national labor relations board noel canning et argued january decided june respondent noel canning distributor asked circuit set aside order national labor relations board claiming board lacked quorum three five board members invalidly appointed nominations three members question pending senate passed december resolution providing series pro forma session business transacted every tuesday friday january invoking recess appointments clause gives president power fill vacancies may happen recess senate art ii cl president appointed three members question january january pro forma sessions noel canning argued primarily appointments invalid adjournment two sessions long enough trigger recess appointments clause circuit agreed appointments fell outside scope clause different grounds held phrase recess used clause include recesses phrase vacancies may happen recess applies vacancies first come existence recess held recess appointments clause empowers president fill existing vacancy recess sufficient length pp two background considerations relevant questions first recess appointments clause subsidiary method appointing officers founders intended norm method appointment article ii cl requires senate approval presidential nominations least principal officers recess appointments clause reflects tension president continuous need assistance subordinates myers senate early practice meeting single brief session year clause interpreted granting president power make appointments recess offering president authority routinely avoid need senate confirmation second interpreting clause puts significant weight upon historical practice longstanding practice government mcculloch maryland wheat inform determination law case marbury madison cranch see also mistretta pocket veto case great deal history consider presidents made recess appointments since beginning republic frequency suggests senate president recognized appointments necessary appropriate certain circumstances interpreting clause first time must hesitate upset compromises working arrangements elected branches government reached pp phrase recess senate applies recess breaks formal sessions senate recesses breaks midst formal session substantial length constitutional text ambiguous dictionaries usages show phrase recess encompass breaks broader interpretation demanded purpose clause allow president make appointments ensure continued functioning government senate away senate equally away unavailable participate appointments process recess history offers support interpretation founding great depression every time senate took substantial recess president made recess appointments president andrew johnson made first documented recess appointments presidents made similar appointments since particularly since end world war ii congress shortened breaks taken longer frequent breaks presidents accordingly made recess appointments meanwhile senate never taken formal action deny validity recess appointments senate judiciary committee defined recess period time senate absent participate body making appointments functional definition encompasses recesses law regulating payment recess appointees also interpreted functionally comptroller general officer legislative branch sum presidents made recess appointments century half senate never taken formal action oppose practice long enough entitle great weight proper interpretation constitutional provision pocket veto case supra clause say long recess must order fall within clause even solicitor general concedes recess short adjournments clause art cl reflects fact break significant interruption legislative business senate recess short require consent house clause long enough trigger president power moreover found single example recess appointment made recess shorter days examples recess appointments made recesses less days anomalies light historical practice recess days less days presumptively short fall within clause word presumptively leaves open possibility unusual circumstance demand exercise power shorter break pp phrase vacancies may happen recess senate art ii cl applies vacancies first come existence recess vacancies initially occur recess continue exist recess text ambiguous thomas jefferson observed clause certainly susceptible two constructions letter wilson cary nicholas papers thomas jefferson may mean may happen happen recess ibid attorney general wirt wrote broader reading consonant reason spirit clause op atty purpose clause permit president always acting execute law obtain assistance subordinate officers senate acts intervals unavailable confirm vacancy arises late session president senate opportunity select replacement narrower reading paralyze important functions federal government particularly time founding broader interpretation ensures offices needing filled filled raise danger president may attempt use power circumvent senate advice consent role narrower interpretation risks undermining constitutionally conferred powers seriously often prevent president making recess appointment fill vacancy arose recess matter official dire need uncontroversial appointment late session office fell vacant historical practice also strongly favors broader interpretation tradition applying clause vacancies dates least president madison nearly every attorney general consider question approved practice every president since james buchanan made recess appointments vacancies fair inference historical data large proportion recess appointments nation history filled vacancies senate judiciary committee issue report disagreeing broader interpretation congress passed law known pay act prohibiting payment recess appointments vacancies soon however senate subsequently abandoned hostility senate amended pay act permit payment recess appointees circumstances unconstitutional narrower interpretation short presidents made recess appointments preexisting vacancies two centuries senate body countered practice nearly century perhaps longer reluctant upset traditional practice seriously shrink authority presidents believed existed exercised long pp purposes recess appointments clause senate session says provided rules retains capacity transact senate business standard consistent constitution broad delegation authority senate determine conduct business recognized precedents see art cl marshall field clark ballin although senate determination session given great weight deference absolute senate without capacity act rules session even declares standard set forth senate session pro forma sessions issue said session senate rules make clear senate retained power conduct business senate conducted business simply passing unanimous consent agreement fact passed bill unanimous consent pro forma session december see pub solicitor general urges engage factual appraisal senate actually pro forma sessions order determine whether recess session purposes recess appointments clause senate session pro forma sessions president made recess appointments issue recess three days short time bring recess within scope clause president lacked authority make appointments pp affirmed breyer delivered opinion kennedy ginsburg sotomayor kagan joined scalia filed opinion concurring judgment roberts thomas alito joined opinion notice opinion subject formal revision publication preliminary print reports readers requested notify reporter decisions washington typographical formal errors order corrections may made preliminary print goes press national labor relations board petitioner noel canning et al writ certiorari appeals district columbia circuit june justice breyer delivered opinion ordinarily president must obtain advice consent senate appointing office art ii cl recess appointments clause creates exception gives president alone power fill vacancies may happen recess senate granting commissions shall expire end next session art ii cl consider three questions application clause first concerns scope words recess senate phrase refer recess break formal sessions congress also include recess summer recess midst session conclude clause applies kinds recess second question concerns scope words vacancies may happen phrase refer vacancies first come existence recess also include vacancies arise prior recess continue exist recess conclude clause applies kinds vacancy third question concerns calculation length recess president made appointments issue january time senate recess pursuant december resolution providing series brief recesses punctuated pro forma session business transacted every tuesday friday january hereinafter calculating length recess ignore pro forma sessions thereby treating series brief recesses single recess conclude ignore pro forma sessions answer third question means appointments us took place senate midst recess three days short time bring recess within scope clause thus conclude president lacked power make recess appointments issue case us arises labor dispute national labor relations board nlrb found distributor noel canning unlawfully refused reduce writing execute agreement labor union board ordered distributor execute agreement make employees whole losses noel canning distributor subsequently asked appeals district columbia circuit set board order aside claimed three five board members invalidly appointed leaving board without three lawfully appointed members necessary act see providing judicial review providing board providing quorum new process steel nlrb absence lawfully appointed quorum board exercise powers three members question sharon block richard griffin terence flynn president nominated board january flynn nomination pending senate awaiting confirmation approximately year nominations two pending weeks january president invoking recess appointments clause appointed three board distributor argued recess appointments clause authorize appointments pointed december senate unanimous consent adopted resolution providing take series brief recesses beginning following day see pursuant resolution senate held pro forma sessions every tuesday friday returned ordinary business january ibid cong rec president january appointments made january january pro forma sessions distributor view pro forma session terminated immediately preceding recess accordingly appointments made adjournment long enough trigger recess appointments clause appeals agreed appointments fell outside scope clause set forth different reasons held clause words recess senate include recesses occur within formal session congress recesses rather words apply recesses formal sessions recesses since second session congress began january day president appointments appointments occurred recess appointments consequently fell outside scope clause cadc appeals added event phrase vacancies may happen recess applies vacancies come existence recess vacancies members block griffin flynn appointed fill arisen beginning recess appointed reason president appointments invalid board lacked quorum validly appointed members issued order order invalid new process steel supra granted solicitor general petition asked parties address appeals interpretation clause also distributor initial argument namely hether president power may exercised senate convening every three days pro forma sessions shall answer three questions presented recognize president nominated others fill positions occupied members block griffin flynn senate confirmed successors parties recognize fact board unquestionably quorum moot controversy validity previously entered board order pending us petitions decisions cases involving challenges appointment board member craig becker president appointed member becker recess punctuated pro forma vacancy becker filled come existence prior recess see congressional research service hogue carey greene bearden noel canning decision recess appointments made hereinafter noel canning decision nlrb members nlrb since online http internet materials visited june available clerk case file cases involving similar challenges also pending courts appeals nlrb new vista nursing rehabilitation etc thus believe important answer three questions case presents ii turning specific questions presented shall mention two background considerations find relevant three first recess appointments clause sets forth subsidiary primary method appointing officers immediately preceding clause article ii section clause provides primary method appointment says president shall nominate advice consent senate shall appoint ambassadors public ministers consuls judges officers emphasis added federalist papers make clear founders intended method appointment requiring senate approval norm least principal officers alexander hamilton wrote constitution vests power nomination president alone one man discernment better fitted analise estimate peculiar qualities adapted particular offices body men equal perhaps even superior federalist cooke ed time need secure senate approval provides excellent check upon spirit favoritism president tend greatly preventing appointment unfit characters state prejudice family connection personal attachment view popularity hamilton explained ordinary power appointment confided president senate jointly therefore exercised session senate improper oblige body continually session appointment officers vacancies might happen recess might necessary public service fill without delay succeeding clause evidently intended authorise president singly make temporary appointments thus recess appointments clause reflects tension one hand president continuous need assistance subordinates myers senate practice particularly republic early years meeting single brief session year see art cl amdt requiring senate assemble every year story commentaries constitution burthensome senate expensive public require senate perpetually session seek interpret clause granting president power make appointments recess offering president routinely avoid need senate confirmation second interpreting clause put significant weight upon historical practice one thing questions us concern allocation power two elected branches government long ago chief justice marshall wrote doubtful question one human reason may pause human judgment suspended decision great principles liberty concerned respective powers equally representatives people adjusted put rest practice government receive considerable impression practice mcculloch maryland wheat later confirmed ong settled established practice consideration great weight proper interpretation constitutional provisions regulating relationship congress president pocket veto case see also practice least twenty years duration part executive department acquiesced legislative department entitled great regard determining true construction constitutional provision phraseology respect doubtful quoting state south norwalk recognize course separation powers serve safeguard