(Slip Opinion)              OCTOBER TERM, 2013                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 

, 337.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

     NATIONAL LABOR RELATIONS BOARD v. NOEL 

                 CANNING ET AL. 


CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
          THE DISTRICT OF COLUMBIA CIRCUIT

    No. 12–1281. Argued January 13, 2014—Decided June 26, 2014
Respondent Noel Canning, a Pepsi-Cola distributor, asked the D. C.
  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. 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 “pro
  forma session[s],” with “no business . . . transacted,” every Tuesday
  and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess.,
  923. Invoking the Recess Appointments Clause—which gives the
  President the power “to fill up all Vacancies that may happen during
  the Recess of the Senate,” Art. II, §2, cl. 3—the President appointed
  the three members in question between the January 3 and January 6
  pro forma sessions. Noel Canning argued primarily that the ap-
  pointments were invalid because the 3-day adjournment between
  those two sessions was not long enough to trigger the Recess Ap-
  pointments Clause. The D. C. Circuit agreed that the appointments
  fell outside the scope of the Clause, but on different grounds. 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 hap-
  pen during the recess” applies only to vacancies that first come into
  existence during a recess.
Held:
    1. The Recess Appointments Clause empowers the President to fill
 any existing vacancy during any recess—intra-session or inter-
 session—of sufficient length. Pp. 5–33.
       (a) Two background considerations are relevant to the questions
 here. First, the Recess Appointments Clause is a subsidiary method


. NOEL CANNING

                                  Syllabus

    for appointing officers of the United States. The Founders intended
    the norm to be the method of appointment in Article II, §2, cl. 2,
    which requires Senate approval of Presidential nominations, at least
    for principal officers. The Recess Appointments Clause reflects the
    tension between the President’s continuous need for “the assistance
    of subordinates,” Myers v. United States, 

, 117, and the
    Senate’s early practice of meeting for a single brief session each year.
    The Clause should be interpreted as granting the President the pow-
    er to make appointments during a recess but not offering the Presi-
    dent the authority routinely to avoid the need for Senate confirma-
    tion.
       Second, in interpreting the Clause, the Court puts significant
    weight upon historical practice. The longstanding “practice of the
    government,” McCulloch v. Maryland, 

, 401, can inform
    this Court’s determination of “what the law is” in a separation-of-
    powers case, Marbury v. Madison, 1 Cranch 137, 176. See also, e.g.,
    Mistretta v. United States, 

, 401; The Pocket Veto Case,
    

, 689–690. There is a great deal of history to consider
    here, for Presidents have made recess appointments since the begin-
    ning of the Republic. Their frequency suggests that the Senate and
    President have recognized that such appointments can be both neces-
    sary and appropriate in certain circumstances. The Court, in inter-
    preting the Clause for the first time, must hesitate to upset the com-
    promises and working arrangements that the elected branches of
    Government themselves have reached. Pp. 5–9.
         (b) The phrase “the recess of the Senate” applies to both inter-
    session recess (i.e., breaks between formal sessions of the Senate) and
    intra-session recesses (i.e., breaks in the midst of a formal session) of
    substantial length. The constitutional text is ambiguous. Founding-
    era dictionaries and usages show that the phrase “the recess” can en-
    compass intra-session breaks. And this broader interpretation is
    demanded by the purpose of the Clause, which is to allow the Presi-
    dent to make appointments so as to ensure the continued functioning
    of the Government while the Senate is away. The Senate is equally
    away and unavailable to participate in the appointments process dur-
    ing both an inter-session and an intra-session recess. History offers
    further support for this interpretation. From the founding until the
    Great Depression, every time the Senate took a substantial, non-
    holiday intra-session recess, the President made recess appoint-
    ments. President Andrew Johnson made the first documented intra-
    session recess appointments in 1867 and 1868, and Presidents made
    similar appointments in 1921 and 1929. Since 1929, and particularly
    since the end of World War II, Congress has shortened its inter-
    session breaks and taken longer and more frequent intra-session
                    Cite as: 573 U. S. ____ (2014)                      3

                               Syllabus

breaks; Presidents accordingly have made more intra-session recess
appointments. Meanwhile, the Senate has never taken any formal
action to deny the validity of intra-session recess appointments. In
1905, the Senate Judiciary Committee defined “the recess” as “the
period of time when the Senate” is absent and cannot “participate as
a body in making appointments,” S. Rep. No. 4389, 58th Cong., 3d
Sess., p. 2, and that functional definition encompasses both intra-
session and inter-session recesses. A 1940 law regulating the pay-
ment of recess appointees has also been interpreted functionally by
the Comptroller General (an officer of the Legislative Branch). In
sum, Presidents have made intra-session recess appointments for a
century and a half, and the Senate has never taken formal action to
oppose them. That practice is long enough to entitle it to “great
weight in a proper interpretation” of the constitutional provision.
The Pocket Veto 

.
   The Clause does not say how long a recess must be in order to fall
within the Clause, but even the Solicitor General concedes that a 3-
day recess would be too short. The Adjournments Clause, Art. I, §5,
cl. 4, reflects the fact that a 3-day break is not a significant interrup-
tion of legislative business. A Senate recess that is so short that it
does not require the consent of the House under that Clause is not
long enough to trigger the President’s recess-appointment power.
Moreover, the Court has not found a single example of a recess ap-
pointment made during an intra-session recess that was shorter than
10 days. There are a few examples of inter-session recess appoint-
ments made during recesses of less than 10 days, but these are
anomalies. In light of historical practice, a recess of more than 3
days but less than 10 days is presumptively too short to fall within
the Clause. The word “presumptively” leaves open the possibility
that a very unusual circumstance could demand the exercise of the
recess-appointment power during a shorter break. Pp. 9–21.
     (c) The phrase “vacancies that may happen during the recess of
the Senate,” Art. II, §2, cl. 3, applies both to vacancies that first come
into existence during a recess and to vacancies that initially occur be-
fore a recess but continue to exist during the recess. Again, the text
is ambiguous. As Thomas Jefferson observed, the Clause is “certain-
ly susceptible of [two] constructions.” Letter to Wilson Cary Nicholas
(Jan. 26, 1802), in 36 Papers of Thomas Jefferson 433. It “may mean
‘vacancies that may happen to be’ or ‘may happen to fall’ ” during a
recess. 

General Wirt wrote in 1821, the
broader reading is more consonant with the “reason and spirit” of the
Clause. 1 Op. Atty. Gen. 632. The purpose of the Clause is to permit
the President, who is always acting to execute the law, to obtain the
assistance of subordinate officers while the Senate, which acts only in


. NOEL CANNING

                                  Syllabus

    intervals, is unavailable to confirm them. If a vacancy arises too late
    in the session for the President and Senate to have an opportunity to
    select a replacement, the narrower reading could paralyze important
    functions of the Federal Government, particularly at the time of the
    founding. The broader interpretation ensures that offices needing to
    be filled can be filled. It does raise a danger that the President may
    attempt to use the recess-appointment power to circumvent the Sen-
    ate’s advice and consent role. But the narrower interpretation risks
    undermining constitutionally conferred powers more seriously and
    more often. It would prevent a President from making any recess
    appointment to fill a vacancy that arose before a recess, no matter
    who the official, how dire the need, how uncontroversial the appoint-
    ment, and how late in the session the office fell vacant.
       Historical practice also strongly favors the broader interpretation.
    The tradition of applying the Clause to pre-recess vacancies dates at
    least to President Madison. Nearly every Attorney General to con-
    sider the question has approved the practice, and every President
    since James Buchanan has made recess appointments to pre-existing
    vacancies. It is a fair inference from the historical data that a large
    proportion of recess appointments over our Nation’s history have
    filled pre-recess vacancies. The Senate Judiciary Committee in 1863
    did issue a report disagreeing with the broader interpretation, and
    Congress passed a law known as the Pay Act prohibiting payment of
    recess appointments to pre-recess vacancies soon after. However, the
    Senate subsequently abandoned its hostility. In 1940, the Senate
    amended the Pay Act to permit payment of recess appointees in cir-
    cumstances that would be unconstitutional under the narrower in-
    terpretation. In short, Presidents have made recess appointments to
    preexisting vacancies for two centuries, and the Senate as a body has
    not countered this practice for nearly three-quarters of a century,
    perhaps longer. The Court is reluctant to upset this traditional prac-
    tice where doing so would seriously shrink the authority that Presi-
    dents have believed existed and have exercised for so long. Pp. 21–
    33.
       2. For purposes of the Recess Appointments Clause, the Senate is
    in session when it says that it is, provided that, under its own rules,
    it retains the capacity to transact Senate business.
       This standard is consistent with the Constitution’s broad delega-
    tion of authority to the Senate to determine how and when to conduct
    its business, as recognized by this Court’s precedents. See Art. I, §5,
    cl. 2; Marshall Field & Co. v. Clark, 

, 672; United States
    v. Ballin, 

, 5, 9. Although the Senate’s own determination
    of when it is and is not in session should be given great weight, the
    Court’s deference cannot be absolute. When the Senate is without
                     Cite as: 573 U. S. ____ (2014)                      5

                                Syllabus

  the capacity to act, under its own rules, it is not in session even if it
  so declares.
    Under the standard set forth here, the Senate was in session dur-
  ing the pro forma sessions at issue. It said it was in session, and
  Senate rules make clear that the Senate retained the power to con-
  duct business. The Senate could have conducted business simply by
  passing a unanimous consent agreement. In fact, it did so; it passed
  a bill by unanimous consent during its pro forma session on Decem-
  ber 23, 2011. See 2011 S. J. 924; Pub. L. 112–78. The Court will not,
  as the Solicitor General urges, engage in an in-depth factual apprais-
  al of what the Senate actually did during its pro forma sessions in or-
  der to determine whether it was in recess or in session for purposes of
  the Recess Appointments Clause.
    Because the Senate was in session during its pro forma sessions,
  the President made the recess appointments at issue during a 3-day
  recess. Three days is too short a time to bring a recess within the
  scope of the Clause, so the President lacked the authority to make
  those appointments. Pp. 33–41.

, affirmed.

  BREYER, J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed an
opinion concurring in the judgment, in which ROBERTS, C. J., and
THOMAS and ALITO, JJ., joined.
                        Cite as: 573 U. S. ____ (2014)                              1

                             Opinion of the Court
     NOTICE: This opinion is subject to formal revision before publication in the
     preliminary print of the United States Reports. Readers are requested to
     notify the Reporter of Decisions, Supreme Court of the United States, Wash­
     ington, D. C. 20543, of any typographical or other formal errors, in order
     that corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                   _________________

                                   No. 12–1281
                                   _________________


NATIONAL LABOR RELATIONS BOARD, PETITIONER
           v. NOEL CANNING, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

    APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

                                 [June 26, 2014]


  JUSTICE BREYER delivered the opinion of the Court.
  Ordinarily the President must obtain “the Advice and
Consent of the Senate” before appointing an “Office[r] of
the United States.” U. S. Const., Art. II, §2, cl. 2. But the
Recess Appointments Clause creates an exception. It
gives the President alone the power “to fill up all Vacan­
cies that may happen during the Recess of the Senate, by
granting Commissions which shall expire at the End of
their next Session.” Art. II, §2, cl. 3. We here consider
three questions about the application of this Clause.
  The first concerns the scope of the words “recess of the
Senate.” Does that phrase refer only to an inter-session
recess (i.e., a break between formal sessions of Congress),
or does it also include an intra-session recess, such as a
summer recess in the midst of a session? We conclude
that the Clause applies to both kinds of recess.
  The second question concerns the scope of the words
“vacancies that may happen.” Does that phrase refer only
to vacancies that first come into existence during a recess,
or does it also include vacancies that arise prior to a recess
but continue to exist during the recess? We conclude that


. NOEL CANNING

                     Opinion of the Court

the Clause applies to both kinds of vacancy.
  The third question concerns calculation of the length of
a “recess.” The President made the appointments here at
issue on January 4, 2012. At that time the Senate was in
recess pursuant to a December 17, 2011, resolution provid-
ing for a series of brief recesses punctuated by “pro forma
session[s],” with “no business . . . transacted,” every Tues-
day and Friday through January 20, 2012. S. J., 112th
Cong., 1st Sess., 923 (2011) (hereinafter 2011 S. J.). In
calculating the length of a recess are we to ignore the pro
forma sessions, thereby treating the series of brief recesses
as a single, month-long recess? We conclude that we
cannot ignore these pro forma sessions.
  Our answer to the third question means that, when the
appointments before us took place, the Senate was in the
midst of a 3-day recess. Three days is too short a time to
bring a recess within the scope of the Clause. Thus we
conclude that the President lacked the power to make the
recess appointments here at issue.
                             I
  The case before us arises out of a labor dispute. The
National Labor Relations Board (NLRB) found that a
Pepsi-Cola distributor, Noel Canning, had unlawfully
refused to reduce to writing and execute a collective-
bargaining agreement with a labor union. The Board
ordered the distributor to execute the agreement and to
make employees whole for any losses. Noel Canning, 358
N. L. R. B. No. 4 (2012).
  The Pepsi-Cola distributor subsequently asked the
Court of Appeals for the District of Columbia Circuit to set
the Board’s order aside. It claimed that three of the five
Board members had been invalidly appointed, leaving the
Board without the three lawfully appointed members
necessary for it to act. See 

. §160(f) (providing
for judicial review); §153(a) (providing for a 5-member
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Board); §153(b) (providing for a 3-member quorum); New
Process Steel, L. P. v. NLRB, 

, 687–688
(2010) (in the absence of a lawfully appointed quorum, the
Board cannot exercise its powers).
  The three members in question were Sharon Block,
Richard Griffin, and Terence Flynn. In 2011 the President
had nominated each of them to the Board. As of January
2012, Flynn’s nomination had been pending in the Senate
awaiting confirmation for approximately a year. The
nominations of each of the other two had been pending for
a few weeks. On January 4, 2012, the President, invoking
the Recess Appointments Clause, appointed all three to
the Board.
  The distributor argued that the Recess Appointments
Clause did not authorize those appointments. It pointed
out that on December 17, 2011, the Senate, by unanimous
consent, had adopted a resolution providing that it would
take a series of brief recesses beginning the following day.
See 2011 S. J. 923. Pursuant to that resolution, the Sen­
ate held pro forma sessions every Tuesday and Friday
until it returned for ordinary business on January 23,
2012. Ibid.; 158 Cong. Rec. S1–S11 (Jan. 3–20, 2012). The
President’s January 4 appointments were made between
the January 3 and January 6 pro forma sessions. In the
distributor’s view, each pro forma session terminated the
immediately preceding recess. Accordingly, the appoint­
ments were made during a 3-day adjournment, which is
not long enough to trigger the Recess Appointments
Clause.
  The Court of Appeals agreed that the appointments fell
outside the scope of the Clause. But the court set forth
different reasons. It held that the Clause’s words “the
recess of the Senate” do not include recesses that occur
within a formal session of Congress, i.e., intra-session
recesses. Rather those words apply only to recesses be-
tween those formal sessions, i.e., inter-session recesses.


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                     Opinion of the Court

Since the second session of the 112th Congress began on
January 3, 2012, the day before the President’s appoint-
ments, those appointments occurred during an intra-
session recess, and the appointments consequently fell
outside the scope of the Clause. 

, 499–507
(CADC 2013).
   The Court of Appeals added that, in any event, the
phrase “vacancies that may happen during the recess”
applies only to vacancies that come into existence during a
recess. 

The vacancies that Members
Block, Griffin, and Flynn were appointed to fill had arisen
before the beginning of the recess during which they were
appointed. For this reason too the President’s appoint-
ments were invalid. And, because the Board lacked a
quorum of validly appointed members when it issued its
order, the order was invalid. 

. §153(b); New
Process 

.
   We granted the Solicitor General’s petition for certio-
rari. We asked the parties to address not only the Court of
Appeals’ interpretation of the Clause but also the distribu-
tor’s initial argument, namely, “[w]hether the President’s
recess-appointment power may be exercised when the
Senate is convening every three days in pro forma ses-
sions.” 570 U. S. ___ (2013).
   We shall answer all three questions presented. We
recognize that the President has nominated others to fill
the positions once occupied by Members Block, Griffin,
and Flynn, and that the Senate has confirmed these suc-
cessors. But, as the parties recognize, the fact that the
Board now unquestionably has a quorum does not moot
the controversy about the validity of the previously en-
tered Board order. And there are pending before us peti-
tions from decisions in other cases involving challenges to
the appointment of Board Member Craig Becker. The
President appointed Member Becker during an intra-
session recess that was not punctuated by pro forma ses-
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                              of the Court

sions, and the vacancy Becker filled had come into exist­
ence prior to the recess. See Congressional Research
Service, H. Hogue, M. Carey, M. Greene, & M. Bearden,
The Noel Canning Decision and Recess Appointments
Made from 1981–2013, p. 28 (Feb. 4, 2013) (hereinaf­
ter The Noel Canning Decision); NLRB, Members of
the NLRB since 1935, online at http://www.nlrb.gov/
who-we-are/board/members-nlrb-1935 (all Internet mate­
rials as visited June 24, 2014, and available in Clerk of
Court’s case file). Other cases involving similar challenges
are also pending in the Courts of Appeals. E.g., NLRB v.
New Vista Nursing & Rehabilitation, No. 11–3440 etc.
(CA3). Thus, we believe it is important to answer all three
questions that this case presents.
                             II
  Before turning to the specific questions presented, we
shall mention two background considerations that we find
relevant to all three. First, the Recess Appointments
Clause sets forth a subsidiary, not a primary, method for
appointing officers of the United States. The immediately
preceding Clause—Article II, Section 2, Clause 2—
provides the primary method of appointment. It says that
the President “shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint Ambassadors,
other public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States” (empha­
sis added).
  The Federalist Papers make clear that the Founders
intended this method of appointment, requiring Senate
approval, to be the norm (at least for principal officers).
Alexander Hamilton wrote that the Constitution vests the
power of nomination in the President alone because “one
man of discernment is better fitted to analise and estimate
the peculiar qualities adapted to particular offices, than a
body of men of equal, or perhaps even of superior discern­


. NOEL CANNING

                     Opinion of the Court

ment.” The Federalist No. 76, p. 510 (J. Cooke ed. 1961).
At the same time, the need to secure Senate approval
provides “an excellent check upon a spirit of favoritism in
the President, and would tend greatly to preventing the
appointment of unfit characters from State prejudice, from
family connection, from personal attachment, or from a
view to popularity.” 

Hamilton further ex-
plained that the
    “ordinary power of appointment is confided to the
    President and Senate jointly, and can therefore only
    be exercised during the session of the Senate; but as it
    would have been improper to oblige this body to be
    continually in session for the appointment of officers;
    and as vacancies might happen in their recess, which
    it might be necessary for the public service to fill
    without delay, the succeeding clause is evidently in-
    tended to authorise the President singly to make tem-
    porary appointments.” 

at 455.
   Thus the Recess Appointments Clause reflects the ten-
sion between, on the one hand, the President’s continuous
need for “the assistance of subordinates,” Myers v. United
States, 

, 117 (1926), and, on the other, the
Senate’s practice, particularly during the Republic’s early
years, of meeting for a single brief session each year, see
Art. I, §4, cl. 2; Amdt. 20, §2 (requiring the Senate to
“assemble” only “once in every year”); 3 J. Story, Commen-
taries on the Constitution of the United States §1551, p.
410 (1833) (it would be “burthensome to the senate, and
expensive to the public” to require the Senate to be “per-
petually in session”). We seek to interpret the Clause as
granting the President the power to make appointments
during a recess but not offering the President the author-
ity routinely to avoid the need for Senate confirmation.
   Second, in interpreting the Clause, we put significant
weight upon historical practice. For one thing, the inter-
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pretive questions before us concern the allocation of power
between two elected branches of Government. Long ago
Chief Justice Marshall wrote that
    “a doubtful question, one on which human reason may
    pause, and the human judgment be suspended, in the
    decision of which the great principles of liberty are not
    concerned, but the respective powers of those who are
    equally the representatives of the people, are to be ad-
    justed; if not put at rest by the practice of the gov-
    ernment, ought to receive a considerable impression
    from that practice.” McCulloch v. Maryland, 

, 401 (1819).
And we later confirmed that “[l]ong settled and estab-
lished practice is a consideration of great weight in a
proper interpretation of constitutional provisions” regulat-
ing the relationship between Congress and the President.
The Pocket Veto Case, 

, 689 (1929); see also

(“[A] practice of at least twenty years duration
‘on the part of the executive department, acquiesced in by
the legislative department, . . . is entitled to great regard
in determining the true construction of a constitutional
provision the phraseology of which is in any respect of
doubtful meaning’ ” (quoting State v. South Norwalk, 

, 264, 

, 761 (1904))).
   We recognize, of course, that the separation of powers
can serve to safeguard individual liberty, Clinton v. City of
New York, 

, 449–450 (1998) (KENNEDY, J.,
concurring), and that it is the “duty of the judicial depart-
ment”—in a separation-of-powers case as in any other—“to
say what the law is,” Marbury v. Madison, 1 Cranch 137,
177 (1803). But it is equally true that the longstanding
“practice of the government,” 

,
can inform our determination of “what the law is,” Mar-

.
   That principle is neither new nor controversial. As


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                     Opinion of the Court

James Madison wrote, it “was foreseen at the birth of the
Constitution, that difficulties and differences of opinion
might occasionally arise in expounding terms & phrases
necessarily used in such a charter . . . and that it might
require a regular course of practice to liquidate & settle
the meaning of some of them.” Letter to Spencer Roane
(Sept. 2, 1819), in 8 Writings of James Madison 450 (G.
Hunt ed. 1908). And our cases have continually confirmed
Madison’s view. E.g., Mistretta v. United States, 

, 401 (1989); Dames & Moore v. Regan, 

,
686 (1981); Youngstown Sheet & Tube Co. v. Sawyer, 

, 610–611 (1952) (Frankfurter, J., concurring);
The Pocket Veto 

–690; Ex parte Gross-
man, 

, 118–119 (1925); United States v. Mid-
west Oil Co., 

, 472–474 (1915); McPherson v.
Blacker, 

, 27 (1892); McCulloch, supra; Stuart
v. Laird, 1 Cranch 299 (1803).
   These precedents show that this Court has treated
practice as an important interpretive factor even when the
nature or longevity of that practice is subject to dispute,
and even when that practice began after the founding era.
See 

, 400–401 (“While these [practices]
spawned spirited discussion and frequent criticism, . . .
‘traditional ways of conducting government . . . give mean-
ing’ to the Constitution” (quoting 

) (Frankfurter, J., concurring)); 

(“[E]ven if the pre-1952 [practice] should be disregarded,
congressional acquiescence in [a practice] since that time
supports the President’s power to act here”); The Pocket
Veto 

–690 (postfounding practice is
entitled to “great weight”); 

–119
(postfounding practice “strongly sustains” a “construction”
of the Constitution).
   There is a great deal of history to consider here. Presi-
dents have made recess appointments since the beginning
of the Republic. Their frequency suggests that the Senate
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and President have recognized that recess appointments
can be both necessary and appropriate in certain circum­
stances. We have not previously interpreted the Clause,
and, when doing so for the first time in more than 200
years, we must hesitate to upset the compromises and
working arrangements that the elected branches of Gov­
ernment themselves have reached.
                               III
   The first question concerns the scope of the phrase “the
recess of the Senate.” Art. II, §2, cl. 3 (emphasis added).
The Constitution provides for congressional elections
every two years. And the 2-year life of each elected Con­
gress typically consists of two formal 1-year sessions, each
separated from the next by an “inter-session recess.”
Congressional Research Service, H. Hogue, Recess Ap­
pointments: Frequently Asked Questions 2 (2013). The
Senate or the House of Representatives announces an
inter-session recess by approving a resolution stating that
it will “adjourn sine die,” i.e., without specifying a date to
return (in which case Congress will reconvene when the
next formal session is scheduled to begin).
   The Senate and the House also take breaks in the midst
of a session. The Senate or the House announces any such
“intra-session recess” by adopting a resolution stating that
it will “adjourn” to a fixed date, a few days or weeks or
even months later. All agree that the phrase “the recess of
the Senate” covers inter-session recesses. The question is
whether it includes intra-session recesses as well.
   In our view, the phrase “the recess” includes an intra­
session recess of substantial length. Its words taken
literally can refer to both types of recess. Founding-era
dictionaries define the word “recess,” much as we do today,
simply as “a period of cessation from usual work.” 13 The
Oxford English Dictionary 322–323 (2d ed. 1989) (herein­
after OED) (citing 18th- and 19th-century sources for that


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definition of “recess”); 2 N. Webster, An American Diction-
ary of the English Language (1828) (“[r]emission or sus-
pension of business or procedure”); 2 S. Johnson, A Dic-
tionary of the English Language 1602–1603 (4th ed. 1773)
(hereinafter Johnson) (same). The Founders themselves
used the word to refer to intra-session, as well as to inter-
session, breaks. See, e.g., 3 Records of the Federal Con-
vention of 1787, p. 76 (M. Farrand rev. 1966) (hereinafter
Farrand) (letter from George Washington to John Jay
using “the recess” to refer to an intra-session break of the
Constitutional Convention); 

(speech of Luther
Martin with a similar usage); 1 T. Jefferson, A Manual
of Parliamentary Practice §LI, p. 165 (2d ed. 1812) (de-
scribing a “recess by adjournment” which did not end a
session).
   We recognize that the word “the” in “the recess” might
suggest that the phrase refers to the single break separat-
ing formal sessions of Congress. That is because the word
“the” frequently (but not always) indicates “a particular
thing.” 2 Johnson 2003. But the word can also refer “to a
term used generically or universally.” 17 OED 879. The
Constitution, for example, directs the Senate to choose a
President pro tempore “in the Absence of the Vice-
President.” Art. I, §3, cl. 5 (emphasis added). And the
Federalist Papers refer to the chief magistrate of an an-
cient Achaean league who “administered the government
in the recess of the Senate.” The Federalist No. 18, at 113
(J. Madison) (emphasis added). Reading “the” generically
in this way, there is no linguistic problem applying the
Clause’s phrase to both kinds of recess. And, in fact, the
phrase “the recess” was used to refer to intra-session
recesses at the time of the founding. See, e.g., 3 Farrand
76 (letter from Washington to Jay); New Jersey Legislative-
Council Journal, 5th Sess., 1st Sitting 70, 2d Sitting 9
(1781) (twice referring to a 4-month, intra-session break
as “the Recess”); see also Brief for Petitioner 14–16 (listing
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examples).
   The constitutional text is thus ambiguous. And we
believe the Clause’s purpose demands the broader inter­
pretation. The Clause gives the President authority to
make appointments during “the recess of the Senate” so
that the President can ensure the continued functioning of
the Federal Government when the Senate is away. The
Senate is equally away during both an inter-session and
an intra-session recess, and its capacity to participate in
the appointments process has nothing to do with the
words it uses to signal its departure.
   History also offers strong support for the broad interpre­
tation. We concede that pre-Civil War history is not help­
ful. But it shows only that Congress generally took long
breaks between sessions, while taking no significant intra­
session breaks at all (five times it took a break of a week
or so at Christmas). See Appendix A, infra. Obviously, if
there are no significant intra-session recesses, there will
be no intra-session recess appointments. In 1867 and
1868, Congress for the first time took substantial, non­
holiday intra-session breaks, and President Andrew John­
son made dozens of recess appointments. The Federal
Court of Claims upheld one of those specific appointments,
writing “[w]e have no doubt that a vacancy occurring while
the Senate was thus temporarily adjourned” during the
“first session of the Fortieth Congress” was “legally filled
by appointment of the President alone.” Gould v. United
States, 

, 595–596 (1884) (emphasis added).
Attorney General Evarts also issued three opinions con­
cerning the constitutionality of President Johnson’s ap­
pointments, and it apparently did not occur to him that
the distinction between intra-session and inter-session
recesses was significant. See 12 Op. Atty. Gen. 449 (1868);
12 Op. Atty. Gen. 455 (1868); 12 Op. Atty. Gen. 469 (1868).
Similarly, though the 40th Congress impeached President
Johnson on charges relating to his appointment power, he
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was not accused of violating the Constitution by mak-
ing intra-session recess appointments. Hartnett, Recess
Appointments of Article III Judges: Three Constitutional
Questions, 26 Cardozo L. Rev. 377, 409 (2005).
   In all, between the founding and the Great Depression,
Congress took substantial intra-session breaks (other than
holiday breaks) in four years: 1867, 1868, 1921, and 1929.
Appendix A, infra. And in each of those years the Presi-
dent made intra-session recess appointments. See App. to
Brief for Petitioner 1a–11a.
   Since 1929, and particularly since the end of World War
II, Congress has shortened its inter-session breaks as it
has taken longer and more frequent intra-session breaks;
Presidents have correspondingly made more intra-session
recess appointments. Indeed, if we include military ap-
pointments, Presidents have made thousands of intra-
session recess appointments. 

