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From the founding until the Great Depression, every time the Senate took a substantial, non-holiday intra-session recess, the President made recess appointments. In any event, by 1862 Attorney General Bates could still refer to "the unbroken acquiescence of the Senate" in support of the broad interpretation. But our deference to the Senate cannot be absolute. the business of legislating" then it might be in recess, even if it said it was not). Accordingly, we conclude that when the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the Clause. Regardless, the Recess Appointments Clause is not designed to overcome serious institutional friction. 3, 1795 121 4th S June 8, 1795 June 26, 1795 19 1 Dec.

President Andrew Johnson made the first documented intra-session recess appointments in 18, and Presidents made similar appointments in 19. When the Senate is without the Senators that if the Senate had left the Capitol and "effectively given up . In that circumstance, the Senate is not simply unlikely or unwilling to act upon nominations of the President. This purpose would count for little were we to treat the Senate as though it were in session even when it lacks the ability to provide its "advice and consent." Art. Applying this standard, we find that the sessions were sessions for purposes of the Clause. The Journal of the Senate and the Congressional Record indicate that the Senate convened for a series of twice-weekly "sessions" from December 20 through January 20. It simply provides a subsidiary method for appointing officials when the Senate is away during a recess. That structure foresees resolution not only through judicial interpretation and compromise among the branches but also by the ballot box.

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The Recess Appointments Clause reflects the tension between the President's continuous need for "the assistance of subordinates," , 272 U. 52, 117, and the Senate's early practice of meeting for a single brief session each year. We have compared the list of -session recess appointments in the Solicitor General's brief with the chart of congressional recesses. Both Senators to address the question--one on each side of the payment debate--agreed that the President had the constitutional power to make the appointment, and the Senate voted to pay the appointee for his service. If the former, the period between January 3 and January 6 was a 3-day recess, which is too short to trigger the President's recess-appointment power, see matter. But in that case, of course, the Senate would no longer be in recess. The Solicitor General argues that more is required. when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments." 1905 Senate Report, at 2. By its official rules, the Senate operates under the presumption that a quorum is present until a present Senator suggests the absence of a quorum, Riddick's 1041-1042, and nothing in the Journal of the Senate or the Congressional Record reflects any such suggestion. See Riddick's 214; Standing Rule of the Senate VI(2), S. If any present Senator had raised a question as to the presence of a quorum, and by roll call it had become clear that a quorum was missing, the Senators in attendance could have directed the Sergeant at Arms to bring in the missing Senators. The Solicitor General asks us to engage in a more realistic appraisal of what the Senate actually did. From a practical perspective, judges cannot easily determine such matters as who is, and who is not, in fact present on the floor during a particular Senate session.

The Clause should be interpreted as granting the President the power to make appointments during a recess but not offering the President the authority routinely to avoid the need for Senate confirmation. Where a specific date of appointment can be ascertained, more than half of those intra-session appointments were made within two weeks of the beginning of a recess. Thus, it is not surprising that the Congressional Research Service, after examining the vacancy dates associated with a random sample of 24 inter-session recess appointments since 1981, concluded that "[i]n most of the 24 cases, the preponderance of evidence indicated that the vacancy arose prior to the recess during which the appointment was made." The Decision 3. The Senate, he contends, remained in a single, unbroken recess from January 3, when the second session of the 112th Congress began by operation of the Twentieth Amendment, until January 23, when the Senate reconvened to do regular business. 20, §2 (Congress must meet once a year on January 3, unless it specifies another day by law); Art. He contends that what counts is not the Senate's "the period of time . sessions, "participate as a body in making appointments"? It could confirm nominees by unanimous consent, just as it passed the bill mentioned above. Could the Senate "receive communications from the President"? The Congressional Record indicates that the Senate "received" a message from the President on January 12, during a 3-day adjournment between two session. He argues that, during the relevant sessions, business was not in fact conducted; messages from the President could not be received in any meaningful way because they could not be placed before the Senate; the Senate Chamber was, according to C-SPAN coverage, almost empty; and in practice attendance was not required. We do not believe, however, that engaging in the kind of factual appraisal that the Solicitor General suggests is either legally or practically appropriate. coequal and independent departments" by, for example, taking the Senate's report of its official action at its word. Judicial efforts to engage in these kinds of inquiries would risk undue judicial interference with the functioning of the Legislative Branch. We do not see, however, how our holding could significantly alter the constitutional balance.