individual liberty clinton city new york kennedy concurring duty judicial department case say law marbury madison cranch equally true longstanding practice government mcculloch supra inform determination law marbury supra principle neither new controversial james madison wrote foreseen birth constitution difficulties differences opinion might occasionally arise expounding terms phrases necessarily used charter might require regular course practice liquidate settle meaning letter spencer roane writings james madison hunt ed cases continually confirmed madison view mistretta dames moore regan youngstown sheet tube sawyer frankfurter concurring pocket veto case supra ex parte grossman midwest oil mcpherson blacker mcculloch supra stuart laird cranch precedents show treated practice important interpretive factor even nature longevity practice subject dispute even practice began founding era see mistretta supra practices spawned spirited discussion frequent criticism ways conducting government give meaning constitution quoting youngstown supra frankfurter concurring regan supra ven practice disregarded congressional acquiescence practice since time supports president power act pocket veto case supra postfounding practice entitled great weight grossman supra postfounding practice strongly sustains construction constitution great deal history consider presidents made recess appointments since beginning republic frequency suggests senate president recognized recess appointments necessary appropriate certain circumstances previously interpreted clause first time years must hesitate upset compromises working arrangements elected branches government reached iii first question concerns scope phrase recess senate art ii cl emphasis added constitution provides congressional elections every two years life elected congress typically consists two formal sessions separated next recess congressional research service hogue recess appointments frequently asked questions senate house representatives announces recess approving resolution stating adjourn sine die without specifying date return case congress reconvene next formal session scheduled begin senate house also take breaks midst session senate house announces recess adopting resolution stating adjourn fixed date days weeks even months later agree phrase recess senate covers recesses question whether includes recesses well view phrase recess includes recess substantial length words taken literally refer types recess dictionaries define word recess much today simply period cessation usual work oxford english dictionary ed hereinafter oed citing sources definition recess webster american dictionary english language emission suspension business procedure johnson dictionary english language ed hereinafter johnson founders used word refer well breaks see records federal convention farrand rev hereinafter farrand letter george washington john jay using recess refer break constitutional convention speech luther martin similar usage jefferson manual parliamentary practice ed describing recess adjournment end session recognize word recess might suggest phrase refers single break separating formal sessions congress word frequently always indicates particular thing johnson word also refer term used generically universally oed constitution example directs senate choose president pro tempore absence art cl emphasis added federalist papers refer chief magistrate ancient achaean league administered government recess senate federalist madison emphasis added reading generically way linguistic problem applying clause phrase kinds recess fact phrase recess used refer recesses time founding see farrand letter washington jay new jersey journal sitting sitting twice referring break recess see also brief petitioner listing examples constitutional text thus ambiguous believe clause purpose demands broader interpretation clause gives president authority make appointments recess senate president ensure continued functioning federal government senate away senate equally away recess capacity participate appointments process nothing words uses signal departure history also offers strong support broad interpretation concede war history helpful shows congress generally took long breaks sessions taking significant breaks five times took break week christmas see appendix infra obviously significant recesses recess appointments congress first time took substantial nonholiday breaks president andrew johnson made dozens recess appointments federal claims upheld one specific appointments writing doubt vacancy occurring senate thus temporarily adjourned first session fortieth congress legally filled appointment president alone gould cl emphasis added attorney general evarts also issued three opinions concerning constitutionality president johnson appointments apparently occur distinction recesses significant see op atty op atty op atty similarly though congress impeached president johnson charges relating appointment power accused violating constitution making recess appointments hartnett recess appointments article iii judges three constitutional questions cardozo rev founding great depression congress took substantial breaks holiday breaks four years appendix infra years president made recess appointments see app brief petitioner since particularly since end world war ii congress shortened breaks taken longer frequent breaks presidents correspondingly made recess appointments indeed include military appointments presidents made thousands recess appointments president franklin roosevelt example commissioned dwight eisenhower permanent major general recess president truman made dean acheson secretary state president george bush reappointed alan greenspan chairman federal reserve board justice scalia dispute facts surprisingly publicly available opinions presidential legal advisers found nearly unanimous determining clause authorizes appointments example attorney general daugherty advised president harding make recess appointments reasoned president power appointment defeated senate takes adjournment specified date painful inevitable result measurably prevent exercise governmental functions bring believe framers constitution ever intended catastrophe happen op atty found memoranda offering similar advice president eisenhower every president carter present see opinion office legal counsel op olc online op olc op olc op olc op olc op olc op olc op atty must note one contrary opinion authored president theodore roosevelt attorney general philander knox knox advised president clause cover christmas recess op atty relied heavily upon use word linguistic point find determinative see supra knox confessed interpretation ran contrary basic purpose clause permit senate adjourn several months fixed date thereby seriously curtail president power making recess appointments op atty moreover three days knox gave opinion solicitor treasury came opposite conclusion reply brief therefore think knox isolated opinion disturb consensus advice within executive branch taking opposite position senate since presidents began making recess appointments individual senators taken differing views proper definition recess see cong rec resolution introduced senator byrd urging limits length applicable recesses brief mitch mcconnell et al amici curiae adjournment count recess brief edward kennedy amicus curiae franklin neither senate considered body committees despite opportunities express opposition practice recess appointments done rather extent senate senate committee expressed view view favored functional definition recess functional definition encompasses recesses notably senate committee judiciary objected strongly president theodore roosevelt use clause make recess appointments fictitious recess hereinafter senate report noon december senate president pro tempore declare formal extraordinary session senate adjourned without day next formal senate session began immediately afterwards cong rec president roosevelt made recess appointments instantaneous interval judiciary committee stating strong objection defined recess functional terms period time senate sitting regular extraordinary session branch congress members owe duty attendance chamber empty absence receive communications president participate body making appointments senate report emphasis deleted functional definition encompasses well recesses justice scalia right report specifically address recesses animating principle report recess practically construed mean time senate unavailable participate appointments process inconsistent formalistic approach justice scalia endorses similarly senate helped enact law regulating payment recess appointees comptroller general interpreted law functionally earlier statute denied pay individuals appointed fill vacancies first arising prior beginning recess senate judiciary committee believed vacancies fell outside scope clause see infra however senate amended law permit many recess appointees paid act july stat interpreting amendments comptroller general unlike attorney general officer legislative branch bowsher synar wrote think clear pay act amendments primary purpose relieve appointees burden serving without compensation periods senate actually sitting available give advice consent respect appointment irrespective whether recess senate attributable final adjournment sine die adjournment specified date comp recognize senate easily register opposition body every governmental action many perhaps senators oppose senate silent passive regarding meaning clause senate committee register opposition president theodore roosevelt use clause senate whole legislated effort discourage certain kinds recess appointments yet aware formal action taken call question broad functional definition recess first set senate report followed executive branch since least justice scalia identified president made countless recess appointments recesses upshot restricting clause recesses frustrate purpose make president power dependent formalistic distinction senate procedure moreover president consistently frequently interpreted word recess apply recesses acted interpretation senate body done nothing deny validity practice least century century settled practice long enough entitle practice great weight proper interpretation constitutional provision pocket veto case aware persuaded three important arguments contrary first argue founders likely intended clause apply recesses hardly knew see brief originalist scholars amici curiae indeed founding civil war recesses kind significant recesses congress took problem argument however fully describe relevant founding intent question founders time think recesses perhaps question founders intend restrict scope clause form congressional recess prevalent intend broader scope permitting clause apply appropriate somewhat changed circumstances founders knew writing document designed apply circumstances centuries constitution intended endure ages come must adapt future seen dimly mcculloch therefore think framers likely intend clause apply new circumstance clearly falls within essential purposes consistent clause language second argue interpretation permits president make illogic ally long recess appointments brief respondent noel canning post scalia concurring judgment recess appointment made congress annual sessions permit appointee serve year end next senate session art ii cl appointment made beginning middle formal session permit appointee serve almost years end following formal session agree interpretation permits somewhat longer recess appointments agree consequence illogical president makes recess appointment often also seek make regular appointment nominating appointee securing ordinary senate confirmation clause ensures president senate always least full session go nomination confirmation process process may take several months see vacant offices delays staffing top agency positions cal rev nomination confirmation process took average days noncabinet agency heads recess appointment lasts somewhat longer year ensure president continued assistance subordinates clause permits obtain senate select regular appointee appointment last senate opportunity act subject story clause embodies determination full session needed select vet replacement third appeals believed application clause recesses introduce vagueness clause otherwise clear one find problems uncertainty however either way example president andrew johnson called special session congress took place lengthy recess consider period time fell conclusion special session period remain recess become recess historians disagree answer compare hartnett cardozo brief constitutional law scholars amici curiae suppose congress adjourns sine die conditionally leadership call members back session public interest shall warrant cong rec cong rec cong rec senate majority leader reconvene senate characterize preceding recess still narrower interpretation label matters broader greater interpretive problem determining long recess must order fall within clause break week day hour short count recess clause say justice scalia claims silence shows framers intended clause apply recess post disagree one thing likely reason framers place textual floor underneath word recess foresee need one might expected senate meet single session lasting half year federalist hamilton might anticipated recesses become lengthier significant ones framers lack clairvoyance point dispositive unlike justice scalia think consistent constitutional structure presume framers allowed recess appointments long history practice moreover lack textual floor raises problem plagues interpretations justice scalia today brief recess possible brief recess though justice scalia says notion constitution empowers president make unilateral appointments every time senate takes lunch break absurd must immediately concede president make recess appointments break sessions matter short post emphasis added even solicitor general arguing broader interpretation acknowledges lower limit applicable kinds recess argues lower limit three days analogy adjournments clause constitution tr oral arg clause says neither house session congress shall without consent adjourn three days art cl agree solicitor general recess short senate practice sunday generally considered day counted purposes adjournments clause doc riddick frumin riddick senate procedure precedents practices hereinafter riddick adjournments clause reflects fact break significant interruption legislative business solicitor general says constitutionally de minimis brief petitioner senate recess short require consent house long enough trigger president power say president may make recess appointments recess three days art cl recess appointments clause seeks permit executive branch function smoothly congress