President
Franklin Roosevelt, for example, commissioned Dwight
Eisenhower as a permanent Major General during an
intra-session recess; President Truman made Dean Ache-
son Under Secretary of State; and President George H. W.
Bush reappointed Alan Greenspan as Chairman of the
Federal Reserve Board. 

12a, 40a. JUSTICE
SCALIA does not dispute any of these facts.
   Not surprisingly, the publicly available opinions of
Presidential legal advisers that we have found are nearly
unanimous in determining that the Clause authorizes
these appointments. In 1921, for example, Attorney Gen-
eral Daugherty advised President Harding that he could
make intra-session recess appointments. He reasoned:
     “If the President’s power of appointment is to be de-
     feated because the Senate takes an adjournment to a
     specified date, the painful and inevitable result will be
     measurably to prevent the exercise of governmental
     functions. I can not bring myself to believe that the
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    framers of the Constitution ever intended such a ca­
    tastrophe to happen.” 33 Op. Atty. Gen. 20, 23.
We have found memoranda offering similar advice to
President Eisenhower and to every President from Carter
to the present. See 36 Opinion of Office of Legal Counsel
(Op. OLC) ___, ___ (2012), online at www.justice.gov/
olc/opiniondocslpro-forma-sessions-opinion.pdf; 25 Op.
OLC 182 (2001); 20 Op. OLC 124, 161 (1996); 16 Op. OLC
15 (1992); 13 Op. OLC 271 (1989); 6 Op. OLC 585, 586
(1982); 3 Op. OLC 314, 316 (1979); 41 Op. Atty. Gen. 463,
466 (1960).
  We must note one contrary opinion authored by Presi­
dent Theodore Roosevelt’s Attorney General Philander
Knox. Knox advised the President that the Clause did not
cover a 19–day intra-session Christmas recess. 23 Op.
Atty. Gen. 599 (1901). But in doing so he relied heavily
upon the use of the word “the,” a linguistic point that we
do not find determinative. 

. And Knox all
but confessed that his interpretation ran contrary to the
basic purpose of the Clause. For it would permit the
Senate to adjourn for “several months,” to a fixed date,
and thereby “seriously curtail the President’s power of
making recess appointments.” 23 Op. Atty. Gen., at 603.
Moreover, only three days before Knox gave his opinion,
the Solicitor of the Treasury came to the opposite conclu­
sion. Reply Brief 7, n. 5. We therefore do not think Knox’s
isolated opinion can disturb the consensus advice within
the Executive Branch taking the opposite position.
  What about the Senate? Since Presidents began making
intra-session recess appointments, individual Senators
have taken differing views about the proper definition of
“the recess.” See, e.g., 130 Cong. Rec. 23234 (1984) (reso­
lution introduced by Senator Byrd urging limits on the
length of applicable intra-session recesses); Brief for Sen.
Mitch McConnell et al. as Amici Curiae 26 (an intra­
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session adjournment does not count as “the recess”); Brief
for Sen. Edward M. Kennedy as Amicus Curiae in Frank-
lin v. United States, O. T. 2004, No. 04–5858, p. 5 (same).
But neither the Senate considered as a body nor its com-
mittees, despite opportunities to express opposition to the
practice of intra-session recess appointments, has done so.
Rather, to the extent that the Senate or a Senate commit-
tee has expressed a view, that view has favored a func-
tional definition of “recess,” and a functional definition
encompasses intra-session recesses.
   Most notably, in 1905 the Senate Committee on the
Judiciary objected strongly to President Theodore Roose-
velt’s use of the Clause to make more than 160 recess
appointments during a “fictitious” inter-session recess.
S. Rep. No. 4389, 58th Cong., 3d Sess., p. 2 (hereinafter
1905 Senate Report). At noon on December 7, 1903, the
Senate President pro tempore had “declare[d]” a formal,
“extraordinary session” of the Senate “adjourned without
day,” and the next formal Senate session began immedi-
ately afterwards. 37 Cong. Rec. 544 (1903). President
Roosevelt made over 160 recess appointments during the
instantaneous inter-session interval. The Judiciary Com-
mittee, when stating its strong objection, defined “recess”
in functional terms as
     “the period of time when the Senate is not sitting in
     regular or extraordinary session as a branch of the
     Congress . . . ; when its members owe no duty of at-
     tendance; 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 ap-
     pointments.” 1905 Senate Report, at 2 (emphasis
     deleted).
That functional definition encompasses intra-session, as
well as inter-session, recesses. JUSTICE SCALIA is right
that the 1905 Report did not specifically address the dis-
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tinction between inter-session and intra-session recesses.
But the animating principle of the Report—that “recess”
should be practically construed to mean a time when the
Senate is unavailable to participate in the appointments
process—is inconsistent with the formalistic approach that
JUSTICE SCALIA endorses.
   Similarly, in 1940 the Senate helped to enact a law
regulating the payment of recess appointees, and the
Comptroller General of the United States has interpreted
that law functionally. An earlier 1863 statute had denied
pay to individuals appointed to fill up vacancies first
arising prior to the beginning of a recess. The Senate
Judiciary Committee then believed that those vacancies
fell outside the scope of the Clause. See infra, at 30. In
1940, however, the Senate amended the law to permit
many of those recess appointees to be paid. Act of July 11,
54 Stat. 751. Interpreting the amendments in 1948, the
Comptroller General—who, unlike the Attorney General,
is an “officer of the Legislative Branch,” Bowsher v. Synar,

, 731 (1986)—wrote:
    “I think it is clear that [the Pay Act amendments’]
    primary purpose was to relieve ‘recess appointees’ of
    the burden of serving without compensation during
    periods when the Senate is not actually sitting and is
    not available to give its advice and consent in respect
    to the appointment, irrespective of whether the recess
    of the Senate is attributable to a final adjournment
    sine die or to an adjournment to a specified date.” 28
    Comp. Gen. 30, 37.
  We recognize that the Senate cannot easily register
opposition as a body to every governmental action that
many, perhaps most, Senators oppose. But the Senate has
not been silent or passive regarding the meaning of the
Clause: A Senate Committee did register opposition to
President Theodore Roosevelt’s use of the Clause, and the
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Senate as a whole has legislated in an effort to discourage
certain kinds of recess appointments. And yet we are not
aware of any formal action it has taken to call into ques-
tion the broad and functional definition of “recess” first
set out in the 1905 Senate Report and followed by the
Executive Branch since at least 1921. Nor has JUSTICE
SCALIA identified any. All the while, the President has
made countless recess appointments during intra-session
recesses.
   The upshot is that restricting the Clause to inter-session
recesses would frustrate its purpose. It would make the
President’s recess-appointment power dependent on a
formalistic distinction of Senate procedure. Moreover, the
President has consistently and frequently interpreted the
word “recess” to apply to intra-session recesses, and has
acted on that interpretation. The Senate as a body has
done nothing to deny the validity of this practice for at
least three-quarters of a century. And three-quarters of a
century of settled practice is long enough to entitle a
practice to “great weight in a proper interpretation” of the
constitutional provision. The Pocket Veto 

.
   We are aware of, but we are not persuaded by, three
important arguments to the contrary. First, some argue
that the Founders would likely have intended the Clause
to apply only to inter-session recesses, for they hardly
knew any other. See, e.g., Brief for Originalist Scholars as
Amici Curiae 27–29. Indeed, from the founding until the
Civil War inter-session recesses were the only kind of
significant recesses that Congress took. The problem with
this argument, however, is that it does not fully describe
the relevant founding intent. The question is not: Did the
Founders at the time think about intra-session recesses?
Perhaps they did not. The question is: Did the Founders
intend to restrict the scope of the Clause to the form of
congressional recess then prevalent, or did they intend a
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broader scope permitting the Clause to apply, where ap­
propriate, to somewhat changed circumstances? The
Founders knew they were writing a document designed to
apply to ever-changing circumstances over centuries.
After all, a Constitution is “intended to endure for ages to
come,” and must adapt itself to a future that can only be
“seen dimly,” if at all. 

. We
therefore think the Framers likely did intend the Clause
to apply to a new circumstance that so clearly falls within
its essential purposes, where doing so is consistent with
the Clause’s language.
   Second, some argue that the intra-session interpretation
permits the President to make “illogic[ally]” long recess
appointments. Brief for Respondent Noel Canning 13;
post, at 10 (SCALIA, J., concurring in judgment). A recess
appointment made between Congress’ annual sessions
would permit the appointee to serve for about a year, i.e.,
until the “end” of the “next” Senate “session.” Art. II, §2,
cl. 3. But an intra-session appointment made at the be­
ginning or in the middle of a formal session could permit
the appointee to serve for 1½ or almost 2 years (until the
end of the following formal session).
   We agree that the intra-session interpretation permits
somewhat longer recess appointments, but we do not agree
that this consequence is “illogical.” A President who
makes a recess appointment will often also seek to make a
regular appointment, nominating the appointee and secur­
ing ordinary Senate confirmation. And the Clause ensures
that the President and Senate always have at least a full
session to go through the nomination and confirmation
process. That process may take several months. See
O’Connell, Vacant Offices: Delays in Staffing Top Agency
Positions, 82 S. Cal. L. Rev. 913, 967 (2009) (from 1987 to
2005 the nomination and confirmation process took an
average of 236 days for noncabinet agency heads). A
recess appointment that lasts somewhat longer than a
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year will ensure the President the continued assistance of
subordinates that the Clause permits him to obtain while
he and the Senate select a regular appointee. An ap-
pointment should last until the Senate has “an opportu-
nity to act on the subject,” Story, §1551, at 410, and the
Clause embodies a determination that a full session is
needed to select and vet a replacement.
  Third, the Court of Appeals believed that application of
the Clause to intra-session recesses would introduce
“vagueness” into a Clause that was otherwise 

. One can find problems of uncertainty, how-
ever, either way. In 1867, for example, President Andrew
Johnson called a special session of Congress, which took
place during a lengthy intra-session recess. Consider the
period of time that fell just after the conclusion of that
special session. Did that period remain an intra-session
recess, or did it become an inter-session recess? Histori-
ans disagree about the answer. Compare Hartnett, 26
Cardozo L. Rev., at 408–409, with Brief for Constitutional
Law Scholars as Amici Curiae 23–24.
  Or suppose that Congress adjourns sine die, but it does
so conditionally, so that the leadership can call the mem-
bers back into session when “the public interest shall
warrant it.” E.g., 155 Cong. Rec. 33429 (2009); 152 Cong.
Rec. 23731–23732 (2006); 150 Cong. Rec. 25925–25926
(2004). If the Senate Majority Leader were to reconvene
the Senate, how would we characterize the preceding
recess? Is it still inter-session? On the narrower interpre-
tation the label matters; on the broader it does not.
  The greater interpretive problem is determining how
long a recess must be in order to fall within the Clause. Is
a break of a week, or a day, or an hour too short to count
as a “recess”? The Clause itself does not say. And
JUSTICE SCALIA claims that this silence itself shows that
the Framers intended the Clause to apply only to an inter-
session recess. Post, at 12–13.
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  We disagree. For one thing, the most likely reason the
Framers did not place a textual floor underneath the word
“recess” is that they did not foresee the need for one. They
might have expected that the Senate would meet for a
single session lasting at most half a year. The Federalist
No. 84, at 596 (A. Hamilton). And they might not have
anticipated that intra-session recesses would become
lengthier and more significant than inter-session ones.
The Framers’ lack of clairvoyance on that point is not
dispositive. Unlike JUSTICE SCALIA, we think it most
consistent with our constitutional structure to presume
that the Framers would have allowed intra-session recess
appointments where there was a long history of such
practice.
  Moreover, the lack of a textual floor raises a problem
that plagues both interpretations—JUSTICE SCALIA’s and
ours. Today a brief inter-session recess is just as possible
as a brief intra-session recess. And though JUSTICE
SCALIA says that the “notion that the Constitution em­
powers the President to make unilateral appointments
every time the Senate takes a half-hour lunch break is so
absurd as to be self-refuting,” he must immediately con­
cede (in a footnote) that the President “can make recess
appointments during any break between sessions, no
matter how short.” Post, at 11, 15, n. 4 (emphasis added).
  Even the Solicitor General, arguing for a broader inter­
pretation, acknowledges that there is a lower limit appli­
cable to both kinds of recess. He argues that the lower
limit should be three days by analogy to the Adjournments
Clause of the Constitution. Tr. of Oral Arg. 11. That
Clause says: “Neither House, during the Session of Con­
gress, shall, without the Consent of the other, adjourn for
more than three days.” Art. I, §5, cl. 4.
  We agree with the Solicitor General that a 3-day recess
would be too short. (Under Senate practice, “Sunday is
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purposes of the Adjournments Clause. S. Doc. No. 101–28,
F. Riddick & A. Frumin, Riddick’s Senate Procedure:
Precedents and Practices 1265 (hereinafter Riddick’s).)
The Adjournments Clause reflects the fact that a 3-day
break is not a significant interruption of legislative busi-
ness. As the Solicitor General says, it is constitutionally
de minimis. Brief for Petitioner 18. A Senate recess that
is so short that it does not require the consent of the
House is not long enough to trigger the President’s recess-
appointment power.
   That is not to say that the President may make recess
appointments during any recess that is “more than three
days.” Art. I, §5, cl. 4. The Recess Appointments Clause
seeks to permit the Executive Branch to function smoothly
when Congress is unavailable. And though Congress has
taken short breaks for almost 200 years, and there have
been many thousands of recess appointments in that time,
we have not found a single example of a recess ap-
pointment made during an intra-session recess that was
shorter than 10 days. Nor has the Solicitor General. Reply
Brief 23. Indeed, the Office of Legal Counsel once infor-
mally advised against making a recess appointment dur-
ing a 6-day intra-session recess. 3 Op. OLC, at 315–316.
The lack of examples suggests that the recess-
appointment power is not needed in that context. (The
length of a recess is “ordinarily calculated by counting the
calendar days running from the day after the recess begins
and including the day the recess ends.” 36 Op. OLC, at
___, n. 1 (citation omitted).)
   There are a few historical examples of recess appoint-
ments made during inter-session recesses shorter than 10
days. We have already discussed President Theodore
Roosevelt’s appointments during the instantaneous, “ficti-
tious” recess. President Truman also made a recess ap-
pointment to the Civil Aeronautics Board during a 3-day
inter-session recess. Hogue, Recess Appointments: Fre-
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quently Asked Questions, at 5–6. President Taft made a
few appointments during a 9-day recess following his
inauguration, and President Lyndon Johnson made sev-
eral appointments during an 8-day recess several weeks
after assuming office. Hogue, The Law: Recess Appoint-
ments to Article III Courts, 34 Presidential Studies Q.
656, 671 (2004); 106 S. Exec. J. 2 (1964); 40 S. Exec. J. 12
(1909). There may be others of which we are unaware.
But when considered against 200 years of settled practice,
we regard these few scattered examples as anomalies. We
therefore conclude, in light of historical practice, that a
recess of more than 3 days but less than 10 days is pre-
sumptively too short to fall within the Clause. We add the
word “presumptively” to leave open the possibility that
some very unusual circumstance—a national catastrophe,
for instance, that renders the Senate unavailable but calls
for an urgent response—could demand the exercise of the
recess-appointment power during a shorter break. (It
should go without saying—except that JUSTICE SCALIA
compels us to say it—that political opposition in the Sen-
ate would not qualify as an unusual circumstance.)
  In sum, we conclude that the phrase “the recess” applies
to both intra-session and inter-session recesses. If a Sen-
ate recess is so short that it does not require the consent of
the House, it is too short to trigger the Recess Appoint-
ments Clause. See Art. I, §5, cl. 4. And a recess lasting
less than 10 days is presumptively too short as well.
                              IV
  The second question concerns the scope of the phrase
“vacancies that may happen during the recess of the Sen-
ate.” Art. II, §2, cl. 3 (emphasis added). All agree that the
phrase applies to vacancies that initially occur during a
recess. But does it also apply to vacancies that initially
occur before a recess and continue to exist during the
recess? In our view the phrase applies to both kinds of
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vacancy.
   We believe that the Clause’s language, read literally,
permits, though it does not naturally favor, our broader
interpretation. We concede that the most natural mean-
ing of “happens” as applied to a “vacancy” (at least to a
modern ear) is that the vacancy “happens” when it ini-
tially occurs. See 1 Johnson 913 (defining “happen” in
relevant part as meaning “[t]o fall out; to chance; to come
to pass”). But that is not the only possible way to use the
word.
   Thomas Jefferson wrote that the Clause is “certainly
susceptible of [two] constructions.” Letter to Wilson Cary
Nicholas (Jan. 26, 1802), in 36 Papers of Thomas Jefferson
433 (B. Oberg ed., 2009). It “may mean ‘vacancies that
may happen to be’ or ‘may happen to fall’ ” during a recess.

phrase in the first sense when he
wrote to a job seeker that a particular position was una-
vailable, but that he (Jefferson) was “happy that another
vacancy happens wherein I can . . . avail the public of your
integrity & talents,” for “the office of Treasurer of the US.
is vacant by the resignation of mr Meredith.” Letter to
Thomas Tudor Tucker (Oct. 31, 1801), in 35 

(B.
Oberg ed. 2008) (emphasis added). See also Laws Passed
by the Legislature of Florida, No. 31, An Act to Organize
and Regulate the Militia of the Territory of Florida §13,
H. R. Exec. Doc. No. 72, 27th Cong., 3d Sess., 22 (1842)
(“[W]hen any vacancy shall take place in the office of any
lieutenant colonel, it shall be the duty of the colonel of the
regiment in which such vacancy may happen to order an
election to be held at the several precincts in the battalion
in which such vacancy may happen” (emphasis added)).
   Similarly, when Attorney General William Wirt advised
President Monroe to follow the broader interpretation, he
wrote that the “expression seems not perfectly clear. It
may mean ‘happen to take place:’ that is, ‘to originate,’ ” or
it “may mean, also, without violence to the sense, ‘happen
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to exist.’ ” 1 Op. Atty. Gen. 631, 631–632 (1823). The
broader interpretation, he added, is “most accordant with”
the Constitution’s “reason and spirit.” 

    We can still understand this earlier use of “happen” if
we think of it used together with another word that, like
“vacancy,” can refer to a continuing state, say, a financial
crisis. A statute that gives the President authority to act
in respect to “any financial crisis that may happen during
his term” can easily be interpreted to include crises that
arise before, and continue during, that term. Perhaps that
is why the Oxford English Dictionary defines “happen” in
part as “chance to be,” rather than “chance to occur.” 6
OED 1096 (emphasis added); see also 19 OED 383 (defin­
ing “vacancy” as the “condition of an office or post being
. . . vacant”).
    In any event, the linguistic question here is not whether
the phrase can be, but whether it must be, read more
narrowly. The question is whether the Clause is ambigu­
ous. The Pocket Veto 

. And the
broader reading, we believe, is at least a permissible
reading of a “ ‘doubtful’ ” phrase. 

on to consider the Clause’s purpose and historical practice.
    The Clause’s purpose strongly supports the broader
interpretation. That purpose is to permit the President to
obtain the assistance of subordinate officers when the
Senate, due to its recess, cannot confirm them. Attorney
General Wirt clearly described how the narrower interpre­
tation would undermine this purpose:
    “Put the case of a vacancy occurring in an office, held
    in a distant part of the country, on the last day of the
    Senate’s session. Before the vacancy is made known
    to the President, the Senate rises. The office may be
    an important one; the vacancy may paralyze a whole
    line of action in some essential branch of our internal
    police; the public interests may imperiously demand
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     that it shall be immediately filled. But the vacancy
     happened to occur during the session of the Senate;
     and if the President’s power is to be limited to such
     vacancies only as happen to occur during the recess of
     the Senate, the vacancy in the case put must continue,
     however ruinous the consequences may be to the pub-
     lic.” 1 Op. Atty. Gen., at 632.
Examples are not difficult to imagine: An ambassadorial
post falls vacant too soon before the recess begins for the
President to appoint a replacement; the Senate rejects a
President’s nominee just before a recess, too late to select
another. Wirt explained that the “substantial purpose of
the constitution was to keep these offices filled,” and “if
the President shall not have the power to fill a vacancy
thus circumstanced, . . . the substance of the constitution
will be sacrificed to a dubious construction of its letter.”

construction, encompassing vacan-
cies that initially occur before the beginning of a recess, is
the “only construction of the constitution which is compat-
ible with its spirit, reason, and purposes; while, at the
same time, it offers no violence to its language.” 

  We do not agree with JUSTICE SCALIA’s suggestion that
the Framers would have accepted the catastrophe envi-
sioned by Wirt because Congress can always provide for
acting officers, see 

. §3345, and the President can
always convene a special session of Congress, see U. S.
Const., Art. II, §3. Acting officers may have less authority
than Presidential appointments. 6 Op. OLC 119, 121
(1982). Moreover, to rely on acting officers would lessen
the President’s ability to staff the Executive Branch with
people of his own choosing, and thereby limit the Presi-
dent’s control and political accountability. Cf. Free Enter-
prise Fund v. Public Company Accounting Oversight Bd.,

, 497–498 (2010). Special sessions are
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burdensome (and would have been especially so at the
time of the founding). The point of the Recess Appoint­
ments Clause was to avoid reliance on these inadequate
expedients.
  At the same time, we recognize one important purpose­
related consideration that argues in the opposite direction.
A broad interpretation might permit a President to avoid
Senate confirmations as a matter of course. If the Clause
gives the President the power to “fill up all vacancies” that
occur before, and continue to exist during, the Senate’s
recess, a President might not submit any nominations to
the Senate. He might simply wait for a recess and then
provide all potential nominees with recess appointments.
He might thereby routinely avoid the constitutional need
to obtain the Senate’s “advice and consent.”
  Wirt thought considerations of character and politics
would prevent Presidents from abusing the Clause in this
way. 1 Op. Atty. Gen., at 634. He might have added that
such temptations should not often arise. It is often less
desirable for a President to make a recess appointment. A
recess appointee only serves a limited term. That, com­
bined with the lack of Senate approval, may diminish the
recess appointee’s ability, as a practical matter, to get a
controversial job done. And even where the President and
Senate are at odds over politically sensitive appointments,
compromise is normally possible. Indeed, the 1940 Pay
Act amendments represent a general compromise, for they
foresee payment of salaries to recess appointees where
vacancies occur before the recess began but not too long
before (namely, within 30 days before).           

.
§5503(a)(1); see infra, at 32. Moreover, the Senate, like
the President, has institutional “resources,” including
political resources, “available to protect and assert its
interests.” Goldwater v. Carter, 

, 1004 (1979)
(Rehnquist, J., concurring in judgment). In an unusual
instance, where a matter is important enough to the Sen­
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ate, that body can remain in session, preventing recess
appointments by refusing to take a recess. See Part V,
infra. In any event, the Executive Branch has adhered to
the broader interpretation for two centuries, and Senate
confirmation has always remained the norm for officers
that require it.
   While we concede that both interpretations carry with
them some risk of undesirable consequences, we believe
the narrower interpretation risks undermining constitu-
tionally conferred powers more seriously and more often.
It would prevent the President from making any recess
appointment that arose before a recess, no matter who the
official, no matter how dire the need, no matter how un-
controversial the appointment, and no matter how late in
the session the office fell vacant. Overall, like Attorney
General Wirt, we believe the broader interpretation more
consistent with the Constitution’s “reason and spirit.” 1
Op. Atty. Gen., at 632.
   Historical practice over the past 200 years strongly
favors the broader interpretation. The tradition of apply-
ing the Clause to pre-recess vacancies dates at least to
President James Madison. There is no undisputed record
of Presidents George Washington, John Adams, or Thomas
Jefferson making such an appointment, though the Solici-
tor General believes he has found records showing that
Presidents Washington and Jefferson did so. We know
that Edmund Randolph, Washington’s Attorney General,
favored a narrow reading of the Clause. Randolph be-
lieved that the “Spirit of the Constitution favors the par-
ticipation of the Senate in all appointments,” though he
did not address—let alone answer—the powerful purpos-
ive and structural arguments subsequently made by At-
torney General Wirt. See Edmund Randolph’s Opinion on
Recess Appointments (July 7, 1792), in 24 Papers of
Thomas Jefferson 166 (J. Catanzariti ed. 1990).
   President Adams seemed to endorse the broader view of
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the Clause in writing, though we are not aware of any
appointments he made in keeping with that view. See
Letter to J. McHenry (Apr. 16, 1799), in 8 Works of John
Adams 632–633 (C. Adams ed. 1853). His Attorney Gen­
eral, Charles Lee, later informed Jefferson that, in the
Adams administration, “whenever an office became vacant
so short a time before Congress rose, as not to give an
opportunity of enquiring for a proper character, they let it
lie always till recess.” 36 Papers of Thomas Jefferson 433.
We know that President Jefferson thought that the broad
interpretation was linguistically supportable, though his
actual practice is not clear. But the evidence suggests
that James Madison—as familiar as anyone with the
workings of the Constitutional Convention—appointed
Theodore Gaillard to replace a district judge who had left
office before a recess began. Hartnett, 26 Cardozo L. Rev.,
at 400–401. It also appears that in 1815 Madison signed a
bill that created two new offices prior to a recess which he
then filled later during the recess. See Act of Mar. 3, ch.
95, 3 Stat. 235; S. J. 13th Cong., 3d Sess., 689–690 (1815);
3 S. Exec. J. 19 (1828) (for Monday, Jan. 8, 1816). He also
made recess appointments to “territorial” United States
attorney and marshal positions, both of which had been
created when the Senate was in session more than two
years before. Act of Feb. 27, 1813, ch. 35, 2 Stat. 806; 3 S.
Exec. J. 19. JUSTICE SCALIA refers to “written evidence of
Madison’s own beliefs,” post, at 36, but in fact we have no
direct evidence of what President Madison believed. We
only know that he declined to make one appointment to a
pre-recess vacancy after his Secretary of War advised him
that he lacked the power. On the other hand, he did
apparently make at least five other appointments to pre­
recess vacancies, as JUSTICE SCALIA does not dispute.
   The next President, James Monroe, received and pre­
sumably acted upon Attorney General Wirt’s advice,
namely that “all vacancies which, from any casualty,
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happen to exist at a time when the Senate cannot be
consulted as to filling them, may be temporarily filled by
the President.” 1 Op. Atty. Gen., at 633. Nearly every
subsequent Attorney General to consider the question
throughout the Nation’s history has thought the same.
E.g., 2 Op. Atty. Gen. 525, 528 (1832); 7 Op. Atty. Gen.
186, 223 (1855); 10 Op. Atty. Gen. 356, 356–357 (1862); 12
Op. Atty. Gen. 32, 33 (1866); 12 Op. Atty. Gen., at 452; 14
Op. Atty. Gen. 562, 564 (1875); 15 Op. Atty. Gen. 207
(1877); 16 Op. Atty. Gen. 522, 524 (1880); 17 Op. Atty.
Gen. 521 (1883); 18 Op. Atty. Gen. 29, 29–30 (1884); 19
Op. Atty. Gen. 261, 262 (1889); 26 Op. Atty. Gen. 234,
234–235 (1907); 30 Op. Atty. Gen. 314, 315 (1914); 41 Op.
Atty. Gen. 463, 465 (1960); 3 Op. OLC 314 (1979); 6 Op.
OLC 585, 586 (1982); 20 Op. OLC 124, 161 (1996); 36 Op.
OLC ___ (2012). Indeed, as early as 1862, Attorney Gen-
eral Bates advised President Lincoln that his power to fill
pre-recess vacancies was “settled . . . as far . . . as a consti-
tutional question can be settled,” 10 Op. Atty. Gen., at
356, and a century later Acting Attorney General Walsh
gave President Eisenhower the same advice “without any
doubt,” 41 Op. Atty. Gen., at 466.
  This power is important. The Congressional Research
Service is “unaware of any official source of information
tracking the dates of vacancies in federal offices.” The
Noel Canning Decision 3, n. 6. Nonetheless, we have
enough information to believe that the Presidents since
Madison have made many recess appointments filling
vacancies that initially occurred prior to a recess. As we
have just said, nearly every 19th- and 20th-century Attor-
ney 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. Moreover, the Solicitor
General has compiled a list of 102 (mostly uncontested)
recess appointments made by Presidents going back to the
founding. App. to Brief for Petitioner 65a–89a. Given the
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difficulty of finding accurate information about vacancy
dates, that list is undoubtedly far smaller than the actual
number. No one disputes that every President since
James Buchanan has made recess appointments to pre­
existing vacancies.
   Common sense also suggests that many recess appoin­
tees filled vacancies that arose before the recess began.
We have compared the list of intra-session recess ap­
pointments in the Solicitor General’s brief with the chart
of congressional recesses. Where a specific date of ap­
pointment can be ascertained, more than half of those
intra-session appointments were made within two weeks
of the beginning of a recess. That short window strongly
suggests that many of the vacancies initially arose prior to
the recess. See App. to Brief for Petitioner 1a–64a; Ap­
pendix A, infra. Thus, it is not surprising that the Con­
gressional 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 Noel Canning Decision 3.
Further, with research assistance from the Supreme Court
Library, we have examined a random sample of the recess
appointments made by our two most recent Presidents,
and have found that almost all of those appointments
filled pre-recess vacancies: Of a sample of 21 recess ap­
pointments, 18 filled pre-recess vacancies and only 1 filled
a vacancy that arose during the recess in which he was
appointed. The precise date on which 2 of the vacancies
arose could not be determined. See Appendix B, infra.
Taken together, we think it is a fair inference that a large
proportion of the recess appointments in the history of the
Nation have filled pre-existing vacancies.
   Did the Senate object? Early on, there was some spo­
radic disagreement with the broad interpretation. In 1814


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Senator Gore said that if “the vacancy happen at another
time, it is not the case described by the Constitution.” 26
Annals of Cong. 653. In 1822 a Senate committee, while
focusing on the President’s power to fill a new vacancy
created by statute, used language to the same effect. 38

500. And early Congresses enacted statutes
authorizing certain recess appointments, see post, at 31, a
fact that may or may not suggest they accepted the nar-
rower interpretation of the Clause. Most of those stat-
utes—including the one passed by the First Congress—
authorized appointments to newly created offices, and may
have been addressed to the separate question of whether
new offices are vacancies within the meaning of the
Clause. See Letter from Alexander Hamilton to James
McHenry (May 3, 1799), in 23 Papers of Alexander Hamil-
ton 94 (H. Syrett ed. 1976) (“Vacancy is a relative term,
and presupposes that the Office has been once filled”);
Reply Brief 17. In any event, by 1862 Attorney General
Bates could still refer to “the unbroken acquiescence of the
Senate” in support of the broad interpretation. 10 Op.
Atty. Gen., at 356.
    Then in 1863 the Senate Judiciary Committee disagreed
with the broad interpretation. It issued a report conclud-
ing that a vacancy “must have its inceptive point after one
session has closed and before another session has begun.”
S. Rep. No. 80, 37th Cong., 3d Sess., p. 3. And the Senate
then passed the Pay Act, which provided that “no money
shall be paid . . . as a salary, to any person appointed
during the recess of the Senate, to fill a vacancy . . . which
. . . existed while the Senate was in session.” Act of Feb. 9,
1863, §2, 12 Stat. 646. Relying upon the floor statement of
a single Senator, JUSTICE SCALIA suggests that the pas-
sage of the Pay Act indicates that the Senate as a whole
endorsed the position in the 1863 Report. But the circum-
stances are more equivocal. During the floor debate on the
bill, not a single Senator referred to the Report. Cong.
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Globe, 37th Cong., 3d Sess. 564–565 (1863). Indeed, Sena­
tor Trumbull, who introduced the Pay Act, acknowledged
that there was disagreement about the underlying consti­
tutional question. 

