In Noel Canning v. NLRB (Jan. 25, 2013), the D.C. Circuit held that President Obama’s January 4, 2012 recess appointments to the National Labor Relations Board were constitutionally invalid because the Senate was in an intrasession adjournment at the time. The court held that only a period of intersession adjournment constitutes “the Recess” of the Senate within the meaning of the Recess Appointments Clause.
The court has been the subject of some justifiable criticism (see Professors Garrett Epps here and Eric Posner here) for its emphasis on the fact that the RAC refers to “the Recess,” rather than “a Recess.” In the court’s estimation, this fact leads to the “inescapable conclusion” the Framers intended “something specific” by “the Recess.” The court concludes that the Framers must have used “the Recess” to mean something narrower and more specific than any break in the proceedings. It contrasts the Constitution’s use of “the Recess,” which appears only in the RAC and the Senate Vacancies Clause, with its use of the terms “adjourn” and “adjournment” to signify any break in proceedings.
The Justice Department, on behalf of the NLRB, heavily criticizes this reasoning in a February 28, 2013 filing in NLRB v. New Vista Nursing & Rehabilitation, a case pending before the Third Circuit. DOJ points out that the word “the” doesn’t prove that much because it can “refer generally to a particular class of things, e.g., ‘the pen is mightier than the sword,’ rather than a particular thing, e.g., ‘the pen is on the table.’” Feb. 28 filing at 4 (emphasis in original) (citing Evans v. Stephens, 387 F.3d 1220, 1224-25 (11th Cir. 2004) (en banc), cert. denied, 544 U.S. 942 (2005)). To buttress this point, it cites other constitutional usages of “the,” such as Article I’s directive that the Senate choose a President pro tempore “in the Absence of the Vice President,” which it notes “applies to all Vice Presidential absences rather than one in particular.” Feb. 28 filing at 5.
DOJ makes some fair points here. Neal Goldfarb makes a similar, more extended, argument in this post at LawNLinguistics. As Goldfarb notes, however, while this argument casts doubt on the strength of the D.C. Circuit’s linguistic position, it doesn’t actually answer the question of what the Constitution means by “the Recess.”
Part of the problem is that the court was asked to choose between two alternatives, neither of which is wholly convincing. On the one side, it is urged that “the Recess” refers solely to the period following an adjournment sine die. But DOJ musters a significant amount of historical evidence to suggest that other adjournments were sometimes referred to as recesses.
For example, in his Manual of Parliamentary Practice, Thomas Jefferson states that in Parliament, “[c]ommittees may be appointed to sit during a recess by adjournment, but not by prorogation.” A “recess by adjournment” would not end a “session,” as Jefferson is using the term:
Prorogation or dissolution constitutes there what is called a session; provided some act was passed. In this case all matters depending before them are discontinued, and at their next meeting are to be taken up de novo, if taken up at all. Adjournment, which is by themselves, is no more than a continuance of the session from one day to another, of for a fortnight, a month &c., ad libitum.
Manual of Parliamentary Practice, Section LI (citation omitted).
Moreover, one of the sources that Jefferson cites, 1 Chandler 50, describes a “recess” that occurred during the “Second Session of the Second Parliament,” in the reign of Charles II. The Parliament began on November 20, 1661, and on December 20, 1661, it is recorded that “the Parliament was adjourn’d to the 10th Day of January; and so breaking up, had a Recess for near three Weeks.” When Parliament “met again” on January 10, it heard the report of “the joint Committee of Lords and Commons appointed to make enquiry during the Recess.”
DOJ also cites examples from colonial and state legislatures in which the term “recess” was used to describe adjournments that were not sine die (i.e, which ended on a specific date rather than being “without day”). For example, in 1798 the Governor of New Jersey appointed a temporary U.S. senator to fill a vacancy during a recess of the New Jersey legislature from November 8, 1798 to January 16, 1799.
These examples, however, do not substantiate the position that the term “recess” encompasses all adjournments. DOJ cites no historical examples of the power to act during a legislative “recess” being invoked during the thousands of day-to-day adjournments of Parliament, the state and colonial legislatures or Congress itself.
DOJ cites Samuel Johnson’s definition of “recess” as the “remission and suspension of any procedure.” Feb. 28 filing at 4 n.2. This definition would seem to suggest that any adjournment or break would constitute a “recess” within the meaning of the RAC. Such a conclusion would conflict with both historical practice and the clear intent of the RAC. Indeed, as the D.C. Circuit points out, not even DOJ or NLRB embraces the “all breaks” interpretation of “the Recess.” See slip op. at 27. Thus, the “all breaks” interpretation of “the Recess” is even less plausible than the “adjournment sine die” interpretation.
Johnson’s Dictionary, however, offers other definitions of “recess” that may shed light on this issue. In this edition (1768) of the dictionary, for example, DOJ’s definition of “recess” is actually the sixth listed. The first definition is “Retirement; retreat; withdrawing; feceffion.” The second is “Departure.”
(I am informed by a leading expert on Johnson’s Dictionary that the order of definitions, generally speaking, goes from earlier and more literal meanings to later and more figurative ones. He cautions, however, that this is a general rule which cannot be confidently applied to any particular ordering.)
