The Origins and Meaning of "Vacancies That May Happen during the Recess" in the Constitution's Recess Appointments Clause
Natelson, Robert G., Harvard Journal of Law & Public Policy
There has been longstanding uncertainty about the meaning of "the Recess" and "Vacancies that may happen" in the Constitution's Recess Appointments Clause. This Article finds that both "the Recess" and close variants of "Vacancies that may happen" were standard terms in Founding-Era legislative practice, and appear copiously in legislative records. Those records inform us that "the Recess" means only the intersession recess and that a vacancy "happens" only when it first arises.
I. THE ISSUES AND THE CASE OF NOEL CANNING A. The Noel Canning Case B. Previous Writing on the Recess Appointments Clause II. AVAILABLE PRERATIFICATION MATERIALS III. THE CONCEPT OF THE "SESSION" IV. THE MEANING OF "THE RECESS" A. References to the Period Between Sessions as "the Recess" B. Usages Implying that "the Recess" Meant Only the Intersession Recess 1. Legislative Grants of Special Powers During "the Recess" 2. Other Resolutions Implying That "the Recess" Referred Only to Intersession Breaks V. VACANCIES AND THE MEANING OF "HAPPEN". A. The Use of "Vacancy ... Happen" Language in the Founding Era B. How Founding-Era Documents Illustrate the Meaning of "Happen" C. References That Necessarily Exclude All But Discrete Events from the Meaning of "Happen" VI. CONCLUSION
I. THE ISSUES AND THE CASE OF NOEL CANNING
A. The Noel Canning Case
The Constitution's Recess Appointments Clause provides that, "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." (1) In absence of legislation authorizing the President unilaterally to appoint "inferior" officers, the President normally must obtain the consent of the Senate for his appointments. (2) The Recess Appointments Clause, however, grants the President a limited, unilateral power to fill vacancies without senatorial consent.
The Recess Appointments Clause presents several controversial questions of interpretation. The two issues explored in this Article are: (1) whether "the Recess" encompasses only intersession recesses or intrasession breaks as well; and (2) whether to "happen during the Recess" means the vacancy must arise during a recess or whether a vacancy could "happen during the Recess" if it arises while the Senate is in session but continues beyond the session and into the recess. (3)
Both of these questions were at issue in the recent decision by the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. National Labor Relations Board. (4) In Noel Canning, the court reviewed an order by the National Labor Relations Board (NLRB) finding that Noel Canning (an employer and a division of a larger corporate entity) had violated federal labor law. (5)
Noel Canning contended that the order was illegally issued because three of the five individuals acting as NLRB members were not validly appointed under the Constitution. (6) The individuals had been appointed by the President, without senatorial approval, to fill existing vacancies. (7) Two of the vacancies arose during intrasession recesses and continued into a period in which the Senate, while not actually conducting business, was in pro forma session. (8) The third arose during the pro forma session. (9) Noel Canning argued that the appointments were invalid both because "the Recess" means only the intersession recess (10) and because for a vacancy to "happen" it must arise during the recess. (11)
The D.C. Circuit agreed with Noel Canning on both questions. (12) It held that "the Recess" refers only to the Senate's formal intersession recess, not to shorter adjournments. (13) Shortly after the Noel Canning decision, the U.S. Court of Appeals for the Third Circuit decided National Labor Relations Board v. …