(“[S]ome other persons think
he has that power”). 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. Cf. Tenure of
Office Act of 1867, §5, 14 Stat. 431 (making it a federal
crime for “any person” to “accept any appointment” in
certain circumstances).
   In any event, the Senate subsequently abandoned its
hostility. In the debate preceding the 1905 Senate Report
regarding President Roosevelt’s “constructive” recess
appointments, Senator Tillman—who chaired the Com­
mittee that authored the 1905 Report—brought up the
1863 Report, and another Senator responded: “Whatever
that report may have said in 1863, I do not think that has
been the view the Senate has taken” of the issue. 38 Cong.
Rec. 1606 (1904). Senator Tillman then agreed that “the
Senate has acquiesced” in the President’s “power to fill”
pre-recess vacancies. 

1905
Report described the Clause’s purpose in terms closely
echoing Attorney General Wirt. 1905 Senate Report, at 2
(“Its sole purpose was to render it certain that at all times
there should be, whether the Senate was in session or not,
an officer for every office” (emphasis added)).
   In 1916 the Senate debated whether to pay a recess
appointee who had filled a pre-recess vacancy and had not
subsequently been confirmed. 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. 53 Cong. Rec. 4291–4299; 39
Stat. 818–819. In 1927 the Comptroller General, a legisla­
tive officer, wrote that “there is no question but that the
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President has authority to make a recess appointment to
fill any vacancy,” including those that “existed while the
Senate was in session.” 7 Comp. Gen. 10, 11 (emphasis
added). Meanwhile, Presidents continued to make ap-
pointments to pre-recess vacancies. The Solicitor General
has identified 40 between 1863 and 1940, but that number
is clearly not comprehensive. See, e.g., 32 Op. Atty. Gen.
271–272 (1920) (listing 5 appointments that are not in the
Solicitor General’s appendix); Recess Appointments,
Washington Post, July 7, 1880, p. 1 (noting that President
Hayes had made “quite a number of appointments” to pre-
recess vacancies).
   Then in 1940 Congress amended the Pay Act to author-
ize 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. 751 (codified, as
amended, at 

. §5503). All three circumstances
concern a vacancy that did not initially occur during a
recess but happened to exist during that recess. By pay-
ing salaries to this kind of recess appointee, the 1940
Senate (and later Senates) in effect supported the Presi-
dent’s interpretation of the Clause.
   The upshot is that the President has consistently and
frequently interpreted the Recess Appointments Clause to
apply to vacancies that initially occur before, but continue
to exist during, a recess of the Senate. The Senate as a
body has not countered this practice for nearly three-
quarters of a century, perhaps longer. See A. Amar, The
Unwritten Constitution 576–577, n. 16 (2012) (for nearly
200 years “the overwhelming mass of actual practice”
supports the President’s interpretation); Mistretta v.
United States, 

, 401 (1989) (a “200–year
tradition” can “ ‘give meaning’ to the Constitution” (quot-
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ing 

(Frankfurter, J., con-
curring))). The tradition is long enough to entitle the
practice “to great regard in determining the true construc-
tion” of the constitutional provision. The Pocket Veto 

. And we are reluctant to upset this
traditional practice where doing so would seriously shrink
the authority that Presidents have believed existed and
have exercised for so long.
   In light of some linguistic ambiguity, the basic purpose
of the Clause, and the historical practice we have de-
scribed, we conclude that the phrase “all vacancies” in-
cludes vacancies that come into existence while the Senate
is in session.
                              V
  The third question concerns the calculation of the length
of the Senate’s “recess.” On December 17, 2011, the Sen-
ate by unanimous consent adopted a resolution to convene
“pro forma session[s]” only, with “no business . . . trans-
acted,” on every Tuesday and Friday from December 20,
2011, through January 20, 2012. 2011 S. J. 923. At the
end of each pro forma session, the Senate would “adjourn
until” the following pro forma session. 

the Senate convened and adjourned as agreed. It
held pro forma sessions on December 20, 23, 27, and 30,
and on January 3, 6, 10, 13, 17, and 20; and at the end of
each pro forma session, it adjourned until the time and
date of the next. 

158 Cong. Rec. S1–S11.
  The President made the recess appointments before us
on January 4, 2012, in between the January 3 and the
January 6 pro forma sessions. We must determine the
significance of these sessions—that is, whether, for pur-
poses of the Clause, we should treat them as periods when
the Senate was in session or as periods when it was in
recess. If the former, the period between January 3 and
January 6 was a 3-day recess, which is too short to trigger
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the President’s recess-appointment power, 

–21. If the latter, however, then the 3-day period was
part of a much longer recess during which the President
did have the power to make recess appointments, see 

argues that we must treat the
pro forma sessions as periods of recess. He says that these
“sessions” were sessions in name only because the Senate
was in recess as a functional matter. 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.
   In our view, however, the pro forma sessions count as
sessions, not as periods of recess. We hold that, for pur-
poses of the Recess Appointments Clause, the Senate is in
session when it says it is, provided that, under its own
rules, it retains the capacity to transact Senate business.
The Senate met that standard here.
   The standard we apply is consistent with the Constitu-
tion’s broad delegation of authority to the Senate to de-
termine how and when to conduct its business. The Con-
stitution explicitly empowers the Senate to “determine the
Rules of its Proceedings.” Art. I, §5, cl. 2. And we have
held that “all matters of method are open to the determi-
nation” of the Senate, as long as there is “a reasonable
relation between the mode or method of proceeding estab-
lished by the rule and the result which is sought to be
attained” and the rule does not “ignore constitutional
restraints or violate fundamental rights.” United States v.
Ballin, 

, 5 (1892).
   In addition, the Constitution provides the Senate with
extensive control over its schedule. There are only limited
exceptions. See Amdt. 20, §2 (Congress must meet once a
year on January 3, unless it specifies another day by law);
Art. II, §3 (Senate must meet if the President calls it into
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special session); Art. I, §5, cl. 4 (neither House may ad­
journ for more than three days without consent of the
other). See also Art. II, §3 (“[I]n Case of Disagreement
between [the Houses], with Respect to the Time of Ad­
journment, [the President] may adjourn them to such
Time as he shall think proper”). The Constitution thus
gives the Senate wide latitude to determine whether and
when to have a session, as well as how to conduct the
session. This suggests that the Senate’s determination
about what constitutes a session should merit great
respect.
   Furthermore, this Court’s precedents reflect the breadth
of the power constitutionally delegated to the Senate. We
generally take at face value the Senate’s own report of its
actions. When, for example, “the presiding officers” of the
House and Senate sign an enrolled bill (and the President
“approve[s]” it), “its authentication as a bill that has
passed Congress should be deemed complete and unim­
peachable.” Marshall Field & Co. v. Clark, 

,
672 (1892). By the same principle, when the Journal of
the Senate indicates that a quorum was present, under a
valid Senate rule, at the time the Senate passed a bill, we
will not consider an argument that a quorum was not, in
fact, present. 

. The Constitution re­
quires the Senate to keep its Journal, Art. I, §5, cl. 3
(“Each House shall keep a Journal of its proceedings . . .”),
and “if reference may be had to” it, “it must be assumed to
speak the truth,” 

.
   For these reasons, we conclude that we must give great
weight to the Senate’s own determination of when it is and
when it is not in session. But our deference to the Senate
cannot be absolute. When the Senate is without the ca-
pacity to act, under its own rules, it is not in session even
if it so declares. See Tr. of Oral Arg. 69 (acknowledgment
by counsel for amici Senators that if the Senate had left
the Capitol and “effectively given up . . . the business of
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legislating” then it might be in recess, even if it said it was
not). In that circumstance, the Senate is not simply un-
likely or unwilling to act upon nominations of the Presi-
dent. It is unable to do so. The purpose of the Clause is to
ensure the continued functioning of the Federal Govern-
ment while the Senate is unavailable. 

–6.
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. II, §2, cl. 2.
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.
   Applying this standard, we find that the pro forma
sessions were sessions for purposes of the Clause. First,
the Senate said it was in session. 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. 2011 S. J. 923–
924; 158 Cong. Rec. S1–S11. (The Journal of the Senate
for 2012 has not yet been published.) And these reports of
the Senate “must be assumed to speak the truth.” 

.
   Second, the Senate’s rules make clear that during its
pro forma sessions, despite its resolution that it would
conduct no business, the Senate retained the power to
conduct business. During any pro forma session, the
Senate could have conducted business simply by passing a
unanimous consent agreement. See Riddick’s 1313. The
Senate in fact conducts much of its business through
unanimous consent. 

Senate rules
presume that a quorum is present unless a present Sena-
tor questions it. 

And when the Senate
has a quorum, an agreement is unanimously passed if,
upon its proposal, no present Senator objects. 

It is consequently unsurprising that the
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Senate has enacted legislation during pro forma sessions
even when it has said that no business will be transacted.
Indeed, the Senate passed a bill by unanimous consent
during the second pro forma session after its December 17
adjournment. 2011 S. J. 924. And that bill quickly be­
came law. Pub. L. 112–78, 125 Stat. 1280.
  By way of contrast, we do not see how the Senate could
conduct business during a recess. It could terminate the
recess and then, when in session, pass a bill. But in that
case, of course, the Senate would no longer be in recess. It
would be in session. And that is the crucial point. Senate
rules make clear that, once in session, the Senate can act
even if it has earlier said that it would not.
  The Solicitor General argues that more is required. He
contends that what counts is not the Senate’s capacity to
conduct business but what the Senate actually does (or
here, did) during its pro forma sessions. And he looks for
support to the functional definition of “recess” set forth in
the 1905 Senate Report discussed above. 

.
That Report describes a “recess” of the Senate as
    “the period of time . . . when its members owe no duty
    of attendance; when its Chamber is empty; when, be­
    cause of its absence, it can not receive communica­
    tions from the President or participate as a body in
    making appointments.” 1905 Senate Report, at 2.
  Even were we, for argument’s sake, to accept all of these
criteria as authoritative, they would here be met. Taking
the last criterion first, could the Senate, during its pro
forma sessions, “participate as a body in making appoint­
ments”? It could. It could confirm nominees by unani­
mous consent, just as it passed the bill mentioned above.
See Riddick’s 1313.
  Could the Senate “receive communications from the
President”? It could. The Congressional Record indicates
that the Senate “received” a message from the President
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on January 12, during a 3-day adjournment between two
pro forma sessions. See 158 Cong. Rec. S37 (Jan. 23,
2012). If the Senate could receive Presidential messages
between two pro forma sessions, it could receive them
during a pro forma session.
   Was the Senate’s Chamber “empty”? It was not. 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 noth-
ing in the Journal of the Senate or the Congressional
Record reflects any such suggestion.
   Did Senators “owe [a] duty of attendance”? They did.
The Senate’s rules dictate that Senators are under a duty
to attend every session. See Riddick’s 214; Standing Rule
of the Senate VI(2), S. Doc. No. 112–1, p. 5 (2011) (“No
Senator shall absent himself from the service of the Sen-
ate without leave”). Nothing excused the Senators from
this duty during the Senate’s pro forma sessions. 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. Rule VI(4).
   The Solicitor General asks us to engage in a more realis-
tic appraisal of what the Senate actually did. He argues
that, during the relevant pro forma 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. See Brief for Peti-
tioner 48–49, 54–55.
   We do not believe, however, that engaging in the kind of
factual appraisal that the Solicitor General suggests is
either legally or practically appropriate. From a legal
perspective, this approach would run contrary to prece-
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dent instructing us to “respect . . . coequal and independ-
ent departments” by, for example, taking the Senate’s
report of its official action at its word. 

; see 

. From a practical perspec-
tive, judges cannot easily determine such matters as who
is, and who is not, in fact present on the floor during a
particular Senate session. Judicial efforts to engage in
these kinds of inquiries would risk undue judicial interfer-
ence with the functioning of the Legislative Branch.
   Finally, the Solicitor General warns that our holding
may “ ‘disrup[t] the proper balance between the coordinate
branches by preventing the Executive Branch from ac-
complishing its constitutionally assigned functions.’ ”
Brief for Petitioner 64 (quoting Morrison v. Olson, 

, 695 (1988); alteration in original). We do not
see, however, how our holding could significantly alter the
constitutional balance. Most appointments are not contro-
versial and do not produce friction between the branches.
Where political controversy is serious, the Senate unques-
tionably has other methods of preventing recess appoint-
ments. As the Solicitor General concedes, the Senate
could preclude the President from making recess appoint-
ments by holding a series of twice-a-week ordinary (not
pro forma) sessions. And the nature of the business con-
ducted at those ordinary sessions—whether, for example,
Senators must vote on nominations, or may return to
their home States to meet with their constituents—is a
matter for the Senate to decide. The Constitution also
gives the President (if he has enough allies in Congress) a
way to force a recess. Art. II, §3 (“[I]n Case of Disagree-
ment between [the Houses], with Respect to the Time of
Adjournment, [the President] may adjourn them to such
Time as he shall think proper”). Moreover, the President
and Senators engage with each other in many different
ways and have a variety of methods of encouraging each
other to accept their points of view.


. NOEL CANNING

                     Opinion of the Court

  Regardless, the Recess Appointments Clause is not
designed to overcome serious institutional friction. It
simply provides a subsidiary method for appointing offi-
cials when the Senate is away during a recess. Here, as in
other contexts, friction between the branches is an inevi-
table consequence of our constitutional structure. See

(Brandeis, J., dissenting). That
structure foresees resolution not only through judicial
interpretation and compromise among the branches but
also by the ballot box.
                             VI
   The Recess Appointments Clause responds to a struc-
tural difference between the Executive and Legislative
Branches: The Executive Branch is perpetually in opera-
tion, while the Legislature only acts in intervals separated
by recesses. The purpose of the Clause is to allow the
Executive to continue operating while the Senate is una-
vailable. We believe that the Clause’s text, standing
alone, is ambiguous. It does not resolve whether the
President may make appointments during intra-session
recesses, or whether he may fill pre-recess vacancies. But
the broader reading better serves the Clause’s structural
function. Moreover, that broader reading is reinforced by
centuries of history, which we are hesitant to disturb. We
thus hold that the Constitution empowers the President to
fill any existing vacancy during any recess—intra-session
or inter-session—of sufficient length.
   JUSTICE SCALIA would render illegitimate thousands of
recess appointments reaching all the way back to the
founding era. More than that: Calling the Clause an
“anachronism,” he would basically read it out of the Con-
stitution. Post, at 12. He performs this act of judicial
excision in the name of liberty. We fail to see how excising
the Recess Appointments Clause preserves freedom. In
fact, Alexander Hamilton observed in the very first Feder-
                 Cite as: 573 U. S. ____ (2014)                 41

                     Opinion of
                     Opinion of the
                                the Court
                                    Court

alist Paper that “the vigour of government is essential to
the security of liberty.” The Federalist No. 1, at 5. And
the Framers included the Recess Appointments Clause to
preserve the “vigour of government” at times when an
important organ of Government, the United States Senate,
is in recess. JUSTICE SCALIA’s interpretation of the Clause
would defeat the power of the Clause to achieve that
objective.
   The foregoing discussion should refute JUSTICE SCALIA’s
claim that we have “embrace[d]” an “adverse-possession
theory of executive power.” Post, at 48. Instead, as in
all cases, we interpret the Constitution in light of its
text, purposes, and “our whole experience” as a Nation.
Missouri v. Holland, 

, 433 (1920). And we
look to the actual practice of Government to inform our
interpretation.
   Given our answer to the last question before us, we
conclude that the Recess Appointments Clause does not
give the President the constitutional authority to make
the appointments here at issue. Because the Court of
Appeals reached the same ultimate conclusion (though for
reasons we reject), its judgment is affirmed.

                                                  It is so ordered.
4

. NOEL CANNING

                         Appendix AA to
                               Opinion
                         Appendix     to opinion
                                         opinion  of the
                                          of the Court
                                                 of   the Court
                                                          Court

                      APPENDIXES
                             A
  The following table contains the dates of all the intra-
session and inter-session recesses that Congress has taken
since the founding. The information (including the foot-
notes) is taken from 2011–2012 Official Congressional
Directory, 112th Cong., 522–539.

         SESSIONS OF CONGRESS, 1st–112th CONGRESSES, 1789–2011

                                                    Length                      Recesses 2
 Con-     Ses-     Convening        Adjournment
                                                      in                               House of Representa-
 gress    sion       Date               Date                        Senate
                                                     days1                                    tives
 1st      

, 1789      Sept. 29, 1789     210
          2      Jan. 4, 1790      Aug. 12, 1790      221
          3      Dec. 6, 

, 1791        88
 2d       S      Mar. 4, 179

, 1791         1
          1      Oct. 24, 1791     May 8, 1792        197
          2      Nov. 5, 

, 1793       119
 3d       S      Mar. 4, 

, 1793         1
          1      Dec. 2, 1793      June 9, 1794       190
          2      Nov. 3, 

, 1795       121
 4th      S      June 8, 1795      June 26, 1795       19
          1      Dec. 7, 1795      June 1, 1796       177
          2      Dec. 5, 

, 1797        89
 5th      S      Mar. 4, 

, 1797         1
          1–E    May 15, 1797      July 10, 1797       57
          S      July 17, 1798     July 19, 1798        3
          2      Nov. 13, 1797     July 16, 1798      246
          3      Dec. 3, 

, 1799        91
 6th      1      Dec. 2, 1799      May 14, 1800       164
          2      Nov. 17, 

, 1801       107    Dec. 23–Dec. 30, 1800     Dec. 23–Dec. 30, 1800
 7th      S      Mar. 4, 

, 1801         2
          1      Dec. 7, 1801      May 3, 1802        148
          2      Dec. 6, 

, 1803        88
 8th      1–E    Oct. 17, 

, 1804      163
          2      Nov. 5, 

, 1805       119
 9th      1      Dec. 2, 1805      Apr. 21, 1806      141
          2      Dec. 1, 

, 1807        93
 10th     1–E    Oct. 26, 1807     Apr. 25, 1808      182
          2      Nov. 7, 

, 1809       117
 11th     S      Mar. 4, 

, 1809         4
          1      May 22, 1809      June 28, 1809       38
          2      Nov. 27, 1809     May 1, 1810        156
          3      Dec. 3, 

, 1811        91
 12th     1–E    Nov. 4, 1811      July 6, 1812       245
          2      Nov. 2, 

, 1813       122
 13th     1      May 24, 1813      Aug. 2, 1813        71
          2      Dec. 6, 1813      Apr. 18, 1814      134
          3–E    Sept. 19, 

, 1815       166
 14th     1      Dec. 4, 1815      Apr. 30, 1816      148
          2      Dec. 2, 

, 1817        92
 15th     S      Mar. 4, 

, 1817         3
          1      Dec. 1, 1817      Apr. 20, 1818      141    Dec. 24–Dec. 29, 1817     Dec. 24–Dec. 29, 1817
          2      Nov. 16, 

, 1819       108
 16th     1      Dec. 6, 1819      May 15, 1820       162
          2      Nov. 13, 

, 1821       111
 17th     1      Dec. 3, 1821      May 8, 1822        157
          2      Dec. 2, 

, 1823        92
 18th     1      Dec. 1, 1823      May 27, 1824       178
          2      Dec. 6, 

, 1825        88
 19th     S      Mar. 4, 

, 1825         6
          1      Dec. 5, 1825      May 22, 1826       169
                               Cite as: 573 U. S. ____ (2014)                                                  43

                              Opinion
                        Appendix       of the Court
                                 A to opinion  of the Court
                                                   Length                           Recesses 2
Con­    Ses­     Convening         Adjournment
                                                     in                                    House of Representa­
gress   sion       Date                Date                         Senate
                                                    days1                                         tives
        2      Dec. 4, 

, 1827        90
20th    1      Dec. 3, 1827       May 26, 1828       175
        2      Dec. 1, 

, 1829        93    Dec. 24–Dec. 29, 1828          Dec. 24–Dec. 29, 1828
21st    S      Mar. 4, 

, 1829       14
        1      Dec. 7, 1829       May 31, 1830       176
        2      Dec. 6, 

, 1831        88
22d     1      Dec. 5, 1831       July 16, 1832      225
        2      Dec. 3, 

, 1833        91
23d     1      Dec. 2, 1833       June 30, 1834      211
        2      Dec. 1, 

, 1835        93
24th    1      Dec. 7, 1835       July 4, 1836       211
        2      Dec. 5, 

, 1837        89
25th    S      Mar. 4, 

, 1837        7
        1–E    Sept. 4, 1837      Oct. 16, 1837       43
        2      Dec. 4, 1837       July 9, 1838       218
        3      Dec. 3, 

, 1839        91
26th    1      Dec. 2, 1839       July 21, 1840      233
        2      Dec. 7, 

, 1841        87
27th    S      Mar. 4, 

, 1841       12
        1–E    May 31, 1841       Sept. 13, 1841     106
        2      Dec. 6, 1841       Aug. 31, 1842      269
        3      Dec. 5, 

, 1843        89
28th    1      Dec. 4, 1843       June 17, 1844      196
        2      Dec. 2, 

, 1845        92
29th    S      Mar. 4, 

, 1845       17
        1      Dec. 1, 1845       Aug. 10, 1846      253
        2      Dec. 7, 

, 1847        87
30th    1      Dec. 6, 1847       Aug. 14, 1848      254
        2      Dec. 4, 

, 1849        90
31st    S      Mar. 5, 

, 1849       19
        1      Dec. 3, 1849       Sept. 30, 1850     302
        2      Dec. 2, 

, 1851        92
32d     S      Mar. 4, 

, 1851       10
        1      Dec. 1, 1851       Aug. 31, 1852      275
        2      Dec. 6, 

, 1853        88
33d     S      Mar. 4, 1853       Apr. 11, 1853       39
        1      Dec. 5, 1853       Aug. 7, 1854       246
        2      Dec. 4, 

, 1855        90
34th    1      Dec. 3, 1855       Aug. 18, 1856      260
        2–E    Aug. 21, 1856      Aug. 30, 1856       10
        3      Dec. 1, 

, 1857        93
35th    S      Mar. 4, 

, 1857       11
        1      Dec. 7, 1857       June 14, 1858      189    Dec. 23, 1857–Jan. 4,          Dec. 23, 1857–Jan. 4,
                                                            1858                           1858
        S      June 15, 1858      June 16, 1858        2
        2      Dec. 6, 

, 1859        88    Dec. 23, 1858–Jan. 4,          Dec. 23, 1858–Jan. 4,
                                                            1859                           1859
36th    S      Mar. 4, 

, 1859        7
        1      Dec. 5, 1859       June 25, 1860      202
        S      June 26, 1860      June 28, 1860        3
        2      Dec. 3, 

, 1861        93
37th    S      Mar. 4, 

, 1861       25
        1–E    July 4, 1861       Aug. 6, 1861        34
        2      Dec. 2, 1861       July 17, 1862      228
        3      Dec. 1, 

, 1863        93    Dec. 23, 1862–Jan. 5,          Dec. 23, 1862–Jan. 5,
                                                            1863                           1863
38th    S      Mar. 4, 

, 1863       11
        1      Dec. 7, 1863       July 4, 1864       209    Dec. 23, 1863–Jan. 5,          Dec. 23, 1863–Jan. 5,
                                                            1864                           1864
        2      Dec. 5, 

, 1865        89    Dec. 22, 1864–Jan. 5,          Dec. 22, 1864–Jan. 5,
                                                            1865                           1865
39th    S      Mar. 4, 

, 1865        8
        1      Dec. 4, 1865       July 28, 1866      237    Dec. 6–Dec. 11, 1865           Dec. 6–Dec. 11, 1865
                                                            Dec. 21, 1865–Jan. 5,          Dec. 21, 1865–Jan. 5,
                                                            1866                           1866
        2      Dec. 3, 

, 1867        91    Dec. 20, 1866–Jan. 3,          Dec. 20, 1866–Jan. 3,
                                                            1867                           1867
40th    

, 1867       Dec. 1, 1867       

–July 3, 

–July 3, 1867
                                                            July 20–Nov. 21, 1867          July 20–Nov. 21, 1867
        S      Apr. 1, 1867       Apr. 20, 1867       20
        2      Dec. 2, 1867       Nov. 10, 1868      345    Dec. 20, 1867–Jan. 6,          Dec. 20, 1867–Jan. 6,
                                                            1868                           1868
                                                            July 27–Sept. 21, 1868         July 27–Sept. 21, 1868
4

. NOEL CANNING

                         Appendix A to opinion
                              Opinion           of the Court
                                        of the Court
                                                 Length                      Recesses 2
 Con-    Ses-     Convening       Adjournment
                                                   in                                House of Representa-
 gress   sion       Date              Date                       Senate
                                                  days1                                       tives
                                                          Sept. 21–Oct. 16, 1868    Sept. 21–Oct. 16, 1868
                                                          Oct. 16–Nov. 10, 1868     Oct. 16–Nov. 10, 1868
         3      Dec. 7, 

, 1869        87   Dec. 21, 1868–Jan. 5,     Dec. 21, 1868–Jan. 5,
                                                          1869                      1869
 41st    

, 1869     Apr. 10, 1869       38
         S      Apr. 12, 1869    Apr. 22, 1869       11
         2      Dec. 6, 1869     July 15, 1870      222   Dec. 22, 1869–Jan. 10,    Dec. 22, 1869–Jan. 10,
                                                          1870                      1870
         3      Dec. 5, 

, 1871        89   Dec. 23, 1870–Jan. 4,     Dec. 22, 1870–Jan. 4,
                                                          1871                      1871
 42d     

, 1871     Apr. 20, 1871       48
         S      May 10, 1871     May 27, 1871        18
         2      Dec. 4, 1871     June 10, 1872      190   Dec. 21, 1871–Jan. 8,     Dec. 21, 1871–Jan. 8,
                                                          1872                      1872
         3      Dec. 2, 

, 1873        92   Dec. 20, 1872–Jan. 6,     Dec. 20, 1872–Jan. 6,
                                                          1873                      1873
 43d     S      Mar. 4, 