unavailable though congress taken short breaks almost years many thousands recess appointments time found single example recess made recess shorter days solicitor general reply brief indeed office legal counsel informally advised making recess appointment recess op olc lack examples suggests power needed context length recess ordinarily calculated counting calendar days running day recess begins including day recess ends op olc citation omitted historical examples recess appointments made recesses shorter days already discussed president theodore roosevelt appointments instantaneous fictitious recess president truman also made recess appointment civil aeronautics board recess hogue recess appointments asked questions president taft made appointments recess following inauguration president lyndon johnson made appointments recess several weeks assuming office hogue law recess appointments article iii courts presidential studies exec exec may others unaware considered years settled practice regard scattered examples anomalies therefore conclude light historical practice recess days less days presumptively short fall within clause add word presumptively leave open possibility unusual circumstance national catastrophe instance renders senate unavailable calls urgent response demand exercise power shorter break go without saying except justice scalia compels us say political opposition senate qualify unusual circumstance sum conclude phrase recess applies recesses senate recess short require consent house short trigger recess appointments clause see art cl recess lasting less days presumptively short well iv second question concerns scope phrase vacancies may happen recess senate art ii cl emphasis added agree phrase applies vacancies initially occur recess also apply vacancies initially occur recess continue exist recess view phrase applies kinds vacancy believe clause language read literally permits though naturally favor broader interpretation concede natural meaning happens applied vacancy least modern ear vacancy happens occurs see johnson defining happen relevant part meaning fall chance come pass possible way use word thomas jefferson wrote clause certainly susceptible two constructions letter wilson cary nicholas papers thomas jefferson oberg may mean may happen happen recess ibid jefferson used phrase first sense wrote job seeker particular position unavailable jefferson happy another vacancy happens wherein avail public integrity talents office treasurer us vacant resignation mr meredith letter thomas tudor tucker oberg ed emphasis added see also laws passed legislature florida act organize regulate militia territory florida exec doc hen vacancy shall take place office lieutenant colonel shall duty colonel regiment vacancy may happen order election held several precincts battalion vacancy may happen emphasis added similarly attorney general william wirt advised president monroe follow broader interpretation wrote expression seems perfectly clear may mean take place originate may mean also without violence sense exist op atty broader interpretation added accordant constitution reason spirit still understand earlier use happen think used together another word like vacancy refer continuing state say financial crisis statute gives president authority act respect financial crisis may happen term easily interpreted include crises arise continue term perhaps oxford english dictionary defines happen part chance rather chance occur oed emphasis added see also oed defining vacancy condition office post vacant event linguistic question whether phrase whether must read narrowly question whether clause ambiguous pocket veto case broader reading believe least permissible reading phrase ibid consequently go consider clause purpose historical practice clause purpose strongly supports broader interpretation purpose permit president obtain assistance subordinate officers senate due recess confirm attorney general wirt clearly described narrower interpretation undermine purpose put case vacancy occurring office held distant part country last day senate session vacancy made known president senate rises office may important one vacancy may paralyze whole line action essential branch internal police public interests may imperiously demand shall immediately filled vacancy happened occur session senate president power limited vacancies happen occur recess senate vacancy case put must continue however ruinous consequences may public op atty examples difficult imagine ambassadorial post falls vacant soon recess begins president appoint replacement senate rejects president nominee recess late select another wirt explained substantial purpose constitution keep offices filled president shall power fill vacancy thus circumstanced substance constitution sacrificed dubious construction letter ibid thus broader construction encompassing vacancies initially occur beginning recess construction constitution compatible spirit reason purposes time offers violence language agree justice scalia suggestion framers accepted catastrophe envisioned wirt congress always provide acting officers see president always convene special session congress see art ii acting officers may less authority presidential appointments op olc moreover rely acting officers lessen president ability staff executive branch people choosing thereby limit president control political accountability cf free enterprise fund public company accounting oversight special sessions burdensome especially time founding point recess appointments clause avoid reliance inadequate expedients time recognize one important consideration argues opposite direction broad interpretation might permit president avoid senate confirmations matter course clause gives president power fill vacancies occur continue exist senate recess president might submit nominations senate might simply wait recess provide potential nominees recess appointments might thereby routinely avoid constitutional need obtain senate advice consent wirt thought considerations character politics prevent presidents abusing clause way op atty might added temptations often arise often less desirable president make recess appointment recess appointee serves limited term combined lack senate approval may diminish recess appointee ability practical matter get controversial job done even president senate odds politically sensitive appointments compromise normally possible indeed pay act amendments represent general compromise foresee payment salaries recess appointees vacancies occur recess began long namely within days see infra moreover senate like president institutional resources including political resources available protect assert interests goldwater carter rehnquist concurring judgment unusual instance matter important enough body remain session preventing recess appointments refusing take recess see part infra event executive branch adhered broader interpretation two centuries senate confirmation always remained norm officers require concede interpretations carry risk undesirable consequences believe narrower interpretation risks undermining constitutionally conferred powers seriously often prevent president making recess appointment arose recess matter official matter dire need matter uncontroversial appointment matter late session office fell vacant overall like attorney general wirt believe broader interpretation consistent constitution reason spirit op atty historical practice past years strongly favors broader interpretation tradition applying clause vacancies dates least president james madison undisputed record presidents george washington john adams thomas jefferson making appointment though solicitor general believes found records showing presidents washington jefferson know edmund randolph washington attorney general favored narrow reading clause randolph believed spirit constitution favors participation senate appointments though address let alone answer powerful purposive structural arguments subsequently made attorney general wirt see edmund randolph opinion recess appointments july papers thomas jefferson catanzariti ed president adams seemed endorse broader view clause writing though aware appointments made keeping view see letter mchenry apr works john adams adams ed attorney general charles lee later informed jefferson adams administration whenever office became vacant short time congress rose give opportunity enquiring proper character let lie always till recess papers thomas jefferson know president jefferson thought broad interpretation linguistically supportable though actual practice clear evidence suggests james madison familiar anyone workings constitutional convention appointed theodore gaillard replace district judge left office recess began hartnett cardozo also appears madison signed bill created two new offices prior recess filled later recess see act mar ch stat exec monday also made recess appointments territorial attorney marshal positions created senate session two years act ch stat exec justice scalia refers written evidence madison beliefs post fact direct evidence president madison believed know declined make one appointment vacancy secretary war advised lacked power hand apparently make least five appointments vacancies justice scalia dispute next president james monroe received presumably acted upon attorney general wirt advice namely vacancies casualty happen exist time senate consulted filling may temporarily filled president op atty nearly every subsequent attorney general consider question throughout nation history thought op atty op atty op atty op atty op atty op atty op atty op atty op atty op atty op atty op atty op atty op atty op olc op olc op olc op olc indeed early attorney general bates advised president lincoln power fill vacancies settled far constitutional question settled op atty century later acting attorney general walsh gave president eisenhower advice without doubt op atty power important congressional research service unaware official source information tracking dates vacancies federal offices noel canning decision nonetheless enough information believe presidents since madison made many recess appointments filling vacancies initially occurred prior recess said nearly every attorney general expressing view matter agreed william wirt presidents tend follow legal advice chief legal officers moreover solicitor general compiled list mostly uncontested recess appointments made presidents going back founding app brief petitioner given difficulty finding accurate information vacancy dates list undoubtedly far smaller actual number one disputes every president since james buchanan made recess appointments vacancies common sense also suggests many recess appointees filled vacancies arose recess began compared list recess appointments solicitor general brief chart congressional recesses specific date appointment ascertained half appointments made within two weeks beginning recess short window strongly suggests many vacancies initially arose prior recess see app brief petitioner appendix infra thus surprising congressional research service examining vacancy dates associated random sample recess appointments since concluded cases preponderance evidence indicated vacancy arose prior recess appointment made noel canning decision research assistance library examined random sample recess appointments made two recent presidents found almost appointments filled vacancies sample recess appointments filled vacancies filled vacancy arose recess appointed precise date vacancies arose determined see appendix infra taken together think fair inference large proportion recess appointments history nation filled vacancies senate object early sporadic disagreement broad interpretation senator gore said vacancy happen another time case described constitution annals cong senate committee focusing president power fill new vacancy created statute used language effect early congresses enacted statutes authorizing certain recess appointments see post fact may may suggest accepted narrower interpretation clause statutes including one passed first congress authorized appointments newly created offices may addressed separate question whether new offices vacancies within meaning clause see letter alexander hamilton james mchenry may papers alexander hamilton syrett ed vacancy relative term presupposes office filled reply brief event attorney general bates still refer unbroken acquiescence senate support broad interpretation op atty senate judiciary committee disagreed broad interpretation issued report concluding vacancy must inceptive point one session closed another session begun senate passed pay act provided money shall paid salary person appointed recess senate fill vacancy existed senate session act stat relying upon floor statement single senator justice scalia suggests passage pay act indicates senate whole endorsed position report circumstances equivocal floor debate bill single senator referred report cong globe sess indeed senator trumbull introduced pay act acknowledged disagreement underlying constitutional question ome persons think power majority senate believed appointments vacancies unconstitutional attempted far temporarily dock appointees pay cf tenure office act stat making federal crime person accept appointment certain circumstances event senate subsequently abandoned hostility debate preceding senate report regarding president roosevelt constructive recess appointments senator tillman chaired committee authored report brought report another senator responded whatever report may said think view senate taken issue cong rec senator tillman agreed senate acquiesced president power fill vacancies ibid senator tillman report described clause purpose terms closely echoing attorney general wirt senate report sole purpose render certain times whether senate session officer every office emphasis added senate debated whether pay recess appointee filled vacancy subsequently confirmed senators address question one side payment debate agreed president constitutional power make appointment senate voted pay appointee service cong rec stat comptroller general legislative officer wrote question president authority make recess appointment fill vacancy including existed senate session comp emphasis added meanwhile presidents continued make appointments vacancies solicitor general identified number clearly comprehensive see op atty listing appointments solicitor general appendix recess appointments washington post july noting president hayes made quite number appointments vacancies congress amended pay act authorize salary payments exceptions vacancy arose within thirty days prior termination session termination session nomination pending nominee rejected senate within thirty days prior termination session act july stat