NOTICE: This opinion is subject to
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															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 Vacancies 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 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 providing for a series of brief recesses punctuated by
“pro forma session[s],” with “no business . . .
transacted,” every Tuesday 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 29 U. S. C. §160(f)
(providing for judicial review); §153(a) (providing for a 5-member
Board); §153(b) (providing for a 3-member quorum); New Process
Steel, L. P. v. NLRB, 560 U. S. 674 –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 Senate 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
appointments 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 between those
formal sessions, i.e., inter-session recesses. Since the second
session of the 112th Congress began on January 3, 2012, the day
before the President’s appointments, those appointments occurred
during an intra-session recess, and the appointments consequently
fell outside the scope of the Clause. 705 F. 3d 490, 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. Id., at 507–512. 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 appointments were
invalid. And, because the Board lacked a quorum of validly
appointed members when it issued its order, the order was invalid.
29 U. S. C. §153(b); New Process Steel, supra.

															     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 distributor’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 sessions.” 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
successors. 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 entered Board order. And there are
pending before us petitions 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-sions, and the
vacancy Becker filled had come into existence 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 ofthe NLRB since 1935, online at
http://www.nlrb.gov/who-we-are/board/members-nlrb-1935 (all
Internet materials 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” (emphasis 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 dis-cernment.” 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.” Id., at 513. Hamilton further explained
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 intended to
authorise the President singly to make temporary appointments.”
Id., No. 67, at 455.

															     Thus the Recess
Appointments Clause reflects the tension between, on the one hand,
the President’s continuous need for “the assistance of
subordinates,” Myers v. United States, 272 U. S. 52, 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, Commentaries 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 “perpetually
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-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 adjusted; if not put at
rest by the practice of the government, ought to receive a
considerable impression from that practice.” McCulloch v. Maryland,
4 Wheat. 316, 401 (1819).

															And we later confirmed that “[l]ong settled and
established practice is a consideration of great weight in a proper
interpretation of constitutional provisions” regulating the
relationship between Congress and the President. The Pocket Veto
Case, 279 U. S. 655, 689 (1929) ; see also id., at 690 (“[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, 77 Conn. 257, 264, 58 A. 759, 761 (1904))).

															     We recognize, of
course, that the separation of powers can serve to safeguard
individual liberty, Clinton v. City of New York, 524 U. S. 417
–450 (1998) (Kennedy, J., concurring), and that it is the “duty of
the judicial department”—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,” McCulloch, supra, at 401, can inform our
determination of “what the law is,” Marbury, supra, at 177.

															     That principle is
neither new nor controversial. As 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, 488 U. S. 361, 401 (1989) ;
Dames & Moore v. Regan, 453 U. S. 654, 686 (1981) ;
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 –611
(1952) (Frankfurter, J., concurring); The Pocket Veto Case, supra,
at 689–690; Ex parte Grossman, 267 U. S. 87 –119 (1925);
United States v. Midwest Oil Co., 236 U. S. 459 –474 (1915);
McPherson v. Blacker, 146 U. S. 1, 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 Mistretta, supra, 400–401 (“While these
[practices] spawned spirited discussion and frequent criticism,
. . . ‘traditional ways of conducting government
. . . give meaning’ to the Constitution” (quoting
Youngstown, supra, at 610) (Frankfurter, J., concurring)); Regan,
supra, at 684 (“[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
Case, supra, at 689–690 (postfounding practice is entitled to
“great weight”); Grossman, supra, at 118–119 (postfounding practice
“strongly sustains” a “construction” of the Constitution).

															     There is a great deal
of history to consider here. Presidents have made recess
appointments since the beginning of the Republic. Their frequency
suggests that the Senate and President have recognized that recess
appointments can be both necessary and appropriate in certain
circumstances. 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 Government 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 Congress typically consists of two
formal 1-year sessions, each separated from the next by an
“inter-session recess.” Congressional Research Service, H. Hogue,
Recess Appointments: 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) (hereinafter
OED) (citing 18th- and 19th-century sources for that definition of
“recess”); 2 N. Webster, An American Dictionary of the English
Language (1828) (“[r]emission or suspension of business or
procedure”); 2 S. Johnson, A Dictionary 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
Convention 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); id., at 191 (speech of Luther Martin with a similar
usage); 1 T. Jefferson, A Manualof Parliamentary Practice §LI, p.
165 (2d ed. 1812) (describing 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 separating 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 ancient 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 examples).