, 1873       23
         1      Dec. 1, 1873     June 23, 1874      204   Dec. 19, 1873–Jan. 5,     Dec. 19, 1873–Jan. 5,
                                                          1874                      1874
         2      Dec. 7, 

, 1875        87   Dec. 23, 1874–Jan. 5,     Dec. 23, 1874–Jan. 5,
                                                          1875                      1875
 44th    S      Mar. 5, 

, 1875       20
         1      Dec. 6, 1875     Aug. 15, 1876      254   Dec. 20, 1875–Jan. 5,     Dec. 21, 1875–Jan. 5,
                                                          1876                      1876
         2      Dec. 4, 

, 1877        90
 45th    S      Mar. 5, 

, 1877       13
         1–E    Oct. 15, 1877    Dec. 3, 1877        50
         2      Dec. 3, 1877     June 20, 1878      200   Dec. 15, 1877–Jan. 10,    Dec. 15, 1877–Jan. 10,
                                                          1878                      1878
         3      Dec. 2, 

, 1879        92   Dec. 20, 1878–Jan. 7,     Dec. 20, 1878–Jan. 7,
                                                          1879                      1879
 46th    1–E    Mar. 18, 1879    July 1, 1879       106
         2      Dec. 1, 1879     June 16, 1880      199   Dec. 19, 1879–Jan. 6,     Dec. 19, 1879–Jan. 6,
                                                          1880                      1880
         3      Dec. 6, 

, 1881        88   Dec. 23, 1880–Jan. 5,     Dec. 23, 1880–Jan. 5,
                                                          1881                      1881
 47th    S      Mar. 4, 1881     May 20, 1881        78
         S      Oct. 10, 1881    Oct. 29, 1881       20
         1      Dec. 5, 1881     Aug. 8, 1882       247   Dec. 22, 1881–Jan. 5,     Dec. 22, 1881–Jan. 5,
                                                          1882                      1882
         2      Dec. 4, 

, 1883        90
 48th    1      Dec. 3, 1883     July 7, 1884       218   Dec. 24, 1883–Jan. 7,     Dec. 24, 1883–Jan. 7,
                                                          1884                      1884
         2      Dec. 1, 

, 1885        93   Dec. 24, 1884–Jan. 5,     Dec. 24, 1884–Jan. 5,
                                                          1885                      1885
 49th    S      Mar. 4, 1885     Apr. 2, 1885        30
         1      Dec. 7, 1885     Aug. 5, 1886       242   Dec. 21, 1885–Jan. 5,     Dec. 21, 1885–Jan. 5,
                                                          1886                      1886
         2      Dec. 6, 

, 1887        88   Dec. 22, 1886–Jan. 4,     Dec. 22, 1886–Jan. 4,
                                                          1887                      1887
 50th    1      Dec. 5, 1887     Oct. 20, 1888      321   Dec. 22, 1887–Jan. 4,     Dec. 22, 1887–Jan. 4,
                                                          1888                      1888
         2      Dec. 3, 

, 1889        91   Dec. 21, 1888–Jan. 2,     Dec. 21, 1888–Jan. 2,
                                                          1889                      1889
 51st    S      Mar. 4, 1889     Apr. 2, 1889        30
         1      Dec. 2, 1889     Oct. 1, 1890       304   Dec. 21, 1889–Jan. 6,     Dec. 21, 1889–Jan. 6,
                                                          1890                      1890
         2      Dec. 1, 

, 1891       93
 52d     1      Dec. 7, 1891     Aug. 5, 1892      251
         2      Dec. 5, 

, 1893       89    Dec. 22, 1892–Jan. 4,     Dec. 22, 1892–Jan. 4,
                                                          1893                      1893
 53d     S      Mar. 4, 1893     Apr. 15, 1893       43
         1–E    Aug. 7, 1893     Nov. 3, 1893        89
         2      Dec. 4, 1893     Aug. 28, 1894      268                             Dec. 21, 1893–Jan. 3,
                                                                                    1894
         3      Dec. 3, 

, 1895        97                             Dec. 23, 1894–Jan. 3,
                                                                                    1895
 54th    1      Dec. 2, 1895     June 11, 1896      193
         2      Dec. 7, 

, 1897        87   Dec. 22, 1896–Jan. 5,     Dec. 22, 1896–Jan. 5,
                                                          1897                      1897
 55th    S      Mar. 4, 

, 1897       11
                                Cite as: 573 U. S. ____ (2014)                                              45

                              Opinion
                        Appendix       of the Court
                                 A to opinion  of the Court
                                                    Length                       Recesses 2
Con­    Ses­     Convening          Adjournment
                                                      in                                House of Representa­
gress   sion       Date                 Date                        Senate
                                                     days1                                     tives
        1–E    Mar. 15, 1897       July 24, 1897      131
        2      Dec. 6, 1897        July 8, 1898       215    Dec. 18, 1897–Jan. 5,      Dec. 18, 1897–Jan. 5,
                                                             1898                       1898
        3      Dec. 5, 

, 1899        89    Dec. 21, 1898–Jan. 4,      Dec. 21, 1898–Jan. 4,
                                                             1899                       1899
56th    1      Dec. 4, 1899        June 7, 1900       186    Dec. 20, 1899–Jan. 3,      Dec. 20, 1899–Jan. 3,
                                                             1900                       1900
        2      Dec. 3, 

, 1901        91    Dec. 20, 1900–Jan. 3,      Dec. 21, 1900–Jan. 3,
                                                             1901                       1901
57th    S      Mar. 4, 

, 1901         6
        1      Dec. 2, 1901        July 1, 1902       212    Dec. 19, 1901–Jan. 6,      Dec. 19, 1901–Jan. 6,
                                                             1902                       1902
        2      Dec. 1, 

, 1903        93    Dec. 20, 1902–Jan. 5,      Dec. 20, 1902–Jan. 5,
                                                             1903                       1903
58th    S      Mar. 5, 

, 1903       15
        1–E    Nov. 9, 1903        Dec. 7, 1903        29
        2      Dec. 7, 1903        Apr. 28, 1904      144    Dec. 19, 1903–Jan. 4,      Dec. 19, 1903–Jan. 4,
                                                             1904                       1904
        3      Dec. 5, 

, 1905        89    Dec. 21, 1904–Jan. 4,      Dec. 21, 1904–Jan. 4,
                                                             1905                       1905
59th    S      Mar. 4, 

, 1905       15
        1      Dec. 4, 1905        June 30, 1906      209    Dec. 21, 1905–Jan. 4,      Dec. 21, 1905–Jan. 4,
                                                             1906                       1906

        2      Dec. 3, 

, 1907        91    Dec. 20, 1906–Jan. 3,      Dec. 20, 1906–Jan. 3,
                                                             1907                       1907
60th    1      Dec. 2, 1907        May 30, 1908       181    Dec. 21, 1907–Jan. 6,      Dec. 21, 1907–Jan. 6,
                                                             1908                       1908
        2      Dec. 7, 

, 1909        87    Dec. 19, 1908–Jan. 4,      Dec. 19, 1908–Jan. 4,
                                                             1909                       1909
61st    S      Mar. 4, 

, 1909         3
        1–E    Mar. 15, 1909       Aug. 5, 1909       144
        2      Dec. 6, 1909        June 25, 1910      202    Dec. 21, 1909–Jan. 4,      Dec. 21, 1909–Jan. 4,
                                                             1910                       1910
        3      Dec. 5, 

, 1911        89    Dec. 21, 1910–Jan. 5,      Dec. 21, 1910–Jan. 5,
                                                             1911                       1911
62d     1–E    Apr. 4, 1911 .      Aug. 22, 1911      141
        2      Dec. 4, 1911        Aug. 26, 1912      267    Dec. 21, 1911–Jan. 3,      Dec. 21, 1911–Jan. 3,
                                                             1912                       1912
        3      Dec. 2, 

, 1913        92    Dec. 19, 1912–Jan. 2,      Dec. 19, 1912–Jan. 2,
                                                             1913                       1913
63d     S      Mar. 4, 

, 1913       14
        1–E    Apr. 7, 1913        Dec. 1, 1913       239
        2      Dec. 1, 1913        Oct. 24, 1914      328    Dec. 23, 1913–Jan. 12,     Dec. 23, 1913–Jan. 12,
                                                             1914                       1914
        3      Dec. 7, 

, 1915        87    Dec. 23–Dec. 28, 1914      Dec. 23–Dec. 28, 1914
64th    1      Dec. 6, 1915        Sept. 8, 1916      278    Dec. 17, 1915–Jan. 4,      Dec. 17, 1915–Jan. 4,
                                                             1916                       1916
        2      Dec. 4, 

, 1917        90    Dec. 22, 1916–Jan. 2,      Dec. 22, 1916–Jan. 2,
                                                             1917                       1917
65th    S      Mar. 5, 

, 1917       12
        1–E    Apr. 2, 1917        Oct. 6, 1917       188
        2      Dec. 3, 1917        Nov. 21, 1918      354    Dec. 18, 1917–Jan. 3,      Dec. 18, 1917–Jan. 3,
                                                             1918                       1918
        3      Dec. 2, 

, 1919        92
66th    1–E    May 19, 1919        Nov. 19, 1919      185    July 1–July 8, 1919        July 1–July 8, 1919
        2      Dec. 1, 1919        June 5, 1920       188    Dec. 20, 1919–Jan. 5,      Dec. 20, 1919–Jan. 5,
                                                             1920                       1920
        3      Dec. 6, 

, 1921        88
67th    S      Mar. 4, 

, 1921       12
        1–E    Apr. 11, 1921       Nov. 23, 1921      227    Aug. 24–Sept. 21, 1921     Aug. 24–Sept. 21, 1921
        2      Dec. 5, 1921        Sept. 22, 1922     292    Dec. 22, 1921–Jan. 3,      Dec. 22, 1921–Jan. 3,
                                                             1922                       1922
        3–E    Nov. 20, 1922       Dec. 4, 1922        15
        4      Dec. 4, 

, 1923        90
68th    1      Dec. 3, 1923        June 7, 1924       188    Dec. 20, 1923–Jan. 3,      Dec. 20, 1923–Jan. 3,
                                                             1924                       1924
        2      Dec. 1, 

, 1925        93    Dec. 20–Dec. 29, 1924      Dec. 20–Dec. 29, 1924
69th    S      Mar. 4, 

, 1925       15
        1      Dec. 7, 1925        July 3, 1926       209    Dec. 22, 1925–Jan. 4,      Dec. 22, 1925–Jan. 4,
                                                             1926                       1926
        2      Dec. 6, 

, 1927        88    Dec. 22, 1926–Jan. 3,      Dec. 22, 1926–Jan. 3,
                                                             1927                       1927
70th    1      Dec. 5, 1927        May 29, 1928       177    Dec. 21, 1927–Jan. 4,      Dec. 21, 1927–Jan. 4,
4

. NOEL CANNING

                         Appendix A
                                  A to
                                    to opinion
                              Opinion
                         Appendix      opinion  of
                                                of the
                                                   the Court
                                        of the Court   Court
                                                   Length                         Recesses 2
 Con-    Ses-     Convening        Adjournment
                                                     in                                   House of Representa-
 gress   sion       Date               Date                         Senate
                                                    days1                                          tives
                                                            1928                         1928
         2      Dec. 3, 

, 1929         91   Dec. 22, 1928–Jan. 3,        Dec. 22, 1928–Jan. 3,
                                                            1929                         1929
 71st    S      Mar. 4, 

, 1929         2
         1–E    Apr. 15, 1929     Nov. 22, 1929      222    June 19–Aug. 19,             June 19–Sept. 23,
                                                            1929                         1929
         2      Dec. 2, 1929      July 3, 1930        214   Dec. 21, 1929–Jan. 6,        Dec. 21, 1929–Jan. 6,
                                                            1930                         1930
         S      July 7, 1930      July 21, 1930        15
         3      Dec. 1, 

, 1931         93   Dec. 20, 1930–Jan. 5,        Dec. 20, 1930–Jan. 5,
                                                            1931                         1931
 72d     1      Dec. 7, 1931      July 16, 1932       223   Dec. 22, 1931–Jan. 4,        Dec. 22, 1931–Jan. 4,
                                                            1932                         1932
         2      Dec. 5, 

, 1933         89
 73d     S      Mar. 4, 

, 1933          3
         1–E    Mar. 9, 1933      June 15, 1933        99
         2      Jan. 3, 1934      June 18, 1934       167
 74th    1      Jan. 3, 1935      Aug. 26, 1935       236
         2      Jan. 3, 1936      June 20, 1936       170   June 8–June 15, 1936         June 8–June 15, 1936
 75th    1      Jan. 5, 1937      Aug. 21, 1937       229
         2–E    Nov. 15, 1937     Dec. 21, 1937        37
         3      Jan. 3, 1938      June 16, 1938       165
 76th    1      Jan. 3, 1939      Aug. 5, 1939        215
         2–E    Sept. 21, 1939    Nov. 3, 1939         44
         3      Jan. 3, 1940      Jan. 3, 1941        366   July 11–July 22, 1940        July 11–July 22, 1940
 77th    1      Jan. 3, 1941      Jan. 2, 1942        365
         2      Jan. 5, 1942      Dec. 16, 1942       346
 78th    1      Jan. 6, 1943      Dec. 21, 1943       350   July 8–Sept. 14, 1943        July 8–Sept. 14, 1943
         2      Jan. 10, 1944     Dec. 19, 1944       345   Apr. 1–Apr. 12, 1944         Apr. 1–Apr. 12, 1944
                                                            June 23–Aug. 1, 1944         June 23–Aug. 1, 1944
                                                            Sept. 21–Nov. 14, 1944       Sept. 21–Nov. 14, 1944
 79th    1      Jan. 3, 1945      Dec. 21, 1945       353   Aug. 1–Sept. 5, 1945         July 21–Sept. 5, 1945
         2      Jan. 14, 1946     Aug. 2, 1946        201                                Apr. 18–Apr. 30, 1946
 80th    1      Jan. 3, 1947      Dec. 19, 1947       351   July 27–Nov. 17, 1947        July 27–Nov. 17, 1947
         2      Jan. 6, 1948      Dec. 31, 1948       361   June 20–July 26, 1948        June 20–July 26, 1948
                                                            Aug. 7–Dec. 31, 1948         Aug. 7–Dec. 31, 1948
 81st    1      Jan. 3, 1949      Oct. 19, 1949       290
         2      Jan. 3, 1950      Jan. 2, 1951        365   Sept. 23–Nov. 27, 1950 p     Apr. 6–Apr. 18, 1950
                                                                                         Sept. 23–Nov. 27, 1950
 82d     1      Jan. 3, 1951      Oct. 20, 1951       

–Apr. 2, 1951
                                                                                         Aug. 23–Sept. 12, 1951
         2      Jan. 8, 1952      July 7, 1952        182                                Apr. 10–Apr. 22, 1952
 83d     1      Jan. 3, 1953      Aug. 3, 1953        213                                Apr. 2–Apr. 13, 1953
         2      Jan. 6, 1954      Dec. 2, 1954        331   Aug. 20–Nov. 8, 1954         Apr. 15–Apr. 22, 1954
                                                            Nov. 18–Nov. 29, 1954        Adjourned sine die
                                                                                         Aug. 20, 1954
 84th    1      Jan. 5, 1955      Aug. 2, 1955        210   Apr. 4–Apr. 13, 1955         Apr. 4–Apr. 13, 1955
         2      Jan. 3, 1956      July 27, 1956       

–Apr. 9, 

–Apr. 9, 1956
 85th    1      Jan. 3, 1957      Aug. 30, 1957       239   Apr. 18–Apr. 29, 1957        Apr. 18–Apr. 29, 1957
         2      Jan. 7, 1958      Aug. 24, 1958       230   Apr. 3–Apr. 14, 1958         Apr. 3–Apr. 14, 1958
 86th    1      Jan. 7, 1959      Sept. 15, 1959      

–Apr. 7, 

–Apr. 7, 1959
         2      Jan. 6, 1960      Sept. 1, 1960       240   Apr. 14–Apr. 18, 1960        Apr. 14–Apr. 18, 1960
                                                            May 27–May 31, 1960          May 27–May 31, 1960
                                                            July 3–Aug. 8, 1960          July 3–Aug. 15, 1960
 87th    1      Jan. 3, 1961      Sept. 27, 1961      

–Apr. 10, 1961
         2      Jan. 10, 1962     Oct. 13, 1962       277                                Apr. 19–Apr. 30, 1962
 88th    1      Jan. 9, 1963      Dec. 30, 1963       356                                Apr. 11–Apr. 22, 1963
         2      Jan. 7, 1964      Oct. 3, 1964        270   July 10–July 20, 

–Apr. 6, 1964
                                                            Aug. 21–Aug. 31, 1964        July 2–July 20, 1964
                                                                                         Aug. 21–Aug. 31, 1964
 89th    1      Jan. 4, 1965      Oct. 23, 1965       293
         2      Jan. 10, 1966     Oct. 22, 1966       286   Apr. 7–Apr. 13, 1966         Apr. 7–Apr. 18, 1966
                                                            June 30–July 11, 1966        June 30–July 11, 1966
 90th    1      Jan. 10, 1967     Dec. 15, 1967       

–Apr. 3, 

–Apr. 3, 1967
                                                            June 29–July 10, 1967        June 29–July 10, 1967
                                                            Aug. 31–Sept. 11, 1967       Aug. 31–Sept. 11, 1967
                                                            Nov. 22–Nov. 27, 1967        Nov. 22–Nov. 27, 1967
         2      Jan. 15, 1968     Oct. 14, 1968       274   Apr. 11–Apr. 17, 1968        Apr. 11–Apr. 22, 1968
                                                            May 29–June 3, 1968          May 29–June 3, 1968
                                                            June 3–July 8, 1968          June 3–July 8, 1968
                                                            Aug. 2–Sept. 4, 1968         Aug. 2–Sept. 4, 1968
 91st    1      Jan. 3, 1969      Dec. 23, 1969       355   Feb. 7–Feb. 17, 1969         Feb. 7–Feb. 17, 1969
                                                            Apr. 3–Apr. 14, 1969         Apr. 3–Apr. 14, 1969
                                                            July 2–July 7, 1969          May 28–June 2, 1969
                                                            Aug. 13–Sept. 3, 1969        July 2–July 7, 1969
                               Cite as: 573 U. S. ____ (2014)                                            47

                              Opinion
                        Appendix       of the Court
                                 A to opinion  of the Court
                                                  Length                      Recesses 2
Con­    Ses­     Convening         Adjournment
                                                    in                                House of Representa­
gress   sion       Date                Date                       Senate
                                                   days1                                     tives
                                                           Nov. 26–Dec. 1, 1969      Aug. 13–Sept. 3, 1969
                                                                                     Nov. 6–Nov. 12, 1969
                                                                                     Nov. 26–Dec. 1, 1969
        2      Jan. 19, 1970      Jan. 2, 1971      349    Feb. 10–Feb. 16, 1970     Feb. 10–Feb. 16, 

–Mar. 31, 

–Mar. 31, 1970
                                                           Sept. 2–Sept. 8, 1970     May 27–June 1, 1970
                                                           Oct. 14–Nov. 16, 1970     July 1–July 6, 1970
                                                           Nov. 25–Nov. 30, 1970     Aug. 14–Sept. 9, 1970
                                                           Dec. 22–Dec. 28, 1970     Oct. 14–Nov. 16, 1970
                                                                                     Nov. 25–Nov. 30, 1970
                                                                                     Dec. 22–Dec. 29, 1970
92d     1      Jan. 21, 1971      Dec. 17, 1971     331    Feb. 11–Feb. 17, 1971     Feb. 10–Feb. 17, 1971
                                                           Apr. 7–Apr. 14, 1971      Apr. 7–Apr. 19, 1971
                                                           May 26–June 1, 1971       May 27–June 1, 1971
                                                           June 30–July 6, 1971      July 1–July 6, 1971
                                                           Aug. 6–Sept. 8, 1971      Aug. 6–Sept. 8, 1971
                                                           Oct. 21–Oct. 26, 1971     Oct. 7–Oct. 12, 1971
                                                           Nov. 24–Nov. 29, 1971     Oct. 21–Oct. 26, 1971
                                                                                     Nov. 19–Nov. 29, 1971
        2      Jan. 18, 1972      Oct. 18, 1972     275    Feb. 9–Feb. 14, 1972      Feb. 9–Feb. 16, 

–Apr. 4, 

–Apr. 10, 1972
                                                           May 25–May 30, 1972       May 24–May 30, 1972
                                                           June 30–July 17, 1972     June 30–July 17, 1972
                                                           Aug. 18–Sept. 5, 1972     Aug. 18–Sept. 5, 1972
93d     1      Jan. 3, 1973       Dec. 22, 1973     354    Feb. 8–Feb. 15, 1973      Feb. 8–Feb. 19, 1973
                                                           Apr. 18–Apr. 30, 1973     Apr. 19–Apr. 30, 1973
                                                           May 23–May 29, 1973       May 24–May 29, 1973
                                                           June 30–July 9, 1973      June 30–July 10, 1973
                                                           Aug. 3–Sept. 5, 1973      Aug. 3–Sept. 5, 1973
                                                           Oct. 18–Oct. 23, 1973     Oct. 4–Oct. 9, 1973
                                                           Nov. 21–Nov. 26, 1973     Oct. 18–Oct. 23, 1973
                                                                                     Nov. 15–Nov. 26, 1973
        2      Jan. 21, 1974      Dec. 20, 1974     334    Feb. 8–Feb. 18, 1974      Feb. 7–Feb. 13, 

–Mar. 19, 1974     Apr. 11–Apr. 22, 1974
                                                           Apr. 11–Apr. 22, 1974     May 23–May 28, 1974
                                                           May 23–May 28, 1974       Aug. 22–Sept. 11, 1974
                                                           Aug. 22–Sept. 4, 1974     Oct. 17–Nov. 18, 1974
                                                           Oct. 17–Nov. 18, 1974     Nov. 26–Dec. 3, 1974
                                                           Nov. 26–Dec. 2, 1974
94th    1      Jan. 14, 1975      Dec. 19, 1975     

–Apr. 7, 

–Apr. 7, 1975
                                                           May 22–June 2, 1975       May 22–June 2, 1975
                                                           June 27–July 7, 1975      June 26–July 8, 1975
                                                           Aug. 1–Sept. 3, 1975      Aug. 1–Sept. 3, 1975
                                                           Oct. 9–Oct. 20, 1975      Oct. 9–Oct. 20, 1975
                                                           Oct. 23–Oct. 28, 1975     Oct. 23–Oct. 28, 1975
                                                           Nov. 20–Dec. 1, 1975      Nov. 20–Dec. 1, 1975
        2      Jan. 19, 1976      Oct. 1, 1976      257    Feb. 6–Feb. 16, 1976      Feb. 11–Feb. 16, 1976
                                                           Apr. 14–Apr. 26, 1976     Apr. 14–Apr. 26, 1976
                                                           May 28–June 2, 1976       May 27–June 1, 1976
                                                           July 2–July 19, 1976      July 2–July 19, 1976
                                                           Aug. 10–Aug. 23, 1976     Aug. 10–Aug. 23, 1976
                                                           Sept. 1–Sept. 7, 1976     Sept. 2–Sept. 8, 1976
95th    1      Jan. 4, 1977       Dec. 15, 1977     346    Feb. 11–Feb. 21, 1977     Feb. 9–Feb. 16, 1977
                                                           Apr. 7–Apr. 18, 1977      Apr. 6–Apr. 18, 1977
                                                           May 27–June 6, 1977       May 26–June 1, 1977
                                                           July 1–July 11, 1977      June 30–July 11, 1977
                                                           Aug. 6–Sept. 7, 1977      Aug. 5–Sept. 7, 1977
                                                                                     Oct. 6–Oct. 11, 1977
        2      Jan. 19, 1978      Oct. 15, 1978     270    Feb. 10–Feb. 20, 1978     Feb. 9–Feb. 14, 

–Apr. 3, 

–Apr. 3, 1978
                                                           May 26–June 5, 1978       May 25–May 31, 1978
                                                           June 29–July 10, 1978     June 29–July 10, 1978
                                                           Aug. 25–Sept. 6, 1978     Aug. 17–Sept. 6, 1978
96th    1      Jan. 15, 1979      Jan. 3, 1980      354    Feb. 9–Feb. 19, 1979      Feb. 8–Feb. 13, 1979
                                                           Apr. 10–Apr. 23, 1979     Apr. 10–Apr. 23, 1979
                                                           May 24–June 4, 1979       May 24–May 30, 1979
                                                           June 27–July 9, 1979      June 29–July 9, 1979
                                                           Aug. 3–Sept. 5, 1979      Aug. 2–Sept. 5, 1979
                                                           Nov. 20–Nov. 26, 1979     Nov. 20–Nov. 26, 1979
                                                           Adjourned sine die,
                                                           Dec. 20, 1979
        2      Jan. 3, 1980       Dec. 16, 1980     349    Apr. 3–Apr. 15, 1980      Feb. 13–Feb. 19, 1980
                                                           May 22–May 28, 1980       Apr. 2–Apr. 15, 1980
                                                           July 2–July 21, 1980      May 22–May 28, 1980
                                                           Aug. 6–Aug. 18, 1980      July 2–July 21, 1980
4

. NOEL CANNING

                         Appendix A
                                  A to
                                    to opinion
                              Opinion
                         Appendix      opinion  of
                                                of the
                                                   the Court
                                        of the Court   Court
                                                 Length                      Recesses 2
 Con-    Ses-     Convening       Adjournment
                                                   in                                House of Representa-
 gress   sion       Date              Date                       Senate
                                                  days1                                      tives
                                                          Aug. 27–Sept. 3, 1980     Aug. 1–Aug. 18, 1980
                                                          Oct. 1–Nov. 12, 1980      Aug. 28–Sept. 3, 1980
                                                          Nov. 25–Dec. 1, 1980      Oct. 2–Nov. 12, 1980
                                                                                    Nov. 21–Dec. 1, 1980
 97th    1      Jan. 5, 1981     Dec. 16, 1981     347    Feb. 6–Feb. 16, 1981      Feb. 6–Feb. 17, 1981
                                                          Apr. 10–Apr. 27, 1981     Apr. 10–Apr. 27, 1981
                                                          June 25–July 8, 1981      June 26–July 8, 1981
                                                          Aug. 3–Sept. 9, 1981      Aug. 4–Sept. 9, 1981
                                                          Oct. 7–Oct. 14, 1981      Oct. 7–Oct. 13, 1981
                                                          Nov. 24–Nov. 30, 1981     Nov. 23–Nov. 30, 1981
         2      Jan. 25, 1982    Dec. 23, 1982      333   Feb. 11–Feb. 22, 1982     Feb. 10–Feb. 22, 1982
                                                          Apr. 1–Apr. 13, 1982      Apr. 6–Apr. 20, 1982
                                                          May 27–June 8, 1982       May 27–June 2, 1982
                                                          July 1–July 12, 1982      July 1–July 12, 1982
                                                          Aug. 20–Sept. 8, 1982     Aug. 20–Sept. 8, 1982
                                                          Oct. 1–Nov. 29, 1982      Oct. 1–Nov. 29, 1982
 98th    1      Jan. 3, 1983     Nov. 18, 1983      320   Jan. 3–Jan. 25, 1983      Jan. 6–Jan. 25, 1983
                                                          Feb. 3–Feb. 14, 1983      Feb. 17–Feb. 22, 

–Apr. 5, 

–Apr. 5, 1983
                                                          May 26–June 6, 1983       May 26–June 1, 1983
                                                          June 29–July 11, 1983     June 30–July 11, 1983
                                                          Aug. 4–Sept. 12, 1983     Aug. 4–Sept. 12, 1983
                                                          Oct. 7–Oct. 17, 1983      Oct. 6–Oct. 17, 1983
         2      Jan. 23, 1984    Oct. 12, 1984      264   Feb. 9–Feb. 20, 1984      Feb. 9–Feb. 21, 1984
                                                          Apr. 12–Apr. 24, 1984     Apr. 12–Apr. 24, 1984
                                                          May 24–May 31, 1984       May 24–May 30, 1984
                                                          June 29–July 23, 1984     June 29–July 23, 1984
                                                          Aug. 10–Sept. 5, 1984     Aug. 10–Sept. 5, 1984
 99th    1      Jan. 3, 1985     Dec. 20, 1985      352   Jan. 7–Jan. 21, 1985      Jan. 3–Jan. 21, 1985
                                                          Feb. 7–Feb. 18, 1985      Feb. 7–Feb. 19, 1985
                                                          Apr. 4–Apr. 15, 

