. 21, 1875Jan. 1876 Dec. 1876 Mar. 1877 45th Mar. 1877 Mar. 17, 1877 1E Oct. 15, 1877 Dec. 1877 Dec. 1877 June 20, 1878 200 Dec. 15, 1877Jan. 10, 1878 Dec. 15, 1877Jan. 10, 1878 Dec. 1878 Mar. 1879 Dec. 20, 1878Jan. 1879 Dec. 20, 1878Jan. 1879 46th 1E Mar. 18, 1879 July 1879 106 Dec. 1879 June 16, 1880 199 Dec. 19, 1879Jan. 1880 Dec. 19, 1879Jan. 1880 Dec. 1880 Mar. 1881 Dec. 23, 1880Jan. 1881 Dec. 23, 1880Jan. 1881 47th Mar. 1881 May 20, 1881 Oct. 10, 1881 Oct. 29, 1881 Dec. 1881 Aug. 1882 247 Dec. 22, 1881Jan. 1882 Dec. 22, 1881Jan. 1882 Dec. 1882 Mar. 1883 48th Dec. 1883 July 1884 218 Dec. 24, 1883Jan. 1884 Dec. 24, 1883Jan. 1884 Dec. 1884 Mar. 1885 Dec. 24, 1884Jan. 1885 Dec. 24, 1884Jan. 1885 49th Mar. 1885 Apr. 1885 Dec. 1885 Aug. 1886 242 Dec. 21, 1885Jan. 1886 Dec. 21, 1885Jan. 1886 Dec. 1886 Mar. 1887 Dec. 22, 1886Jan. 1887 Dec. 22, 1886Jan. 1887 50th Dec. 1887 Oct. 20, 1888 321 Dec. 22, 1887Jan. 1888 Dec. 22, 1887Jan. 1888 Dec. 1888 Mar. 1889 Dec. 21, 1888Jan. 1889 Dec. 21, 1888Jan. 1889 51st Mar. 1889 Apr. 1889 Dec. 1889 Oct. 1890 304 Dec. 21, 1889Jan. 1890 Dec. 21, 1889Jan. 1890 Dec. 1890 Mar. 1891 52d Dec. 1891 Aug. 1892 251 Dec. 1892 Mar. 1893 Dec. 22, 1892Jan. 1893 Dec. 22, 1892Jan. 1893 53d Mar. 1893 Apr. 15, 1893 1E Aug. 1893 Nov. 1893 Dec. 1893 Aug. 28, 1894 268 Dec. 21, 1893Jan. 1894 Dec. 1894 Mar. 1895 Dec. 23, 1894Jan. 1895 54th Dec. 1895 June 11, 1896 193 Dec. 1896 Mar. 1897 Dec. 22, 1896Jan. 1897 Dec. 22, 1896Jan. 1897 55th Mar. 1897 Mar. 10, 1897 Cite as: 573 ____ (2014) Appendix opinion the Court Congress Session Convening Date Adjournment Date Length days1 Recesses Senate House Representatives 1E Mar. 15, 1897 July 24, 1897 131 Dec. 1897 July 1898 215 Dec. 18, 1897Jan. 1898 Dec. 18, 1897Jan. 1898 Dec. 1898 Mar. 1899 Dec. 21, 1898Jan. 1899 Dec. 21, 1898Jan. 1899 56th Dec. 1899 June 1900 186 Dec. 20, 1899Jan. 1900 Dec. 20, 1899Jan. 1900 Dec. 1900 Mar. 1901 Dec. 20, 1900Jan. 1901 Dec. 21, 1900Jan. 1901 57th Mar. 1901 Mar. 1901 Dec. 1901 July 1902 212 Dec. 19, 1901Jan. 1902 Dec. 19, 1901Jan. 1902 Dec. 1902 Mar. 1903 Dec. 20, 1902Jan. 1903 Dec. 20, 1902Jan. 1903 58th Mar. 1903 Mar. 19, 1903 1E Nov. 1903 Dec. 1903 Dec. 1903 Apr. 28, 1904 144 Dec. 19, 1903Jan. 1904 Dec. 19, 1903Jan. 1904 Dec. 1904 Mar. 1905 Dec. 21, 1904Jan. 1905 Dec. 21, 1904Jan. 1905 59th Mar. 1905 Mar. 18, 1905 Dec. 1905 June 30, 1906 209 Dec. 21, 1905Jan. 1906 Dec. 21, 1905Jan. 1906 Dec. 1906 Mar. 1907 Dec. 20, 1906Jan. 1907 Dec. 20, 1906Jan. 1907 60th Dec. 1907 May 30, 1908 181 Dec. 21, 1907Jan. 1908 Dec. 21, 1907Jan. 1908 Dec. 1908 Mar. 1909 Dec. 19, 1908Jan. 1909 Dec. 19, 1908Jan. 1909 61st Mar. 1909 Mar. 1909 1E Mar. 15, 1909 Aug. 1909 144 Dec. 1909 June 25, 1910 202 Dec. 21, 1909Jan. 1910 Dec. 21, 1909Jan. 1910 Dec. 1910 Mar. 1911 Dec. 21, 1910Jan. 1911 Dec. 21, 1910Jan. 1911 62d 1E Apr. 1911 Aug. 22, 1911 141 Dec. 1911 Aug. 26, 1912 267 Dec. 21, 1911Jan. 1912 Dec. 21, 1911Jan. 1912 Dec. 1912 Mar. 1913 Dec. 19, 1912Jan. 1913 Dec. 19, 1912Jan. 1913 63d Mar. 1913 Mar. 17, 1913 1E Apr. 1913 Dec. 1913 239 Dec. 1913 Oct. 24, 1914 328 Dec. 23, 1913Jan. 12, 1914 Dec. 23, 1913Jan. 12, 1914 Dec. 1914 Mar. 1915 Dec. 23Dec. 28, 1914 Dec. 23Dec. 28, 1914 64th Dec. 1915 Sept. 1916 278 Dec. 17, 1915Jan. 1916 Dec. 17, 1915Jan. 1916 Dec. 1916 Mar. 1917 Dec. 22, 1916Jan. 1917 Dec. 22, 1916Jan. 1917 65th Mar. 1917 Mar. 16, 1917 1E Apr. 1917 Oct. 1917 188 Dec. 1917 Nov. 21, 1918 354 Dec. 18, 1917Jan. 1918 Dec. 18, 1917Jan. 1918 Dec. 1918 Mar. 1919 66th 1E May 19, 1919 Nov. 19, 1919 185 July 1July 1919 July 1July 1919 Dec. 1919 June 1920 188 Dec. 20, 1919Jan. 1920 Dec. 20, 1919Jan. 1920 Dec. 1920 Mar. 1921 67th Mar. 1921 Mar. 15, 1921 1E Apr. 11, 1921 Nov. 23, 1921 227 Aug. 24Sept. 21, 1921 Aug. 24Sept. 21, 1921 Dec. 1921 Sept. 22, 1922 292 Dec. 22, 1921Jan. 1922 Dec. 22, 1921Jan. 1922 3E Nov. 20, 1922 Dec. 1922 Dec. 1922 Mar. 1923 68th Dec. 1923 June 1924 188 Dec.