In Dissent is a recurring series by Anastasia Boden on Supreme Court dissents that have shaped (or reshaped) our country.

On a cold January day in 2012, a senator walked into the U.S. Capitol, banged a gavel to open a Senate session, then banged it again – sending the Senate back into a break. The whole thing lasted less than a minute. Three days later, another senator did the same thing. Congress was on its holiday break, but to prevent President Barack Obama from using his constitutional power to fill vacancies during congressional recesses without its consent, the Senate was conducting short, pro forma sessions every three days.

The Obama administration didn’t think these pro forma sessions really counted to keep the Senate out of recess. Or, if they did, the administration believed the president could still fill vacancies in the three-day interim between each session. So, during one of those three-day breaks, Obama appointed three members to the National Labor Relations Board and the first director of the Consumer Financial Protection Bureau – asserting that they did not need to be confirmed by the Senate because they were “recess appointments.” At least one of the nominations had been pending for over a year, but the Republican-led Senate had refused to act. Turning those nominations into recess appointments allowed the president to sidestep the Senate consent he had asked for and not yet gotten.

A month later, the newly reconfigured NLRB ruled against Noel Canning, a Pepsi-Cola bottler and distributor, in a labor dispute after the company failed to execute a collective-bargaining agreement with a union. Noel Canning argued that the decision was illegitimate because three NLRB members had been unlawfully appointed back in January. Eventually the dispute made its way to the Supreme Court.

In NLRB v. Noel Canning, nine justices ruled that the president’s appointments violated the Constitution. The decision was technically unanimous, but in a scathing separate opinion, Justice Antonin Scalia set forth a very different theory of the presidency than the majority. His concurrence, which reads like a dissent, demonstrates that almost everything at the Supreme Court is more nuanced than it seems.

I. Some background

The recess appointments clause was borne out of necessity. In the founding era, Congress would leave the Capitol for months at a time via horseback. Thus, a vacancy that arose in mid-April might otherwise stay open until Congress reconvened in December. So the Framers devised a solution: a stopgap to keep the government functioning when Congress was literally out of reach.

The clause gives the president the “Power to fill up all Vacancies that may happen during the Recess of the Senate” without the usual Senate confirmation. Those appointed have all the same authority and pay as those who are appointed under the ordinary process, and the appointment lasts until the end of the next session. This means that an appointment made during an intra-session recess (a recess in the middle of a session), like Obama’s 2012 appointments, lasts not just through the current session but through the next one, and that the appointee might keep up to two years of borrowed power.

One of the earliest uses of the recess appointment power was President George Washington’s appointment of a Supreme Court justice. After John Jay left the bench, Washington appointed John Rutledge to his position as chief justice in 1795. Rutledge’s later formal nomination was rejected by the Senate – making him the shortest-reigning chief justice in history. Later, President Millard Fillmore used the power to appoint Benjamin Curtis to the Supreme Court during a congressional recess. Curtis’ appointment, unlike Rutledge’s, was eventually confirmed and made permanent. He would go on to write one of the only two dissents in the Dred Scott case.

As technology and travel improved, Senate breaks got shorter. As a result, presidents increasingly made recess appointments during intra-session breaks. And by the 20th century, when Congress moved toward nearly continuous sessions, intra-session recess appointments became even more frequent. Presidents Ronald Reagan, George Bush (both elder and younger), and Bill Clinton all used them to staff executive agencies and courts. And in January 2012, Obama made the three appointments during a three-day break that were challenged in court by Noel Canning.

The case invited three questions: first, does the recess appointments clause allow presidents to fill vacancies during recesses that occur in the middle of sessions, rather than in between sessions? Second, must the vacancy arise during the recess, or may presidents fill spots that opened earlier but continued into the recess? And third, was the Senate’s three-day recess in between pro forma sessions long enough to qualify as a “recess” within the meaning of the clause?

Although all three questions may sound awfully technical, each had a potentially profound effect on the president’s ability to get around Congress.

II. Oral argument

At oral argument, the entire bench appeared skeptical of the administration. U.S. Solicitor General Donald Verrilli contended that presidents had long made appointments during short, intra-session recesses, and that ruling against the executive would drastically undermine presidential power and imperil the legitimacy of thousands of decisions made under dozens of prior appointments.

Scalia came out swinging. In his view, the text was clear that the vacancy must arise during the Senate recess, and so presidents’ practices for over 200 years were irrelevant. If practice contradicts text, shouldn’t text prevail? Verrilli responded that practice informs meaning, to which Scalia responded: “So if you ignore the Constitution … often enough, its meaning changes?”

Justice Samuel Alito similarly observed that the Constitution says that the vacancy must “happen” during the recess, and the English language doesn’t usually use the word “happen” to refer to ongoing events that started prior to the time period in question. He asked, “would we say that your appointment as Solicitor General is happening today and will happen again tomorrow and happened yesterday?”

Verrilli argued that a vacancy is an “enduring state.” Scalia responded that “Death is an enduring state. But if someone dies in 1941, you don’t say he died in 1945. He’s still dead.”

One of Verrilli’s primary arguments was that the president needed an expansive recess appointment power to combat congressional intransigence. In the case of Obama’s NLRB appointments, for example, Congress had been sitting on nominations but refused to act.  

Justice Elena Kagan pointed out that the original purpose of the clause was not to help out the president in political disputes, but to allow the president to fill vacancies caused by long absences: “[T]his is not the horse and buggy era anymore… there’s no such thing, truly, as congressional absence anymore. And that makes me wonder whether we’re dealing here with what’s essentially a historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.”

The president’s disapproval of Congress’ obstinacy, Alito also noted, has nothing to do with the Constitution’s text.