–Mar. 19, 1985
                                                          May 9–May 14, 1985        Apr. 4–Apr. 15, 1985
                                                          May 24–June 3, 1985       May 23–June 3, 1985
                                                          June 27–July 8, 1985      June 27–July 8, 1985
                                                          Aug. 1–Sept. 9, 1985      Aug. 1–Sept. 4, 1985
                                                          Nov. 23–Dec. 2, 1985      Nov. 21–Dec. 2, 1985
         2      Jan. 21, 1986    Oct. 18, 1986      278   Feb. 7–Feb. 17, 1986      Feb. 6–Feb. 18, 

–Apr. 8, 

–Apr. 8, 1986
                                                          May 21–June 2, 1986       May 22–June 3, 1986
                                                          June 26–July 7, 1986      June 26–July 14, 1986
                                                          Aug. 15–Sept. 8, 1986     Aug. 16–Sept. 8, 1986
 100th   1      Jan. 6, 1987     Dec. 22, 1987      351   Jan. 6–Jan. 12, 1987      Jan. 8–Jan. 20, 1987
                                                          Feb. 5–Feb. 16, 1987      Feb. 11–Feb. 18, 1987
                                                          Apr. 10–Apr. 21, 1987     Apr. 9–Apr. 21, 1987
                                                          May 21–May 27, 1987       May 21–May 27, 1987
                                                          July 1–July 7, 1987       July 1–July 7, 1987
                                                          Aug. 7–Sept. 9, 1987      July 15–July 20, 1987
                                                          Nov. 20–Nov. 30, 1987     Aug. 7–Sept. 9, 1987
                                                                                    Nov. 10–Nov. 16, 1987
                                                                                    Nov. 20–Nov. 30, 1987
         2      Jan. 25, 1988    Oct. 22, 1988      272   Feb. 4–Feb. 15, 1988      Feb. 9–Feb. 16, 

–Mar. 14, 

–Apr. 11, 

–Apr. 11, 1988     May 26–June 1, 1988
                                                          Apr. 29–May 9, 1988       June 30–July 7, 1988
                                                          May 27–June 6, 1988       July 14–July 26, 1988
                                                          June 29–July 6, 1988      Aug. 11–Sept. 7, 1988
                                                          July 14–July 25, 1988
                                                          Aug. 11–Sept. 7, 1988
 101st   1      Jan. 3, 1989     Nov. 22, 1989      324   Jan. 4–Jan. 20, 1989      Jan. 4–Jan. 19, 1989
                                                          Jan. 20–Jan. 25, 1989     Feb. 9–Feb. 21, 1989
                                                          Feb. 9–Feb. 21, 

–Apr. 3, 

–Apr. 4, 1989      Apr. 18–Apr. 25, 1989
                                                          Apr. 19–May 1, 1989       May 25–May 31, 1989
                                                          May 18–May 31, 1989       June 29–July 10, 1989
                                                          June 23–July 11, 1989     Aug. 5–Sept. 6, 1989
                                                          Aug. 4–Sept. 6, 1989
         2      Jan. 23, 1990    Oct. 28, 1990      260   Feb. 8–Feb. 20, 1990      Feb. 7–Feb. 20, 

–Mar. 20, 1990      Apr. 4–Apr. 18, 1990
                                                          Apr. 5–Apr. 18, 1990      May 25–June 5, 1990
                                                          May 24–June 5, 1990       June 28–July 10, 1990
                                                          June 28–July 10, 1990     Aug. 4–Sept. 5, 1990
                                                          Aug. 4–Sept. 10, 1990
 102d    1      Jan. 3, 1991     Jan. 3, 1992       366   Feb. 7–Feb. 19, 1991      Feb. 6–Feb. 19, 

–Apr. 9, 

–Apr. 9, 1991
                                                          Apr. 25–May 6, 1991       May 23–May 29, 1991
                               Cite as: 573 U. S. ____ (2014)                                              49

                             Opinion
                        Appendix       of the Court
                                 A to opinion  of the Court
                                                  Length                       Recesses 2
Con­    Ses­     Convening         Adjournment
                                                    in                                 House of Representa­
gress   sion       Date                Date                        Senate
                                                   days1                                        tives
                                                           May 24–June 3, 1991        June 27–July 9, 1991
                                                           June 28–July 8, 1991       Aug. 2–Sept. 11, 1991
                                                           Aug. 2–Sept. 10, 1991      Nov. 27, 1991–Jan. 3,
                                                           Nov. 27, 1991–Jan. 3,      1992
                                                           1992
        2      Jan. 3, 1992       Oct. 9, 1992      281    Jan. 3–Jan. 21, 1992       Jan. 3–Jan. 22, 1992
                                                           Feb. 7–Feb. 18, 1992 p     Apr. 10–Apr. 28, 1992
                                                           Apr. 10–Apr. 28, 1992      May 21–May 26, 1992
                                                           May 21–June 1, 1992        July 2–July 7, 1992
                                                           July 2–July 20, 1992       July 9–July 21, 1992
                                                           Aug. 12–Sept. 8, 1992      Aug. 12–Sept. 9, 1992
103d    1      Jan. 5, 1993       Nov. 26, 1993     326    Jan. 7–Jan. 20, 1993       Jan. 6–Jan. 20, 1993
                                                           Feb. 4–Feb. 16, 1993       Jan. 27–Feb. 2, 1993
                                                           Feb. 18–Feb. 24, 1993 p    Feb. 4–Feb. 16, 1993
                                                           Apr. 7–Apr. 19, 1993       Apr. 7–Apr. 19, 1993
                                                           May 28–June 7, 1993        May 27–June 8, 1993
                                                           July 1–July 13, 1993       July 1–July 13, 1993
                                                           Aug. 7–Sept. 7, 1993       Aug. 6–Sept. 8, 1993
                                                           Oct. 7–Oct. 13, 1993       Sept. 15–Sept. 21, 1993
                                                           Nov. 11–Nov. 16, 1993      Oct. 7–Oct. 12, 1993
                                                                                      Nov. 10–Nov. 15, 1993
        2      Jan. 25, 1994      Dec. 1, 1994      311    Feb. 11–Feb. 22, 1994      Jan. 26–Feb. 1, 

–Apr. 11, 1994      Feb. 11–Feb. 22, 1994
                                                           May 25–June 7, 

–Apr. 12, 1994
                                                           July 1–July 11, 1994       May 26–June 8, 1994
                                                           Aug. 25–Sept. 12, 1994     June 30–July 12, 1994
                                                           Oct. 8–Nov. 30, 1994       Aug. 26–Sept. 12, 1994
                                                                                      Oct. 8–Nov. 29, 1994
104th   1      Jan. 4, 1995       Jan. 3, 1996      365    Feb. 16–Feb. 22, 1995      Feb. 16–Feb. 21, 1995
                                                           Apr. 7–Apr. 24, 

–Mar. 21, 1995
                                                           May 26–June 5, 1995        Apr. 7–May 1, 1995
                                                           June 30–July 10, 1995      May 3–May 9, 1995
                                                           Aug. 11–Sept. 5, 1995      May 25–June 6, 1995
                                                           Sept. 29–Oct. 10, 1995     June 30–July 10, 1995
                                                           Nov. 20–Nov. 27, 1995      Aug. 4–Sept. 6, 1995
                                                                                      Sept. 29–Oct. 6, 1995
                                                                                      Nov. 20–Nov. 28, 1995
        2      Jan. 3, 1996       Oct. 4, 1996      276    Jan. 10–Jan. 22, 1996      Jan. 9–Jan. 22, 1996
                                                           Feb. 1–Feb. 6, 1996 p      Feb. 1–Feb. 27, 1996 p
                                                           Feb. 7–Feb. 20, 1996 p     Mar. 29–Apr. 15, 1996
                                                           Feb. 29–Mar. 5, 1996 p     May 23–May 29, 

–Apr. 15, 1996      June 28–July 8, 1996
                                                           May 24–June 3, 1996        Aug. 2–Sept. 4, 1996
                                                           June 28–July 8, 1996
                                                           Aug. 2–Sept. 3, 1996
105th   1      Jan. 7, 1997       Nov. 13, 1997     311    Jan. 9–Jan. 21, 1997       Jan. 9–Jan. 20, 1997
                                                           Feb. 13–Feb. 24, 1997      Jan. 21–Feb. 4, 

–Apr. 7, 1997       Feb. 13–Feb. 25, 1997
                                                           May 23–June 2, 1997 p      Mar. 21–Apr. 8, 1997
                                                           June 27–July 7, 1997       June 26–July 8, 1997
                                                           July 31–Sept. 2, 1997      Aug. 1–Sept. 3, 1997
                                                           Oct. 9–Oct. 20, 1997       Oct. 9–Oct. 21, 1997
        2      Jan. 27, 1998      Dec. 19, 1998     327    Feb. 13–Feb. 23, 1998      Jan. 28–Feb. 3, 1998
                                                           Apr. 3–Apr. 20, 1998       Feb. 5–Feb. 11, 1998
                                                           May 22–June 1, 1998        Feb. 12–Feb. 24, 1998
                                                           June 26–July 6, 1998       Apr. 1–Apr. 21, 1998
                                                           July 31–Aug. 31, 1998      May 22–June 3, 1998
                                                           Adjourned sine die,        June 25–July 14, 1998
                                                           Oct. 21, 1998.             Aug. 7–Sept. 9, 1998
                                                                                      Oct. 21–Dec. 17, 1998
106th   1      Jan. 6, 1999       Nov. 22, 1999     321    Feb. 12–Feb. 22, 1999      Jan. 6–Jan. 19, 

–Apr. 12, 1999      Jan. 19–Feb. 2, 1999
                                                           May 27–June 7, 1999        Feb. 12–Feb. 23, 1999
                                                           July 1–July 12, 

–Apr. 12, 1999
                                                           Aug. 5–Sept. 8, 1999       May 27–June 7, 1999
                                                                                      July 1–July 12, 1999
                                                                                      Aug. 6–Sept. 8, 1999
        2      Jan. 24, 2000      Dec. 15, 2000     326    Feb. 10–Feb. 22, 2000      Feb. 16–Feb. 29, 

–Mar. 20, 2000       Apr. 13–May 2, 2000
                                                           Apr. 13–Apr. 25, 2000      May 25–June 6, 2000
                                                           May 25–June 6, 2000        June 30–July 10, 2000
                                                           June 30–July 10, 2000      July 27–Sept. 6, 2000
                                                           July 27–Sept. 5, 2000      Nov. 3–Nov. 13, 2000
                                                           Nov. 2–Nov. 14, 2000       Nov. 14–Dec. 4, 2000
                                                           Nov. 14–Dec. 5, 2000


. NOEL CANNING

                               Opinion
                         Appendix       of the Court
                                  A to opinion  of the Court
                                                 Length                        Recesses 2
 Con-    Ses-     Convening       Adjournment
                                                   in                                  House of Representa-
 gress   sion       Date              Date                        Senate
                                                  days1                                        tives
 107th   1      Jan. 3, 2001     Dec. 20, 2001      352   Jan. 8–Jan. 20, 2001        Jan. 6–Jan. 20, 2001
                                                          Feb. 15–Feb. 26, 2001       Jan. 20–Jan. 30, 2001
                                                          Apr. 6–Apr. 23, 2001        Jan. 31–Feb. 6, 2001
                                                          May 26–June 5, 2001         Feb. 14–Feb. 26, 2001
                                                          June 29–July 9, 2001        Apr. 4–Apr. 24, 2001
                                                          Aug. 3–Sept. 4, 2001        May 26–June 5, 2001
                                                          Oct. 18–Oct. 23, 2001       June 28–July 10, 2001
                                                          Nov. 16–Nov. 27, 2001       Aug. 2–Sept. 5, 2001
                                                                                      Oct. 17–Oct. 23, 2001
                                                                                      Nov. 19–Nov. 27, 2001
         2      Jan. 23, 2002    Nov. 22, 2002      304   Jan. 29–Feb. 4, 2002        Jan. 29–Feb. 4, 2002
                                                          Feb. 15–Feb. 25, 2002       Feb. 14–Feb. 26, 

–Apr. 8, 

–Apr. 9, 2002
                                                          May 23–June 3, 2002         May 24–June 4, 2002
                                                          June 28–July 8, 2002        June 28–July 8, 2002
                                                          Aug. 1–Sept. 3, 2002        July 27–Sept. 4, 2002
                                                          Oct. 17–Nov. 12, 2002 p
 108th   1      Jan. 7, 2003     Dec. 9, 2003       337   Feb. 14–Feb. 24, 2003       Jan. 8–Jan. 27, 2003
                                                          Apr. 11–Apr. 28, 2003       Feb. 13–Feb. 25, 2003
                                                          May 23–June 2, 2003         Apr. 12–Apr. 29, 2003
                                                          June 27–July 7, 2003        May 23–June 2, 2003
                                                          Aug. 1–Sept. 2, 2003        June 27–July 7, 2003
                                                          Oct. 3–Oct. 14, 2003        July 29–Sept. 3, 2003
                                                          Nov. 25–Dec. 9, 2003        Nov. 25–Dec. 8, 2003
         2      Jan. 20, 2004    Dec. 8, 2004       324   Feb. 12–Feb. 23, 2004       Feb. 11–Feb. 24, 

–Mar. 22, 2004       Apr. 2–Apr. 20, 2004
                                                          Apr. 8–Apr. 19, 2004        May 20–June 1, 2004
                                                          May 21–June 1, 2004         June 9–June 14, 2004
                                                          June 9–June 14, 2004        June 25–July 6, 2004
                                                          June 25–July 6, 2004        July 22–Sept. 7, 2004
                                                          July 22–Sept. 7, 2004       Oct. 9–Nov. 16, 2004
                                                          Oct. 11–Nov. 16, 2004       Nov. 24–Dec. 6, 2004
                                                          Nov. 24–Dec. 7, 2004
 109th   1      Jan. 4, 2005     Dec. 22, 2005      353   Jan. 6–Jan. 20, 2005        Jan. 6–Jan. 20, 2005
                                                          Jan. 26–Jan. 31, 2005       Jan. 20–Jan. 25, 2005
                                                          Feb. 18–Feb. 28, 2005       Jan. 26–Feb. 1, 

–Apr. 4, 2005        Feb. 2–Feb. 8, 2005
                                                          Apr. 29–May 9, 2005         Feb. 17–Mar. 1, 2005
                                                          May 26–June 6, 

–Apr. 5, 2005
                                                          July 1–July 11, 2005        May 26–June 7, 2005
                                                          July 29–Sept. 1, 2005       July 1–July 11, 2005
                                                          Sept. 1–Sept. 6, 2005       July 29–Sept. 2, 2005
                                                          Oct. 7–Oct. 17, 2005        Oct. 7–Oct. 17, 2005
                                                          Nov. 18–Dec. 12, 2005       Nov. 18–Dec. 6, 2005
         2      Jan. 3, 2006     Dec. 9, 2006       341   Jan. 3–Jan. 18, 2006        Jan. 3–Jan. 31, 2006
                                                          Feb. 17–Feb. 27, 2006       Feb. 1–Feb. 7, 

–Mar. 27, 2006       Feb. 8–Feb. 14, 2006
                                                          Apr. 7–Apr. 24, 2006        Feb. 16–Feb. 28, 2006
                                                          May 26–June 5, 

–Mar. 28, 2006
                                                          June 29–July 10, 2006       Apr. 6–Apr. 25, 2006
                                                          Aug. 4–Sept. 5, 2006        May 25–June 6, 2006
                                                          Sept. 30–Nov. 9, 2006       June 29–July 10, 2006
                                                          Nov. 16–Dec. 4, 2006        Aug. 2–Sept. 6, 2006
                                                                                      Sept. 30–Nov. 9, 2006
                                                                                      Nov. 15–Dec. 5, 2006
 110th   1      Jan. 4, 2007     Dec. 31, 2007      362   Feb. 17–Feb. 26, 2007       Jan. 24–Jan. 29, 

–Apr. 10, 2007       Feb. 16–Feb. 27, 2007
                                                          May 25–June 4, 

–Apr. 16, 2007
                                                          June 29–July 9, 2007        May 24–June 5, 2007
                                                          Aug. 3–Sept. 4, 2007        June 28–July 10, 2007
                                                          Oct. 5–Oct. 15, 2007        Aug. 4–Sept. 4, 2007
                                                          Nov. 16–Dec. 3, 2007 p      Nov. 15–Dec. 4, 2007
                                                          Dec. 19–Dec. 31, 2007 p
         2      Jan. 3, 2008     Jan. 3, 2009       367   Jan. 3–Jan. 22, 2008 p      Jan. 3–Jan. 15, 2008
                                                          Feb. 14–Feb. 26, 2008 p     Mar. 14–Mar. 31, 

–Mar. 31, 2008 p     May 22–June 3, 2008
                                                          May 22–June 2, 2008 p       June 26–July 8, 2008
                                                          June 27–July 7, 2008        Aug. 1–Sept. 8, 2008
                                                          Aug. 1–Sept. 8, 2008 p      Oct. 3–Nov. 19, 2008
                                                          Oct. 2–Nov. 17, 2008 p      Nov. 20–Dec. 9, 2008
                                                          Nov. 20–Dec. 8, 2008 p      Dec. 10, 2008–Jan. 3,
                                                                                      2009
                                                          Dec. 11, 2008–Jan. 2,
                                                          2009 p
 111th   1      Jan. 6, 2009     Dec. 24, 2009      353   Feb. 13–Feb. 23, 2009 p     Feb. 13–Feb. 23, 2009
                                   Cite as: 573 U. S. ____ (2014)                                                 51

                                  Opinion
                             Appendix       of the Court
                                      A to opinion  of the Court
                                                        Length                         Recesses 2
  Con­      Ses­       Convening       Adjournment
                                                          in                                   House of Representa­
  gress     sion         Date              Date                           Senate
                                                         days1                                        tives
                                                                  Apr. 2–Apr. 20, 2009        Apr. 2–Apr. 21, 2009
                                                                  May 21–June 1, 2009         May 21–June 2, 2009
                                                                  June 25–July 6, 2009        June 26–July 7, 2009
                                                                  Aug. 7–Sept. 8, 2009 p      July 31–Sept. 8, 2009
                                                                  Oct. 8–Oct. 13, 2009 p      Nov. 6–Nov. 16, 2009
                                                                  Nov. 10–Nov. 16, 2009       Nov. 19–Dec. 1, 2009
                                                                  Nov. 21–Nov. 30, 2009
            2       Jan. 5, 2010      Dec. 22, 2010        352    Jan. 5–Jan. 20, 2010 p      Jan. 5–Jan. 12, 2010
                                                                  Feb. 11–Feb. 23, 2010       Feb. 9–Feb. 22, 

–Apr. 12, 

–Apr. 13, 2010
                                                                  May 28–June 7, 2010         May 28–June 8, 2010
                                                                  June 30–July 12, 2010       July 1–July 13, 2010
                                                                  Aug. 5–Aug. 12, 2010        July 30–Aug. 9, 2010
                                                                  Aug. 12–Sept. 13, 2010      Aug. 10–Sept. 14, 2010
                                                                  Sept. 29–Nov. 15, 2010 p    Sept. 29–Nov. 15, 2010
                                                                  Nov. 19–Nov. 29, 2010       Nov. 18–Nov. 29, 2010
  112th     1       Jan. 5, 2011                                  Jan. 5–Jan. 25, 2011        Jan. 26–Feb. 8, 2011
                                                                  Feb. 17–Feb. 28, 2011       Feb. 18–Feb. 28, 

–Mar. 28, 

–Mar. 29, 2011
                                                                  Apr. 14–May 2, 2011         Apr. 15–May 2, 2011
                                                                  May 26–June 6, 2011 p       May 13–May 23, 2011
                                                                  Aug. 2–Sept. 6, 2011 p      June 24–July 5, 2011 p
                                                                                              Aug. 1–Sept. 6, 2011 p
1 For the purposes of this table, a session’s ‘‘length in days’’ is defined as the total number of calendar days

from the convening date to the adjournment date, inclusive. It does not mean the actual number of days
that Congress met during that session.
2 For the purposes of this table, a ‘‘recess’’ is defined as a break in House or Senate proceedings of three or

more days, excluding Sundays. According to Article I, section 5 of the U. S. Constitution, neither house
may adjourn for more than three days without the consent of the other. On occasion, both chambers have
held one or more pro forma sessions because of this constitutional obligation or for other purposes. Treated
here as recesses, usually no business is conducted during these time periods. On this table, beginning in
the 1990s, such pro forma sessions are indicated with a P.
5

. NOEL CANNING

                   Appendix A to opinion
                         Opinion
                            B     of the Court
                                          of the Court

                             B
  The following table shows the proportion of recent ap-
pointments that have filled pre-recess vacancies. It was
compiled with research assistance from the Supreme
Court Library. It contains a random sample of the recess
appointments by President George W. Bush and President
Barack Obama. The last column indicates whether the
vacancy arose during the recess in which it was filled. “A”
indicates a vacancy that arose during the recess, “P” indi-
cates a vacancy that arose before the recess, and “U”
indicates that the vacancy date could not be ascertained.

                                                        Date the
                                            Date of
                                                        Position     Status of
     Name1             Position             Recess
                                                        Became       Vacancy
                                          Appointment
                                                        Vacant
 Peter J.     Member (designated
                                            8/31/01     8/27/20012      A
 Hurtgen      Chair), NLRB
              Comm’r on the Part of the
 Dennis L.
              US, Int’l Joint Comm’n,       3/29/02     Unknown3        U
 Schornack
              US and Can.
 Tony         Comm’r, Postal Rate
                                            8/06/02      2/20014        P
 Hammond      Comm’n
 R. Bruce     Member, Def. Nuclear
                                            4/22/03      5/20025        P
 Matthews     Facilities Safety Bd.
 Ephraim      Bd. Member, African Dev.
                                            8/22/03     2/10/20026      P
 Batambuze    Found.
 Bradley D.   Member, Soc. Sec.
                                           12/23/03      9/20027        P
 Belt         Advisory Bd. (SSAB)
 Ronald E.
              Member, NLRB                 12/23/03      8/21/038       P
 Meisburg
 Charles      Chief Financial Officer,
                                            5/28/04       20039         P
 Johnson      EPA
              Member, Advisory Bd.,
 Jack E.
              St. Lawrence Seaway           7/02/04     Unknown10       U
 McGregor
              Dev. Corp.
              Assistant Adm’r, Bureau
 James R.
              for Asia and the Near         8/02/04      1/200411       P
 Kunder
              East, USAID

 Susan J.     Chief Financial Officer,
                                            8/02/04      200312         P
 Grant        Dept. of Energy
                            Cite as: 573 U. S. ____ (2014)                                    53

                               Opinion
                         Appendix B     of the Court
                                  A to opinion  of the Court
                                                                      Date the
                                                     Date of
                                                                      Position        Status of
     Name1                  Position                 Recess
                                                                      Became          Vacancy
                                                   Appointment
                                                                      Vacant
                   Member (designated
 Anthony J.                                                          3/2005 (new
                   Chair), Def. Base Closure          4/01/05                             P
 Principi                                                             position)13
                   and Realignment Comm’n

 John R.           US Representative to the
                                                      8/01/05          1/200514           P
 Bolton            UN
                   Assistant Sec’y, Popula­
 Ellen R.
                   tion, Refugees, and                1/04/06        by 7/200515          P
 Sauerbrey
                   Migration, Dept. of State
 Ronald E.
                   General Counsel, NLRB              1/04/06        6/03/200516          P
 Meisburg

                   Member, Bd. of Trustees,
                   Fed. Old-Age and
 John L.
                   Survivors Ins. Trust Fund          4/19/06         10/200417           P
 Palmer
                   and the Fed. Disability
                   Ins. Trust Fund

                   Assistant Sec’y, Mine,
 Richard E.
                   Safety, and Health                10/19/06        11/19/200418         P
 Stickler
                   Admin.

 Susan E.
                   Adm’r, OIRA, OMB                   4/04/07          2/200619           P
 Dudley
 Mark G.
                   Member, NLRB                       3/27/10          1/200820           P
 Pearce
 Mark C.           Chief of Mission, El
                                                      8/19/10         1/17/0921           P
 Aponte            Salvador, Dept. of State
 Richard
                   Member, NLRB                       1/04/12         8/27/1122           P
 Griffin Jr.


——————
  1 The name, position, and date of each recess appointment were taken from The Noel Canning

Decision 21–29. The sample was generated by selecting every 10th appointment from a chronologi­
cal list of all recess appointments made during the presidencies of George W. Bush and Barack
Obama.
  2 See White House Press Release: President Bush Announces Hurtgen To Stay on as Member and

Chairman of the National Labor Relations Board, Aug. 31, 2001, online at http://georgewbush­
whitehouse.archives.gov/news/releases/2001/08/20010831-14.html.
  3 Schornack was preceded by Thomas L. Baldini. 147 Cong. Rec. 12592 (2001). We could not find

a specific date for Baldini’s departure. See Lane, Engler Advisers Tapped for Water Jobs, Crain’s
Detroit Business, June 18, 2001, p. 6 (Schornack “would replace Marquette’s Thomas Baldini,
former President Bill Clinton’s appointee”); Finley, Senate Often Turns its Role of Advise and
Consent into Object and Obstruct, Detroit News, Feb. 10, 2002, p. 13A, col. 1. (“The International
Joint Commission post is still held by Clinton appointee Tom Baldini, also of Michigan”).
  4 Hammond was preceded by Edward Jay Gleiman, 148 Cong. Rec. 4472 (2002), who retired in

February 2001, see Campanelli, PRC Chairman Gleiman Retires, Direct Marketing News, Feb. 6,
2001, online at http://www.dmnews.com/prc-chairman-gleiman-retires/article/70877.
  5 Matthews was preceded by Joseph J. DiNunno, 38 Weekly Comp. of Pres. Doc. 804 (2002),

who retired in May 2002, see DNFSB Member Biography, online at http://www.dnfsb.gov/
about/board-members/joseph-j-dinunno.
5

. NOEL CANNING

                        Appendix B to opinion of the Court

——————
  6 Batambuze was preceded by Henry McKoy, 149 Cong. Rec. 4875 (2003), whose term expired on

February 9, 2002, see 32 Weekly Comp. of Pres. Doc. 363 (1996).
  7 Belt was preceded by Stanford G. Ross, 149 Cong. Rec. 20993 (2003), whose term on the SSAB

expired in September 2002, see SSAB Member List, online at http://www.ssab.gov/
AbouttheBoard/Members.aspx.
  8 See Division of Information, NLRB, Ronald Meisburg Receives Recess Appointment From

President Bush to Be NLRB Member (Dec. 29, 2003), online at http://mynlrb.nlrb.gov/link/
document.aspx/09031d45800d5d75.
  9 Johnson was preceded by Linda Morrison Combs, 150 Cong. Rec. 236 (2004), who apparently

left in 2003, see Hearings on S. 113 before the Committee on Homeland Security and Governmen-
tal Affairs, 109th Cong., 1st Sess., 2 (2005) (“Combs served as [CFO] of the [EPA] from 2001 to
2003”); see also 149 Cong. Rec. 31985 (2003) (nomination of Linda Morrison Combs to be Assistant
Secretary of Transportation); 150 Cong. Rec. 10973 (2004) (confirmation of Combs to be Assistant
Secretary of Transportation).
  10 McGregor was preceded by Vincent J. Sorrentino.      149 Cong. Rec. 31985 (2003). We have
located no further information about Sorrentino’s departure date.
  11 Kunder was preceded by Wendy J. Chamberlin, 150 Cong. Rec. 8983 (2004), who accepted a

new appointment as of January 2004, see United Nations Refugee Agency Press Release, Wendy
Chamberlin Appointed Deputy High Commissioner, Dec. 12, 2003, online at http://
www.unhcr.org/news/NEWS/3fda0f584.html.
  12 Grant was preceded by Bruce M. Carnes, 149 Cong. Rec. 24527 (2003), who resigned during

2003, see Bush Nominee to Energy Department CFO Post OK’d by Committee, Environment and
Energy Daily, March 11, 2004; see also 39 Weekly Comp. of Pres. Doc. 308 (2003).
  13 Principi was nominated for this newly created position on March 4, 2005. 151 Cong. Rec. 3543

(2005). The position was created by statute in 2001. 115 Stat. 1343–1344.
  14 See Hoge, Diplomats at U. N. Surprised by Danforth’s Resignation, N. Y. Times, Dec. 3, 2004,

p. A6.
  15 Sauerbrey was preceded by Arthur Dewey.       151 Cong. Rec. 19554 (2005); see also Weekly
Review of Developments in Human Rights and Democracy, Dow Jones Factiva, June 30, 2005;
Arthur E. Dewey, Dept. of State Biography, online at http://2001-2009.state.gov/outofdate/
bios/d/7988.htm.
  16 Meisburg was preceded by Arthur F. Rosenfeld, whose term expired on June 3, 2005, see

NLRB General Counsels Since 1935, online at http://www.nlrb.gov/who-we-are/general-counsel/
general-counsels-1935.
  17 Palmer was nominated as a reappointment on November 7, 2005. 151 Cong. Rec. 25016 (2005).