															     The constitutional text
is thus ambiguous. And we believe the Clause’s purpose demands the
broader interpretation. 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 interpretation. We concede that
pre-Civil War history is not helpful. 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, nonholiday
intra-session breaks, and President Andrew Johnson 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, 19 Ct. Cl. 593, 595–596 (1884) (emphasis added). Attorney
General Evarts also issued three opinions concerning the
constitutionality of President Johnson’s appointments, 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 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 President 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
appointments, Presidents have made thousands of intra-session
recess appointments. Id., at 11a–64a. President Franklin Roosevelt,
for example, commissioned Dwight Eisenhower as a permanent Major
General during an intra-session recess; President Truman made Dean
Acheson Under Secretary of State; and President George H. W. Bush
reappointed Alan Greenspan as Chairman of the Federal Reserve
Board. Id., at 11a, 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
General Daugherty advised President Harding that he could make
intra-session recess appointments. He reasoned:

															“If the President’s power of appointment
is to be defeated 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 framers of the Constitution
ever intended such a catastrophe 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 President 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. See supra, at 10. 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
conclusion. 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)
(resolution 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-session
adjournment does not count as “the recess”); Brief for Sen. Edward
M. Kennedy as Amicus Curiae in Franklin v. United States, O. T.
2004, No. 04–5858, p. 5 (same). But neither the Senate considered
as a body nor its committees, 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
committee has expressed a view, that view has favored a functional
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 Roosevelt’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 immediately afterwards. 37 Cong. Rec. 544 (1903).
President Roosevelt made over 160 recess appointments during the
instantaneous inter-session interval. The Judiciary Committee, 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
attendance; when its Chamber is empty; when, because of its
absence, it can not receive communications from the President or
participate as a body in making appointments.” 1905 Senate Report,
at 2 (emphasisdeleted).

															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-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, 54Stat. 751. Interpreting the amendments in
1948, the Comptroller General—who, unlike the Attorney General, is
an “officer of the Legislative Branch,” Bowsher v. Synar, 478
U. S. 714, 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 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 question the broad and functional definition of
“recess” firstset 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
Case, 279 U. S., at 689.

															     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
broader scope permitting the Clause to apply, where appropriate, 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. McCulloch, 4 Wheat., at 415. 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 beginning 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 securing 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 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 appointment should last until the Senate has
“an opportunity 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 clear. 705 F. 3d, at 504. One can find problems of
uncertainty, however, 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? Historians 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 members 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 interpretation 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.

															     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 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,” he must immediately concede (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 interpretation, acknowledges that
there is a lower limit applicable 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 Congress, 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 generally not considered a day,” and so
is not counted for 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 business. 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 informally advised against making a recess appointment
during 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 appointments made during
inter-session recesses shorter than 10 days. We have already
discussed President Theodore Roosevelt’s appointments during the
instantaneous, “fictitious” recess. President Truman also made a
recess appointment to the Civil Aeronautics Board during a 3-day
inter-session recess. Hogue, Recess Appointments: Fre-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 Appointments 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
presumptively 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 Senate 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 Senate recess is so short that it does
not require the consent of the House, it is too short to trigger
the Recess Appointments 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 Senate.” 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 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 meaning 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. Ibid. Jefferson used the phrase in the first sense when he
wrote to a job seeker that a particular position was unavailable,
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 id., at 530 (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 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.” Id., at 632.

															     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 (defining “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 ambiguous. The Pocket Veto Case, 279 U. S., at 690.
And the broader reading, we believe, is at least a permissible
reading of a “ ‘doubtful’ ” phrase. Ibid. We consequently
go 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
interpretation 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 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
public.” 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.” Ibid.
Thus the broader construction, encompassing vacancies that
initially occur before the beginning of a recess, is the “only
construction of the constitution which is compatible with its
spirit, reason, and purposes; while, at the same time, it offers no
violence to its language.” Id., at 633.