It seems to me that the “recess” in the RAC is best understood as meaning the “retirement,” “withdrawing” or “departure” of the legislature. In the eighteenth century (and earlier), once the legislature withdrew or departed from the place it had been assembled, it would have unavailable to act, at least without a significant expenditure of time and effort, and so it would make sense to distinguish between its being in a state of recess and its being in a state of session or assembly.
This interpretation is consistent with Goldfarb’s linguistic hypothesis that “the Recess” means “the state of being in recess” and “the Session” means “the state of being in session.” It is also consistent with the linguistic and historical evidence we have discussed before (see here and here) indicating that the recess is the period during which the legislature (in this case the Senate) is not “assembled” or “brought together in one place.”
Goldfarb cites some additional supporting evidence. For example, he cites Federalist No. 18, which described an ancient confederation of Greek cities as follows: “The senate, in which they were represented, had the sole and exclusive right of peace and war; of sending and receiving ambassadors; of entering into treaties and alliances; of appointing a chief magistrate or praetor, as he was called, who commanded their armies, and who, with the advice and consent of ten of the senators, not only administered the government in the recess of the senate, but had a great share in its deliberations, when assembled.” Federalist No. 18 (Hamilton and Madison) (emphasis added).
This quote makes apparent that the “recess of the senate” contrasts with the time when the senate is “assembled.” Similarly, Goldfarb cites to a 1765 excerpt from the Journals of the Massachusetts House of Representatives, which distinguishes between “the Recess of the General Court” and the time “when the General Court is sitting.” He also cites to the 1780 Massachusetts Constitution, which treats “the session” and “the recess” of the legislature as mutually exclusive periods (as explained by Professor Rappaport in his law review article at page 1552).
During the “recess of the Senate,” the Senate is not “assembled,” “sitting,” or, as Goldfarb suggests, “meeting.” This contrasts with the Senate’s state during “the session,” which Johnson defines as “[t]he act of sitting” or “[t]he space for which an assembly sits, without intermission or recess.”
Note that this is a different meaning of “session” than that used by Jefferson, who refers to a parliamentary meaning relating to when legislation and other matters before a legislative body expire. But there is no reason to believe that the Framers used “session” in this technical parliamentary sense. Indeed, if that had been the Framers’ intent, the “session” for constitutional purposes would refer to the entire Congress because under current practice legislative matters do not expire until the end of the Congress.
As Johnson’s Dictionary indicates, the ordinary meaning of “session” is different. In ordinary parlance, “session” simply meant the act of sitting or the period during which a legislative body is sitting, which contrasts with the recess, when it is not sitting. Indeed, the definition of “session” explicitly incorporates the concept of a meeting or series of meetings that are linked together because there is no “intermission or recess” separating them.
The state of being in session, for constitutional purposes, commences when Congress assembles according to the Constitution, which originally provided “[t]he Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different day.” Congress remains in session even though each house may adjourn from day to day, with or without a quorum, and for up to three days without the consent of the other.
The Adjournments Clause provides: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, not to any other Place than that in which the two Houses shall be sitting.” Although the Noel Canning court found no constitutional link between this provision and the RAC, see slip op. at 24-25, I believe it was mistaken. The Adjournments Clause means, at a minimum, that neither house can end “the Session” without the agreement of the other. (If this were not the case, the Adjournments Clause would be meaningless because either house could escape its strictures by unilaterally ending the session). Thus, when the Senate (or House) adjourns unilaterally for three days or less, it remains in session (or “sitting”).
While bicameral action under the Adjournments Clause may not be sufficient to cause a “recess,” it is necessary. The primary, if not the sole, purpose of the Adjournments Clause must have been to prevent either house from withdrawing or departing from the seat of government without the permission of the other. The Clause expressly prohibits unilateral withdrawal “to any other Place.” Similarly, at the Virginia ratifying convention, James Monroe (turns out he had something relevant to say after all) objected to the Adjournments Clause on the ground that it would make members of the House “in some respect dependent on the senators, as it prevented them from returning home, or adjourning, without their consent.” (emphasis added). Thus, the concept of going to another place, returning home, or just leaving town is integral to the meaning of “the recess.”
The “session” then is the time during which the legislature is “assembled” or “sitting.” The “recess” is the time when the legislature is not “assembled” or “sitting,” but is “withdrawn” or “departed” from the seat of government. The D.C. Circuit was thus correct to conclude that the Constitution establishes a “dichotomy” between “the session” and “the recess” such “[e]ither the Senate is in session, or it is in the recess.” Slip op. at 17-18.
On the other hand, the court was not right in concluding that an adjournment sine die is a necessary precondition to the recess. A bicameral adjournment under the Adjournments Clause is a necessary precondition, however, so the court reached the correct result in the case before it.
Finally, the D.C. Circuit can be fairly criticized for overreliance on the RAC’s use of the word “the,” but it is fair to point out that if the Framers had meant to permit recess appointments during all legislative adjournments, they would have been more likely to have referred to “a Recess,” rather than “the Recess,” in the RAC. Better yet, they could have used “an Adjournment” or “the Adjournment,” which, though it probably would have been an unusual usage, would not have been unheard of.