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Respondent Noel Canning, a Pepsi-Cola distributor, asked the D. Circuit to set aside an order of the National Labor Relations Board, claiming that the Board lacked a quorum because three of the five Board members had been invalidly appointed. transacted," every Tuesday and Friday through January 20, 2012. Noel Canning argued primarily that the appointments were invalid because the 3-day adjournment between those two sessions was not long enough to trigger the Recess Appointments Clause. It held that the phrase "the recess," as used in the Clause, does not include intra-session recesses, and that the phrase "vacancies that may happen during the recess" applies only to vacancies that first come into existence during a recess. The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess--intra-session or inter-session--of sufficient length. First, the Recess Appointments Clause is a subsidiary method for appointing officers of the United States. As we have just said, nearly every 19th- and 20th-century Attorney General expressing a view on the matter has agreed with William Wirt, and Presidents tend to follow the legal advice of their chief legal officers. Given the difficulty of finding accurate information about vacancy dates, that list is undoubtedly far smaller than the actual number. at 565 ("[S]ome other persons think he has that power"). 431 (making it a federal crime for "any person" to "accept any appointment" in certain circumstances). Senator Tillman then agreed that "the Senate has acquiesced" in the President's "power to fill" pre-recess vacancies. In 1927 the Comptroller General, a legislative officer, wrote that "there is vacancy," including those that "existed while the Senate was in session." 7 Comp. The Solicitor General has identified 40 between 18, but that number is clearly not comprehensive. Then in 1940 Congress amended the Pay Act to authorize salary payments (with some exceptions) where (1) the "vacancy arose within thirty days prior to the termination of the session," (2) "at the termination of the session" a nomination was "pending," or (3) a nominee was "rejected by the Senate within thirty days prior to the termination of the session." Act of July 11, 54 Stat. The Senate as a body has not countered this practice for nearly three-quarters of a century, perhaps longer. In light of some linguistic ambiguity, the basic purpose of the Clause, and the historical practice we have described, we conclude that the phrase "all vacancies" includes vacancies that come into existence while the Senate is in session.

The nominations of the three members in question were pending in the Senate when it passed a December 17, 2011, resolution providing for a series of "session[s]," with "no business . The Founders intended the norm to be the method of appointment in Article II, §2, cl. as a constitutional question can be settled," 10 Op. Gen., at 356, and a century later Acting Attorney General Walsh gave President Eisenhower the same advice "without any doubt," 41 Op. Moreover, the Solicitor General has compiled a list of 102 (mostly uncontested) recess appointments made by Presidents going back to the founding. No one disputes that every President since James Buchanan has made recess appointments to pre-existing vacancies. Relying upon the floor statement of a single Senator, suggests that the passage of the Pay Act indicates that the Senate as a whole endorsed the position in the 1863 Report. During the floor debate on the bill, not a single Senator referred to the Report. Further, if a majority of the Senate had believed appointments to pre-recess vacancies were unconstitutional, it could have attempted to do far more than temporarily dock the appointees' pay. In any event, the Senate subsequently abandoned its hostility. that at all times there should be, whether the Senate was in session or not, an officer for every office" (emphasis added)). The third question concerns the calculation of the length of the Senate's "recess." On December 17, 2011, the Senate by unanimous consent adopted a resolution to convene " sessions. By way of contrast, we do not see how the Senate could conduct business during a recess. 5 (2011) ("No Senator shall absent himself from the service of the Senate without leave").

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