															     We do not agree with
Justice Scalia’s suggestion that the Framers would have accepted
the catastrophe envisioned by Wirt because Congress can always
provide for acting officers, see 5 U. S. C. §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 President’s control and
political accountability. Cf. Free Enterprise Fund v. Public
Company Accounting Oversight Bd., 561 U. S. 477 –498 (2010).
Special sessions areburdensome (and would have been especially so
at the time of the founding). The point of the Recess Appointments
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,
combined 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). 5
U. S. C. §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, 444 U. S. 996, 1004 (1979)
(Rehnquist, J., concurring in judgment). In an unusual instance,
where a matter is important enough to the Sen-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 constitutionally 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 uncontroversial 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 applying 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 Solicitor 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
believed that the “Spirit of the Constitution favors the
participation of the Senate in all appointments,” though he did not
address—let alone answer—the powerful purposive and structural
arguments subsequently made by Attorney 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 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 General, 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, 3Stat. 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, 2Stat. 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 presumably acted upon Attorney General
Wirt’s advice, namely that “all vacancies which, from any casualty,
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 General Bates advised President
Lincoln that his power to fill pre-recess vacancies was “settled
. . . as far . . . as a constitutional 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 Attorney General
expressing a view on the matter has agreed with William Wirt, and
Presidents tend to follow the legal advice of their chief legal
officers. 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 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 appointees filled vacancies that arose
before the recess began. We have compared the list of intra-session
recess appointments in the Solicitor General’s brief with the chart
of congressional recesses. Where a specific date of appointment can
be ascertained, more than half of those intra-session appointments
were made within two weeks of the beginning of a recess. That short
window strongly suggests that many of the vacancies initially arose
prior to the recess. See App. to Brief for Petitioner 1a–64a;
Appendix A, infra. Thus, it is not surprising that the
Congressional Research Service, after examining the vacancy dates
associated with a random sample of 24 inter-session recess
appointments since 1981, concluded that “[i]n most of the 24 cases,
the preponderance of evidence indicated that the vacancy arose
prior to the recess during which the appointment was made.” The
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 appointments, 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 sporadic disagreement with the broad
interpretation. In 1814 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 id., at
489, 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 narrower interpretation of the Clause.
Most of those statutes—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 Hamilton 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 concluding 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, 12Stat. 646. Relying upon the floor statement of
a single Senator, Justice Scalia suggests that the passage of the
Pay Act indicates that the Senate as a whole endorsed the position
in the 1863 Report. But the circumstances are more equivocal.
During the floor debate on the bill, not a single Senator referred
to the Report. Cong. Globe, 37th Cong., 3d Sess. 564–565 (1863).
Indeed, Senator Trumbull, who introduced the Pay Act, acknowledged
that there was disagreement about the underlying constitutional
question. Id., at 565 (“[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, 14Stat. 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
Committee 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. Ibid. And Senator Tillman’s
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; 39Stat. 818–819. In 1927 the
Comptroller General, a legislative officer, wrote that “there is no
question but that the 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 appointments 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 authorize salary payments (with some
exceptions) where (1) the “vacancy arose within thirty days prior
to the termination of the session,” (2) “at the termination of the
session” a nomination was “pending,” or (3) a nominee was “rejected
by the Senate within thirty days prior to the termination of the
session.” Act of July 11, 54Stat. 751 (codified, as amended, at 5
U. S. C. §5503). All three circumstances concern a
vacancy that did not initially occur during a recess but happened
to exist during that recess. By paying salaries to this kind of
recess appointee, the 1940 Senate (and later Senates) in effect
supported the President’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, 488
U. S. 361, 401 (1989) (a “200–year tradition” can “ ‘give
meaning’ to the Constitution” (quot-ing Youngstown, 343 U. S.,
at 610 (Frankfurter, J., concurring))). The tradition is long
enough to entitle the practice “to great regard in determining the
true construction” of the constitutional provision. The Pocket Veto
Case, 279 U. S., at 690. 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 described, we conclude that the phrase
“all vacancies” includes 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 Senate by unanimous consent adopted a
resolution to convene “pro forma session[s]” only, with “no
business . . . transacted,” 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. Ibid. During
that period, 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. Id., at 923–924; 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
purposes 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 the President’s
recess-appointment power, see supra, at 19–21. 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 ibid.

															     The Solicitor General
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 purposes 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 Constitution’s broad delegation of authority
to the Senate to determine how and when to conduct its business.
The Constitution 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 determination” of the
Senate, as long as there is “a reasonable relation between the mode
or method of proceeding established 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, 144 U. S. 1, 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 special session); Art. I, §5, cl. 4 (neither
House may adjourn 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 Adjournment, [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 greatrespect.

															     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
unimpeachable.” Marshall Field & Co. v. Clark, 143 U. S. 649,
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. Ballin, supra, at 9. The
Constitution requires 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,” Ballin, supra, at 4.

