Constitutional Law Scholars’ Noel Canning Amicus, Part III: Pro Forma Sessions

The third issue addressed in our amicus brief is the validity of the Senate’s pro forma sessions under the Recess Appointments Clause. To avoid the force of the historical definitions of “happen” and “recess,” one would need to argue that the more modern practice is what should be controlling. But under modern practice, we argue, the Senate’s pro forma sessions are valid, so the Solicitor General loses on that ground instead.

This is the shortest part of our brief. And here it is:

III. Under Modern Practice and Pragmatic Construction, The Senate’s Pro Forma Sessions Interrupt A Recess

The third consistent approach to interpreting the Recess Appointments Clause for purposes of this dispute would rely on longstanding, but more recent practice. For many decades, without objection or controversy, both Houses of Congress have employed “pro forma” sessions for several constitutional purposes. To promote structural consistency, the Court should recognize “pro forma” sessions as no less effectual under the Recess Appointments Clause. The effect is to make the breaks between those sessions in January 2012 merely three days long. No recess appointment has ever been made during an “intrasession” recess that short.
While the OLC opinion and some previous government briefs had been cagey about whether a recess appointment could be made even during a three-day intrasession recess, the Government’s brief in this case explicitly concedes that “such short intra-session breaks—which do not genuinely render the Senate unavailable to provide advice and consent—are effectively de minimis and do not trigger the President’s recess-appointment authority.” U.S. Br. 18.

A. Under Modern Practice, Pro Forma Sessions Are Routinely Respected As Genuine

The Constitution provides that “each House may determine the rules of its proceedings,” U.S. Const. art. I, § 5, cl. 2. Using that authority, the Senate frequently agrees that it will meet in “pro forma” session but not conduct business. On that day, one or more Senators will meet and typically promptly adjourn—though any Senator would be entitled to call for a quorum and summon the others, and the body may by unanimous consent transact business. The determination of the rules of each House is entrusted to that House alone, and it is suspect under the constitutional structure for the executive branch to assert a unilateral power to reject the Senate’s chosen procedures as “a legal fiction.” U.S. Br. 62.
In any event, the use of pro forma sessions to satisfy various constitutional purposes is soundly based in longstanding practice. To be sure, the use of pro forma sessions for the avowed purpose of thwarting recess appointments during adjournments dates back only until 2007, when the Senate (controlled by a Democratic majority) used pro forma sessions to preclude recess appointments by President Bush. Jeff VanDam, The Kill Switch: The New Battle over Presidential Recess Appointments, 107 Nw. U. L. Rev. 361, 375 (2012). But pro forma sessions have been used to satisfy other formal requirements of the Constitution throughout the twentieth century and have been embraced and accepted by both parties and both branches.

1. Pro Forma Sessions Have Satisfied the Adjournments Clause

The Constitution provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” U.S. Const. art. I, § 5, cl. 4. Throughout the twentieth century, Congress has used pro forma sessions to satisfy this requirement. In 1929, the House entered an order to meet for several weeks on Mondays and Thursdays at pro forma sessions at which “there shall be nothing transacted except to convene and adjourn; no business whatever.” 71 Cong. Rec. 3228-29 (1929) (Rep. Tilson). Similarly, in 1950, the Senate scheduled several pro forma sessions “without the transaction of business of any nature” on Tuesdays and Fridays. 96 Cong. Rec. 16,980 (1950). Other examples abound. See Resp. Br. Appx. B. These pro forma sessions allowed the Houses to satisfy their constitutional obligation to remain in session even though they chose not to transact substantive business. If pro forma sessions satisfy one House’s duty to be available to the other House for legislative purposes, they should likewise establish the Senate’s availability to receive nominations from the President.
The Solicitor General points out that in 1876, some Senators objected to a proposed series of pro forma sessions on constitutional grounds. U.S. Br. 60-61. Apart from its merits, see Resp. Br. 51-52, 57-58, this argument raises a problem of methodological consistency. If the Solicitor General wishes to take the view that early understandings of the Constitution trump subsequently-established practices, then it will have a hard time defending its recess appointments against the early understandings of the “arise” and “intersession” issues. The Solicitor General cannot have it both ways.