codified amended three circumstances concern vacancy initially occur recess happened exist recess paying salaries kind recess appointee senate later senates effect supported president interpretation clause upshot president consistently frequently interpreted recess appointments clause apply vacancies initially occur continue exist recess senate senate body countered practice nearly century perhaps longer see amar unwritten constitution nearly years overwhelming mass actual practice supports president interpretation mistretta tradition meaning constitution youngstown frankfurter concurring tradition long enough entitle practice great regard determining true construction constitutional provision pocket veto case reluctant upset traditional practice seriously shrink authority presidents believed existed exercised long light linguistic ambiguity basic purpose clause historical practice described conclude phrase vacancies includes vacancies come existence senate session third question concerns calculation length senate recess december senate unanimous consent adopted resolution convene pro forma session business transacted every tuesday friday december january end pro forma session senate adjourn following pro forma session ibid period senate convened adjourned agreed held pro forma sessions december january end pro forma session adjourned time date next cong rec president made recess appointments us january january january pro forma sessions must determine significance sessions whether purposes clause treat periods senate session periods recess former period january january recess short trigger president power see supra latter however period part much longer recess president power make recess appointments see ibid solicitor general argues must treat pro forma sessions periods recess says sessions sessions name senate recess functional matter senate contends remained single unbroken recess january second session congress began operation twentieth amendment january senate reconvened regular business view however pro forma sessions count sessions periods recess hold purposes recess appointments clause senate session says provided rules retains capacity transact senate business senate met standard standard apply consistent constitution broad delegation authority senate determine conduct business constitution explicitly empowers senate determine rules proceedings art cl held matters method open determination senate long reasonable relation mode method proceeding established rule result sought attained rule ignore constitutional restraints violate fundamental rights ballin addition constitution provides senate extensive control schedule limited exceptions see amdt congress must meet year january unless specifies another day law art ii senate must meet president calls special session art cl neither house may adjourn three days without consent see also art ii case disagreement houses respect time adjournment president may adjourn time shall think proper constitution thus gives senate wide latitude determine whether session well conduct session suggests senate determination constitutes session merit great respect furthermore precedents reflect breadth power constitutionally delegated senate generally take face value senate report actions example presiding officers house senate sign enrolled bill president approve authentication bill passed congress deemed complete unimpeachable marshall field clark principle journal senate indicates quorum present valid senate rule time senate passed bill consider argument quorum fact present ballin supra constitution requires senate keep journal art cl house shall keep journal proceedings reference may must assumed speak truth ballin supra reasons conclude must give great weight senate determination session deference senate absolute senate without capacity act rules session even declares see tr oral arg acknowledgment counsel amici senators senate left capitol effectively given business legislating might recess even said circumstance senate simply unlikely unwilling act upon nominations president unable purpose clause ensure continued functioning federal government senate unavailable see supra purpose count little treat senate though session even lacks ability provide advice consent art ii cl accordingly conclude senate declares session possesses capacity rules conduct business session purposes clause applying standard find pro forma sessions sessions purposes clause first senate said session journal senate congressional record indicate senate convened series sessions december january cong rec journal senate yet published reports senate must assumed speak truth ballin supra second senate rules make clear pro forma sessions despite resolution conduct business senate retained power conduct business pro forma session senate conducted business simply passing unanimous consent agreement see riddick senate fact conducts much business unanimous consent senate rules presume quorum present unless present senator questions senate quorum agreement unanimously passed upon proposal present senator objects consequently unsurprising senate enacted legislation pro forma sessions even said business transacted indeed senate passed bill unanimous consent second pro forma session december adjournment bill quickly became law pub stat way contrast see senate conduct business recess terminate recess session pass bill case course senate longer recess session crucial point senate rules make clear session senate act even earlier said solicitor general argues required contends counts senate capacity conduct business senate actually pro forma sessions looks support functional definition recess set forth senate report discussed see supra report describes recess senate period time members owe duty attendance chamber empty absence receive communications president participate body making appointments senate report even argument sake accept criteria authoritative met taking last criterion first senate pro forma sessions participate body making appointments confirm nominees unanimous consent passed bill mentioned see riddick senate receive communications president congressional record indicates senate received message president january adjournment two pro forma sessions see cong rec senate receive presidential messages two pro forma sessions receive pro forma session senate chamber empty official rules senate operates presumption quorum present present senator suggests absence quorum riddick nothing journal senate congressional record reflects suggestion senators owe duty attendance senate rules dictate senators duty attend every session see riddick standing rule senate vi doc senator shall absent service senate without leave nothing excused senators duty senate pro forma sessions present senator raised question presence quorum roll call become clear quorum missing senators attendance directed sergeant arms bring missing senators rule vi solicitor general asks us engage realistic appraisal senate actually argues relevant pro forma sessions business fact conducted messages president received meaningful way placed senate senate chamber according coverage almost empty practice attendance required see brief petitioner believe however engaging kind factual appraisal solicitor general suggests either legally practically appropriate legal perspective approach run contrary instructing us respect coequal independent departments example taking senate report official action word field see ballin practical perspective judges easily determine matters fact present floor particular senate session judicial efforts engage kinds inquiries risk undue judicial interference functioning legislative branch finally solicitor general warns holding may proper balance coordinate branches preventing executive branch accomplishing constitutionally assigned functions brief petitioner quoting morrison olson alteration original see however holding significantly alter constitutional balance appointments controversial produce friction branches political controversy serious senate unquestionably methods preventing recess appointments solicitor general concedes senate preclude president making recess appointments holding series ordinary pro forma sessions nature business conducted ordinary sessions whether example senators must vote nominations may return home meet constituents matter senate decide constitution also gives president enough allies congress way force recess art ii case disagreement houses respect time adjournment president may adjourn time shall think proper moreover president senators engage many different ways variety methods encouraging accept points view regardless recess appointments clause designed overcome serious institutional friction simply provides subsidiary method appointing officials senate away recess contexts friction branches inevitable consequence constitutional structure see myers brandeis dissenting structure foresees resolution judicial interpretation compromise among branches also ballot box vi recess appointments clause responds structural difference executive legislative branches executive branch perpetually operation legislature acts intervals separated recesses purpose clause allow executive continue operating senate unavailable believe clause text standing alone ambiguous resolve whether president may make appointments recesses whether may fill vacancies broader reading better serves clause structural function moreover broader reading reinforced centuries history hesitant disturb thus hold constitution empowers president fill existing vacancy recess sufficient length justice scalia render illegitimate thousands recess appointments reaching way back founding era calling clause anachronism basically read constitution post performs act judicial excision name liberty fail see excising recess appointments clause preserves freedom fact alexander hamilton observed first paper vigour government essential security liberty federalist framers included recess appointments clause preserve vigour government times important organ government senate recess justice scalia interpretation clause defeat power clause achieve objective foregoing discussion refute justice scalia claim embrace theory executive power post instead cases interpret constitution light text purposes whole experience nation missouri holland look actual practice government inform interpretation given answer last question us conclude recess appointments clause give president constitutional authority make appointments issue appeals reached ultimate conclusion though reasons reject judgment affirmed ordered appendixes following table contains dates recesses congress taken since founding information including footnotes taken official congressional directory sessions congress congresses convening date adjournment date length recesses senate house representatives mar mar mar mar may mar mar mar june mar june june june mar mar mar may july july july july mar may mar mar mar may mar mar mar apr mar apr mar mar mar may june may mar july mar may apr mar apr mar mar mar apr mar may mar may mar may mar mar mar may mar may mar mar mar may mar july mar june mar july mar mar mar july mar july mar mar mar may mar june mar mar mar mar mar mar mar mar mar mar mar mar apr mar mar mar mar june june june mar mar mar june june june mar mar mar july july mar mar mar july mar mar mar july mar mar mar july mar july apr apr july july mar mar apr apr apr july mar mar apr may may june mar mar mar june mar mar mar mar mar mar june mar mar july june mar mar may mar july mar mar apr mar mar mar apr mar mar mar apr mar june mar mar mar mar july july mar june mar mar mar july mar mar mar apr mar mar mar june mar may mar mar mar mar june mar apr mar mar mar apr mar mar mar mar apr mar may july july june mar mar mar apr mar june mar mar mar july mar may mar mar mar apr june june july july july mar july mar mar mar mar june june june june june june july july july july apr june apr june july apr july july june june apr mar july apr apr apr adjourned sine die apr apr july mar mar apr apr apr apr mar mar apr may july apr may july mar apr apr july mar july apr june apr june mar june mar june apr may june apr may june apr july apr may july mar mar may july apr may june apr may july mar may june mar may june apr may june apr may june mar apr may apr may mar may june mar may june apr may july apr may july apr may july apr may june mar may june mar may june apr may june adjourned sine die apr may june apr may july apr may july apr june apr june apr may july apr may july mar may june mar may june apr may june apr may june apr may may june mar apr may june mar may june mar may june apr may july apr may july july mar mar apr may june july mar may june july mar apr may june mar apr may june mar apr may june apr may june mar apr may june mar may june apr may july apr may july july apr may july apr may july mar may july mar may june apr may june mar apr may may june mar may june mar may june mar may june july mar june apr may june july adjourned sine die apr may june mar may july mar may july mar apr may june july apr may june july apr may june apr may june mar may june mar may june july apr may june apr may june july mar apr may june june july apr may june june july mar apr may july july mar may july july mar apr may june mar apr may june mar may june mar may june mar may june mar may june apr may june apr may june july mar may june mar apr may mar may july july mar apr may june purposes table session length days defined total number calendar days convening date adjournment date inclusive mean actual number days congress met session purposes table recess defined break house senate proceedings three days excluding sundays according article section constitution neither house may adjourn three days without consent occasion chambers held one pro forma sessions constitutional obligation purposes treated recesses usually business conducted time periods table beginning pro forma sessions indicated following table shows proportion recent appointments filled vacancies compiled research assistance library contains random sample recess appointments president george bush president barack obama last column indicates whether vacancy arose recess filled indicates vacancy arose recess indicates vacancy arose recess indicates vacancy date ascertained name position date recess appointment date position became vacant status vacancy peter hurtgen member designated chair nlrb dennis schornack part us joint us unknown tony hammond postal rate bruce matthews member def nuclear facilities safety bd ephraim batambuze bd member african dev found bradley belt member soc sec advisory bd ssab ronald meisburg member nlrb charles johnson chief financial officer epa jack mcgregor member advisory lawrence seaway dev unknown james kunder assistant bureau