															     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 capacity 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 legislating” then it might be in recess, even if it
said it was not). In that circumstance, the Senate is not simply
unlikely or unwilling to act upon nominations of the President. It
is unable to do so. The purpose of the Clause is to ensure the
continued functioning of the Federal Government while the Senate is
unavailable. See supra, at 5–6. 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.” Ballin, supra, at 4.

															     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. Id., at
1311–1312. Senate rules presume that a quorum is present unless a
present Senator questions it. Id., at 1041–1042. And when the
Senate has a quorum, an agreement is unanimously passed if, upon
its proposal, no present Senator objects. Id., at 1329–1330. It is
consequently unsurprising that the 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
became law. Pub. L. 112–78, 125Stat. 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. See supra, at 14.
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, because of its absence, it can not receive communications
from the President or participate as a body in making
appointments.” 1905 Senate Report, at 2.

															     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 appointments”? It could. It could confirm nominees by
unanimous 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 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 nothing 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 Senate 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 realistic 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 Petitioner 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-dent instructing us to “respect . . .
coequal and independent departments” by, for example, taking the
Senate’s report of its official action at its word. Field, 143
U. S., at 672; see Ballin, 144 U. S., at 4. From a
practical perspective, judges cannot easily determine such matters
as who is, and who is not, in fact present on the floor during a
particular Senate session. Judicial efforts to engage in these
kinds of inquiries would risk undue judicial interference 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 accomplishing its constitutionally assigned
functions.’ ” Brief for Petitioner 64 (quoting Morrison v.
Olson, 487 U. S. 654, 695 (1988) ; alteration in original). We
do not see, however, how our holding could significantly alter the
constitutional balance. Most appointments are not controversial and
do not produce friction between the branches. Where political
controversy is serious, the Senate unquestionably has other methods
of preventing recess appointments. As the Solicitor General
concedes, the Senate could preclude the President from making
recess appointments by holding a series of twice-a-week ordinary
(not pro forma) sessions. And the nature of the business
conducted at those ordinary sessions—whether, for example, Senators
must vote on nominations, or may return totheir 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
Disagreement 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.

															     Regardless, the Recess
Appointments Clause is not designed to overcome serious
institutional friction. It simply provides a subsidiary method for
appointing officials when the Senate is away during a recess. Here,
as in other contexts, friction between the branches is an
inevitable consequence of our constitutional structure. See Myers,
272 U. S., at 293 (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 structural difference between the
Executive and Legislative Branches: The Executive Branch is
perpetually in operation, 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
unavailable. 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
Constitution. 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-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 inall cases, we interpret the Constitution
in light of itstext, purposes, and “our whole experience” as a
Nation. Missouri v. Holland, 252 U. S. 416, 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.

															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 footnotes) is taken from 2011–2012
Official Congressional Directory, 112th Cong., 522–539.

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

															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.

															B

															     The following table
shows the proportion of recent appointments 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” indicates a vacancy that arose
before the recess, and “U” indicates that the vacancy date could
not be ascertained. 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.” Id., §2, cl. 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 Senate’s consent.

															     To prevent the
President’s recess-appointment power from nullifying the Senate’s
role in the appointment process, 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 structure, 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 arrangements that the
elected branches of Government themselves 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 Presidents 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.