2. Pro Forma Sessions Have Satisfied the Assembling Clause

Congress has also used pro forma sessions to satisfy the Constitution’s requirement that “Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.” U.S. Const. amend. XX, § 2. This practice dates back to at least 1980. See H.R. Con. Res. 232, 96th Cong., 93 Stat. 1438 (Dec. 21, 1979) (pro forma sessions for both houses). Indeed, one of the pro forma sessions in early 2012 was necessary to comply with the Assembling Clause. 157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011) (same).
It is not clear to us whether the Solicitor General disputes that the Assembling Clause is satisfied by such sessions, and if not, we do not understand the nature of its objection. U.S. Br. 61 n.60. But if such sessions were not valid for purposes of the Assembling Clause, why does the Solicitor General describe the period of time as a 20-day recess beginning on January 3, rather than a 38-day recess beginning on December 17? Apparently, the Solicitor General regards the pro forma session on January 3 as valid for purposes of the Assembling Clause. If so, why is it invalid for other comparable purposes, including the Recess Appointments Clause?

3. Pro Forma Sessions Have Been Used for Substantive Business

Finally, in recent years Congress has sometimes passed bills during pro forma sessions. For example, during a pro forma session on August 5, 2011, the Senate passed the Airport and Airway Extension Act of 2011. 157 Cong. Rec. S5297 (daily ed. Aug. 5, 2011). During a September 28, 2012 pro forma session, the House passed three bills. 158 Cong. Rec. H6285-86 (daily ed. Sept. 28, 2012). And on December 23, 2011, during a pro forma session, the Senate agreed to temporarily extend the payroll tax cut, which was the President’s highest legislative priority at that time. See 157 Cong. Rec. S8789 (daily ed. Dec. 23, 2011). The President signed all five bills into law. These pro forma sessions show that the Senate is capable of acting on business during its sequence of pro forma sessions. If it can vote on legislation, it can act on nominations.
The Solicitor General seems to recognize that it cannot logically maintain that these sessions were invalid. Instead it contends that if a pro forma session transacts business, it ceases to be a pro forma session. U.S. Br. 52-53. This is analogous to saying that wild animals cannot be captured, because if they are captured they are no longer wild.
The Solicitor General’s only other response to this point is to deride these examples as “mere possibility.” Id. at 52; see also id. (“A valid exercise of the recess-appointment power cannot be made to depend on a demonstration that the Senate would be incapable of resuming regular business during the relevant recess.”) (emphasis in original). But that would have been enough for Attorney General Daugherty, who thought the President could make recess appointments only when there was “a real and genuine recess making it impossible for him to receive the advice and consent of the Senate.” 33 Op. Att’y Gen. at 25. And on the issue of intrasession appointments, the Solicitor General is happy to rely on Daugherty’s opinion. U.S. Br. 24-25.

B. As A Matter of Structure, Pro Forma Sessions Ought To Receive Uniform Treatment In Different Constitutional Provisions

Aside from its desultory argument that pro forma sessions do not in fact satisfy the Adjournments Clause or (maybe) the Assembly Clause, the Solicitor General’s other claim is that pro forma sessions ought to be treated differently for some constitutional provisions than for others. It offers no persuasive basis for doing so. The general expectation is that “similarly phrased constitutional commands be read in pari materia.” Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 794-95 (1999).
The Solicitor General’s defense of this unusual position is brief:

Even if the Court were to defer to the House and Senate’s belief that a series of pro-forma sessions may satisfy their obligations to one another not to adjourn without the other’s consent, such deference has no proper bearing on the meaning of the Recess Appointments Clause. Even assuming arguendo that the President has no direct interest in whether each House secures the other’s consent for an adjournment (notwithstanding his role in the law-making process), he plainly has a direct interest in the balance that Article II strikes between his need to secure the Senate’s advice and consent for appointments at certain times, and his unilateral power to make temporary appointments when the Senate is not available.

U.S. Br. 61-62. This is wrong on two counts.
First, the pro forma sessions can be respected not simply out of “defer[ence]” to the House and Senate, but out of an independent judgment that modern practice, especially practice by coordinate branches of government, is relevant to constitutional meaning.
Second, as the Solicitor General almost acknowledges, the President’s “interest” in each constitutional rule is somewhat similar. The President has an interest in the Adjournments Clause and the Assembly Clause both because of “his role in the lawmaking process,” U.S. Br. 62, and because the President frequently may wish to exercise constitutional powers that require Congress’s cooperation. He certainly had an “interest” in treating the pro forma session on Dec. 23, 2011, as constitutionally legitimate, in view of the fact that the Senate passed legislation that he signed into law without any qualm about the legitimacy of the pro forma session