The origins and meaning of "vacancies that may happen during the recess" in the Constitution's recess appointments clause.

• Author: Natelson, Robert G.

There has been longstanding uncertainty about the meaning of "the Recess" and "Vacancies that may happen" in the Constitution's Recess Appointments Clause. This Article finds that both "the Recess" and close variants of "Vacancies that may happen" were standard terms in Founding-Era legislative practice, and appear copiously in legislative records. Those records inform us that "the Recess" means only the intersession recess and that a vacancy "happens" only when it first arises.

1. THE ISSUES AND THE CASE OF NOEL CANNING A. The Noel Canning Case B. Previous Writing on the Recess Appointments Clause II. AVAILABLE PRERATIFICATION MATERIALS III. THE CONCEPT OF THE "SESSION" IV. THE MEANING OF "THE RECESS" A. References to the Period Between Sessions as "the Recess" B. Usages Implying that "the Recess" Meant Only the Intersession Recess 1. Legislative Grants of Special Powers During "the Recess" 2. Other Resolutions Implying That "the Recess" Referred Only to Intersession Breaks V. VACANCIES AND THE MEANING OF "HAPPEN". A. The Use of "Vacancy ... Happen" Language in the Founding Era B. How Founding-Era Documents Illustrate the Meaning of "Happen" C. References That Necessarily Exclude All But Discrete Events from the Meaning of "Happen" VI. CONCLUSION I. THE ISSUES AND THE CASE OF NOEL CANNING

   A. The Noel Canning Case

   The Constitution's Recess Appointments Clause provides that, "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." (1) In absence of legislation authorizing the President unilaterally to appoint "inferior" officers, the President normally must obtain the consent of the Senate for his appointments. (2) The Recess Appointments Clause, however, grants the President a limited, unilateral power to fill vacancies without senatorial consent.

   The Recess Appointments Clause presents several controversial questions of interpretation. The two issues explored in this Article are: (1) whether "the Recess" encompasses only intersession recesses or intrasession breaks as well; and (2) whether to "happen during the Recess" means the vacancy must arise during a recess or whether a vacancy could "happen during the Recess" if it arises while the Senate is in session but continues beyond the session and into the recess. (3)

   Both of these questions were at issue in the recent decision by the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. National Labor Relations Board. (4) In Noel Canning, the court reviewed an order by the National Labor Relations Board (NLRB) finding that Noel Canning (an employer and a division of a larger corporate entity) had violated federal labor law. (5)

   Noel Canning contended that the order was illegally issued because three of the five individuals acting as NLRB members were not validly appointed under the Constitution. (6) The individuals had been appointed by the President, without senatorial approval, to fill existing vacancies. (7) Two of the vacancies arose during intrasession recesses and continued into a period in which the Senate, while not actually conducting business, was in pro forma session. (8) The third arose during the pro forma session. (9) Noel Canning argued that the appointments were invalid both because "the Recess" means only the intersession recess (10) and because for a vacancy to "happen" it must arise during the recess. (11)

   The D.C. Circuit agreed with Noel Canning on both questions. (12) It held that "the Recess" refers only to the Senate's formal intersession recess, not to shorter adjournments. (13) Shortly after the Noel Canning decision, the U.S. Court of Appeals for the Third Circuit decided National Labor Relations Board v. New Vista Nursing and Rehabilitation, (14) which reached the same conclusion. (15) The Noel Canning court also held that for a vacancy to "happen" during "the Recess," the vacancy must arise during the recess; a vacancy does not "happen" during "the Recess" if it begins while the Senate is in session and continues into the recess. (16) The New Vista court did not reach this question. (17)

   B. Previous Writing on the Recess Appointments Clause

   There has long been a split in opinion on the two questions addressed in Noel Canning. The federal courts of appeals are divided as to whether "the Recess" may include intrasession breaks and whether a vacancy may "happen" by continuing into the recess. (18) There are long lines of opinions from U.S. attorneys general supporting the position that the "Recess" includes intrasession recesses (19) and the position that vacancies need not arise during the recess to "happen," (20) although earlier attorney general opinions took the contrary views. (21) Among commentators, some have supported the opinions dominant among attorneys general, (22) but most have supported the positions enunciated in Noel Canning. (23) The leading article on the Recess Appointments Clause, authored by Professor Michael Rappaport, concluded that "the Recess" includes only intersession breaks and that the vacancy must arise during one of those breaks. (24) In its opinion, the Noel Canning court relied heavily on Professor Rappaport's article. (25)