															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, 524 U. S. 417, 450 (1998) (Kennedy, J.,
concurring). 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, 478 U. S. 714, 722 (1986) . It is
for that reason that “the claims of individuals—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., 561 U. S. 477 (2010) ; Clinton, supra; Plaut v.
Spendthrift Farm, Inc., 514 U. S. 211 (1995) ; Bowsher, supra;
INS v. Chadha, 462 U. S. 919 (1983) ; Northern Pipeline
Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982) .
Those decisions all rest on the bedrock principle that “the
constitutional structure of our Government” is designed first and
foremost not to look after the interests of the respective
branches, but to “protec[t] individual liberty.” Bond, supra, 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
responsibility of the Judicial Branch “ ‘to say what the law
is.’ ” Zivotofsky v. Clinton, 566 U. S. ___, ___ (2012)
(slip op., at 7) (quoting Marbury v. Madison, 1 Cranch 137, 177
(1803)). 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.” Clinton, supra, at 449 (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 Fund, supra, at 497 (quoting New York v. United States,
505 U. S. 144, 182 (1992) ); see also Freytag v. Commissioner,
501 U. S. 868 –880 (1991); Metropolitan Washington Airports
Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501
U. S. 252 –277 (1991). Rather, policing 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. Department of Justice, 491 U. S. 440, 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 Constitution. 462 U. S., at 957–959. We did not
hesitate 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. Id., at 944–945.
Just the opposite: We said the other branches’ enthusiasm for the
legislative veto “sharpened rather than blunted” our review. Id.,
at 944. Likewise, 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 surrendered its
authority by its own hand.” Clinton, 524 U. S., at 451
(Kennedy, J., concurring). “[O]ne Congress cannot yield up its own
powers, much less those of other Congresses to follow. Abdication
of responsibility is not part of the constitutional design.” Id.,
at 452 (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
interpretation of an ambiguous constitutional provision. See, e.g.,
Alden v. Maine, 527 U. S. 706 –744 (1999); Bowsher, supra, at
723–724; Myers v. United States, 272 U. S. 52 –175 (1926); see
also Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579,
610 (1952) (Frankfurter, J., concurring) (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., 497 U. S. 62 ,
and n. 1 (1990) (Scalia, J., dissenting). But “ ‘[p]ast
practice does not, by itself, create power.’ ” Medellín v.
Texas, 552 U. S. 491, 532 (2008) (quoting Dames & Moore v.
Regan, 453 U. S. 654, 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, structure, and original
understanding.

															     Ignoring our more
recent precedent in this area, which is extensive, the majority
relies on The Pocket Veto Case, 279 U. S. 655, 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.” ’ ” 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
conclusion was “confirmed” by longstanding Presidential practice in
which Congress appeared to have acquiesced. 279 U. S., at
688–689. We did not suggest that the case would have come out
differently had the longstanding practice been otherwise.[ 1 ]

															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 conclusion—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
practice,” 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 “Session.” As Alexander Hamilton
wrote: “The time within which the power is to operate ‘during the
recess of the 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 Congressional
Directory) (listing sessions of Congress from 1789 through 2013);
705 F. 3d 490, 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
recess”). As one scholar has thoroughly demonstrated, “in
government practice the phrase ‘the Recess’ always referred to the
gap between sessions.” Natelson, The Origins 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) (hereinafter Natelson); see id., at 214–227
(providing dozens of examples). By contrast, other provisions of
the Constitution 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; id., §5,
cl. 4.[ 2 ]

															     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 legislature’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 disrupting 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 formal session, then “the Recess” must mean
the break between 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 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 duration 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 opportunity 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 majority’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
suspension of Senate proceedings, but appointments made pursuant 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 fundamental problem with giving “Recess” its
colloquial, rather than its formal, meaning: Doing so leaves the
recess-appointment power without a textually grounded principle
limiting the time of its exercise.

															     The dictionary
definitions of “recess” on which the majority 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 representatives had a recess of
half an hour.” 2 Webster, supra. 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
functioning 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,’ ” Freytag, 501
U. S., at 883—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 establish “a structure of government that would protect
liberty,” Bowsher, 478 U. S., at 722, on the narrow-minded
assumption that their only purpose is to make the government run as
efficiently as possible. “Convenience and efficiency,” we have
repeatedly recognized, “are not the primary objectives” of our
constitutional framework. Free Enterprise Fund, 561 U. S., at
499 (internal quotation marks omitted).

															     Relatedly, the majority
contends that the Clause’s supposed purpose of keeping the wheels
of government turning demands that we interpret the Clause to
maintain its relevance in light of the “new circumstance” of the
Senate’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 available” 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 anachronism—“essentially an historic relic,
something whose original purpose has disappeared.” Id., at 19
(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 appointment 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 influence 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
clear standard for determining how short is too short. It is
inconceivable that the Framers would have left the circumstances in
which the President could exercise such a significant and
potentially dangerous power so utterly indeterminate. Other
structural provisions of the Constitution 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
(Sundays excepted),” lest it become a law. Id., §7, cl. 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 circumstances would have served under a cloud,
unable to determine with any degree of confidence whether their
appointments 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. Id., §5,
cl. 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 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 includes 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, Original Meaning
1556.

