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.”