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Noel Canning: Unanimous Judgment, Divided Reasoning

For a 9-0 decision invalidating the President’s exercise of the recess appointment power, the Supreme Court’s opinion today in Noel Canning revealed a bitter divide among the justices. Justice Breyer, writing for the majority, basically went “full Daugherty,” finding that the Recess Appointment Clause applies to both “inter-session” and “intra-session” breaks, but finding that those breaks must exceed a minimum length to qualify as recesses in which the President may exercise his temporary appointment power. The key quote from Breyer’s decision:

If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, §5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.

In his concurrence (joined by the Chief Justice and Justices Thomas and Alito), Justice Scalia accuses the majority of adopting an “adverse possession” theory of executive power. In other words, because the executive has long asserted the power to fill vacancies that do not arise during a recess and has maintained that they may be filled during intra-session as well as inter-session breaks and because the Congress has failed to resist these theories on a consistent and effective basis, the executive branch’s theory will prevail. The concurrence would read the RAC to be limited to vacancies that arise during the recess and would hold that only a break between formal sessions constitutes “the recess.”

There will be undoubtedly many other takeaways from a thorough reading of the opinion. But note that this opinion has an important near term effect on the Congress. It appears at first blush that the House can prevent the President from making any more recess appointments simply by refusing to consent to any adjournments of more than three days for the remainder of the Congress.  But one can imagine that the executive branch and the Senate Democratic leadership might look for wriggle room, particularly if the Republicans win control of the Senate in November’s election. In particular, the Senate could try to amend its rules so as to deprive itself of the capacity for doing business during pro forma sessions. We will see whether they get that desperate.

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