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