															     And what about breaks
longer than three days? The majority says that a break of four to
nine days is “presumptively 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 hearing?) 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.” Ibid. So if the 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
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 ]

															     Even if the many
questions raised by the majority’s failure to articulate a standard
could be answered, alarger 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 Fund, 561
U. S., at 497; cf. Clinton v. Jones, 520 U. S. 681, 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. Zivotofsky, 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 freewheeling 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 practice of the
political branches is, of course, irrelevant when the Constitution
is clear. But even if the Constitution 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. Ibid.
(citing table in 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 Congressional 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, 521 U. S. 898 –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
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 appointments 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 id., at 27–31.

															     As for the remainder,
the historical record reveals nothing 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
constitutional 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, 19 Ct. Cl. 593 (1884)).
Johnson’s intra-session appointments were disavowed by the first
Attorney General 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 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
adjournments 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 may be a recess in the general and
ordinary use of that term.” Id., at 601.[ 6 ]

															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.” Id., at 602. He acknowledged the contrary example
furnished by Johnson’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.” Id.,at 603.

															     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.
Roosevelt claimed to have made the appointments in a “constructive”
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 appointments 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, 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 appointments.” Id., at 2 (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 ofthe 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 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, id., at
21, but he (committing the same fallacy as today’s majority)
thought the 1905 Judiciary Committee report had come to the
opposite conclusion, id., at 23–24. He also recognized the
fundamental flaw in this interpretation: that it would be
impossible to “accurately dra[w]” a line between intra-session
breaks that constitute “the Recess” and those that do not. Id., at
25. But he thought the absence of a standard gave the President
“discretion to determine when there is a real and genuine recess.”
Ibid. While a “palpable abuse of discretion might subject his
appointment to review,” Daugherty thought that “[e]very 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
between 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 making about 150 such
appointments to civilian positions and several thousand to military
posts from 1945 through 1950. Id., at 12a–27a. (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 Eisenhower made only 43
intra-session recess appointments, id., at 27a–30a, after which the
practice sank back into relative obscurity. Presidents Kennedy,
Lyndon Johnson, and Ford made none, while Nixon made just 7. Id.,
at 30a–31a. 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. Id., at 31a–61a. When the Solicitor General
filed his brief, President Obama had made 26. Id., at 62a–64a. Even
excluding Truman’s military appointments, roughly 90 percent of all
the intra-session recess appointments in our history have been made
since 1945.

															     Legal advisers in the
Executive Branch during this period typically endorsed the
President’s authority to make intra-session recess appointments by
citing Daugherty’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 misleading: No Presidential legal adviser approved
that practice 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 emerging executive practice. Ante, at 14. And on one
occasion, Comptroller General Lindsay Warren cited Daugherty’s
opinion as representing “the accepted view” on the question, 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”); id., at 23235
(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, 827 F. Supp. 56 (DC
1993), vacated in part as moot, 1994 WL 163761 (CADC 1994)
(percuriam), 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 practice “of any
appreciable magnitude” had existed before “the past fifty years,”
and that the Senate had not “acquiesced in this steady expansion of
presidential power.” Id., at 15268, 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 adjournments.” Id., at 15267, 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 executive practice in this area merits deference
because the 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,” Freytag, 501 U. S., at
880, and the Senate could not give away those protections even if
it wanted to. See Chadha, 462 U. S., at 957–958; Clinton, 524
U. S., at 451–452 (Kennedy, J., concurring).

															     Moreover, the
majority’s insistence that the Senate gainsay an executive practice
“as a body” in order to prevent the Executive from acquiring power
by adverse possession, 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
defendingit over time is far easier for the Executive Branch
thanfor 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 prerogatives, 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 legislative process. The majority’s methodology thus all but
guarantees the continuing aggrandizement of the Executive
Branch.

															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 appointments 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 Constitution’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 majority 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,
Dictionary 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 ]

															     In any event, no
reasonable reader would have understood 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 surpassingly 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 appointments’ had
long been one of the American revolutionary generation’s greatest
grievances against executive power.” Freytag, 501 U. S., at
883. The unilateral power conferred on the President by the Recess
Appointments Clause was therefore understood to be “nothing more
than a supplement” 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 Constitution’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
unilaterally during the recess, allowed the appointment to expire
at the end of the next session, renewed the appointment 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 ]

															     The original
understanding of the Clause was consistent with what the majority
concedes is the text’s “most natural 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.” Opinion 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.” Ibid. (footnote omitted).