asia near east usaid susan grant chief financial officer dept energy anthony principi member designated chair def base closure realignment new position john bolton us representative un ellen sauerbrey assistant population refugees migration dept state ronald meisburg general counsel nlrb john palmer member bd trustees fed survivors ins trust fund fed disability ins trust fund richard stickler assistant mine safety health admin susan dudley oira omb mark pearce member nlrb mark aponte chief mission el salvador dept state richard griffin jr member nlrb scalia concurring judgment national labor relations board petitioner noel canning et al writ certiorari appeals district columbia circuit june justice scalia chief justice justice thomas justice alito join concurring judgment except constitution valid federal law provides otherwise officers must appointed president advice consent senate art ii cl general rule subject exception president shall power fill vacancies may happen recess senate granting commissions shall expire end next session cl case requires us decide whether recess appointments clause authorized three appointments made president obama national labor relations board january without senate consent prevent president power nullifying senate role appointment process constitution cabins power two significant ways first may exercised recess senate intermission two formal legislative sessions second may used fill vacancies happen recess offices become vacant intermission conditions clear constitution text structure well understood founding appeals correctly held appointments issue invalid meet either condition today agrees appointments far narrower reason made break senate session way result majority sweeps away key textual limitations power holds first president make appointments without senate participation even short breaks middle senate session second appointments fill offices became vacant long break filled majority justifies atextual results theory executive authority presidents long claimed powers question senate disputed claims sufficient vigor upset compromises working arrangements elected branches government reached ante decision transforms power tool carefully designed fill narrow specific need weapon wielded future presidents future senates reach result majority casts aside plain original meaning constitutional text deference historical practices ambiguous best majority insistence deferring executive untenably broad interpretation power clear conflict precedent forebodes diminution role controversies involving separation powers structure government concur judgment responsibility today majority disregards two overarching principles guide consideration questions presented first constitution core provisions less critical preserving liberty later adopted provisions bill rights indeed convinced framers liberty person inheres structure first consider bill rights necessary clinton city new york kennedy concurring structural provisions reflect founding generation deep conviction checks balances foundation structure government protect liberty bowsher synar reason claims individuals government departments principal source judicial decisions concerning separation powers checks balances bond slip see free enterprise fund public company accounting oversight clinton supra plaut spendthrift farm bowsher supra ins chadha northern pipeline constr marathon pipe line decisions rest bedrock principle constitutional structure government designed first foremost look interests respective branches protec individual liberty bond supra slip second relatedly questions involving constitution provisions presented justiciable case solemn responsibility judicial branch say law zivotofsky clinton slip quoting marbury madison cranch defer branches resolution controversies justice kennedy previously written role way lessened might said two political branches adjusting powers clinton supra concurring opinion since separation powers exists protection individual liberty vitality depend whether branch approves encroachment free enterprise fund supra quoting new york see also freytag commissioner metropolitan washington airports authority citizens abatement aircraft noise rather policing enduring structure constitutional government political branches fail one vital functions public citizen department justice kennedy concurring judgment decision chadha illustrates principle held statutory provision authorizing one house congress cancel executive action taken pursuant statutory authority legislative veto exceeded bounds congress authority constitution hesitate hold legislative veto unconstitutional even though congress enacted president signed nearly similar provisions course years opposite said branches enthusiasm legislative veto sharpened rather blunted review likewise charge made practice enhances president powers beyond constitution permits answer say congress surrendered authority hand clinton kennedy concurring ne congress yield powers much less congresses follow abdication responsibility part constitutional design citations omitted course governmental practice open widespread unchallenged since early days republic practice guide interpretation ambiguous constitutional provision see alden maine bowsher supra myers see also youngstown sheet tube sawyer frankfurter concurring arguing systematic unbroken executive practice long pursued knowledge congress never questioned inform interpretation executive power vested president rutan republican party scalia dissenting ast practice create power medellín texas quoting dames moore regan necessary corollary principle political branches agreement alter constitutional structure plainly practice adopted one branch well founding often challenged never blessed words sort practice majority relies case relieve us duty interpret constitution light text structure original understanding ignoring recent precedent area extensive majority relies pocket veto case proposition interpreting constitutional provision regulating relationship congress president must defer settled practice political branches provision respect doubtful meaning ante see ante language majority quotes case pure dictum pocket veto decide whether bill passed house senate presented president less days adjournment first session particular congress neither signed vetoed president became law opinion analyzed issue like legal question concluded treating bill law inconsistent text structure constitution near end opinion add conclusion confirmed longstanding presidential practice congress appeared acquiesced suggest case come differently longstanding practice ii breaks first question presented whether recess senate president power active period two senate formal sessions break senate proceedings hold recess gap sessions appointments issue invalid undisputedly made senate session contrary conclusion recess includes breaks midst session ante inconsistent constitution text structure requires judicial fabrication vague unadministrable limits power thus defined overstep judicial role although majority relies heavily historical practice practice worthy deference supports majority conclusion issue plain meaning sensible interpretation recess appointments clause start recognizing clause uses term recess contradistinction term session alexander hamilton wrote time within power operate recess senate duration appointments end next session body conspire elucidate sense provision federalist cooke ed founding era terms recess session meanings legislative time life elected congress typically consisted still two formal sessions separated adjournments sine die without specified return date see gpo congressional directory pp hereinafter congressional directory listing sessions congress nn cadc case ante period two sessions known recess see annals cong gore time senate consists two periods viz session recess one scholar thoroughly demonstrated government practice phrase recess always referred gap sessions natelson origins meaning vacancies may happen recess constitution recess appointments clause harv pub hereinafter natelson see providing dozens examples contrast provisions constitution use verb adjourn rather recess refer commencement breaks formal legislative session see art cl cl sure colloquial usage words recess session take alternative less precise meanings session include short period legislature members assembled business recess refer brief suspension legislative business webster american dictionary english language continental congress complain noise passing carriages disrupting daily session journals continental congress fitzpatrick ed house take recess journal house representatives even majority acknowledges constitution use word tends suggest phrase refers single break separating formal sessions ante importantly neither solicitor general majority argues clause uses session loose colloquial sense next session denotes formal session recess must mean break formal sessions every commentator clause century seems understood recess session clause refers mutually exclusive alternating see federalist explaining appointments require senatorial consent session senate made president alone recess op atty contrasting vacancies occurring recess senate occurring session senate op atty discussing vacancy took place senate session recess linguistically implausible suppose majority clause uses one terms recess informally session formally single sentence result event occur recess session besides linguistically unsound majority reading yields strange result appointment made short break near beginning one official session terminate end following official session enabling appointment last two years majority justifies result observing process confirming nominee may take several months ante average duration confirmation process irrelevant clause design president unilateral appointment last senate opportunity act subject story commentaries constitution emphasis added one way avoid linguistic incongruity majority reading read recess next session colloquially power activated temporary suspension senate proceedings appointments made pursuant power last beginning next suspension end next colloquial session see rappaport original meaning recess appointments clause ucla rev hereinafter rappaport original meaning approach linguistically defensible majority cure fundamental problem giving recess colloquial rather formal meaning leaves power without textually grounded principle limiting time exercise dictionary definitions recess majority relies provide principle contrary make clear colloquial usage recess include suspension legislative business matter short see johnson dictionary english language ed webster even provides stark illustration house representatives recess half hour webster supra notion constitution empowers president make unilateral appointments every time senate takes lunch break absurd majority view text authorizes boundlessness colloquial reading recess thus refutes majority assertion clause purpose ensur ing continued functioning federal government demands apply breaks well recesses ante majority disregards another purpose clause preserve senate role appointment process founding generation regarded critical protection freytag clearly delineating times president appoint officers without senate consent today decision seriously undercuts purpose demonstrates folly interpreting constitutional provisions designed establish structure government protect liberty bowsher assumption purpose make government run efficiently possible convenience efficiency repeatedly recognized primary objectives constitutional framework free enterprise fund internal quotation marks omitted relatedly majority contends clause supposed purpose keeping wheels government turning demands interpret clause maintain relevance light new circumstance senate taking increasing number breaks exceed three days ante even accepted canard courts alter constitution meaning accommodate changed circumstances hard pressed see relevance notion rise adjournments occurred tandem development modern forms communication transportation mean senate always available consider nominations even members temporarily dispersed break tr oral arg ginsburg recess appointments clause therefore rather anachronism essentially historic relic something whose original purpose disappeared kagan need designed fill longer exists remaining use ignoble one enabling president circumvent senate role appointment process justify read ing constitution contra majority ante neither distort clause original meaning majority ensure prominent role power era influence far pernicious beneficial avoid absurd results follow reading recess majority forced declare breaks though undisputedly within phrase colloquial meaning simply short trigger recess appointments clause ante identifies textual basis whatsoever limiting length recess point clear standard determining short short inconceivable framers left circumstances president exercise significant potentially dangerous power utterly indeterminate structural provisions constitution turn duration quite specific neither house adjourn three days without consent art cl president must return passed bill congress within ten days sundays excepted lest become law cl yet majority view first senate considered taking break weekend siesta way knowing whether president constitutionally authorized appoint officers absence officers appointed circumstances served cloud unable determine degree confidence whether appointments fumbling textually grounded standard majority seizes adjournments clause bars either house adjourning three days without consent cl according majority clause establishes break always short trigger recess appointments clause ante goes without saying nothing constitutional text supports disposition majority concludes recess means recess colloquial sense necessarily includes breaks shorter three days fact constitution includes limit one clause omits weighs strongly finding limit implicit clause appear events dramatically different contexts two clauses operate make importing limit adjournments clause recess appointments clause arbitrary mistaken rappaport original meaning breaks longer three days majority says break four nine days presumptively short presumption may rebutted unusual circumstance national catastrophe renders senate unavailable calls urgent response ante majority must hope terrorem effect presumptively short pronouncement deter future presidents making recess appointments breaks thus save us absurd spectacle unelected judges evaluating evidentiary hearing whether alleged catastrophe sufficiently urgent trigger power majority also says political opposition senate qualify unusual circumstance ibid senate refuse confirm nominee president considers highly qualified even refuse confirm nominee office thinking