The Senate confirmed Palmer to his previous 4-year term on October 24, 2000. 146 Cong. Rec
23920 (2000).
  18 Stickler was preceded by David D. Lauriski, 152 Cong. Rec. 17151 (2006), who resigned on

November 19, 2004, see Dept. of Labor, News Release, U. S. Assistant Secretary of Labor for Mine
Safety and Health Dave D. Lauriski Announces His Plans for Departure, Nov. 12, 2004.
  19 Dudley was preceded by John D. Graham, 152 Cong. Rec. 16707 (2006), who left the office in

February 2006, see J. R. Pegg, Bush Bypasses Senate to Appoint Controversial Regulatory Chief,
Pesticide & Toxic Chemical News, Apr. 9, 2007, vol. 35, No. 24, pp. 13–14.
  20 Pearce was preceded by Peter N. Kirsanow, whose term had ended by January 2008,

see Members of the NLRB since 1935, online at http://www.nlrb.gov/who-we-are/board/
members-nlrb-1935.
  21 Aponte was preceded by Charles Glazer, who left his post on January 17, 2009, see Dept. of

State, Office of the Historian, Chiefs of Mission for El Salvador, online at http://
history.state.gov/departmenthistory/people/glazer-charles-l.
  22 See App. to Brief for Petitioner 89a.
                 Cite as: 573 U. S. ____ (2014)            1

               SCALIA, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
                         _________________

                         No. 12–1281
                         _________________


NATIONAL LABOR RELATIONS BOARD, PETITIONER
           v. NOEL CANNING, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

    APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

                        [June 26, 2014] 


  JUSTICE SCALIA, with whom THE CHIEF JUSTICE,
JUSTICE THOMAS, and JUSTICE ALITO join, concurring in
the judgment.
  Except where the Constitution or a valid federal law
provides otherwise, all “Officers of the United States”
must be appointed by the President “by and with the
Advice and Consent of the Senate.” U. S. Const., Art. II,
§2, cl. 2. That general rule is subject to an exception: “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.” 

3. This case requires us to decide
whether the Recess Appointments Clause authorized three
appointments made by President Obama to the National
Labor Relations Board in January 2012 without the Sen­
ate’s consent.
  To prevent the President’s recess-appointment power
from nullifying the Senate’s role in the appointment pro­
cess, the Constitution cabins that power in two significant
ways. First, it may be exercised only in “the Recess of the
Senate,” that is, the intermission between two formal
legislative sessions. Second, it may be used to fill only
those vacancies that “happen during the Recess,” that is,
offices that become vacant during that intermission. Both
conditions are clear from the Constitution’s text and struc­


. NOEL CANNING

               SCALIA, J., concurring in judgment

ture, and both were well understood at the founding. The
Court of Appeals correctly held that the appointments
here at issue are invalid because they did not meet either
condition.
   Today’s Court agrees that the appointments were in­
valid, but for the far narrower reason that they were made
during a 3-day break in the Senate’s session. On its way
to that result, the majority sweeps away the key textual
limitations on the recess-appointment power. It holds,
first, that the President can make appointments without
the Senate’s participation even during short breaks in the
middle of the Senate’s session, and second, that those
appointments can fill offices that became vacant long
before the break in which they were filled. The majority
justifies those atextual results on an adverse-possession
theory of executive authority: Presidents have long
claimed the powers in question, and the Senate has not
disputed those claims with sufficient vigor, so the Court
should not “upset the compromises and working arrange­
ments that the elected branches of Government them­
selves have reached.” Ante, at 9.
   The Court’s decision transforms the recess-appointment
power from a tool carefully designed to fill a narrow and
specific need into a weapon to be wielded by future Presi­
dents against future Senates. To reach that result, the
majority casts aside the plain, original meaning of the
constitutional text in deference to late-arising historical
practices that are ambiguous at best. The majority’s
insistence on deferring to the Executive’s untenably broad
interpretation of the power is in clear conflict with our
precedent and forebodes a diminution of this Court’s role
in controversies involving the separation of powers and
the structure of government. I concur in the judgment
only.
                  Cite as: 573 U. S. ____ (2014)             3

                SCALIA, J., concurring in judgment

                    I. Our Responsibility
   Today’s majority disregards two overarching principles
that ought to guide our consideration of the questions
presented here.
   First, the Constitution’s core, government-structuring
provisions are no less critical to preserving liberty than
are the later adopted provisions of the Bill of Rights.
Indeed, “[s]o convinced were the Framers that liberty of
the person inheres in structure that at first they did not
consider a Bill of Rights necessary.” Clinton v. City of
New York, 

, 450 (1998) (KENNEDY, J., concur­
ring). Those structural provisions reflect the founding
generation’s deep conviction that “checks and balances
were the foundation of a structure of government that
would protect liberty.” Bowsher v. Synar, 

,
722 (1986). It is for that reason that “the claims of indi­
viduals—not of Government departments—have been the
principal source of judicial decisions concerning separation
of powers and checks and balances.” Bond v. United
States, 564 U. S. ___, ___ (2011) (slip op., at 10); see, e.g.,
Free Enterprise Fund v. Public Company Accounting
Oversight Bd., 

(2010); Clinton, supra; Plaut
v. Spendthrift Farm, Inc., 

(1995); Bowsher,
supra; INS v. Chadha, 

(1983); Northern
Pipeline Constr. Co. v. Marathon Pipe Line Co., 

(1982). Those decisions all rest on the bedrock princi­
ple that “the constitutional structure of our Government”
is designed first and foremost not to look after the inter­
ests of the respective branches, but to “protec[t] individual
liberty.” 

, at ___ (slip op., at 11).
   Second and relatedly, when questions involving the
Constitution’s government-structuring provisions are
presented in a justiciable case, it is the solemn responsibil­
ity of the Judicial Branch “ ‘to say what the law is.’ ” Zivo­
tofsky v. Clinton, 566 U. S. ___, ___ (2012) (slip op., at 7)
(quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)).


. NOEL CANNING

               SCALIA, J., concurring in judgment

This Court does not defer to the other branches’ resolution
of such controversies; as JUSTICE KENNEDY has previously
written, our role is in no way “lessened” because it might
be said that “the two political branches are adjusting their
own powers between themselves.” 

(concurring opinion). Since the separation of powers exists
for the protection of individual liberty, its vitality “does
not depend” on “whether ‘the encroached-upon branch
approves the encroachment.’ ”        Free Enterprise 

(quoting New York v. United States, 

, 182 (1992)); see also Freytag v. Commissioner,

, 879–880 (1991); Metropolitan Washington
Airports Authority v. Citizens for Abatement of Aircraft
Noise, Inc., 

, 276–277 (1991). Rather, polic­
ing the “enduring structure” of constitutional government
when the political branches fail to do so is “one of the most
vital functions of this Court.” Public Citizen v. Depart­
ment of Justice, 

, 468 (1989) (KENNEDY, J.,
concurring in judgment).
   Our decision in Chadha illustrates that principle.
There, we held that a statutory provision authorizing one
House of Congress to cancel an executive action taken
pursuant to statutory authority—a so-called “legislative
veto”—exceeded the bounds of Congress’s authority under
the 

–959. We did not hesi­
tate to hold the legislative veto unconstitutional even
though Congress had enacted, and the President had
signed, nearly 300 similar provisions over the course of 50
years. 

Just the opposite: We said the
other branches’ enthusiasm for the legislative veto “sharp­
ened rather than blunted” our review. 

Like­
wise, when the charge is made that a practice “enhances
the President’s powers beyond” what the Constitution
permits, “[i]t is no answer . . . to say that Congress sur­
rendered its authority by its own hand.” 

(KENNEDY, J., concurring). “[O]ne Congress
                   Cite as: 573 U. S. ____ (2014)              5

                SCALIA, J., concurring in judgment

cannot yield up its own powers, much less those of other
Congresses to follow. Abdication of responsibility is not
part of the constitutional design.” 

(citations
omitted).
   Of course, where a governmental practice has been
open, widespread, and unchallenged since the early days
of the Republic, the practice should guide our interpreta­
tion of an ambiguous constitutional provision. See, e.g.,
Alden v. Maine, 

, 743–744 (1999); 

–724; Myers v. United States, 

,
174–175 (1926); see also Youngstown Sheet & Tube Co. v.
Sawyer, 

, 610 (1952) (Frankfurter, J., concur­
ring) (arguing that “a systematic, unbroken, executive
practice, long pursued to the knowledge of the Congress
and never before questioned” should inform interpretation
of the “Executive Power” vested in the President); Rutan v.
Republican Party of Ill., 

, 95, and n. 1 (1990)
(SCALIA, J., dissenting). But “ ‘[p]ast practice does not, by
itself, create power.’ ” Medellín v. Texas, 

,
532 (2008) (quoting Dames & Moore v. Regan, 

, 686 (1981)). That is a necessary corollary of the
principle that the political branches cannot by agreement
alter the constitutional structure. Plainly, then, a self­
aggrandizing practice adopted by one branch well after the
founding, often challenged, and never before blessed by
this Court—in other words, the sort of practice on which
the majority relies in this case—does not relieve us of our
duty to interpret the Constitution in light of its text, struc­
ture, and original understanding.
   Ignoring our more recent precedent in this area, which
is extensive, the majority relies on The Pocket Veto Case,

, 689 (1929), for the proposition that when
interpreting a constitutional provision “regulating the
relationship between Congress and the President,” we
must defer to the settled practice of the political branches
if the provision is “ ‘ “in any respect of doubtful meaning.” ’ ”


. NOEL CANNING

                   SCALIA, J., concurring in judgment

Ante, at 7; see ante, at 8, 16, 23, 33. The language the
majority quotes from that case was pure dictum. The
Pocket Veto Court had to decide whether a bill passed by
the House and Senate and presented to the President less
than 10 days before the adjournment of the first session of
a particular Congress, but neither signed nor vetoed by
the President, became a law. Most of the opinion analyzed
that issue like any other legal question and concluded that
treating the bill as a law would have been inconsistent
with the text and structure of the Constitution. Only near
the end of the opinion did the Court add that its conclu­
sion was “confirmed” by longstanding Presidential practice
in which Congress appeared to have 

–689. We did not suggest that the case would
have come out differently had the longstanding practice
been otherwise.1
——————
   1 The other cases cited by the majority in which we have afforded

significant weight to historical practice, ante, at 8, are consistent with
the principles described above. Nearly all involved venerable and
unchallenged practices, and constitutional provisions that were either
deeply ambiguous or plainly supportive of the practice. See Dames &
Moore v. Regan, 

, 679–681, and n. 8, 686 (1981) (citing
Presidential practice dating from 1799 and never questioned by Con­
gress to inform meaning of “Executive Power”); Ex parte Grossman, 

, 118–119 (1925) (citing unchallenged Presidential practice
dating from 1841 as support for a construction of the pardon power
based on the “common law,” the “history of the clause in the Conven­
tion,” and “the ordinary meaning of its words”); United States v. Mid­
west Oil Co., 

, 469–471, 474 (1915) (citing Presidential
practice dating from “an early period in the history of the government,”
“uniformly and repeatedly acquiesced in” by Congress and previously
upheld by this Court, to establish “a recognized administrative power of
the Executive in the management of the public lands”); McPherson v.
Blacker, 

, 25–35 (1892) (citing method of choosing Presiden­
tial electors prevalent among the States “from the formation of the
government until now,” as to the constitutionality of which “ ‘no ques­
tion ha[d] ever arisen,’ ” in support of construction consistent with the
constitutional text and its drafting history); McCulloch v. Maryland, 

, 401–402 (1819) (citing power “exercised by the first Con­
                     Cite as: 573 U. S. ____ (2014)                     7

                   SCALIA, J., concurring in judgment

                   II. Intra-Session Breaks
   The first question presented is whether “the Recess of
the Senate,” during which the President’s recess­
appointment power is active, is (a) the period between two
of the Senate’s formal sessions, or (b) any break in the
Senate’s proceedings. I would hold that “the Recess” is the
gap between sessions and that the appointments at issue
here are invalid because they undisputedly were made
during the Senate’s session. The Court’s contrary conclu­
sion—that “the Recess” includes “breaks in the midst of a
session,” ante, at 9—is inconsistent with the Constitution’s
text and structure, and it requires judicial fabrication of
vague, unadministrable limits on the recess-appointment
power (thus defined) that overstep the judicial role. And
although the majority relies heavily on “historical prac­
tice,” no practice worthy of our deference supports the
majority’s conclusion on this issue.
                   A. Plain Meaning
  A sensible interpretation of the Recess Appointments
Clause should start by recognizing that the Clause uses
the term “Recess” in contradistinction to the term “Ses­
sion.” As Alexander Hamilton wrote: “The time within
which the power is to operate ‘during the recess of the
——————
gress elected under the present constitution,” “recognized by many
successive legislatures, and . . . acted upon by the judicial department,”
in support of the conclusion that the Necessary and Proper Clause
allowed Congress to incorporate a bank); Stuart v. Laird, 1 Cranch 299,
309 (1803) (citing practice that “commence[d] with the organization of
the judicial system” in rejecting challenge to Supreme Court Justices’
riding circuit). Even Mistretta v. United States, 

(1989),
which concluded that the constitutional text did not prohibit judges
from undertaking extrajudicial duties and found “additional evidence”
for that conclusion in a longstanding practice that it acknowledged had
been “controversial,” emphasized that it was relying on “contemporane­
ous practice by the Founders themselves” that had been “frequent and
continuing” since ratification. 

. NOEL CANNING

                   SCALIA, J., concurring in judgment

Senate’ and the duration of the appointments ‘to the end of
the next session’ of that body, conspire to elucidate the
sense of the provision.” The Federalist No. 67, p. 455 (J.
Cooke ed. 1961).
   In the founding era, the terms “recess” and “session”
had well-understood meanings in the marking-out of
legislative time. The life of each elected Congress typically
consisted (as it still does) of two or more formal sessions
separated by adjournments “sine die,” that is, without a
specified return date. See GPO, Congressional Directory,
113th Cong., pp. 524–542 (2013–2014) (hereinafter Con­
gressional Directory) (listing sessions of Congress from
1789 through 2013); 

, 512, and nn. 1–2
(CADC 2013) (case below); ante, at 9. The period between
two sessions was known as “the recess.” See 26 Annals of
Cong. 748 (1814) (Sen. Gore) (“The time of the Senate
consists of two periods, viz: their session and their re­
cess”). As one scholar has thoroughly demonstrated, “in
government practice the phrase ‘the Recess’ always re­
ferred to the gap between sessions.” Natelson, The Ori­
gins and Meaning of “Vacancies that May Happen During
the Recess” in the Constitution’s Recess Appointments
Clause, 37 Harv. J. L. & Pub. Pol’y 199, 213 (2014) (here­
inafter Natelson); see 

(providing dozens of
examples). By contrast, other provisions of the Constitu­
tion use the verb “adjourn” rather than “recess” to refer to
the commencement of breaks during a formal legislative
session. See, e.g., Art. I, §5, cl. 1; 

4.2
——————
    2 Themajority claims that “the phrase ‘the recess’ was used to refer to
intra-session recesses at the time of the founding,” ante, at 10, but it
offers strikingly little support for that assertion. It first cites a letter
from George Washington that is quite obviously an example of impre­
cise, colloquial usage. See 3 Records of the Federal Convention of 1787,
p. 76 (M. Farrand rev. 1966) (“I had put my carriage in the hands of a
workman to be repaired and had not the means of mooving [sic] during
the recess”). It next cites an example from the New Jersey Legislature
                     Cite as: 573 U. S. ____ (2014)                    9

                   SCALIA, J., concurring in judgment

   To be sure, in colloquial usage both words, “recess” and
“session,” could take on alternative, less precise meanings.
A session could include any short period when a legisla­
ture’s members were “assembled for business,” and a
recess could refer to any brief “suspension” of legislative
“business.” 2 N. Webster, American Dictionary of the
English Language (1828). So the Continental Congress
could complain of the noise from passing carriages dis­
rupting its “daily Session,” 29 Journals of the Continental
Congress 1774–1789, p. 561 (1785) (J. Fitzpatrick ed.
1933), and the House could “take a recess” from 4 o’clock
to 6 o’clock, Journal of the House of Representatives, 17th
Cong., 2d Sess., p. 259 (1823). But as even the majority
acknowledges, the Constitution’s use of “the word ‘the’ in
‘the [R]ecess’ ” tends to suggest “that the phrase refers to
the single break separating formal sessions.” Ante, at 10.
   More importantly, neither the Solicitor General nor the
majority argues that the Clause uses “session” in its loose,
colloquial sense. And if “the next Session” denotes a for­
mal session, then “the Recess” must mean the break be­
tween formal sessions. As every commentator on the
Clause until the 20th century seems to have understood,
the “Recess” and the “Session” to which the Clause refers
are mutually exclusive, alternating states. See, e.g., The
Federalist No. 67, at 455 (explaining that appointments
would require Senatorial consent “during the session of
the Senate” and would be made by the President alone “in
their recess”); 1 Op. Atty. Gen. 631 (1823) (contrasting
——————
that simply reflects that body’s practice of dividing its time not only
into “sessions” but also into distinct, formal “sittings” within each
session, with “the recess” denoting the period between sittings. See
Brief for Respondent Noel Canning 23; see also Natelson 207. Finally,
the majority cites three pages from the Solicitor General’s brief without
acknowledging the arguments offered in response to the Solicitor
General’s few supposed counterexamples. See, e.g., Brief for Respond­
ent Noel Canning 21–24; Natelson 222, n. 120.


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               SCALIA, J., concurring in judgment

vacancies occurring “during the recess of the Senate” with
those occurring “during the session of the Senate”); 2 Op.
Atty Gen. 525, 527 (1832) (discussing a vacancy that “took
place while the Senate was in session, and not during the
recess”). It is linguistically implausible to suppose—as the
majority does—that the Clause uses one of those terms
(“Recess”) informally and the other (“Session”) formally in
a single sentence, with the result that an event can occur
during both the “Recess” and the “Session.”
   Besides being linguistically unsound, the majority’s
reading yields the strange result that an appointment
made during a short break near the beginning of one
official session will not terminate until the end of the
following official session, enabling the appointment to last
for up to two years. The majority justifies that result by
observing that the process of confirming a nominee “may
take several months.” Ante, at 17. But the average dura­
tion of the confirmation process is irrelevant. The Clause’s
self-evident design is to have the President’s unilateral
appointment last only until the Senate has “had an oppor­
tunity to act on the subject.” 3 J. Story, Commentaries on
the Constitution of the United States §1551, p. 410 (1833)
(emphasis added).
   One way to avoid the linguistic incongruity of the major­
ity’s reading would be to read both “the Recess” and “the
next Session” colloquially, so that the recess-appointment
power would be activated during any temporary suspen­
sion of Senate proceedings, but appointments made pur­
suant to that power would last only until the beginning of
the next suspension (which would end the next colloquial
session). See, e.g., Rappaport, The Original Meaning of
the Recess Appointments Clause, 52 UCLA L. Rev. 1487,
1569 (2005) (hereinafter Rappaport, Original Meaning).
That approach would be more linguistically defensible
than the majority’s. But it would not cure the most fun­
damental problem with giving “Recess” its colloquial,
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               SCALIA, J., concurring in judgment

rather than its formal, meaning: Doing so leaves the re­
cess-appointment power without a textually grounded
principle limiting the time of its exercise.
   The dictionary definitions of “recess” on which the ma­
jority relies provide no such principle. On the contrary,
they make clear that in colloquial usage, a recess could
include any suspension of legislative business, no
matter how short. See 2 S. Johnson, A Dictionary of the
English Language 1602 (4th ed. 1773). Webster even
provides a stark illustration: “[T]he house of representa­
tives had a recess of half an hour.” 2 

. The
notion that the Constitution empowers the President to
make unilateral appointments every time the Senate
takes a half-hour lunch break is so absurd as to be self­
refuting. But that, in the majority’s view, is what the text
authorizes.
   The boundlessness of the colloquial reading of “the
Recess” thus refutes the majority’s assertion that the
Clause’s “purpose” of “ensur[ing] the continued function­
ing of the Federal Government” demands that it apply to
intra-session breaks as well as inter-session recesses.
Ante, at 11. The majority disregards another self-evident
purpose of the Clause: to preserve the Senate’s role in the
appointment process—which the founding generation
regarded as a critical protection against “ ‘despotism,’ ”

—by clearly delineating the
times when the President can appoint officers without the
Senate’s consent. Today’s decision seriously undercuts
that purpose. In doing so, it demonstrates the folly of
interpreting constitutional provisions designed to estab­
lish “a structure of government that would protect liberty,”

, on the narrow-minded as­
sumption that their only purpose is to make the govern­
ment run as efficiently as possible. “Convenience and
efficiency,” we have repeatedly recognized, “are not the
primary objectives” of our constitutional framework. Free
1

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                SCALIA, J., concurring in judgment

Enterprise 

(internal quotation
marks omitted).
  Relatedly, the majority contends that the Clause’s sup­
posed purpose of keeping the wheels of government turn­
ing demands that we interpret the Clause to maintain its
relevance in light of the “new circumstance” of the Sen­
ate’s taking an increasing number of intra-session breaks
that exceed three days. Ante, at 17. Even if I accepted the
canard that courts can alter the Constitution’s meaning to
accommodate changed circumstances, I would be hard
pressed to see the relevance of that notion here. The rise
of intra-session adjournments has occurred in tandem
with the development of modern forms of communication
and transportation that mean the Senate “is always avail­
able” to consider nominations, even when its Members are
temporarily dispersed for an intra-session break. Tr. of
Oral Arg. 21 (GINSBURG, J.). The Recess Appointments
Clause therefore is, or rather, should be, an anachro­
nism—“essentially an historic relic, something whose
original purpose has disappeared.” 

(KAGAN, J.).
The need it was designed to fill no longer exists, and its
only remaining use is the ignoble one of enabling the
President to circumvent the Senate’s role in the appoint­
ment process. That does not justify “read[ing] it out of the
Constitution” and, contra the majority, ante, at 40, I would
not do so; but neither would I distort the Clause’s original
meaning, as the majority does, to ensure a prominent role
for the recess-appointment power in an era when its influ­
ence is far more pernicious than beneficial.
  To avoid the absurd results that follow from its collo­
quial reading of “the Recess,” the majority is forced to declare
that some intra-session breaks—though undisputedly
within the phrase’s colloquial meaning—are simply “too
short to trigger the Recess Appointments Clause.” Ante,
at 21. But it identifies no textual basis whatsoever for
limiting the length of “the Recess,” nor does it point to any
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                   SCALIA, J., concurring in judgment

clear standard for determining how short is too short. It is
inconceivable that the Framers would have left the cir­
cumstances in which the President could exercise such a
significant and potentially dangerous power so utterly
indeterminate. Other structural provisions of the Consti­
tution that turn on duration are quite specific: Neither
House can adjourn “for more than three days” without the
other’s consent. Art. I, §5, cl. 4. The President must
return a passed bill to Congress “within ten Days (Sun­
days excepted),” lest it become a law. 

2. Yet on
the majority’s view, when the first Senate considered
taking a 1-month break, a 3-day weekend, or a half-hour
siesta, it had no way of knowing whether the President
would be constitutionally authorized to appoint officers in
its absence. And any officers appointed in those circum­
stances would have served under a cloud, unable to de­
termine with any degree of confidence whether their ap­
pointments were valid.3
   Fumbling for some textually grounded standard, the
majority seizes on the Adjournments Clause, which bars
either House from adjourning for more than three days
without the other’s consent. 

4. According to the
majority, that clause establishes that a 3-day break is
always “too short” to trigger the Recess Appointments
Clause. Ante, at 19. It goes without saying that nothing
——————
  3 The majority insists that “the most likely reason the Framers did

not place a textual floor underneath the word ‘recess’ is that they did
not foresee the need for one” because they did not anticipate that intra­
session breaks “would become lengthier and more significant than
inter-session ones.” Ante, at 19. The majority’s logic escapes me. The
Framers’ supposed failure to anticipate “length[y]” intra-session breaks
might explain why (as I maintain) they did not bother to authorize
recess appointments during intra-session breaks at all; but it cannot
explain why (as the majority holds) they would have enacted a text that
authorizes appointments during all intra-session breaks—even the
short ones the majority says they did anticipate—without placing a
temporal limitation on that power.
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               SCALIA, J., concurring in judgment

in the constitutional text supports that disposition. If (as
the majority concludes) “the Recess” means a recess in the
colloquial sense, then it necessarily includes breaks shorter
than three days. And the fact that the Constitution in­
cludes a 3-day limit in one clause but omits it from the
other weighs strongly against finding such a limit to be
implicit in the clause in which it does not appear. In all
events, the dramatically different contexts in which the
two clauses operate make importing the 3-day limit from
the Adjournments Clause into the Recess Appointments
Clause “both arbitrary and mistaken.” Rappaport, Origi­
nal Meaning 1556.
   And what about breaks longer than three days? The
majority says that a break of four to nine days is “pre­
sumptively too short” but that the presumption may be
rebutted in an “unusual circumstance,” such as a “national
catastrophe . . . that renders the Senate unavailable but
calls for an urgent response.” Ante, at 21. The majority
must hope that the in terrorem effect of its “presumptively
too short” pronouncement will deter future Presidents
from making any recess appointments during 4-to-9-day
breaks and thus save us from the absurd spectacle of
unelected judges evaluating (after an evidentiary hear­
ing?) whether an alleged “catastrophe” was sufficiently
“urgent” to trigger the recess-appointment power. The
majority also says that “political opposition in the Senate
would not qualify as an unusual circumstance.” 

Senate should refuse to confirm a nominee whom the
President considers highly qualified; or even if it should
refuse to confirm any nominee for an office, thinking the
office better left vacant for the time being; the President’s
power would not be triggered during a 4-to-9-day break, no
matter how “urgent” the President’s perceived need for the
officer’s assistance. (The majority protests that this
“should go without saying—except that JUSTICE SCALIA
compels us to say it,” ibid., seemingly forgetting that the
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                  SCALIA, J., concurring in judgment

appointments at issue in this very case were justified on
those grounds and that the Solicitor General has asked us
to view the recess-appointment power as a “safety valve”
against Senatorial “intransigence.” Tr. of Oral Arg. 21.)
   As for breaks of 10 or more days: We are presumably to
infer that such breaks do not trigger any “presumpt[ion]”
against recess appointments, but does that mean the
President has an utterly free hand? Or can litigants seek
invalidation of an appointment made during a 10-day
break by pointing to an absence of “unusual” or “urgent”
circumstances necessitating an immediate appointment,
albeit without the aid of a “presumpt[ion]” in their favor?
Or, to put the question as it will present itself to lawyers
in the Executive Branch: Can the President make an
appointment during a 10-day break simply to overcome
“political opposition in the Senate” despite the absence of
any “national catastrophe,” even though it “go[es] without
saying” that he cannot do so during a 9-day break? Who
knows? The majority does not say, and neither does the
Constitution.4
——————
  4 The majority erroneously suggests that the “lack of a textual floor
raises a problem that plagues” both interpretations of “the Recess.”
Ante, at 19. Not so. If the Clause is given its plain meaning, the
President cannot make recess appointments during the session but can
make recess appointments during any break between sessions, no
matter how short. Contra the majority, that is not a “problem.” True,
the recess-appointment power applies even during very short inter­
session breaks. But inter-session breaks typically occur at most a few
times a year, and the recess-appointment power is of limited utility
during very short inter-session breaks since, as explained below, the
President can fill only those vacancies that arise during the break. See
Part III, infra. Of course, as the Senate Judiciary Committee has
argued, the break must be actual and not “constructive”; the Senate
must adjourn for some measurable period of time between the two
sessions. See infra, at 20–22. But the requirement that there actually
be a recess does not involve anywhere near the level of indeterminacy
entailed by the majority’s requirement that the recess be long enough
(or the circumstances unusual enough), as determined by a court, to
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                  SCALIA, J., concurring in judgment

   Even if the many questions raised by the majority’s
failure to articulate a standard could be answered, a
larger question would remain: If the Constitution’s text
empowers the President to make appointments during any
break in the Senate’s proceedings, by what right does the
majority subject the President’s exercise of that power to
vague, court-crafted limitations with no textual basis?
The majority claims its temporal guideposts are informed
by executive practice, but a President’s self-restraint
cannot “bind his successors by diminishing their powers.”
Free Enterprise 

; cf. Clinton v.
Jones, 

, 718 (1997) (BREYER, J., concurring in
judgment) (“voluntary actions” by past Presidents “tel[l] us
little about what the Constitution commands”).
   An interpretation that calls for this kind of judicial
adventurism cannot be correct. Indeed, if the Clause
really did use “Recess” in its colloquial sense, then there
would be no “judicially discoverable and manageable
standard for resolving” whether a particular break was
long enough to trigger the recess-appointment power,
making that a nonjusticiable political question. Zivo­
tofsky, 566 U. S., at ___ (slip op., at 5) (internal quotation
marks omitted).
                    B. Historical Practice
  For the foregoing reasons, the Constitution’s text and
structure unambiguously refute the majority’s freewheel­
ing interpretation of “the Recess.” It is not plausible that
the Constitution uses that term in a sense that authorizes
the President to make unilateral appointments during any
break in Senate proceedings, subject only to hazy, atextual
limits crafted by this Court centuries after ratification.
The majority, however, insists that history “offers strong
support” for its interpretation. Ante, at 11. The historical
—————— 

trigger the recess-appointment power.

