NLRB v. Enterprise Leasing Company

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 11-CA-73779. [999152430]. [12-1514, 12-2000, 12-2065]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1514

NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
ENTERPRISE LEASING COMPANY SOUTHEAST, LLC,
Respondent.
_______________
On Application for Enforcement of an Order of the National Labor
Relations Board. (11-CA-73779)

No. 12-2000

HUNTINGTON INGALLS INCORPORATED,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
INTERNATIONAL
WORKERS,

ASSOCIATION

OF

MACHINISTS

AND

AEROSPACE

Intervenor.
-----------------------------CHAMBER OF COMMERCE OF THE UNITED STATES OF
COALITION FOR A DEMOCRATIC WORKPLACE; AMERICAN

AMERICA;
HOTEL &

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LODGING ASSOCIATION; HR POLICY ASSOCIATION; INTERNATIONAL
FOODSERVICE DISTRIBUTORS ASSOCIATION; NATIONAL ASSOCIATION
OF MANUFACTURERS; NATIONAL ASSOCIATION OF WHOLESALERDISTRIBUTORS; SOCIETY FOR HUMAN RESOURCE MANAGEMENT,
Amici Supporting Petitioner.

No. 12-2065

NATIONAL LABOR RELATIONS BOARD,
Petitioner,
INTERNATIONAL
WORKERS,

ASSOCIATION

OF

MACHINISTS

AND

AEROSPACE

Intervenor,
v.
HUNTINGTON INGALLS INCORPORATED,
Respondent.
----------------------------CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA;
COALITION FOR A DEMOCRATIC WORKPLACE; AMERICAN HOTEL &
LODGING ASSOCIATION; HR POLICY ASSOCIATION; INTERNATIONAL
FOODSERVICE DISTRIBUTORS ASSOCIATION; NATIONAL ASSOCIATION
OF MANUFACTURERS; NATIONAL ASSOCIATION OF WHOLESALERDISTRIBUTORS; SOCIETY FOR HUMAN RESOURCE MANAGEMENT,
Amici Supporting Respondent.

On Petition for Review and Cross Application for Enforcement of
an Order of the National Labor Relations Board. (5−CA−81306)

Argued:

March 22, 2013

Decided:

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Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Enforcement denied by published opinion.
Senior Judge Hamilton
wrote the opinion, in which Judge Duncan joined.
Judge Duncan
wrote a separate concurring opinion.
Judge Diaz wrote an
opinion concurring in part and dissenting in part.

ARGUED: Beth S. Brinkmann, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., David A. Seid, Robert James Englehart,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board;
James B. Coppess, AFL-CIO, Washington, D.C., for International
Association of Machinists and Aerospace Workers.
Daniel R.
Begian, John P. Hasman, THE LOWENBAUM PARTNERSHIP, LLC, Clayton,
Missouri, for Enterprise Leasing Company Southeast, LLC; Gregory
Branch
Robertson,
Michael
Randolph
Shebelskie,
HUNTON
&
WILLIAMS, LLP, Richmond, Virginia, for Huntington Ingalls
Incorporated.
ON BRIEF: Stuart F. Delery, Principal Deputy
Assistant Attorney General, Scott R. McIntosh, Sarang V. Damle,
Melissa N. Patterson, Benjamin M. Shultz, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Lafe E. Solomon, Acting
General Counsel, Celeste J. Mattina, Deputy General Counsel,
John H. Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, Ruth E. Burdick, Supervisory
Attorney, Daniel A. Blitz, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for the Board.
D. Michael Linihan, THE
LOWENBAUM PARTNERSHIP, LLC, Clayton, Missouri, for Enterprise
Leasing Company Southeast, LLC.
Kurt G. Larkin, HUNTON &
WILLIAMS, LLP, Richmond, Virginia, Dean C. Berry, HUNTINGTON
INGALLS INDUSTRIES, INC., Newport News, Virginia, for Huntington
Ingalls Incorporated.
William H. Haller, Associate General
Counsel, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, Upper Marlboro, Maryland, for International Association
of Machinists and Aerospace Workers.
Mark Theodore, PROSKAUER
ROSE LLP, Los Angeles, California, Ronald E. Meisburg, Lawrence
Z. Lorber, James F. Segroves, PROSKAUER ROSE LLP, Washington,
D.C., for Amici Curiae; Robin S. Conrad, Shane B. Kawka,
NATIONAL CHAMBER LITIGATION CENTER, INC., Washington, D.C., for
Amicus Curiae Chamber of Commerce of the United States; Quentin
Riegel, NATIONAL ASSOCIATION OF MANUFACTURERS, Washington, D.C.,
for Amicus Curiae National Association of Manufacturers.

