Further Thoughts on the Third Circuit’s Recess Appointment Decision

One of the frequently explanations for why the Supreme Court prefers to let circuit splits develop is that the Justices benefit from having the views of many court of appeals judges before addressing a subject themselves.  Today’s Third Circuit opinion in NLRB v. New Vista Nursing & Rehabilitation serves that role admirably, adding two new perspectives to the existing circuit split on the breadth of the President’s recess appointment power.

The majority opinion took a different tack than the D.C. Circuit in Noel Canning v. NLRB.  To begin with, it limited the scope of its decision to concluding that the Recess Appointments Clause applies only to recesses between Senate sessions (“intersession recesses”) and not recesses during those sessions (“intrasession recesses”), and did not take the additional step the D.C. Circuit did of addressing whether the vacancies so filled must arise during the recess of the Senate or whether the recess appointment power extends to vacancies that existed before the recess.

The majority’s reasoning also differed in significant respects.  The majority found Founding era dictionaries inconclusive, saying that “[t]he word ‘recess’ lacks a natural meaning that clearly identifies whether it includes only intersession breaks or also includes intrasession breaks.”  Slip op. 40.  The majority concluded that state constitutions during the Founding era suggested the term “recess” was limited to intersession recesses (I’m not sure I was persuaded, but I can be dim), id. at 46-48, but that executive practice during the same period (which it noted “should be viewed with some skepticism” because of institutional self-interest in applying powers expansively) was consistent with the term also applying to “long intrasession breaks.”  Id. at 50-52.  The majority therefore concluded that “[s]tanding alone, ‘Recess of the Senate’ is thus ambiguous.”  Id. at 54.

Although the D.C. Circuit placed significant emphasis on the fact that the term “recess” is preceded by the definite article, the Third Circuit majority wrote, “we are convinced that use of ‘the’ is uninformative.”  Id. at 57.  The majority concluded, though, that Founding-era use was inconsistent with the government’s proffered meaning, under which, the majority stated, the Senate would be in recess when it was not available for the conduct of business.  Breaks counted as “recesses” historically were of relatively long duration and “the beginning of each was determined solely by when the legislature adjourned—rather than by some functionalist definition of when the body was unavailable for business.”  Id. at 55.

The majority thought context was more helpful, particularly “the Recess Appointment Clause’s specification that recess-appointed officers’ terms ‘shall expire at the End of [the Senate’s] next session.’” It reasoned, “[t]he expiration of these officers’ terms at the end of the next session implies that their appointments were made during a period between sessions,” id. at 75, and “if recess includes intrasession breaks, then we would expect the recess-appointment term to last only until the end of that session.”  The majority then addressed historical practice, Id. at 87-95, reaching essentially the same conclusion as the D.C. Circuit: the absence of Founding-era intrasession recess appointments suggests the power does not extend that far.

(The majority also rejected the argument of amicus Professor Victor Williams that the meaning of “recess” was a nonjusticiable political question and that its meaning was textually committed to the President.  Id. at 23- 31.)

In dissent, Judge Greenaway argued that “[t]he Senate is in ‘the Recess’ when it is not available to provide advice and consent,” and “[s]ince the Senate can be unavailable to provide advice and consent during either an intrasession recess or an intersession recess, ‘the Recess’ naturally encompasses both.”  Slip op. 6 (Greenaway, J., dissenting). He argued that the Clause exists both “to allow the Senate to take breaks” and “to keep offices filled,” and both purposes are served by applying the recess appointment power to intrasession recesses (id. at 36):

An empty office is an empty office.  It makes no sense that the Framers would have differentiated between intrasession and intersession recesses in effectuating the purpose of the Recess Appointments Clause.  The atrophy of agencies . . . caused by the Senate’s absence did not then, and does not now, depend on whether the Senate is unavailable due to an intersession recess or intrasession recess—all that matters is the length of time that the Senate is away from its usual business, unable to provide advice and consent, while vacancies persist.

Both the majority and the dissent substantively discussed the effect of pro forma sessions used (at least in part) to frustrate the President’s recess appointment authority—making them (so far as I am aware) the first judicial opinions to discuss whether such sessions can validly be used for that purpose.  The majority noted that the Senate had passed legislation during pro forma sessions and concluded that “it could have provided advice and consent during these pro forma sessions if it had desired to do so,” and thus such sessions are functionally indistinguishable “from ordinary sessions on the basis of the Senate’s availability.”  Id. at 66-67 & n.23.  Judge Greenaway wrote that such sessions “undeniably frustrate the purposes of the Recess Appointments Clause” and “appear to be the type of legislative overreaching chronicled by the Framers.”  “[U]nder a functional approach, pro forma sessions cannot prevent the Senate from recessing for purposes of the Recess Appointments Clause” because “[w]hen a pro forma session is held for approximately thirty seconds by a single Senator, the Senate is not able to accomplish the function of deliberating about and voting on the President’s nominees.”  Id. at 35.

Whatever the odds were that the Supreme Court would deny cert. in Noel Canning v. NLRB — and I’d say they were small to begin with — they just got smaller today.