                    Cite as: 573 U. S. ____ (2014)                  17

                  SCALIA, J., concurring in judgment

practice of the political branches is, of course, irrelevant
when the Constitution is clear. But even if the Constitu­
tion were thought ambiguous on this point, history does
not support the majority’s interpretation.
                       1. 1789 to 1866
  To begin, the majority dismisses the 78 years of history
from the founding through 1866 as “not helpful” because
during that time Congress took hardly any “significant”
intra-session breaks, by which the majority evidently
means breaks longer than three days. 

Appendix A, which does not include breaks of three or
fewer days). In fact, Congress took 11 intra-session breaks
of more than three days during that time, see Congres­
sional Directory 524–527, and it appears Presidents made
recess appointments during none of them.
  More importantly, during those eight decades, Congress
must have taken thousands of breaks that were three days
or shorter. On the majority’s reading, every one of those
breaks would have been within the Clause’s text—the
majority’s newly minted limitation not yet having been
announced. Yet there is no record of anyone, ever, having
so much as mentioned the possibility that the recess­
appointment power was activated during those breaks.
That would be surprising indeed if the text meant what
the majority thinks it means. Cf. Printz v. United States,

, 907–908 (1997).
                      2. 1867 and 1868
  The first intra-session recess appointments in our his­
tory almost certainly were made by President Andrew John­
son in 1867 and 1868.5 That was, of course, a period of
——————
  5 The majority does not contend otherwise. The Solicitor General
claims that President Lincoln appointed a handful of brigadier generals
during intra-session breaks in 1862 and 1863, but he does not include
those appointments in his list of known intra-session recess appoint­
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                  SCALIA, J., concurring in judgment

dramatic conflict between the Executive and Congress
that saw the first-ever impeachment of a sitting President.
The Solicitor General counts 57 intra-session recess ap­
pointments during those two years. App. to Brief for
Petitioner 1a–9a. But the precise nature and historical
understanding of many of those appointments is subject to
debate. See, e.g., Brief for Constitutional Law Scholars as
Amici Curiae 23–24; Rappaport, Nonoriginalism 27–33. It
seems likely that at least 36 of the 57 appointments were
made with the understanding that they took place during
a recess between sessions. See 

   As for the remainder, the historical record reveals noth­
ing about how they were justified, if at all. There is no
indication that Johnson’s Attorney General or anyone else
considered at the time whether those appointments were
made between or during formal legislative sessions or, if
the latter, how they could be squared with the constitu­
tional text. The majority drives that point home by citing
a judicial opinion that upheld one of the appointments
nearly two decades later with no analysis of the question
presented here. See ante, at 11 (citing Gould v. United
States, 

(1884)). Johnson’s intra-session
appointments were disavowed by the first Attorney Gen­
eral to address that question, see infra, at 20, and were
not followed as precedent by the Executive Branch for
more than 50 years, see infra, at 22. Thus, the relevance
of those appointments to our constitutional inquiry is
——————
ments. Compare Brief for Petitioner 22 with App. to Brief for Petitioner
1a. Noel Canning convincingly argues that the generals were not given
recess appointments but only unofficial “acting appointments” for
which they received no commissions. Brief for Respondent Noel Can­
ning 25; see Rappaport, Why Nonoriginalism Does Not Justify Depart­
ing from the Original Meaning of the Recess Appointments Clause
(manuscript, at 27, n. 79) (hereinafter Rappaport, Nonoriginalism),
online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2374563
(all Internet materials as visited June 24, 2014, and available in the
Clerk of Court’s case file).
                 Cite as: 573 U. S. ____ (2014)           19

               SCALIA, J., concurring in judgment

severely limited. Cf. Brief for Political Scientists and
Historians as Amici Curiae 21 (Johnson’s appointments
“should be viewed as anomalies” that were “sui generis in
the first 130 years of the Republic”).
                      3. 1869 to 1920
  More than half a century went by before any other
President made an intra-session recess appointment, and
there is strong reason to think that during that period
neither the Executive nor the Senate believed such a
power existed. For one thing, the Senate adjourned for
more than 3 days 45 times during that period, and 43 of
those adjournments exceeded 10 days (and thus would not
even be subject to the majority’s “presumption” against
the availability of recess appointments). See Congres­
sional Directory 527–529. Yet there is no evidence that a
single appointment was made during any of those ad­
journments or that any President before the 20th century
even considered making such appointments.
  In 1901 Philander Knox, the first Attorney General
known to have opined on the question, explicitly stated
that the recess-appointment power was limited to the
period between formal sessions. 23 Op. Atty. Gen. 599.
Knox advised President Theodore Roosevelt that he could
not appoint an appraiser of merchandise during an intra­
session adjournment. He explained:
    “[T]he Constitution and laws make it clear that in our
    legislative practice an adjournment during a session
    of Congress means a merely temporary suspension of
    business from day to day . . . whereas the recess means
    the period after the final adjournment of Congress for
    the session, and before the next session begins. . . . It
    is this period following the final adjournment for the
    session which is the recess during which the President
    has power to fill vacancies . . . . Any intermediate
    temporary adjournment is not such recess, although it


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                  SCALIA, J., concurring in judgment

     may be a recess in the general and ordinary use of
     that term.” 

Knox went on to observe that none of the “many elaborate
opinions” of previous Attorneys General concerning the
recess-appointment power had asserted that the power
could be exercised “during a temporary adjournment of the
Senate,” rather than “during the recess of the Senate
between two sessions of Congress.” 

He
acknowledged the contrary example furnished by John­
son’s appointments in 1867 and 1868, but noted (with
perhaps too much tact) that “[t]he public circumstances
producing this state of affairs were unusual and involved
results which should not be viewed as precedents.” 

  That was where things stood when, in 1903, Roosevelt
made a number of controversial recess appointments. At
noon on December 7, the Senate moved seamlessly from a
special session into a regular one scheduled to begin at
that hour. See 37 Cong. Rec. 544; 38 Cong. Rec. 1. Roose­
velt claimed to have made the appointments in a “con­
structive” recess between the two sessions. See Special
Session Is Merged Into Regular, N. Y. Times, Dec. 8, 1903,
p. 1. He and his allies in the Senate justified the ap­
pointments on the theory that “at the moment the gavel
falls to summon the regular session into being there is an
infinitesimal fraction of a second, which is the recess
between the two sessions.” Extra Session Muddle, N. Y.
Times, Dec. 7, 1903, p. 3. In 1905, the Senate Judiciary
Committee published a report criticizing the appointments
on the ground that “the Constitution means a real recess,
——————
   6 The majority dismisses Knox’s opinion as overly formalistic because

it “relied heavily upon the use of the word ‘the’ ” in the phrase “the
Recess.” Ante, at 13. It did not. As the passage quoted above makes
clear, Knox was relying on the common understanding of what “the
Recess” meant in the context of marking out legislative time.
                 Cite as: 573 U. S. ____ (2014)           21

               SCALIA, J., concurring in judgment

not a constructive one.” S. Rep. No. 4389, 58th Cong., 3d
Sess., p. 4. The report explained that the recess is “the
period of time when the Senate is not sitting in regular or
extraordinary session . . . 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 appoint­
ments.” 

(emphasis deleted).
   The majority seeks support in this episode, claiming
that the Judiciary Committee embraced a “broad and
functional definition of ‘recess’ ” consistent with the one
the majority adopts. Ante, at 16. On the contrary, the
episode powerfully refutes the majority’s theory. Roosevelt’s
legal justification for his appointments was extremely
aggressive, but even he recognized that “the Recess of
the Senate” could take place only between formal sessions.
If the majority’s view of the Clause had been considered
plausible, Roosevelt could have strengthened his position
considerably by making the appointments during an intra­
session break of a few days, or at least a few hours. (Just
10 minutes after the new session began on December 7,
the Senate took “a recess for one hour.” 38 Cong. Rec. 2.)
That he instead strained to declare a dubious inter-session
recess of an “infinitesimal fraction of a second” is powerful
evidence that the majority’s view of “the Recess” was not
taken seriously even as late as the beginning of the 20th
century.
   Yet the majority contends that “to the extent that the
Senate or a Senate committee has expressed a view, that
view has favored a functional definition of ‘recess’ [that]
encompasses intra-session recesses.” Ante, at 14. It rests
that contention entirely on the 1905 Judiciary Committee
Report. This distorts what the committee said when it
denied Roosevelt’s claim that there had been a recess. If
someone avers that a catfish is a cat, and I respond by
pointing out that a catfish lives in water and does not have
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               SCALIA, J., concurring in judgment

four legs, I have not endorsed the proposition that every
land-dwelling quadruped is a cat. Likewise, when the
Judiciary Committee explained that an instantaneous
transition from one session to another is not a recess
because the Senate is never absent, it did not suggest that
the Senate’s absence is enough to create a recess. To
assume otherwise, as the majority does, is to commit the
fallacy of the inverse (otherwise known as denying the
antecedent): the incorrect assumption that if P implies Q,
then not-P implies not-Q. Contrary to that fallacious
assumption, the Judiciary Committee surely believed,
consistent with the Executive’s clear position at the time,
that “the Recess” was limited to (actual, not constructive)
breaks between sessions.
                    4. 1921 to the Present
   It is necessary to skip over the first 13 decades of our
Nation’s history in order to find a Presidential legal ad­
viser arguably embracing the majority’s interpretation of
“the Recess.” In 1921 President Harding’s Attorney General,
Harry Daugherty, advised Harding that he could make
recess appointments while the Senate stood adjourned for
28 days during the session because “the term ‘recess’ must
be given a practical construction.” 33 Op. Atty. Gen. 20,
25. Daugherty acknowledged Knox’s 1901 opinion to the
contrary, 

but he (committing the same fallacy as
today’s majority) thought the 1905 Judiciary Committee
report had come to the opposite conclusion, 

He also recognized the fundamental flaw in this interpre­
tation: that it would be impossible to “accurately dra[w]” a
line between intra-session breaks that constitute “the
Recess” and those that do not. 

5. But he thought
the absence of a standard gave the President “discretion to
determine when there is a real and genuine recess.” 

abuse of discretion might subject his
appointment to review,” Daugherty thought that “[e]very
                    Cite as: 573 U. S. ____ (2014)                 23

                  SCALIA, J., concurring in judgment

presumption [should] be indulged in favor of the validity of
whatever action he may take.” Ibid.7
  Only after Daugherty’s opinion did the flow of intra­
session recess appointments start, and for several years it
was little more than a trickle. The Solicitor General has
identified 22 such appointments made by Presidents
Harding, Coolidge, Hoover, and Franklin Roosevelt be­
tween 1921 and 1944. App. to Brief for Petitioner 9a–12a.
Intra-session recess appointments experienced a brief
heyday after World War II, with President Truman mak­
ing about 150 such appointments to civilian positions and
several thousand to military posts from 1945 through
1950. 

(The majority’s impressive­
sounding claim that “Presidents have made thousands of
intra-session recess appointments,” ante, at 12, depends
entirely on post-war military appointments that Truman
made in just two years, 1947 and 1948.) President Eisen­
hower made only 43 intra-session recess appointments,

after which the practice sank back into
relative obscurity. Presidents Kennedy, Lyndon Johnson,
and Ford made none, while Nixon made just 7. 

The practice rose again in the last decades of
the 20th century: President Carter made 17 intra-session
recess appointments, Reagan 72, George H. W. Bush 37,
Clinton 53, and George W. Bush 135. 

When the Solicitor General filed his brief, President
Obama had made 26. 

Even excluding
Truman’s military appointments, roughly 90 percent of all
the intra-session recess appointments in our history have
been made since 1945.
——————
  7 I say Daugherty “arguably” embraced the majority’s view because he

may have been endorsing, not the majority’s position, but the interme­
diate view that reads both “the Recess” and “the next Session” in
functional terms, so that intra-session appointments would last only
until the next intra-session break. 

; Rappaport, Non­
originalism 34–35.
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                SCALIA, J., concurring in judgment

   Legal advisers in the Executive Branch during this
period typically endorsed the President’s authority to
make intra-session recess appointments by citing Daugh­
erty’s opinion with little or no additional analysis. See,
e.g., 20 Opinions of Office of Legal Counsel (Op. OLC) 124,
161 (1996) (finding the question to have been “settled
within the executive branch” by Daugherty’s “often-cited
opinion”). The majority’s contention that “opinions of
Presidential legal advisers . . . are nearly unanimous in
determining that the Clause authorizes [intra-session
recess] appointments,” ante, at 12, is thus true but mis­
leading: No Presidential legal adviser approved that prac­
tice before 1921, and subsequent approvals have rested
more on precedent than on independent examination.
   The majority is correct that during this period, the
Senate “as a body” did not formally repudiate the emerg­
ing executive practice. Ante, at 14. And on one occasion,
Comptroller General Lindsay Warren cited Daugherty’s
opinion as representing “the accepted view” on the ques­
tion, 28 Comp. Gen. 30, 34 (1948), although there is no
evidence he consulted any Senators or that his statement
reflected their views. But the rise of intra-session recess
appointments in the latter half of the 20th century drew
sharp criticism from a number of Senators on both sides of
the aisle. At first, their objections focused on the length of
the intra-session breaks at issue. See, e.g., 130 Cong. Rec.
22774–22776 (1984) (Sen. Sarbanes) (decrying recess
appointment during a 3-week intra-session adjournment
as “a circumvention of the Senate confirmation power”);

(resolution offered by Sen. Byrd, with 39
cosponsors, urging that no recess appointments occur
during intra-session breaks of fewer than 30 days).
   Later, many Senators sought to end intra-session recess
appointments altogether. In 1993, the Senate Legal
Counsel prepared a brief to be filed on behalf of the Senate
in Mackie v. Clinton, 

(DC 1993), vacated
                 Cite as: 573 U. S. ____ (2014)          25

               SCALIA, J., concurring in judgment

in part as moot, 

(CADC 1994) (per
curiam), but “Republican opposition” blocked the filing.
139 Cong. Rec. 15266–15267. The brief argued that “the
recess[-appointment] power is limited to Congress’ annual
recess between sessions,” that no contrary executive prac­
tice “of any appreciable magnitude” had existed before
“the past fifty years,” and that the Senate had not “acqui­
esced in this steady expansion of presidential power.” 

15270. It explained that some Senators had
limited their objections to shorter intra-session breaks out
of a desire “to coexist with the Executive” but that “the
Executive’s subsequent, steady chipping away at the
length of recess sufficient for making recess appointments
ha[d] demonstrated the need to return to the Framers’
original intent and limit the power to intersession ad­
journments.” 

15272. Senator Kennedy
reiterated that position in a brief to this Court in 2004.
Brief for Sen. Edward M. Kennedy as Amicus Curiae in
Franklin v. United States, O. T. 2004, No. 04–5858, p. 5.
Today the partisan tables are turned, and that position is
urged on us by the Senate’s Republican Members. See
Brief for Sen. McConnell et al. as Amici Curiae 26.
                        *     *    *
   What does all this amount to? In short: Intra-session
recess appointments were virtually unheard of for the first
130 years of the Republic, were deemed unconstitutional
by the first Attorney General to address them, were not
openly defended by the Executive until 1921, were not
made in significant numbers until after World War II, and
have been repeatedly criticized as unconstitutional by
Senators of both parties. It is astonishing for the majority
to assert that this history lends “strong support,” ante, at
11, to its interpretation of the Recess Appointments
Clause. And the majority’s contention that recent execu­
tive practice in this area merits deference because the
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               SCALIA, J., concurring in judgment

Senate has not done more to oppose it is utterly divorced
from our precedent. “The structural interests protected by
the Appointments Clause are not those of any one branch
of Government but of the entire Republic,” 

, and the Senate could not give away those
protections even if it wanted to. See 

–958; 

–452 (KENNEDY, J.,
concurring).
   Moreover, the majority’s insistence that the Senate
gainsay an executive practice “as a body” in order to pre­
vent the Executive from acquiring power by adverse pos­
session, ante, at 14, will systematically favor the expansion
of executive power at the expense of Congress. In any con­
troversy between the political branches over a separation­
of-powers question, staking out a position and defending
it over time is far easier for the Executive Branch than
for the Legislative Branch. See generally Bradley and
Morrison, Historical Gloss and the Separation of Powers,
126 Harv. L. Rev. 411, 439–447 (2012). All Presidents
have a high interest in expanding the powers of their
office, since the more power the President can wield, the
more effectively he can implement his political agenda;
whereas individual Senators may have little interest in
opposing Presidential encroachment on legislative prerog­
atives, especially when the encroacher is a President who
is the leader of their own party. (The majority would not
be able to point to a lack of “formal action” by the Senate
“as a body” challenging intra-session recess appointments,
ante, at 15–16, had the appointing President’s party in the
Senate not blocked such action on multiple occasions.)
And when the President wants to assert a power and
establish a precedent, he faces neither the collective-action
problems nor the procedural inertia inherent in the legis­
lative process. The majority’s methodology thus all but
guarantees the continuing aggrandizement of the Execu­
tive Branch.
                      Cite as: 573 U. S. ____ (2014)                  27

                    SCALIA, J., concurring in judgment

                  III. Pre-Recess Vacancies
  The second question presented is whether vacancies
that “happen during the Recess of the Senate,” which the
President is empowered to fill with recess appointments,
are (a) vacancies that arise during the recess, or (b) all
vacancies that exist during the recess, regardless of when
they arose. I would hold that the recess-appointment
power is limited to vacancies that arise during the recess
in which they are filled, and I would hold that the ap­
pointments at issue here—which undisputedly filled pre­
recess vacancies—are invalid for that reason as well as for
the reason that they were made during the session. The
Court’s contrary conclusion is inconsistent with the Con­
stitution’s text and structure, and it further undermines
the balance the Framers struck between Presidential and
Senatorial power. Historical practice also fails to support
the majority’s conclusion on this issue.
                       A. Plain Meaning
   As the majority concedes, “the most natural meaning of
‘happens’ as applied to a ‘vacancy’ . . . is that the vacancy
‘happens’ when it initially occurs.” Ante, at 22. The ma­
jority adds that this meaning is most natural “to a modern
ear,” ibid., but it fails to show that founding-era ears
heard it differently. “Happen” meant then, as it does now,
“[t]o fall out; to chance; to come to pass.” 1 Johnson, Dic­
tionary of the English Language 913. Thus, a vacancy
that happened during the Recess was most reasonably
understood as one that arose during the recess. It was, of
course, possible in certain contexts for the word “happen”
to mean “happen to be” rather than “happen to occur,” as
in the idiom “it so happens.” But that meaning is not at
all natural when the subject is a vacancy, a state of affairs
that comes into existence at a particular moment in time.8
——————
 8 Despite   initially admitting that the text “does not naturally favor”
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. NOEL CANNING

                   SCALIA, J., concurring in judgment

   In any event, no reasonable reader would have under­
stood the Recess Appointments Clause to use the word
“happen” in the majority’s “happen to be” sense, and thus
to empower the President to fill all vacancies that might
exist during a recess, regardless of when they arose. For
one thing, the Clause’s language would have been a sur­
passingly odd way of giving the President that power. The
Clause easily could have been written to convey that
meaning clearly: It could have referred to “all Vacancies
that may exist during the Recess,” or it could have omitted
the qualifying phrase entirely and simply authorized the
President to “fill up all Vacancies during the Recess.”
Given those readily available alternative phrasings, the
reasonable reader might have wondered, why would any
intelligent drafter intending the majority’s reading have
inserted the words “that may happen”—words that, as the
majority admits, make the majority’s desired reading
awkward and unnatural, and that must be effectively read
out of the Clause to achieve that reading?
   For another thing, the majority’s reading not only
strains the Clause’s language but distorts its constitutional
role, which was meant to be subordinate. As Hamilton
explained, appointment with the advice and consent of the
Senate was to be “the general mode of appointing officers
of the United States.” The Federalist No. 67, at 455. The
Senate’s check on the President’s appointment power was
seen as vital because “ ‘manipulation of official appoint­
ments’ had long been one of the American revolutionary
——————
its interpretation, the majority halfheartedly suggests that the “ ‘hap­
pen to be’ ” reading may be admissible when the subject, like “vacancy,”
denotes a “continuing state.” Ante, at 22–23. That suggestion distorts
ordinary English usage. It is indeed natural to say that an ongoing
activity or event, like a war, a parade, or a financial crisis, is “happen­
ing” for as long as it continues. But the same is not true when the
subject is a settled state of affairs, like death, marriage, or vacancy, all
of which “happen” when they come into being.
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                   SCALIA, J., concurring in judgment

generation’s greatest grievances against executive power.”

. The unilateral power conferred
on the President by the Recess Appointments Clause was
therefore understood to be “nothing more than a supple­
ment” to the “general method” of advice and consent. The
Federalist No. 67, at 455.
   If, however, the Clause had allowed the President to fill
all pre-existing vacancies during the recess by granting
commissions that would last throughout the following
session, it would have been impossible to regard it—as the
Framers plainly did—as a mere codicil to the Constitu­
tion’s principal, power-sharing scheme for filling federal
offices. On the majority’s reading, the President would
have had no need ever to seek the Senate’s advice and
consent for his appointments: Whenever there was a fair
prospect of the Senate’s rejecting his preferred nominee,
the President could have appointed that individual unilat­
erally during the recess, allowed the appointment to ex­
pire at the end of the next session, renewed the appoint­
ment the following day, and so on ad infinitum.
(Circumvention would have been especially easy if, as the
majority also concludes, the President was authorized to
make such appointments during any intra-session break of
more than a few days.) It is unthinkable that such an
obvious means for the Executive to expand its power
would have been overlooked during the ratification
debates.9

——————
   9 The majority insists that “character and politics” will ordinarily

prevent the President from circumventing the Senate, and that the
Senate has “political resources” to respond to attempts at circumven­
tion. Ante, at 25. Neither character nor politics prevented Theodore
Roosevelt from proclaiming a fictitious recess lasting an “infinitesimal
fraction of a second.” In any event, the Constitution does not entrust
the Senate’s role in the appointments process to the vagaries of charac­
ter and politics. See, e.g., Freytag v. Commissioner, 

, 879–
880 (1991).


. NOEL CANNING

                  SCALIA, J., concurring in judgment

    The original understanding of the Clause was consistent
with what the majority concedes is the text’s “most natu­
ral meaning.” Ante, at 22. In 1792, Attorney General
Edmund Randolph, who had been a leading member of the
Constitutional Convention, provided the Executive
Branch’s first formal interpretation of the Clause. He
advised President Washington that the Constitution did
not authorize a recess appointment to fill the office of
Chief Coiner of the United States Mint, which had been
created by Congress on April 2, 1792, during the Senate’s
session. Randolph wrote: “[I]s it a vacancy which has
happened during the recess of the Senate? It is now the
same and no other vacancy, than that, which existed on
the 2nd. of April 1792. It commenced therefore on that
day or may be said to have happened on that day.” Opin­
ion on Recess Appointments (July 7, 1792), in 24 Papers of
Thomas Jefferson 165–166 (J. Catanzariti ed. 1990).
Randolph added that his interpretation was the most
congruent with the Constitution’s structure, which made
the recess-appointment power “an exception to the general
participation of the Senate.” 

John Adams’ Attorney General, Charles Lee,
was in agreement. See Letter to George Washington (July
7, 1796) (the President may “fill for a limited time an old
office become vacant during [the] recess” (emphasis add­
ed)), online at http://founders.archives.gov/documents/
Washington/99-01-02-00702; Letter from James McHenry
to John Adams (May 7, 1799) (hereinafter 1799 McHenry
Letter) (conveying Lee’s advice that certain offices were
“ ‘vacanc[ies] happening during the session, which the
President cannot fill, during the recess, by the powers
vested in him by the constitution’ ”), online at http://
wardepartmentpapers.org/document.php?id=31766.10 One
——————
  10 The majority does not deny that Lee took those positions, but it

claims he also “later informed [Thomas] Jefferson that, in the Adams
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                    SCALIA, J., concurring in judgment

of the most prominent early academic commenters on the
Constitution read the Clause the same way. See 1 St.
George Tucker, Blackstone’s Commentaries, App. 342–343
(1803) (assuming the President could appoint during the
recess only if “the office became vacant during the recess”).
  Early Congresses seem to have shared Randolph’s and
Lee’s view. A statute passed by the First Congress author­
ized the President to appoint customs inspectors “with the
advice and consent of the Senate” and provided that “if the
appointment . . . shall not be made during the present
session of Congress, the President . . . is hereby empow­
ered to make such appointments during the recess of the
Senate, by granting commissions which shall expire at the
end of their next session.” Act of Mar. 3, 1791, §4, 1 Stat.
200. That authorization would have been superfluous if
the Recess Appointments Clause had been understood to
apply to pre-existing vacancies. We have recognized that
an action taken by the First Congress “provides ‘contem­
poraneous and weighty evidence’ of the Constitution’s
meaning.” 

–724. And other
statutes passed in the early years of the Republic con­
tained similar authorizations. See App. to Brief for Re­


——————
administration, ‘whenever an office became vacant, so short a time
before Congress rose, as not to give an opportunity of enquiring for a
proper character, they let it lie always till recess.’ ” Ante, at 27 (quoting
Letter from Jefferson to Wilson Cary Nicholas (Jan. 26, 1802), in 36
Papers of Thomas Jefferson 433 (B. Oberg ed. 2009) (hereinafter 1802
Jefferson Letter)). Assuming Lee in fact made the statement attributed
to him by Jefferson, and further assuming that Lee endorsed the
constitutionality of the practice described in that statement (which
Jefferson does not say), that practice could only have been regarded as
a pragmatic exception to the general view of the Clause that Lee, like
Randolph, espoused. And the practice must not have been extensive,
since the Solicitor General has been unable to identify even a single
appointment made by Adams that filled a pre-recess vacancy. See
infra, at 36.
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                   SCALIA, J., concurring in judgment

spondent Noel Canning 1a–17a.11
  Also illuminating is the way the Third Congress inter­
preted the Constitution’s Senate Vacancies Clause, which
uses language similar to that of the Recess Appointments
Clause. Before the passage of the Seventeenth Amend­
ment, the Constitution provided that “if Vacancies [in the
Senate] happen by Resignation, or otherwise, during the
Recess of the Legislature of any State, the Executive
thereof may make temporary Appointments until the next
Meeting of the Legislature.” Art. I, §3, cl. 2. Senator
George Read of Delaware resigned in December 1793; the
state legislature met in January and February 1794; and
the Governor appointed Kensey Johns to fill the seat in
March 1794. The Senate refused to seat Johns, resolving
that he was “not entitled to a seat in the Senate of the
United States; a session of the Legislature of the said
State having intervened, between the resignation . . . and
——————
   11 The majority suggests that these statutes may have reflected, not a

belief that the recess-appointment power was limited to vacancies
arising during the recess, but a “separate” belief that the power could
not be used for “new offices” created by Congress and not previously
filled. Ante, at 30. But the latter view (which the majority does not
endorse) was inseparably linked with the former (which the majority
rejects), as is made clear by the very source the majority cites. See
Letter from Alexander Hamilton to James McHenry (May 3, 1799), in
23 Papers of Alexander Hamilton 94 (H. Syrett ed. 1976) (“[T]he power
to fill the vacancy is not the power to make an original appointment.
The phrase ‘Which may have happened’ serves to confirm this construc­
tion. . . . [I]ndependent of the authority of a special law, the President
cannot fill a vacancy which happens during a session of the Senate”);
see also 2 Op. Atty. Gen., at 334 (“If the vacancy exist during the
session of the Senate, as in the first creation of an office by law, it has
been held that the President cannot appoint during the recess, unless
he is specially authorized so to do by law”); W. Rawle, A View of the
Constitution of the United States of America 163 (2d ed. 1829) (reprint
2009) (“It has been held by [the Senate], that if new offices are created
by congress, the president cannot, after the adjournment of the senate,
make appointments to fill them. The vacancies do not happen during
the recess of the senate”).
                 Cite as: 573 U. S. ____ (2014)           33

               SCALIA, J., concurring in judgment

the appointment.” 4 Annals of Cong. 77–78 (1794). It is
thus clear that the phrase “happen . . . during the Recess”
in the Senate Vacancies Clause was understood to refer to
vacancies that arose, not merely existed, during the recess
in which the appointment was made. It is not apparent
why the nearly identical language of the Recess Appoint­
ments Clause would have been understood differently.
   The majority, however, relies heavily on a contrary
account of the Clause given by Attorney General William
Wirt in 1823. See 1 Op. Atty. Gen 631. Wirt notably
began—as does the majority—by acknowledging that his
predecessors’ reading was “most accordant with the letter
of the constitution.” 

