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The Government’s Trick Question in Noel Canning

The first question presented by the administration’s cert petition in the Noel Canning case turns out to be a trick question:

“Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.”

Why is the government using the word “enumerated”? By using that word, and using it only in connection with one of the two references to Senate sessions, it leaves the impression that there is a difference between a “session” and an “enumerated session” of the Senate. It would not seem to be in the government’s interest to leave that impression.

Nor would it seem to be in its interest to highlight the word “enumerated.” I can just hear Justice Scalia: “Where in the Constitution does it refer to ‘enumerated’ sessions?” “Would this case be different if Congress alphabetized its sessions?”

As it happens, I think there is a difference between a “session” and an “enumerated session” of the Senate. That means that there is a third option beyond those presented in the government’s question. There can be no recess appointments within a “session” of the Senate, but there can be recess appointments that are not between “enumerated sessions” of the Senate. So the correct answer to the government’s question is “no.”

3 Comments

  1. Mtrunner says:

    Read the rest of he brief and the meaning seems clear enough. By “enumerated” I think they obviously mean the formal annual “Sessions” that are marked by sine die adjournment as opposed to something that might informally be referred to as a session (like a daily “session”). I think saying “annual” would have been inaccurate since sometimes Congress has had more than one such session a year.

  2. I have no doubt that is what they mean. But if the word “session” can refer to a period other than an “enumerated” session, what is the basis for concluding that the Constitution uses the word only in the latter sense? And why use the word “enumerated” in connection with the second use of “session(s)” but not the first?

  3. Hello you guys – I’m so glad you wrote this. Very interesting debate. I was hoping if you can help me as this thread has made me more confused from before. I’m interested in this inter-session, intra-session thing. Get ready for this zinger..

    INTER-session recess refers to the break between enumerated sessions while INTRA-session recesses refer to breaks that occur any other time.

    My question is – does the term enumerated session mean between ie the 112th and the 113th Congress? OR, does the term enumerated session refer to ie the first and second session of the 112th Congress (as we all know – one session of Congress is 2 years)?

    There seem to be 3 different meanings IN the Senate for the term “session.” (1) Each Congress is a 2-year session (ie the 113th Congress is one legislative session), (2) Each Congress consists of 2 consecutive annual sessions (ie the first and second session of the 113th Congress), and (3) every day the Senate does business, it’s called a daily session (you get the point).

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