															     President 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 added)), 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 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 authorized 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 empowered 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, 1Stat. 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 ‘contemporaneous and weighty evidence’ of the
Constitution’s meaning.” Bowsher, 478 U. S., at 723–724. And
other statutes passed in the early years of the Republic contained
similar authorizations. See App. to Brief for Respondent Noel
Canning 1a–17a.[ 11 ]

															     Also illuminating is
the way the Third Congress interpreted the Constitution’s Senate
Vacancies Clause, which uses language similar to that of the Recess
Appointments Clause. Before the passage of the Seventeenth
Amendment, 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 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 Appointments 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.” Id., at 632. But he thought the “most natural”
reading had to be rejected because it would interfere with the
“substantial purpose of the constitution,” namely, “keep[ing]
. . . offices filled.” Id., at 631–632. 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. Id., at 632, 634. The
majority fully embraces Wirt’s reasoning. Ante, at 22–25.

															     Wirt’s argument is
doubly flawed. To begin, the Constitution 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 5
U. S. C. §3345; Act of May 8, 1792, ch. 37, §8, 1Stat.
281; 705 F. 3d, at 511; 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. Massachusetts, 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
required by our structural Constitution.

															     More fundamentally,
Wirt and the majority are mistaken to say that the Constitution’s
“ ‘substantial purpose’ ” isto “ ‘keep
. . . offices filled.’ ” Ibid. (quoting 1 Op. Atty.
Gen., at 632). The Constitution is not a road map for maximally
efficient government, but a system of “carefully crafted
restraints” designed to “protect the people from the improvident
exercise of power.” Chadha, 462 U. S., at 957, 959. Wirt’s and
the majority’s argumentum ab inconvenienti thus proves far too
much. There are many circumstances other than a vacancy that can
produce similar inconveniences if they arise late in the session:
For example, a natural disaster might occur to which the Executive
cannot respond effectively without a supplemental appropriation.
But in those circumstances, the Constitution would not permit the
President to appropriate funds himself. 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 constitutional 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.” Chadha, supra, at 959.

															B. Historical Practice

															     For the reasons just
given, it is clear that the Constitution 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 undisputed record of Presidents
George Washington, John Adams, or Thomas Jefferson” using a recess
appointment to fill a pre-recess vacancy. Ibid. That is not
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 Armstrong to Madison (May 14, 1814); Letter from
Madison to Armstrong (May 17, 1814). In conveying the brevet,
Madison’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 general had resigned during the recess, he
thought that development 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) (reporting 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 majority 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 constitutionality, 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 contemporaneous
explanation, are not convincing evidence of the Constitution’s
original meaning.[ 14 ]

															     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 construction 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 distinctly 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 Randolph and Lee’s interpretation until
1823, when Wirt issued the opinion discussed earlier. Even within
that branch, Wirt’s view was hotly contested: William Crawford,
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 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 expiration of a prior
recess appointment at the end of the Senate’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
nominations are not then made, they cannot be filled by executive
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
subjecting it to additional analysis. 7 Op. Atty. Gen. 186, 223; 10
Op. Atty. Gen. 356. Bates, however, entertained “serious doubts”
about its validity. Ibid. And as one 19th-century court shrewdly
observed in rejecting Wirt’s interpretation, the frequency with
which Attorneys General during this period were called upon to
opine on the question likely “indicate[s] that no settled
administrative usage had been . . . established.” In re
District Attorney of United States, 7 F. Cas. 731, 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, id., at 70a) unlikely to have gotten the
Senate’s attention. But the Senate did notice when, in 1862,
President Lincoln recess-appointed David Davis to fill a seat on
this Court that had become vacant before the recess, id., at
71a—and 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 vacancies which have
not occurred during the recess of Congress, but which existed at
the preceding session of Congress, 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 Senate, or must it have its
beginning during the recess? We think the language too clear to
admit of reasonable doubt, and that, upon principles of just
construction, this period must have its inceptive point after one
session has closed and before another session 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 exists, it has in law happened;
for it is in itself an instantaneous 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
beginning 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.” Id.,at 3–6.

															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 practice was
entitled to no weight because the Constitution’s text was “too
plain to admit of a doubt or to need interpretation.” Id., at
7.

															     On the same day the
Committee published its scathing 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 officer does not come within the rules of law, and is
appointed 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.” Id., at 565.

															The amendment was adopted by the Senate, ibid.,
and after passing the House became the Pay Act, which provided 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, 12Stat. 646
(codified at Rev. Stat. §1761; subsequently codified as amended at
5 U. S. C. §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 mentioning 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 passage, 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 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 Senate’s passage of the Pay
Act on the same day the committee 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. See supra,at 26.