But he thought the “most
natural” reading had to be rejected because it would inter­
fere with the “substantial purpose of the constitution,”
namely, “keep[ing] . . . offices filled.” 

He
was chiefly concerned that giving the Clause its plain
meaning would produce “embarrassing inconveniences” if
a distant office were to become vacant during the Senate’s
session, but news of the vacancy were not to reach the
President until the recess. 

634. The majority
fully embraces Wirt’s reasoning. Ante, at 22–25.
   Wirt’s argument is doubly flawed. To begin, the Consti­
tution provides ample means, short of rewriting its text,
for dealing with the hypothetical dilemma Wirt posed.
Congress can authorize “acting” officers to perform the
duties associated with a temporarily vacant office—and
has done that, in one form or another, since 1792. See 

. §3345; Act of May 8, 1792, ch. 37, §8, 1 Stat. 

; Rappaport, Original Meaning 1514–
1517. And on “extraordinary Occasions” the President can
call the Senate back into session to consider a nomination.
Art. II, §3. If the Framers had thought those options
insufficient and preferred to authorize the President to
make recess appointments to fill vacancies arising late in
the session, they would have known how to do so. Massa­
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. NOEL CANNING

                SCALIA, J., concurring in judgment

chusetts, for example, had authorized its Governor to
make certain recess appointments “in case a vacancy shall
happen . . . in the recess of the General Court [i.e., the
state legislature], or at so late a period in any session of
the same Court, that the vacancy . . . shall not be supplied
in the same session thereof.” 1783 Mass. Acts ch. 12, in
Acts and Laws of the Commonwealth of Massachusetts
523 (1890) (emphasis added).
   The majority protests that acting appointments, unlike
recess appointments, are an “inadequate” solution to
Wirt’s hypothetical dilemma because acting officers “may
have less authority than Presidential appointments.”
Ante, at 24–25. It cites an OLC opinion which states that
“an acting officer . . . is frequently considered merely a
caretaker without a mandate to take far-reaching
measures.” 6 Op. OLC 119, 121 (1982). But just a few
lines later, the majority says that “the lack of Senate
approval . . . may diminish the recess appointee’s ability,
as a practical matter, to get a controversial job done.”
Ante, at 25. The majority does not explain why an acting
officer would have less authority “as a practical matter”
than a recess appointee. The majority also objects that
requiring the President to rely on acting officers would
“lessen the President’s ability to staff the Executive
Branch with people of his own choosing,” ante, at 24—a
surprising charge, since that is the very purpose of the
Constitution’s advice-and-consent requirement. As for
special sessions, the majority thinks it a sufficient answer
to say that they are “burdensome,” ibid., an observation
that fails to distinguish them from many procedures re­
quired by our structural Constitution.
   More fundamentally, Wirt and the majority are mistaken
to say that the Constitution’s “ ‘substantial purpose’ ” is
to “ ‘keep . . . offices filled.’ ” 

Atty.
Gen., at 632). The Constitution is not a road map for
maximally efficient government, but a system of “carefully
                 Cite as: 573 U. S. ____ (2014)           35

               SCALIA, J., concurring in judgment

crafted restraints” designed to “protect the people from the
improvident exercise of power.” 

, 959. Wirt’s and the majority’s argumentum ab incon­
venienti thus proves far too much. There are many cir­
cumstances other than a vacancy that can produce similar
inconveniences if they arise late in the session: For exam­
ple, a natural disaster might occur to which the Executive
cannot respond effectively without a supplemental appro­
priation. But in those circumstances, the Constitution
would not permit the President to appropriate funds him­
self. See Art. I, §9, cl. 7. Congress must either anticipate
such eventualities or be prepared to be haled back into
session. The troublesome need to do so is not a bug to be
fixed by this Court, but a calculated feature of the consti­
tutional framework. As we have recognized, while the
Constitution’s government-structuring provisions can
seem “clumsy” and “inefficient,” they reflect “hard choices
. . . consciously made by men who had lived under a form
of government that permitted arbitrary governmental acts
to go unchecked.” 

.
                   B. Historical Practice
   For the reasons just given, it is clear that the Constitu­
tion authorizes the President to fill unilaterally only those
vacancies that arise during a recess, not every vacancy
that happens to exist during a recess. Again, however, the
majority says “[h]istorical practice” requires the broader
interpretation. Ante, at 26. And again the majority
is mistaken. Even if the Constitution were wrongly
thought to be ambiguous on this point, a fair recounting
of the relevant history does not support the majority’s
interpretation.
                    1. 1789 to 1822
  The majority correctly admits that there is “no undis­
puted record of Presidents George Washington, John
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                  SCALIA, J., concurring in judgment

Adams, or Thomas Jefferson” using a recess appointment
to fill a pre-recess vacancy. 

surprising in
light of Randolph’s early conclusion that doing so would be
unconstitutional. Adams on one occasion contemplated
filling pre-recess vacancies but was dissuaded by, among
others, Attorney General Lee, who said the Constitution
did not permit him to do so. See 1799 McHenry Letter.12
And the Solicitor General does not allege that even a
single appointment made by Adams filled a pre-recess
vacancy. Jefferson, too, at one point thought the Clause
“susceptible of ” the majority’s reading, 1802 Jefferson
Letter, but his administration, like Adams’, appears never
to have adopted that reading.
   James Madison’s administration seems to have rejected
the majority’s reading as well. In 1814, Madison wanted
to appoint Andrew Jackson to a vacant major-generalship
in the Army during the Senate’s recess, but he accepted,
without contradiction or reservation, his Secretary of
War’s advice that he lacked the power to do so because the
post’s previous occupant had resigned before the recess.
He therefore ordered that Jackson be given a “brevet of
Major General,” i.e., a warrant conferring the nominal
rank without the salary thereof. Letter from John Arm­
strong to Madison (May 14, 1814); Letter from Madison to
——————
   12 See also Letter from Adams to James McHenry (April 16, 1799), in

8 Works of John Adams 632 (C. Adams ed. 1853) (proposing the ap­
pointments); Letter from Adams to McHenry (May 16, 1799), in 

(agreeing to “suspend [the appointments] for the present, perhaps
till the meeting of the Senate”). Before advising Adams, McHenry also
consulted Alexander Hamilton, who agreed that the appointments
would be unlawful. See Letter from McHenry to Hamilton (Apr. 26,
1799), in 23 Papers of Alexander Hamilton, at 69, 70 (“It would seem
that, under this Constitutional power, the President cannot alone . . .
fill up vacancies that may happen during a session of the senate”);
Letter from Hamilton to McHenry (May 3, 1799), in 

(“It is
clear, that independent of the authority of a special law, the President
cannot fill a vacancy which happens during a session of the Senate”).
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                  SCALIA, J., concurring in judgment

Armstrong (May 17, 1814). In conveying the brevet, Mad­
ison’s Secretary of War explained to Jackson that “ ‘[t]he
vacancy produced by General Hampton’s resignation, not
having been filled during the late session of the Senate,
cannot be supplied constitutionally, during the recess.’ ”
Letter from Armstrong to Jackson (May 22, 1814). A week
later, when Madison learned that a different major gen­
eral had resigned during the recess, he thought that de­
velopment would enable him to appoint Jackson “at once.”
Letter from Madison to Armstrong (May 24, 1814); see
Letter from Armstrong to Madison (May 20, 1814) (report­
ing the resignation).13
   The majority discounts that evidence of an occasion
when Madison and his advisers actually considered the
precise constitutional question presented here. It does so
apparently because Madison, in acting on the advice he
was given without questioning the interpretation of the
recess-appointment power that was offered as the reason
for that advice, did not explicitly say “I agree.” The major­
ity prefers to focus on five appointments by Madison,
unremarked by anyone at the time, that “the evidence
suggests” filled pre-recess vacancies. Ante, at 27. Even if
the majority is correct about those appointments, there is
no indication that any thought was given to their constitu­
tionality, either within or outside the Executive Branch. A
handful of appointments that appear to contravene the
written opinions of Attorneys General Randolph and Lee
and the written evidence of Madison’s own beliefs about
what the Constitution authorized, and that lack any con­
temporaneous explanation, are not convincing evidence of
the Constitution’s original meaning.14
——————
  13 All the letters cited in this paragraph are available online

courtesy of the Library of Congress. See James Madison Papers,
http://memory.loc.gov/ammem/collections/madison_papers.
  14 The same can be said of the Solicitor General’s claim to have found

two recess appointments by Washington and four by Jefferson that
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                   SCALIA, J., concurring in judgment

  If Madison or his predecessors made any appointments
in reliance on the broader reading, those appointments
must have escaped general notice. In 1822, the Senate
Committee on Military Affairs declared that the President
had “no power to make [appointments] in the recess”
where “the vacancies did not happen in the recess.” 38
Annals of Cong. 500. The Committee believed its con­
struction had been “heretofore observed” and that “no
instance ha[d] before occurred . . . where the President
ha[d] felt himself authorized to fill such vacancies, without
special authority by law.” Ibid.; see also T. Sergeant,
Constitutional Law 373 (2d ed. 1830) (“[I]t seemed dis­
tinctly understood to be the sense of the senate, that [it]
is only in offices that become vacant during the recess,
that the president is authorised to exercise the right of
appointing”).
                      2. 1823 to 1862
   The Executive Branch did not openly depart from Ran­
dolph and Lee’s interpretation until 1823, when Wirt
issued the opinion discussed earlier. Even within that
branch, Wirt’s view was hotly contested: William Craw­
ford, Monroe’s Treasury Secretary, argued “with great
pertinacity” that the Clause authorized the President to
fill only “vacancies which happen during the recess” and
not those “which happen while Congress are in session.” 5
Memoirs of John Quincy Adams 486–487 (C. Adams ed.
1875). Wirt’s analysis nonetheless gained ground in the

——————
filled pre-existing vacancies. Noel Canning disputes that claim, point­
ing out that Washington told the Senate the offices in question had
“ ‘fallen vacant during the recess’ ” and arguing that Jefferson may have
removed the incumbent officers during the recess. Brief for Respondent
Noel Canning 44. Suffice it to say that if either Washington or Jeffer­
son had adopted the broader reading, against the written advice of
Attorneys General Randolph and Lee, one would expect a good deal
more evidence of that fact.
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                  SCALIA, J., concurring in judgment

Executive Branch over the next four decades; but it did so
slowly and fitfully.
   In 1830, Attorney General Berrien disagreed with Wirt
when he wrote that “[i]f the vacancy exist during the
session of the Senate, . . . the President cannot appoint
during the recess.” 2 Op. Atty. Gen. 333, 334. Two years
later, Attorney General Taney endorsed Wirt’s view al­
though doing so was, as he acknowledged, unnecessary to
resolve the issue before him: whether the President could,
during the recess, fill a vacancy resulting from the expira­
tion of a prior recess appointment at the end of the Sen­
ate’s session. 2 Op. Atty Gen. 525, 528 (1832). Addressing
the same issue in 1841, Attorney General Legaré appeared
to believe the dispositive question was whether the office
could be said to have “becom[e] vacant” during the recess.
3 Op. Atty. Gen. 673, 674. And in 1845, Attorney General
Mason thought it “well established” that “[i]f vacancies are
known to exist during the session of the Senate, and nom­
inations are not then made, they cannot be filled by execu­
tive appointments in the recess.” 4 Op. Atty. Gen. 361,
363.15
   The tide seemed to turn—as far as the Executive
Branch was concerned—in the mid-19th century: Attorney
General Cushing in 1855 and Attorney General Bates in
1862 both treated Wirt’s position as settled without sub­
jecting it to additional analysis. 7 Op. Atty. Gen. 186, 223;
10 Op. Atty. Gen. 356. Bates, however, entertained “seri­

——————
  15 A year later Mason, like Taney and Legaré before him, concluded

that when a recess appointment expired at the end of the Senate’s
session, the President could fill the resulting vacancy during the
ensuing recess. In reaching that conclusion, Mason reiterated that the
recess-appointment power “depends on the happening of vacancies
when the Senate is not in session” and said the vacancy at issue was
“within the meaning of” the Clause because the happening of the
vacancy and the termination of the session had “occurred eo instanti.”
4 Op. Atty. Gen. 523, 526–527 (1846).


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               SCALIA, J., concurring in judgment

ous doubts” about its validity. 

19th­
century court shrewdly observed in rejecting Wirt’s inter­
pretation, the frequency with which Attorneys General
during this period were called upon to opine on the ques­
tion likely “indicate[s] that no settled administrative
usage had been . . . established.” In re District Attorney of
United States, 

, 738 (No. 3,924) (DC Pa.
1868). The Solicitor General identifies only 10 recess
appointments made between 1823 and 1863 that filled
pre-recess vacancies—about one every four years. App. to
Brief for Petitioner 68a–71a. That is hardly an impressive
number, and most of the appointments were to minor
offices (like Deputy Postmaster for Janesville, Wisconsin,

unlikely to have gotten the Senate’s attention.
But the Senate did notice when, in 1862, President Lin­
coln recess-appointed David Davis to fill a seat on this
Court that had become vacant before the recess, 

it reacted with vigor.
                       3. 1863 to 1939
  Two months after Lincoln’s recess appointment of Davis,
the Senate directed the Judiciary Committee “to inquire
whether the practice . . . of appointing officers to fill va­
cancies which have not occurred during the recess of Con­
gress, but which existed at the preceding session of Con­
gress, is in accordance with the Constitution; and if not,
what remedy shall be applied.” Cong. Globe, 37th Cong.,
3d Sess., 100 (1862). The committee responded with a
report denouncing Wirt’s interpretation of the Clause as
“artificial,” “forced and unnatural,” “unfounded,” and a
“perversion of language.” S. Rep. No. 80, 37th Cong., 3d
Sess., pp. 4–6 (1863). Because the majority all but ignores
this evidence of the Senate’s views, it is worth quoting the
report at some length:
       “When must the vacancy . . . accrue or spring into
     existence? May it begin during the session of the
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               SCALIA, J., concurring in judgment

    Senate, or must it have its beginning during the re­
    cess? We think the language too clear to admit of rea­
    sonable doubt, and that, upon principles of just con­
    struction, this period must have its inceptive point
    after one session has closed and before another ses­
    sion has begun. . . .
         .           .           .            .          .
       “We . . . dissent from the construction implied by
    the substituted reading, ‘happened to exist,’ for the
    word ‘happen’ in the clause. . . . [I]f a vacancy once ex­
    ists, it has in law happened; for it is in itself an in­
    stantaneous event. It implies no continuance of the
    act that produces it, but takes effect, and is complete
    and perfect at an indivisible point of time, like the be­
    ginning or end of a recess. Once in existence, it has
    happened, and the mere continuance of the condition
    of things which the occurrence produces, cannot,
    without confounding the most obvious distinctions, be
    taken or treated as the occurrence itself, as Mr. Wirt
    seems to have done. . . .
       “Again, we see no propriety in forcing the language
    from its popular meaning in order to meet and fulfill
    one confessedly great purpose, (the keeping the office
    filled,) while there is plainly another purpose of equal
    magnitude and importance (fitting qualifications)
    attached to and inseparable from the former.” 

The Committee acknowledged that the broad reading
“ha[d] been, from time to time, sanctioned by Attorneys
General . . . and that the Executive ha[d], from time to
time, practiced upon it,” but it said the Executive’s prac­
tice was entitled to no weight because the Constitution’s
text was “too plain to admit of a doubt or to need interpre­
tation.” 

   On the same day the Committee published its scathing
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                SCALIA, J., concurring in judgment

report, its chairman, Senator Trumbull, proposed a law
barring the payment of any officer appointed during the
recess to fill a pre-recess vacancy. Cong. Globe, 37th
Cong., 3d Sess., 564. Senator Fessenden spoke in support
of the proposal:
     “It ought to be understood distinctly, that when an of­
     ficer does not come within the rules of law, and is ap­
     pointed in that way in defiance of the wishes of the
     Senate, he shall not be paid. It may not be in our
     power to prevent the appointment, but it is in our
     power to prevent the payment; and when payment is
     prevented, I think that will probably put an end to the
     habit of making such appointments.” 

.
The amendment was adopted by the Senate, ibid., and
after passing the House became the Pay Act, which pro­
vided that “no money shall be paid . . . out of the Treasury,
as salary, to any person appointed during the recess of the
Senate, to fill a vacancy . . . which . . . existed while the
Senate was in session.” Act of Feb. 9, 1863, §2, 12 Stat.
646 (codified at Rev. Stat. §1761; subsequently codified as
amended at 

. §56 (1925–1926 ed.)).
   The Pay Act would remain in force without significant
modification for nearly eight decades. The Executive
Branch, however, refused to acknowledge that the Act
embodied the Senate’s rejection of the broad reading of
“happen.” Several Attorneys General continued to treat
Wirt’s interpretation as settled without so much as men­
tioning the Act. See 12 Op. Atty. Gen. 32 (1866); 12 Op.
Atty. Gen. 449 (1868); 14 Op. Atty. Gen. 562 (1875); 15 Op.
Atty. Gen. 207 (1877). And when, 17 years after its pas­
sage, Attorney General Devens deigned to acknowledge
the Act, he preposterously described it as “conced[ing]” the
President’s power to make the appointments for which the
Act barred payment. 16 Op. Atty. Gen. 522, 531 (1880).
   The majority is not that bold. Instead, it relegates the
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                   SCALIA, J., concurring in judgment

1863 Judiciary Committee report to a pair of anodyne
sentences in which it says only that the committee “dis­
agreed with” Wirt’s interpretation. Ante, at 30. (With like
understatement, one could say that Shakespeare’s Mark
Antony “disagreed with” Caesar’s detractors.) Even more
remarkably, the majority goes on to claim that the Sen­
ate’s passage of the Pay Act on the same day the commit­
tee issued its report was not a strong enough statement to
impede the constitutionalization-by-adverse-possession of
the power asserted by the Executive. Why not? Because,
the majority says, some Senators may have disagreed with
the report, and because the Senate did not go so far as to
make acceptance of a recess appointment that filled a pre­
recess vacancy “a federal crime.” Ante, at 30–31. That
reasoning starkly illustrates the excessive burden the
majority places on the Legislative Branch in contests with
the Executive over the separation of powers. 

.
   Despite its minimization by subsequent Attorneys Gen­
eral and by today’s majority, there is no reason to doubt
that the Pay Act had a deterrent effect. The Solicitor
General has identified just 40 recess appointments that
filled pre-recess vacancies during the nearly eight decades
between the Act’s passage in 1863 and its amendment in
1940. App. to Brief for Petitioner 71a–79a.16
——————
  16 In the early 20th century, some Senators acceded to the majority’s

reading of the Clause, as the majority is eager to point out, ante, at 31.
In 1904, Senator Tillman allowed that “the Senate ha[d] acquiesced” in
the President’s use of the recess-appointment power to fill pre-existing
vacancies, 38 Cong. Rec. 1606, though he also quoted at length from the
1863 Judiciary Committee report and said he did “not see how anybody
can find any argument to controvert the position [the report] takes,” 

And in 1916, Senators Robinson and Sutherland accepted the
majority’s reading without analysis. 53 Cong. Rec. 4298. The reader
can decide whether those statements by three Senators justify the
assertion that the Senate “abandoned its hostility” to the broad read­
ing, ante, at 31.
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               SCALIA, J., concurring in judgment

                   4. 1940 to the Present
   The majority finds it highly significant that in 1940,
Congress created a few carefully limited exceptions to the
Pay Act’s prohibition on paying recess appointees who
filled pre-recess vacancies. See Act of July 11, 1940, ch.
580, 54 Stat. 751, now codified with nonsubstantive
amendments at 

. §5503. Under the current ver­
sion of the Act, “[p]ayment for services may not be made
from the Treasury of the United States to an individual
appointed during a recess of the Senate to fill a vacancy”
that “existed while the Senate was in session” unless
either the vacancy arose, or a different individual’s nomi­
nation to fill the vacancy was rejected, “within 30 days
before the end of the session”; or a nomination was pend­
ing before the Senate at the end of the session, and the
individual nominated was not himself a recess appointee.
§5503(a)(1)–(3). And if the President fills a pre-recess
vacancy under one of the circumstances specified in the
Act, the law requires that he submit a nomination for that
office to the Senate “not later than 40 days after the be­
ginning of the next session.” §5503(b).
   The majority says that by allowing salaries to be paid to
recess appointees in these narrow circumstances, “the
1940 Senate (and later Senates) in effect supported” the
majority’s interpretation of the Clause. Ante, at 32. Non­
sense. Even as amended, the Act strictly regulates pay­
ment to recess appointees who fill pre-recess vacancies,
and it still forbids payment to many officers whose ap­
pointments are constitutional under the majority’s inter­
pretation. As amici Senators observe, the 1940 amend­
ments “reflect at most a desire not to punish public
servants caught in the crossfire” of interbranch conflict.
Brief for Sen. McConnell et al. as Amici Curiae 30. Surely
that inference is more reasonable than the majority’s
supposition that Congress, by permitting some of the
appointees covered by the Act to be paid, meant to signal
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               SCALIA, J., concurring in judgment

that it now believed all of the covered appointments were
valid.
   Moreover, given the majority’s interpretation of the
Recess Appointments Clause, it is fairly debatable whether
the current version of the Pay Act is constitutional (and
a fortiori, whether the pre-1940 version was constitutional).
Even as amended, the Act seeks to limit and channel
the President’s exercise of the recess-appointment power
by prohibiting payment to officers whose appointments
are (per the majority) within the President’s sole constitu­
tional authority if those appointments do not comply with
conditions imposed by Congress, and by requiring the
President to submit a nominee to the Senate in the first 40
days of the ensuing session. There is a colorable argu­
ment—which is routinely made by lawyers in the Execu­
tive Branch—that Congress “ ‘cannot use the appropria­
tions power to control a Presidential power that is beyond
its direct control.’ ” 33 Op. OLC ___, ___ (2009), online
at http://www.justice.gov/olc/opiniondocs/section7054.pdf
(quoting 20 Op. OLC 253, 267 (1996)). Consistent with
that view, the Office of Legal Counsel has maintained that
Congress could not “condition . . . the funding of an of­
ficer’s salary on being allowed to appoint the officer.” 13
Op. OLC 258, 261 (1989).
   If that is correct, then the Pay Act’s attempt to control
the President’s exercise of the recess-appointment power
at least raises a substantial constitutional question under
the majority’s reading of the Recess Appointments Clause.
See Rappaport, Original Meaning 1544–1546. The Execu­
tive has not challenged the Act’s constitutionality in this
case, and I express no opinion on whether such a challenge
would succeed. I simply point out that it is impossible to
regard the amended Pay Act as evidence of Senatorial
acquiescence in the majority’s reading when that reading
has the potential to invalidate the Act.
   Since the Pay Act was amended, individual Senators
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                   SCALIA, J., concurring in judgment

have continued to maintain that recess appointments may
not constitutionally be used to fill pre-recess vacancies.
See, e.g., 130 Cong. Rec. 22780 (statement of seven Sena­
tors that a recess appointment to the Federal Reserve
Board in 1984 was unconstitutional because the vacancy
“did not happen during the recess”); Brief for Sen.
McConnell et al. as Amici Curiae 26 (45 Senators taking
that view of the Clause). And there is no evidence that the
watering-down of the Pay Act produced an immediate
flood of recess appointments filling pre-recess vacancies.
The Solicitor General has pointed us to only 40 such ap­
pointments between 1940 and the present. App. to Brief
for Petitioner 79a–89a.
   The majority, however, finds it significant that in two
small “random sample[s]” of contemporary recess ap­
pointments—24 since 1981 and 21 since 2000—the bulk of
the appointments appear to have filled pre-existing vacan­
cies. Ante, at 29. Based on that evidence, the majority
thinks it “a fair inference that a large proportion of the
recess appointments in the history of the Nation have
filled pre-existing vacancies.” 

that sweeping conclusion from a small set of recent data
does not bear even the slightest scrutiny. The majority
ignores two salient facts: First, from the founding until the
mid-19th century, the President’s authority to make such
appointments was far from settled even within the Execu­
tive Branch. Second, from 1863 until 1940, it was illegal
to pay any recess appointee who filled a pre-recess va­
cancy, which surely discouraged Presidents from making,
and nominees from accepting, such appointments. Conse­
quently, there is no reason to assume that the majority’s
sampling—even if it accurately reflects practices during
the last three decades—is at all typical of practices that
prevailed throughout “the history of the Nation.”17
——————
 17 The   majority also notes that many of the intra-session recess ap­
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                   SCALIA, J., concurring in judgment

                        *     *     *
   In sum: Washington’s and Adams’ Attorneys General
read the Constitution to restrict recess appointments to
vacancies arising during the recess, and there is no evi­
dence that any of the first four Presidents consciously
departed from that reading. The contrary reading was
first defended by an executive official in 1823, was vehe­
mently rejected by the Senate in 1863, was vigorously
resisted by legislation in place from 1863 until 1940, and
is arguably inconsistent with legislation in place from
1940 to the present. The Solicitor General has identified
only about 100 appointments that have ever been made
under the broader reading, and while it seems likely that
a good deal more have been made in the last few decades,
there is good reason to doubt that many were made before
1940 (since the appointees could not have been compen­
sated). I can conceive of no sane constitutional theory
under which this evidence of “historical practice”—which
is actually evidence of a long-simmering inter-branch
conflict—would require us to defer to the views of the
Executive Branch.
                   IV. Conclusion
 What the majority needs to sustain its judgment is an
ambiguous text and a clear historical practice. What it
——————
pointments identified by the Solicitor General were made “within two
weeks of the beginning of the recess,” which, according to the majority,
“strongly suggests that many of the vacancies initially arose prior to
the recess.” Ante, at 29. The inference is unwarranted, since there are
many circumstances other than random chance that could cause a
vacancy to arise early in the recess: For example, the prior officeholder
may have been another recess appointee whose commission expired at
the end of the Senate’s session, or he may have waited until the recess
to resign so that his successor could be compensated without violating
the Pay Act. In any event, the overwhelming majority of the intra­
session recess appointments on the Solicitor General’s list occurred
after 1945 and do not shed light on earlier practices.
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               SCALIA, J., concurring in judgment

has is a clear text and an at-best-ambiguous historical
practice. Even if the Executive could accumulate power
through adverse possession by engaging in a consistent
and unchallenged practice over a long period of time, the
oft-disputed practices at issue here would not meet that
standard. Nor have those practices created any justifiable
expectations that could be disappointed by enforcing the
Constitution’s original meaning. There is thus no ground
for the majority’s deference to the unconstitutional recess­
appointment practices of the Executive Branch.
   The majority replaces the Constitution’s text with a new
set of judge-made rules to govern recess appointments.
Henceforth, the Senate can avoid triggering the Presi­
dent’s now-vast recess-appointment power by the odd
contrivance of never adjourning for more than three days
without holding a pro forma session at which it is under­
stood that no business will be conducted. Ante, at 33–34.
How this new regime will work in practice remains to be
seen. Perhaps it will reduce the prevalence of recess
appointments. But perhaps not: Members of the Presi­
dent’s party in Congress may be able to prevent the Sen­
ate from holding pro forma sessions with the necessary
frequency, and if the House and Senate disagree, the
President may be able to adjourn both “to such Time as he
shall think proper.” U. S. Const., Art. II, §3. In any event,
the limitation upon the President’s appointment power is
there not for the benefit of the Senate, but for the protec­
tion of the people; it should not be dependent on Senate
action for its existence.
   The real tragedy of today’s decision is not simply the
abolition of the Constitution’s limits on the recess­
appointment power and the substitution of a novel frame­
work invented by this Court. It is the damage done to our
separation-of-powers jurisprudence more generally. It is
not every day that we encounter a proper case or contro­
versy requiring interpretation of the Constitution’s struc­
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               SCALIA, J., concurring in judgment

tural provisions. Most of the time, the interpretation of
those provisions is left to the political branches—which, in
deciding how much respect to afford the constitutional
text, often take their cues from this Court. We should
therefore take every opportunity to affirm the primacy of
the Constitution’s enduring principles over the politics of
the moment. Our failure to do so today will resonate well
beyond the particular dispute at hand. Sad, but true: The
Court’s embrace of the adverse-possession theory of execu­
tive power (a characterization the majority resists but
does not refute) will be cited in diverse contexts, including
those presently unimagined, and will have the effect of
aggrandizing the Presidency beyond its constitutional
bounds and undermining respect for the separation of
powers.
   I concur in the judgment only.