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HAMILTON, Senior Circuit Judge:
Before the court are two cases that we have consolidated.
In the first case, Enterprise Leasing Company − Southeast, LLC
(Enterprise) seeks review of a National Labor Relations Board
(the Board) decision and order finding that Enterprise violated
§§ 8(a)(1)

and

(a)(5)

of

the

National

Labor

Relations

Act

(NLRA), 29 U.S.C. §§ 158(a)(1) and (5), by refusing to bargain
with Local 391 of the International Brotherhood of Teamsters
(Local 391) after the Board certified Local 391 as the exclusive
bargaining representative of a unit of Enterprise’s employees.
The Board has filed an application for enforcement of its order.
In the second case, Huntington Ingalls, Inc. (Huntington)
petitions for review of a Board decision and order finding that
Huntington violated §§ 8(a)(1) and (a)(5) of the NLRA, id., by
refusing

to

bargain

with

the

International

Association

of

Machinists and Aerospace Workers (Machinists Union) after the
Board certified the Machinists Union as the exclusive bargaining
representative of a unit of Huntington’s employees.

The Board

has filed an application for enforcement of its order.
The determinative question in these cases is whether the
Board had a quorum at the time it issued its decisions in 2012.
See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2639-45
(2010)

(holding

that,

following

a

delegation

of

the

NLRB’s

powers to a three-member group, two members cannot continue to
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authority

Board’s) membership falls to two).

once

the

group’s

(and

the

Resolution of this question

turns on whether the three appointments by the President of the
United States to the Board on January 4, 2012 are valid under
the

Recess

Appointments

Constitution,

which

Clause

provides

that

of
the

the

United

President

States

“shall

have

Power to fill up all Vacancies that may happen during the Recess
of the Senate, by granting Commissions which shall expire at the
End of their next Session.”

U.S. Const. art. II, § 2, cl.3.

If

these appointments are invalid, the parties agree that the Board
could not lawfully act when it issued its decisions in 2012.
For the reasons stated below, we conclude that the President’s
three

January

4,

2012

appointments

to

the

Board

are

constitutionally infirm, because the appointments were not made
during “the Recess of the Senate.”

Accordingly, we deny the

Board’s applications for enforcement of its orders.

I
The two cases currently before the court have a similar
procedural

history.

Local

conducted by the Board.

391

prevailed

in

an

election

Before a Board Hearing Officer in a

representation case, Enterprise challenged the election result
on multiple fronts.

Enterprise lost the representation case

before a Board Hearing Officer and lost again on review by the
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Following these losses, Enterprise refused to bargain

with Local 391.
proceeding

Local 391 initiated an unfair labor practice

against

Enterprise,

and,

in

response,

Enterprise

contended, among other things, that the Board lacked a quorum to
issue a decision because the President’s three January 4, 2012
appointments to the Board were invalid under the United States
Constitution.

The

Board

rejected

Enterprise’s

ordered Enterprise to bargain with Local 391.

arguments

and

The Board now

seeks enforcement of its decision and order.
The dispute in Huntington’s case centers on the appropriate
bargaining
Before

unit

a

Board

contended

that

for

Huntington’s

Regional
a

Director

portion

of

2,400

technical

(RD),

the

employees.

Machinists

Huntington’s

2,400

Union

technical

employees, namely those in the “E85 RADCON” department, was an
appropriate

bargaining

unit

whereas

Huntington

contended

that

the bargaining unit should consist of all 2,400 of its technical
employees.
decision

The RD agreed with the Machinists Union and issued a

and

direction

of

election

requested Board review of the DDE.

(DDE).

Huntington

then

On December 30, 2011, the

Board affirmed the RD’s decision.
In the ensuing election, the Machinists Union prevailed.
The Board subsequently certified the Machinists Union as the
exclusive representative for purposes of collective bargaining.
Following certification, Huntington refused to comply with the
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Machinists Union bargaining request, and the Machinists Union
filed

an

unfair

labor

practice

charge.

In

that

proceeding,

Huntington contended, inter alia, that the Board did not have a
quorum

to

issue

a

decision,

because

the

President’s

three

January 4, 2012 appointments to the Board were constitutionally
infirm.

The Board rejected this argument and others, holding

that Huntington’s refusal to bargain was unlawful.

The Board

seeks enforcement of this decision and order, and Huntington
petitions for review of such decision.
In their respective briefs, both Enterprise and Huntington
raise constitutional and non-constitutional arguments.
we

can

address

the

constitutional

arguments,

we

Before

must

first

attempt to resolve these cases on non-constitutional grounds, if
possible.

See Spector Motor Serv., Inc. v. McLaughlin, 323 U.S.

101, 105 (1944) (“If there is one doctrine more deeply rooted
than any other in the process of constitutional adjudication, it
is that we ought not to pass on questions of constitutionality .
. . unless such adjudication is unavoidable.”); Ashwander v.
Tenn.