office better left vacant time president power triggered break matter urgent president perceived need officer assistance majority protests go without saying except justice scalia compels us say seemingly forgetting appointments issue case justified grounds solicitor general asked us view power safety valve senatorial intransigence tr oral arg breaks days presumably infer breaks trigger presumpt ion recess appointments mean president utterly free hand litigants seek invalidation appointment made break pointing absence unusual urgent circumstances necessitating immediate appointment albeit without aid presumpt ion favor put question present lawyers executive branch president make appointment break simply overcome political opposition senate despite absence national catastrophe even though go es without saying break knows majority say neither even many questions raised majority failure articulate standard answered larger question remain constitution text empowers president make appointments break senate proceedings right majority subject president exercise power vague limitations textual basis majority claims temporal guideposts informed executive practice president bind successors diminishing powers free enterprise fund cf clinton jones breyer concurring judgment voluntary actions past presidents tel us little constitution commands interpretation calls kind judicial adventurism correct indeed clause really use recess colloquial sense judicially discoverable manageable standard resolving whether particular break long enough trigger power making nonjusticiable political question zivotofsky slip internal quotation marks omitted historical practice foregoing reasons constitution text structure unambiguously refute majority freewheeling interpretation recess plausible constitution uses term sense authorizes president make unilateral appointments break senate proceedings subject hazy atextual limits crafted centuries ratification majority however insists history offers strong support interpretation ante historical practice political branches course irrelevant constitution clear even constitution thought ambiguous point history support majority interpretation begin majority dismisses years history founding helpful time congress took hardly significant breaks majority evidently means breaks longer three days ibid citing table appendix include breaks three fewer days fact congress took breaks three days time see congressional directory appears presidents made recess appointments none importantly eight decades congress must taken thousands breaks three days shorter majority reading every one breaks within clause text majority newly minted limitation yet announced yet record anyone ever much mentioned possibility power activated breaks surprising indeed text meant majority thinks means cf printz first recess appointments almost certainly made president andrew course period dramatic conflict executive congress saw impeachment sitting president solicitor general counts recess appointments two years app brief petitioner precise nature historical understanding many appointments subject debate see brief constitutional law scholars amici curiae rappaport nonoriginalism seems likely least appointments made understanding took place recess sessions see remainder historical record reveals nothing justified indication johnson attorney general anyone else considered time whether appointments made formal legislative sessions latter squared constitutional text majority drives point home citing judicial opinion upheld one appointments nearly two decades later analysis question presented see ante citing gould cl johnson appointments disavowed first attorney general address question see infra followed precedent executive branch years see infra thus relevance appointments constitutional inquiry severely limited cf brief political scientists historians amici curiae johnson appointments viewed anomalies sui generis first years republic half century went president made recess appointment strong reason think period neither executive senate believed power existed one thing senate adjourned days times period adjournments exceeded days thus even subject majority presumption availability recess appointments see directory yet evidence single appointment made adjournments president century even considered making appointments philander knox first attorney general known opined question explicitly stated power limited period formal sessions op atty knox advised president theodore roosevelt appoint appraiser merchandise adjournment explained constitution laws make clear legislative practice adjournment session congress means merely temporary suspension business day day whereas recess means period final adjournment congress session next session begins period following final adjournment session recess president power fill vacancies intermediate temporary adjournment recess although may recess general ordinary use term knox went observe none many elaborate opinions previous attorneys general concerning power asserted power exercised temporary adjournment senate rather recess senate two sessions congress acknowledged contrary example furnished johnson appointments noted perhaps much tact public circumstances producing state affairs unusual involved results viewed precedents things stood roosevelt made number controversial recess appointments noon december senate moved seamlessly special session regular one scheduled begin hour see cong rec cong rec roosevelt claimed made appointments constructive recess two sessions see special session merged regular times allies senate justified appointments theory moment gavel falls summon regular session infinitesimal fraction second recess two sessions extra session muddle times senate judiciary committee published report criticizing appointments ground constitution means real recess constructive one report explained recess period time senate sitting regular extraordinary session members owe duty attendance chamber empty absence receive communications president participate body making appointments emphasis deleted majority seeks support episode claiming judiciary committee embraced broad functional definition consistent one majority adopts ante contrary episode powerfully refutes majority theory roosevelt legal justification appointments extremely aggressive even recognized recess senate take place formal sessions majority view clause considered plausible roosevelt strengthened position considerably making appointments break days least hours minutes new session began december senate took recess one hour cong rec instead strained declare dubious recess infinitesimal fraction second powerful evidence majority view recess taken seriously even late beginning century yet majority contends extent senate senate committee expressed view view favored functional definition encompasses recesses ante rests contention entirely judiciary committee report distorts committee said denied roosevelt claim recess someone avers catfish cat respond pointing catfish lives water four legs endorsed proposition every quadruped cat likewise judiciary committee explained instantaneous transition one session another recess senate never absent suggest senate absence enough create recess assume otherwise majority commit fallacy inverse otherwise known denying antecedent incorrect assumption implies implies contrary fallacious assumption judiciary committee surely believed consistent executive clear position time recess limited actual constructive breaks sessions present necessary skip first decades nation history order find presidential legal arguably embracing majority interpretation recess president harding attorney general harry daugherty advised harding make recess appointments senate stood adjourned days session term must given practical construction op atty daugherty acknowledged knox opinion contrary committing fallacy today majority thought judiciary committee report come opposite conclusion also recognized fundamental flaw interpretation impossible accurately dra line breaks constitute recess thought absence standard gave president discretion determine real genuine recess ibid palpable abuse discretion might subject appointment review daugherty thought presumption indulged favor validity whatever action may take daugherty opinion flow recess appointments start several years little trickle solicitor general identified appointments made presidents harding coolidge hoover franklin roosevelt app brief petitioner recess appointments experienced brief heyday world war ii president truman making appointments civilian positions several thousand military posts majority claim presidents made thousands recess appointments ante depends entirely military appointments truman made two years president eisenhower made recess appointments practice sank back relative obscurity presidents kennedy lyndon johnson ford made none nixon made practice rose last decades century president carter made recess appointments reagan george bush clinton george bush solicitor general filed brief president obama made even excluding truman military appointments roughly percent recess appointments history made since legal advisers executive branch period typically endorsed president authority make recess appointments citing daugherty opinion little additional analysis see opinions office legal counsel op olc finding question settled within executive branch daugherty opinion majority contention opinions presidential legal advisers nearly unanimous determining clause authorizes recess appointments ante thus true misleading presidential legal adviser approved practice subsequent approvals rested precedent independent examination majority correct period senate body formally repudiate emerging executive practice ante one occasion comptroller general lindsay warren cited daugherty opinion representing accepted view question comp although evidence consulted senators statement reflected views rise recess appointments latter half century drew sharp criticism number senators sides aisle first objections focused length breaks issue see cong rec sarbanes decrying recess appointment adjournment circumvention senate confirmation power resolution offered byrd cosponsors urging recess appointments occur breaks fewer days later many senators sought end recess appointments altogether senate legal counsel prepared brief filed behalf senate mackie clinton supp dc vacated part moot wl cadc per curiam republican opposition blocked filing cong rec brief argued recess power limited congress annual recess sessions contrary executive practice appreciable magnitude existed past fifty years senate acquiesced steady expansion presidential power explained senators limited objections shorter breaks desire coexist executive executive subsequent steady chipping away length recess sufficient making recess appointments ha demonstrated need return framers original intent limit power intersession adjournments senator kennedy reiterated position brief brief edward kennedy amicus curiae franklin today partisan tables turned position urged us senate republican members see brief mcconnell et al amici curiae amount short recess appointments virtually unheard first years republic deemed unconstitutional first attorney general address openly defended executive made significant numbers world war ii repeatedly criticized unconstitutional senators parties astonishing majority assert history lends strong support ante interpretation recess appointments clause majority contention recent executive practice area merits deference senate done oppose utterly divorced precedent structural interests protected appointments clause one branch government entire republic freytag senate give away protections even wanted see chadha clinton kennedy concurring moreover majority insistence senate gainsay executive practice body order prevent executive acquiring power adverse possession ante systematically favor expansion executive power expense congress political branches question staking position defending time far easier executive branch legislative branch see generally bradley morrison historical gloss separation powers harv rev presidents high interest expanding powers office since power president wield effectively implement political agenda whereas individual senators may little interest opposing presidential encroachment legislative prerogatives especially encroacher president leader party majority able point lack formal action senate body challenging recess appointments ante appointing president party senate blocked action multiple occasions president wants assert power establish precedent faces neither problems procedural inertia inherent legislative process majority methodology thus guarantees continuing aggrandizement executive branch iii vacancies second question presented whether vacancies happen recess senate president empowered fill recess appointments vacancies arise recess vacancies exist recess regardless arose hold power limited vacancies arise recess filled hold appointments issue undisputedly filled vacancies invalid reason well reason made session contrary conclusion inconsistent constitution text structure undermines balance framers struck presidential senatorial power historical practice also fails support majority conclusion issue plain meaning majority concedes natural meaning applied vacancy initially occurs ante majority adds meaning natural modern ear fails show ears heard differently happen meant fall chance come pass johnson dictionary english language thus vacancy happened recess reasonably understood one arose recess course possible certain contexts word happen mean happen rather happen occur idiom happens meaning natural subject vacancy state affairs comes existence particular moment event reasonable reader understood recess appointments clause use word happen majority happen sense thus empower president fill vacancies might exist recess regardless arose one thing clause language surpassingly odd way giving president power clause easily written convey meaning clearly referred vacancies may exist recess omitted qualifying phrase entirely simply authorized president fill vacancies recess given readily available alternative phrasings reasonable reader might wondered intelligent drafter intending majority reading inserted words may happen words majority admits make majority desired reading awkward unnatural must effectively read clause achieve reading another thing majority reading strains clause language distorts constitutional role meant subordinate hamilton explained appointment advice consent senate general mode appointing officers federalist senate check president appointment power seen vital official appointments long one american revolutionary generation greatest grievances executive power freytag unilateral power conferred