Justice Stephen Breyer, as usual, was concerned less with text than with purpose. “I cannot find anything,” he said, “that says the purpose of this clause has anything at all to do with political fights between Congress and the President. To the contrary, Hamilton says that the way we’re going to appoint people in this country is Congress and the President have to agree.”

Justices Anthony Kennedy and Ruth Bader Ginsburg, for their parts, were worried about the limits of the government’s argument. Kennedy asked whether, if intra-session breaks counted as a recess, “[a] lunch break, a one-day break … a three-day break, a one-week break, a one-month break” also qualified.

III. The majority’s functional Constitution

It was not really surprising, then, that the opinion was unanimous: Obama had exceeded his recess appointments power when he made those appointments during a three-day intra-session break. What was more surprising was how the court got there.

Even though Breyer’s opinion for the court ruled against the president on the January NLRB appointments, it was favorable to the administration in at least some respects. The majority concluded first that the clause allows the president to fill vacancies not just in between formal sessions, but also during intra-session breaks. The text itself is ambiguous, Breyer said, but the purpose was to allow the president to keep the government functioning. Prohibiting intra-session appointments would frustrate that purpose. During nearly the first century of the republic’s history, Congress had frequently taken intra-session breaks and presidents had used them to make thousands of recess appointments with congressional acquiescence.

But even so, the intra-session break had to be sufficiently long to qualify as a recess, and three days was not long enough. Breyer said the floor was set by a separate provision, the adjournments clause, which bars each House from adjourning without the other’s consent for more than three days. An adjournment that doesn’t even require the other House’s consent, the majority reasoned, could not constitute a recess.

But how many days did constitute a recess? Historically, presidents had not made appointments during recesses shorter than 10 days, so any appointment made under a shorter break was presumptively unconstitutional, according to Breyer. Here, Obama’s appointments occurred during a recess of just three days; that was not enough. The fact that Congress had been conducting pro forma sessions was also irrelevant; Congress, not the justices, could choose whether a session constituted a real session or not.

Last, the majority concluded that presidents can fill vacancies if they arise before the recess. According to Breyer, though the text “does not naturally favor” that interpretation, it wasn’t totally implausible and was thus permissible. Breyer admitted this might allow presidents to sidestep Senate consent as a matter of course, by waiting to make nominations until the end of a session, just before Congress adjourns. But surely, he said, political pressure would hold presidents back from such behavior.

To sum it all up: the majority offered a pragmatic compromise heavily informed by historical practice.

IV. Scalia’s dissent-like concurrence

Enter Scalia, who signed onto the judgment while torching almost everything that justified it.

Scalia was a defender of presidential power – but he was also a strong believer in the formal separation of powers. His support for executive power was rooted in the idea that clear lines of accountability protect liberty. And when a president crossed those lines, he had no problem saying so.

Scalia, joined by the chief justice and Justices Clarence Thomas and Alito, agreed with the majority that Obama’s appointments violated the clause, but he would have gone much further. In his view, the recess appointment clause had two clear limits: (1) it allowed appointments only between formal sessions, and (2) it allowed the president to fill only those vacancies that arose during a recess. The majority, he said, had “swe[pt] away” these textual limitations based solely 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.”

“Of course,” he wrote, “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.” But here the practice was too contested to deserve any deference.

The other justices, as Scalia said from the bench when he read a summary of his opinion aloud, had committed a “neat trick.” To allow intra-session appointments, they had read the term “recess” colloquially. But they did not read the term “session” in the same colloquial sense. The result was that someone appointed during an informal intra-session recess could remain in their position without confirmation through the next full, formal session.

The justices had also invited absurdity: if any intra-session break could qualify as a “recess,” then the president could slip in a new cabinet member while the senators left for lunch. To stave off that absurdity, the court had created its own limiting principle devoid from the constitutional text: appointments made during intra-session recesses lasting fewer than 10 days were presumptively unconstitutional and anything fewer than three days was outright prohibited. But what about recesses of more than 10 days? Is there any limit on those? “The majority does not say, and neither does the Constitution.”

As for the history:

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 to its interpretation of the Recess Appointments Clause.”

But perhaps most fundamentally, Scalia rejected the idea that the Constitution’s “substantial purpose” was simply to “keep … offices filled” or to prevent the president from being inconvenienced. “The Constitution is not a road map for maximally efficient government,” he wrote, but a system of “‘carefully crafted restraints’ designed to ‘protect the people from the improvident exercise of power.’” Making it difficult for the president to sidestep checks on his power was exactly the point.

Scalia disagreed that presidents may fill pre-recess vacancies for largely the same reasons: neither text nor history supported it. If the founding generation wanted presidents to fill pre-existing vacancies during recesses, Scalia argued, they would have said so. They knew how to write in plain English. Yet, if the majority was correct, they used a “surpassingly odd way of giving the President that power,” which left “reasonable reader[s]” to wonder why “any intelligent drafter” would’ve written it like that.

The majority’s decision, Scalia predicted, would have the effect of enlarging presidential powers beyond their constitutional bounds. “I concur,” he ended, “in the judgment only.”

V. Conclusion

From a distance, Noel Canning looks simple: nine justices agreed that the president had gone too far. But up close, it reveals a court far more complex than its unanimity suggests.

The majority embraced a flexible, practice-infused Constitution, while Scalia insisted the text – and the structural liberty it protects – cannot be bent for convenience. The majority’s opinion ruled against the president, but it still made key decisions that would preserve an expansive recess appointment power for future presidents. Scalia, on the other hand, insisted that the Constitution meant what it said, nothing more and nothing less.

In the end, Noel Canning shows that even when the justices agree on who should win, they can still be worlds apart – and that there’s a lot hidden behind the tidy “9-0” line on the docket.

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