Valley

concurring)

Auth.,
(noting

constitutional

297

U.S.

that

question

288,

a

court

although

347

(1936)

“will

properly

not

(Brandeis,
pass

presented

upon
by

J.,
a
the

record, if there is also present some other ground upon which
the case may be disposed of”); see also Noel Canning v. NLRB,
705 F.3d 490, 493 (D.C. Cir.) (pursuant to Spector Motor and
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Ashwander, court addressed non-constitutional claims concerning
company’s refusal to bargain before addressing the question of
whether the President’s three January 4, 2012 appointments to
the Board were constitutional), cert. granted, 2013 WL 1774240
(U.S.

June

24,

2013).

In

addressing

the

non-constitutional

arguments advanced by both Enterprise and Huntington, we first
will turn to Enterprise’s case and then to Huntington’s case.

II
A
Enterprise
facility
Airport).

at

operates

the

an

Alamo

Raleigh-Durham

and

National

International

car

Airport

rental
(RDU

On November 9, 2010, Local 391 filed a petition with

the Board seeking to represent a unit of Enterprise’s employees. 1
Enterprise and Local 391 signed an election agreement, and the
Board conducted an election by secret ballot at Enterprise’s
facility from 7:00 p.m. to 9:00 p.m. on Thursday, December 16,

1

The parties agree that the 101 employee bargaining unit
consisted of full and regular part-time greeters, exit booth
agents, counter representatives, rental agents, handler agents,
service agents, customer service representatives, bus drivers,
push/pullers, and mechanics employed by Enterprise.
The
bargaining
unit
excluded
salaried
employees,
technical
employees, office clerical employees, guards, professional
employees, and supervisors.

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2010, and from 10:00 a.m. to 12:00 p.m., and again from 3:00
p.m. to 5:00 p.m., on Friday, December 17, 2010.
At some point before the election, Local 391 mailed a flyer
to all eligible voters which included a photograph of employee
and

eligible

voter

Roberto

Henriquez

without

authorization for Local 391 to use his photograph. 2
the

flyer

contained

right choice!!

the

words,

“Yes.

Everybody

his

prior

One side of
can

make

To end Unfair treatment & Unfair pay!!”

the
The

words were surrounded by the photographs of eight employees of
Enterprise, including Henriquez.

The other side of the flyer

had a note that asked employees to let Local 391 be their voice
for

better

pay,

benefits,

and

treatment.

The

photograph

of

Henriquez was taken by Chafik Omerani, an Enterprise employee
and Local 391 supporter, at a food court in a shopping mall near
the RDU Airport.
On the first day of the election, December 16, 2010, Wake
County,

North

Carolina,

where

experienced inclement weather.

the

RDU

airport

is

located,

Weather records establish that

between 1/10 and 1/8 of an inch of freezing rain and 1/2 to one
inch of snow fell in Wake County on December 16.
2

No additional

Henriquez did not testify at the hearing before the Board
Hearing Officer.
Accordingly, the record does not reflect
whether Henriquez was or was not a Local 391 supporter.
However, it is clear that his prior authorization was not
obtained and that Local 391 had a general policy of not using
employees’ images without their prior consent.
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freezing rain or snow fell on December 17, and there was no snow
accumulation

at

the

RDU

airport

or

Enterprise’s

facility

on

either day.
As a result of the inclement weather, area schools and some
businesses were closed on December 16.

The opening of schools

and some government businesses was delayed on December 17.

The

RDU Airport and Enterprise’s facility at the airport remained
open during regular hours on both December 16 and 17.

Although

Enterprise’s facility remained open, it received ten employee
“call-outs” on December 16 and four “call-outs” on December 17. 3
No

evidence

was

presented

average call-out rate.

concerning

Enterprise’s

normal

or

There was also no evidence presented

indicating that any eligible Enterprise employee was unable to
vote on account of the weather.

Moreover, neither party sought

to postpone the election on account of the weather.
On
entered

December

16,

Enterprise’s

2010,

Local

facility

counter

where

two

organizer

approximately

before the start of the election.
service

391

Steve

thirty

Jones

minutes

He approached the customer

Enterprise

Customer

Service

Representatives, one of whom was Damion Knowles, were seated.
After greeting Knowles, Jones asked him how his interview had

3

“Call-out” is a term used to describe an employee who
contacts his or her employer to report that he or she will not
be coming to work.
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gone for a management position that Knowles had mentioned in an
earlier conversation between the two.
interview

went

well

and

that

with

Knowles replied that the
more

receive his own store in Dallas, Texas.

experience

he

would

Jones noted that the

International Brotherhood of Teamsters had members in the Dallas
area and asked Knowles if he still had Jones’ business card.
After

Knowles

answered

affirmatively,

Jones

stated,

“[w]ell,

keep it, you know, you never know, you might need me sometime.
You never want to burn any bridges.”
Eighty-seven votes were cast in the election.
employees voted for Local 391; forty-one against.