   All of this writing suffers from at least one weakness: the failure to marshal a significant amount of evidence arising prior to the Constitution's ratification. One reason for this is a paucity of discussion on the Recess Appointments Clause in familiar Founding-Era sources such as The Federalist. Instead of relying on Founding-Era sources, therefore, (26) writers have deduced their answers almost exclusively (27) from textual analysis and from statements and practices arising years--often decades--after the Constitution was debated and ratified.

   Illustrative of this practice is the Noel Canning opinion, which relied on only two preratification sources: a snippet from Federalist 67 and a provision of the 1776 North Carolina Constitution (28)--both of dubious relevance. (29) The attorney general opinions have cited even fewer preratification sources, resting mostly on speculation, purported prudential considerations, and prior attorney general opinions. (30)

   The disadvantages of omitting preratification material should be obvious. Statements and practices arising after the ratification may not have been part of the ratifiers' original understanding. (31) When postratification sources do shed light back into the tunnel of time, that light is usually weak and uncertain. (32) Even statements by people who participated in the constitutional debates, such as Edmund Randolph, Alexander Hamilton, and Christopher Gore, (33) are of limited value if made after the Constitution was already law. Memories fade and incentives change. Thus, the best evidence of the original force of the unamended Constitution comes from sources arising before the thirteenth state, Rhode Island, ratified the document on May 29, 1790. (34)

2. AVAILABLE PRERATIFICATION MATERIALS

   Fortunately, there are plentiful preratification materials probative of original understanding and original meaning. The Framers of the Constitution did not invent the phrases "the Recess" and "Vacancies that may happen." Both the first phrase and close variants of the second were stock terms from legislative and other governmental practice. Contemporaneous governmental records are littered with them. Those records also reveal the meanings of both phrases to a high degree of certainty. Anyone with experience with contemporaneous legislatures would have known what they meant. The leading Founders, of course, certainly fit that category. (35)

   The legislature whose proceedings served as the model for legislatures in America was the British Parliament, particularly the House of Commons. (36) Although insofar as I am aware, no major Framer had served in Parliament, several (such as Benjamin Franklin and John Dickinson) had been directly exposed to its proceedings. (37) Books discussing parliamentary practice were freely available in America, among them Blackstone's Commentaries, DeLolme's Constitution of England, and popular English law books, such as Giles Jacob's New Law-Dictionary. (38)

   State conventions and legislatures served as more direct sources of experience. Because procedures were based on those of the House of Commons, they tended to be similar from state to state. (39) Those procedures tended to govern also the Continental Congresses (September 5, 1774 to March 1, 1781) and the Confederation Congress (March 2, 1781 to March 2, 1789), nearly all of whose members came from the legislatures of individual colonies and states. (40) Similar procedures governed the many intercolonial and interstate conventions held during the Founding era. (41)

   The records of these assemblies largely survive. As elucidated below, those records provide clear answers to the questions: (1) Does "the Recess" include intrasession breaks? and (2) does a vacancy arising during a session but continuing into "the Recess" thereby "happen" during the Recess?

   As explained below, the answer to both questions is "no." Despite the defects in its methodology, the Noel Canning court was correct.

3. THE CONCEPT OF THE "SESSION"

   Key to grasping the meaning of the phrase "the Recess" is understanding how the founding generation understood the concept of a legislative session. This term was derived from the Latin "sedere" (to sit). (42) The word "sitting" (or, more rarely, "setting") served as a synonym. (43)

   The sources evince a high level of agreement on the characteristics of a legislative session. (44) Under British practice, a session of Parliament was the "season, or space, from its meeting to its prorogation, or dissolution." (45) Parliament met as the result of a call from the Crown. (46) The session became official once Parliament had undertaken some formal act. (47)

   A session continued until ended by...