president recess appointments clause therefore understood nothing supplement general method advice consent federalist however clause allowed president fill vacancies recess granting commissions last throughout following session impossible regard framers plainly mere codicil constitution principal scheme filling federal offices majority reading president need ever seek senate advice consent appointments whenever fair prospect senate rejecting preferred nominee president appointed individual unilaterally recess allowed appointment expire end next session renewed appointment following day ad infinitum circumvention especially easy majority also concludes president authorized make appointments break days unthinkable obvious means executive expand power overlooked ratification original understanding clause consistent majority concedes text natural meaning ante attorney general edmund randolph leading member constitutional convention provided executive branch first formal interpretation clause advised president washington constitution authorize recess appointment fill office chief coiner mint created congress april senate session randolph wrote vacancy happened recess senate vacancy existed april commenced therefore day may said happened day opinion recess appointments july papers thomas jefferson catanzariti ed randolph added interpretation congruent constitution structure made power exception general participation senate ibid omitted president john adams attorney general charles lee agreement see letter george washington july president may fill limited time old office become vacant recess emphasis added online http letter james mchenry john adams may hereinafter mchenry letter conveying lee advice certain offices ies happening session president fill recess powers vested online http one prominent early academic commenters constitution read clause way see george tucker blackstone commentaries app assuming president appoint recess office became vacant recess early congresses seem shared randolph lee view statute passed first congress authorized president appoint customs inspectors advice consent senate provided appointment shall made present session congress president hereby empowered make appointments recess senate granting commissions shall expire end next session act mar stat authorization superfluous recess appointments clause understood apply vacancies recognized action taken first congress provides weighty evidence constitution meaning bowsher statutes passed early years republic contained similar authorizations see app brief respondent noel canning also illuminating way third congress interpreted constitution senate vacancies clause uses language similar recess appointments clause passage seventeenth amendment constitution provided vacancies senate happen resignation otherwise recess legislature state executive thereof may make temporary appointments next meeting legislature art cl senator george read delaware resigned december state legislature met january february governor appointed kensey johns fill seat march senate refused seat johns resolving entitled seat senate session legislature said state intervened resignation appointment annals cong thus clear phrase happen recess senate vacancies clause understood refer vacancies arose merely existed recess appointment made apparent nearly identical language recess appointments clause understood differently majority however relies heavily contrary account clause given attorney general william wirt see op atty gen wirt notably began majority acknowledging predecessors reading accordant letter constitution thought natural reading rejected interfere substantial purpose constitution namely keep ing offices filled chiefly concerned giving clause plain meaning produce embarrassing inconveniences distant office become vacant senate session news vacancy reach president recess majority fully embraces wirt reasoning ante wirt argument doubly flawed begin constitution provides ample means short rewriting text dealing hypothetical dilemma wirt posed congress authorize acting officers perform duties associated temporarily vacant office done one form another since see act may ch stat rappaport original meaning extraordinary occasions president call senate back session consider nomination art ii framers thought options insufficient preferred authorize president make recess appointments fill vacancies arising late session known massachusetts example authorized governor make certain recess appointments case vacancy shall happen recess general state legislature late period session vacancy shall supplied session thereof mass acts ch acts laws commonwealth massachusetts emphasis added majority protests acting appointments unlike recess appointments inadequate solution wirt hypothetical dilemma acting officers may less authority presidential appointments ante cites olc opinion acting officer frequently considered merely caretaker without mandate take measures op olc lines later majority says lack senate approval may diminish recess appointee ability practical matter get controversial job done ante majority explain acting officer less authority practical matter recess appointee majority also objects requiring president rely acting officers lessen president ability staff executive branch people choosing ante surprising charge since purpose constitution requirement special sessions majority thinks sufficient answer say burdensome observation fails distinguish many procedures required structural constitution fundamentally wirt majority mistaken say constitution offices filled ibid quoting op atty constitution road map maximally efficient government system carefully crafted restraints designed protect people improvident exercise power chadha wirt majority argumentum ab inconvenienti thus proves far much many circumstances vacancy produce similar inconveniences arise late session example natural disaster might occur executive respond effectively without supplemental appropriation circumstances constitution permit president appropriate funds see art cl congress must either anticipate eventualities prepared haled back session troublesome need bug fixed calculated feature constitutional framework recognized constitution provisions seem clumsy inefficient reflect hard choices consciously made men lived form government permitted arbitrary governmental acts go unchecked chadha supra historical practice reasons given clear constitution authorizes president fill unilaterally vacancies arise recess every vacancy happens exist recess however majority says istorical practice requires broader interpretation ante majority mistaken even constitution wrongly thought ambiguous point fair recounting relevant history support majority interpretation majority correctly admits undisputed record presidents george washington john adams thomas jefferson using recess appointment fill vacancy ibid surprising light randolph early conclusion unconstitutional adams one occasion contemplated filling vacancies dissuaded among others attorney general lee said constitution permit see mchenry solicitor general allege even single appointment made adams filled vacancy jefferson one point thought clause susceptible majority reading jefferson letter administration like adams appears never adopted reading james madison administration seems rejected majority reading well madison wanted appoint andrew jackson vacant army senate recess accepted without contradiction reservation secretary war advice lacked power post previous occupant resigned recess therefore ordered jackson given brevet major general warrant conferring nominal rank without salary thereof letter john armstrong madison may letter madison armstrong may conveying brevet madison secretary war explained jackson vacancy produced general hampton resignation filled late session senate supplied constitutionally recess letter armstrong jackson may week later madison learned different major general resigned recess thought development enable appoint jackson letter madison armstrong may see letter armstrong madison may reporting resignation majority discounts evidence occasion madison advisers actually considered precise constitutional question presented apparently madison acting advice given without questioning interpretation power offered reason advice explicitly say agree majority prefers focus five appointments madison unremarked anyone time evidence suggests filled vacancies ante even majority correct appointments indication thought given constitutionality either within outside executive branch handful appointments appear contravene written opinions attorneys general randolph lee written evidence madison beliefs constitution authorized lack contemporaneous explanation convincing evidence constitution original madison predecessors made appointments reliance broader reading appointments must escaped general notice senate committee military affairs declared president power make appointments recess vacancies happen recess annals cong committee believed construction heretofore observed instance ha occurred president ha felt authorized fill vacancies without special authority law ibid see also sergeant constitutional law ed seemed distinctly understood sense senate offices become vacant recess president authorised exercise right appointing executive branch openly depart randolph lee interpretation wirt issued opinion discussed earlier even within branch wirt view hotly contested william crawford monroe treasury secretary argued great pertinacity clause authorized president fill vacancies happen recess happen congress session memoirs john quincy adams adams ed wirt analysis nonetheless gained ground executive branch next four decades slowly fitfully attorney general berrien disagreed wirt wrote vacancy exist session senate president appoint recess op atty two years later attorney general taney endorsed wirt view acknowledged unnecessary resolve issue whether president recess fill vacancy resulting expiration prior recess appointment end senate session op atty addressing issue attorney general legaré appeared believe dispositive question whether office said becom vacant recess op atty attorney general mason thought well established vacancies known exist session senate nominations made filled executive appointments recess op atty tide seemed turn far executive branch concerned century attorney general cushing attorney general bates treated wirt position settled without subjecting additional analysis op atty op atty bates however entertained serious doubts validity ibid one shrewdly observed rejecting wirt interpretation frequency attorneys general period called upon opine question likely indicate settled administrative usage established district attorney cas dc solicitor general identifies recess appointments made filled vacancies one every four years app brief petitioner hardly impressive number appointments minor offices like deputy postmaster janesville wisconsin unlikely gotten senate attention senate notice president lincoln david davis fill seat become vacant recess reacted vigor two months lincoln recess appointment davis senate directed judiciary committee inquire whether practice appointing officers fill vacancies occurred recess congress existed preceding session congress accordance constitution remedy shall applied cong globe committee responded report denouncing wirt interpretation clause artificial forced unnatural unfounded perversion language pp majority ignores evidence senate views worth quoting report length must vacancy accrue spring existence may begin session senate must beginning recess think language clear admit reasonable doubt upon principles construction period must inceptive point one session closed another session begun dissent construction implied substituted reading exist word clause vacancy exists law happened instantaneous event implies continuance act produces takes effect complete perfect indivisible point time like beginning end recess existence happened mere continuance condition things occurrence produces without confounding obvious distinctions taken treated occurrence wirt seems done see propriety forcing language popular meaning order meet fulfill one confessedly great purpose keeping office filled plainly another purpose equal magnitude importance fitting qualifications attached inseparable former committee acknowledged broad reading ha time time sanctioned attorneys general executive ha time time practiced upon said executive practice entitled weight constitution text plain admit doubt need interpretation day committee published scathing report chairman senator trumbull proposed law barring payment officer appointed recess fill vacancy cong globe senator fessenden spoke support proposal understood distinctly officer come within rules law appointed way defiance wishes senate shall paid may power prevent appointment power prevent payment payment prevented think probably put end habit making appointments amendment adopted senate passing house became pay act provided money shall paid treasury salary person appointed recess senate fill vacancy existed senate session act stat codified rev stat subsequently codified amended pay act remain force without significant modification nearly eight decades executive branch however refused acknowledge act embodied senate rejection broad reading happen several attorneys general continued treat wirt interpretation settled without much mentioning act see op atty op atty op atty op atty years passage attorney general devens deigned acknowledge act preposterously described conced ing president power make appointments act barred payment op atty majority bold instead relegates judiciary committee report pair anodyne sentences says committee wirt interpretation ante like understatement one say shakespeare mark antony disagreed caesar detractors even remarkably majority goes claim senate passage pay act day committee issued report strong enough statement impede power asserted executive majority says senators may disagreed report senate go far make acceptance recess appointment filled vacancy federal crime ante reasoning starkly illustrates excessive burden majority places legislative branch contests executive separation powers see supra despite minimization subsequent attorneys general today majority reason doubt pay act deterrent effect solicitor general identified recess appointments filled vacancies nearly eight decades act passage amendment app brief petitioner present majority finds highly significant congress created carefully limited exceptions pay act prohibition paying recess appointees filled vacancies see act july ch stat codified nonsubstantive amendments current version act ayment services may made treasury individual appointed recess senate fill vacancy existed senate session unless either vacancy arose