															     Despite its
minimization by subsequent Attorneys General 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 ]

															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, 54Stat. 751, now codified with nonsubstantive
amendments at 5 U. S. C. §5503. Under the current version
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 nomination to fill the vacancy was rejected,
“within 30 days before the end of the session”; or a nomination was
pending 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 beginning 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. Nonsense. Even as amended, the Act strictly regulates
payment to recess appointees who fill pre-recess vacancies, and it
still forbids payment to many officers whose appointments are
constitutional under the majority’s interpretation. As amici
Senators observe, the 1940 amendments “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 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
channelthe President’s exercise of the recess-appointment power by
prohibiting payment to officers whose appointmentsare (per the
majority) within the President’s sole constitutional 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 argument—which is routinely made by lawyers in the
Executive Branch—that Congress “ ‘cannot use the
appropriations 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 officer’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
Executive 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 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
Senators 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
appointments 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 appointments—24 since 1981 and 21 since
2000—the bulk of the appointments appear to have filled
pre-existing vacancies. 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.” Ibid. The extrapolation of 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 Executive 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. Consequently, 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 ]

															*  *  *

															     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 evidence 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 vehemently
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 compensated). 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 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 President’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 understood
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 President’s party in Congress may be able to prevent
the Senate 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 protection 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 framework 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 controversy requiring
interpretation of the Constitution’s structural 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 executive 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. Notes 1 The other cases cited by
the majority in which we have afforded significant weight to
historical practice, 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 v. , –681, and
n. 8, 686 (1981) (citing Presidential practice dating from
1799 and never questioned by Congress to inform meaning of
“Executive Power”); , –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 Convention,” and “the ordinary meaning of its words”); v. ,
–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”); v. , –35 (1892)
(citing method of choosing Presidential electors prevalent among
the States “from the formation of the government until now,” as to
the constitutionality of which “ ‘no question ha[d] ever
arisen,’ ” in support of construction consistent with the
constitutional text and its drafting history); v. , 4 Wheat. 316,
401–402 (1819) (citing power “exercised by the first Congress
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); v. , 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 v. , , 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 “contemporaneous practice by the Founders
themselves” that had been “frequent and continuing” since
ratification. at 397–400. 2 The majority claims that
“the phrase ‘the recess’ was used to refer to intra-session
recesses at the time of the founding,” 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
imprecise, 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 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, Brief for
Respondent Noel Canning 21–24; Natelson 222, n. 120. 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 for
one” because they did not anticipate that intra-session breaks
“would become lengthier and more significant than inter-session
ones.” 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 intra-session
breaks—even the short ones the majority says they
anticipate—without placing a temporal limitation on that
power. 4 The majority erroneously
suggests that the “lack of a textual floor raises a problem that
plagues” both interpretations of “the Recess.” 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 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, . 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 at 20–22. But the requirement that there actually a
recess does not involve anywhere near the level of indeterminacy
entailed by the majority’s requirement that the recess be (or the
circumstances unusual enough), as determined by a court, to trigger
the recess-appointment power. 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
appointments. 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 Canning 25; see Rappaport, Why Nonoriginalism
Does Not Justify Departing 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). 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.”
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. 7 I say Daugherty
“arguably” embraced the majority’s view because he may have been
endorsing, not the majority’s position, but the intermediate 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. See at 10; Rappaport, Nonoriginalism
34–35. 8 Despite initially
admitting that the text “does not naturally favor” its
interpretation, the majority halfheartedly suggests that the
“ ‘happen to be’ ” reading may be admissible when the
subject, like “vacancy,” denotes a “continuing state.” 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 “happening” 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. 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 circumvention. 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
character and politics. See, v. , –880 (1991). 10 The
majority does not deny that Lee took those positions, but it claims
he also “later informed [Thomas] 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.’ ”
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 at 36. 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. 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 construction. . . . [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 during the recess of the senate”). 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
appointments); Letter from Adams to McHenry (May 16, 1799), in at
647 (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 at 94 (“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”). 13 All
the letters cited in this paragraph are available onlinecourtesy 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 filled
pre-existing vacancies. Noel Canning disputes that claim, pointing
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 Jefferson 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. 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 .” 4 Op.
Atty. Gen. 523, 526–527 (1846). 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, 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,” at 1608. 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 reading, at 31. 17 The
majority also notes that many of the recess appointments 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.” 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.