different individual nomination fill vacancy rejected within days end session nomination pending senate end session individual nominated recess appointee president fills vacancy one circumstances specified act law requires submit nomination office senate later days beginning next session majority says allowing salaries paid recess appointees narrow circumstances senate later senates effect supported majority interpretation clause ante nonsense even amended act strictly regulates payment recess appointees fill vacancies still forbids payment many officers whose appointments constitutional majority interpretation amici senators observe amendments reflect desire punish public servants caught crossfire interbranch conflict brief mcconnell et al amici curiae surely inference reasonable majority supposition congress permitting appointees covered act paid meant signal believed covered appointments valid moreover given majority interpretation recess appointments clause fairly debatable whether current version pay act constitutional fortiori whether version constitutional even amended act seeks limit channel president exercise power prohibiting payment officers whose appointments per majority within president sole constitutional authority appointments comply conditions imposed congress requiring president submit nominee senate first days ensuing session colorable argument routinely made lawyers executive branch congress use appropriations power control presidential power beyond direct control op olc online http quoting op olc consistent view office legal counsel maintained congress condition funding officer salary allowed appoint officer op olc correct pay act attempt control president exercise power least raises substantial constitutional question majority reading recess appointments clause see rappaport original meaning executive challenged act constitutionality case express opinion whether challenge succeed simply point impossible regard amended pay act evidence senatorial acquiescence majority reading reading potential invalidate act since pay act amended individual senators continued maintain recess appointments may constitutionally used fill vacancies see cong rec statement seven senators recess appointment federal reserve board unconstitutional vacancy happen recess brief mcconnell et al amici curiae senators taking view clause evidence pay act produced immediate flood recess appointments filling vacancies solicitor general pointed us appointments present app brief petitioner majority however finds significant two small random sample contemporary recess appointments since since bulk appointments appear filled vacancies ante based evidence majority thinks fair inference large proportion recess appointments history nation filled vacancies ibid extrapolation sweeping conclusion small set recent data bear even slightest scrutiny majority ignores two salient facts first founding century president authority make appointments far settled even within executive branch second illegal pay recess appointee filled surely discouraged presidents making nominees accepting appointments consequently reason assume majority sampling even accurately reflects practices last three decades typical practices prevailed throughout history nation sum washington adams attorneys general read constitution restrict recess appointments vacancies arising recess evidence first four presidents consciously departed reading contrary reading first defended executive official vehemently rejected senate vigorously resisted legislation place arguably inconsistent legislation place present solicitor general identified appointments ever made broader reading seems likely good deal made last decades good reason doubt many made since appointees compensated conceive sane constitutional theory evidence historical practice actually evidence conflict require us defer views executive branch iv conclusion majority needs sustain judgment ambiguous text clear historical practice clear text historical practice even executive accumulate power adverse possession engaging consistent unchallenged practice long period time practices issue meet standard practices created justifiable expectations disappointed enforcing constitution original meaning thus ground majority deference unconstitutional practices executive branch majority replaces constitution text new set rules govern recess appointments henceforth senate avoid triggering president power odd contrivance never adjourning three days without holding pro forma session understood business conducted ante new regime work practice remains seen perhaps reduce prevalence recess appointments perhaps members president party congress may able prevent senate holding pro forma sessions necessary frequency house senate disagree president may able adjourn time shall think proper art ii event limitation upon president appointment power benefit senate protection people dependent senate action existence real tragedy today decision simply abolition constitution limits power substitution novel framework invented damage done jurisprudence generally every day encounter proper case controversy requiring interpretation constitution structural provisions time interpretation provisions left political branches deciding much respect afford constitutional text often take cues therefore take every opportunity affirm primacy constitution enduring principles politics moment failure today resonate well beyond particular dispute hand sad true embrace theory executive power characterization majority resists refute cited diverse contexts including presently unimagined effect aggrandizing presidency beyond constitutional bounds undermining respect separation powers concur judgment footnotes cases cited majority afforded significant weight historical practice ante consistent principles described nearly involved venerable unchallenged practices constitutional provisions either deeply ambiguous plainly supportive practice see dames moore regan citing presidential practice dating never questioned congress inform meaning executive power ex parte grossman citing unchallenged presidential practice dating support construction pardon power based common law history clause convention ordinary meaning words midwest oil citing presidential practice dating early period history government uniformly repeatedly acquiesced congress previously upheld establish recognized administrative power executive management public lands mcpherson blacker citing method choosing presidential electors prevalent among formation government constitutionality question ha ever arisen support construction consistent constitutional text drafting history mcculloch maryland wheat citing power exercised first congress elected present constitution recognized many successive legislatures acted upon judicial department support conclusion necessary proper clause allowed congress incorporate bank stuart laird cranch citing practice commence organization judicial system rejecting challenge justices riding circuit even mistretta concluded constitutional text prohibit judges undertaking extrajudicial duties found additional evidence conclusion longstanding practice acknowledged controversial emphasized relying contemporaneous practice founders frequent continuing since ratification majority claims phrase recess used refer recesses time founding ante offers strikingly little support assertion first cites letter george washington quite obviously example imprecise colloquial usage see records federal convention farrand rev put carriage hands workman repaired means mooving sic recess next cites example new jersey legislature simply reflects body practice dividing time sessions also distinct formal sittings within session recess denoting period sittings see brief respondent noel canning see also natelson finally majority cites three pages solicitor general brief without acknowledging arguments offered response solicitor general supposed counterexamples see brief respondent noel canning natelson majority insists likely reason framers place textual floor underneath word foresee need one anticipate breaks become lengthier significant ones ante majority logic escapes framers supposed failure anticipate length breaks might explain maintain bother authorize recess appointments breaks explain majority holds enacted text authorizes appointments breaks even short ones majority says anticipate without placing temporal limitation power majority erroneously suggests lack textual floor raises problem plagues interpretations recess ante clause given plain meaning president make recess appointments session make recess appointments break sessions matter short contra majority problem true power applies even short breaks breaks typically occur times year power limited utility short breaks since explained president fill vacancies arise break see part iii infra course senate judiciary committee argued break must actual constructive senate must adjourn measurable period time two sessions see infra requirement actually recess involve anywhere near level indeterminacy entailed majority requirement recess long enough circumstances unusual enough determined trigger power majority contend otherwise solicitor general claims president lincoln appointed handful brigadier generals breaks include appointments list known recess appointments compare brief petitioner app brief petitioner noel canning convincingly argues generals given recess appointments unofficial acting appointments received commissions brief respondent noel canning see rappaport nonoriginalism justify departing original meaning recess appointments clause manuscript hereinafter rappaport nonoriginalism online http internet materials visited june available clerk case file majority dismisses knox opinion overly formalistic relied heavily upon use word phrase recess ante passage quoted makes clear knox relying common understanding recess meant context marking legislative time say daugherty arguably embraced majority view may endorsing majority position intermediate view reads recess next session functional terms appointments last next break see supra rappaport nonoriginalism despite initially admitting text naturally favor interpretation majority halfheartedly suggests reading may admissible subject like vacancy denotes continuing state ante suggestion distorts ordinary english usage indeed natural say ongoing activity event like war parade financial crisis happening long continues true subject settled state affairs like death marriage vacancy happen come majority insists character politics ordinarily prevent president circumventing senate senate political resources respond attempts circumvention ante neither character politics prevented theodore roosevelt proclaiming fictitious recess lasting infinitesimal fraction second event constitution entrust senate role appointments process vagaries character politics see freytag commissioner majority deny lee took positions claims also later informed thomas jefferson adams administration office became vacant short time congress rose give opportunity enquiring proper character let lie always till recess ante quoting letter jefferson wilson cary nicholas papers thomas jefferson oberg ed hereinafter jefferson letter assuming lee fact made statement attributed jefferson assuming lee endorsed constitutionality practice described statement jefferson say practice regarded pragmatic exception general view clause lee like randolph espoused practice must extensive since solicitor general unable identify even single appointment made adams filled vacancy see infra majority suggests statutes may reflected belief power limited vacancies arising recess separate belief power used new offices created congress previously filled ante latter view majority endorse inseparably linked former majority rejects made clear source majority cites see letter alexander hamilton james mchenry may papers alexander hamilton syrett ed power fill vacancy power make original appointment phrase may happened serves confirm construction ndependent authority special law president fill vacancy happens session senate see also op atty vacancy exist session senate first creation office law held president appoint recess unless specially authorized law rawle view constitution america ed reprint held senate new offices created congress president adjournment senate make appointments fill vacancies happen recess senate see also letter adams james mchenry april works john adams adams ed proposing appointments letter adams mchenry may agreeing suspend appointments present perhaps till meeting senate advising adams mchenry also consulted alexander hamilton agreed appointments unlawful see letter mchenry hamilton apr papers alexander hamilton seem constitutional power president alone fill vacancies may happen session senate letter hamilton mchenry may clear independent authority special law president fill vacancy happens session senate letters cited paragraph available online courtesy library congress see james madison papers http said solicitor general claim found two recess appointments washington four jefferson filled vacancies noel canning disputes claim pointing washington told senate offices question vacant arguing jefferson may removed incumbent officers recess brief respondent noel canning suffice say either washington jefferson adopted broader reading written advice attorneys general randolph lee one expect good deal evidence fact year later mason like taney legaré concluded recess appointment expired end senate session president fill resulting vacancy ensuing recess reaching conclusion mason reiterated power depends happening vacancies senate session said vacancy issue within meaning clause happening vacancy termination session occurred eo instanti op atty early century senators acceded majority reading clause majority eager point ante senator tillman allowed senate ha acquiesced president use power fill vacancies cong rec though also quoted length judiciary committee report said see anybody find argument controvert position report takes senators robinson sutherland accepted majority reading without analysis cong rec reader decide whether statements three senators justify assertion senate abandoned hostility broad reading ante majority also notes many recess appointments identified solicitor general made within two weeks beginning recess according majority strongly suggests many vacancies initially arose prior recess ante inference unwarranted since many circumstances random chance cause vacancy arise early recess example prior officeholder may another recess appointee whose commission expired end senate session may waited recess resign successor compensated without violating pay act event overwhelming majority recess appointments solicitor general list occurred shed light earlier practices