Forty-four
There were

two challenged ballots, an insufficient number to affect the
outcome of the election.
On December 27, 2010, Enterprise filed six objections to
the election with the RD.
Hearing Officer.
issued

his

A hearing was ordered before a Board

On February 7, 2011, the Board Hearing Officer

Report

and

Recommendation

recommending

that

Enterprise’s objections be overruled and that a Certification of
Representative issue.
Enterprise

then

filed

exceptions

with

the

Board

Board Hearing Officer’s Report and Recommendation.
29,

2011,

the

recommendations

Board
to

adopted

overrule

the

Board

Enterprise’s

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to

the

On December

Hearing

objections,

Officer’s
and

the

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Board

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certified

Local

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391

as

collective

bargaining

representative of the Enterprise unit employees.
On January 17, 2012, Local 391 asked Enterprise to bargain
with it, and Enterprise refused.

On February 3, 2012, Local 391

filed an unfair labor practices charge with the Board alleging
that Enterprise violated the NLRA by refusing to bargain with
it.

On February 27, 2012 the Board’s General Counsel issued a

complaint against Enterprise.

On March 14, 2012, the Board’s

General Counsel filed a motion for summary judgment.
On April 18, 2012, the Board granted the Board’s General
Counsel’s motion for summary judgment, holding that Enterprise
violated

§§ 8(a)(1)

and

bargain with Local 391.

(a)(5)

of

the

NLRA

by

refusing

to

The Board’s order requires Enterprise

to cease and desist from engaging in the unfair labor practices
found and from in any like or related manner interfering with,
restraining,
rights

under

or

coercing

the

NLRA.

employees

in

the

Affirmatively,

exercise
the

of

their

Board’s

order

requires Enterprise to bargain with Local 391 upon request and
embody any understanding reached in a signed agreement.

The

order also requires Enterprise to post a remedial notice and, if
appropriate, distribute copies of the notice electronically.
B
Section

8(a)(1)

of

the

NLRA

makes

it

an

unfair

labor

practice to “interfere with, restrain, or coerce employees in
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the exercise of [their rights under the NLRA],” while § 8(a)(5)
makes it an unfair labor practice for an employer “to refuse to
bargain collectively with the representatives of his employees.”
29 U.S.C. §§ 158(a)(1), (5).

Enterprise admits that it refused

to bargain with Local 391, but claims that the Board erred in
refusing to set aside the results of the election.
A

union

through

obtain

election

an

may

or

certification
the

employer’s

in

one

of

voluntary

two

ways:

recognition.

Lincoln Park Zoological Soc. v. NLRB, 116 F.3d 216, 219 (7th
Cir.

1997).

Here,

recognition.

of

course,

there

was

no

voluntary

Thus, we must address whether Local 391 obtained

recognition through a valid election.
“Congress has entrusted the Board with a wide degree of
discretion
necessary

in
to

establishing

insure

the

the

fair

representatives by employees.”
324, 330 (1946).
Board-supervised

and

procedure
free

and

choice

safeguards

of

bargaining

NLRB v. A.J. Tower Co., 329 U.S.

Consequently, we presume the validity of a
election

and

will

overturn

such

an

election

only if the Board has clearly abused its discretion.

NLRB v.

Media Gen. Operations, Inc., 360 F.3d 434, 441 (4th Cir. 2004);
NLRB v. Flambeau Airmold Corp., 178 F.3d 705, 707 (4th Cir.
1999).
A party seeking to have an election set aside bears a heavy
burden

and

must

prove

by

specific
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evidence

not

only

that

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improprieties
election.

occurred,

but

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also

that

they

prevented

a

fair

Elizabethtown Gas Co. v. NLRB, 212 F.3d 257, 262 (4th

Cir. 2000).

When evaluating whether a party has met this heavy

burden, we must be “mindful of the real world environment in
which an election takes place.”
132

F.3d

1001,

1003

(4th

NLRB v. Coca-Cola Bottling Co.,

Cir.

1997).

“Although

the

Board

strives to maintain laboratory conditions in elections, clinical
asepsis is an unattainable goal.

An election is by its nature a

rough and tumble affair, and a certain amount of exaggerations,
hyperbole, and appeals to emotion are to be expected.”

Id.

(citation and internal quotation marks omitted).
The Board’s “findings of fact are conclusive as long as
they

are

‘supported

by

considered as a whole.’”
321,

326

(4th

Cir.

substantial

evidence

on

the

record

Evergreen Am. Corp. v. NLRB, 531 F.3d

2008)

(quoting

29

U.S.C.

§

160(e)).

“Substantial evidence is ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’”
(quoting
“While

Richardson
the

Board

speculation[,]
evidence.”
Cir.

2002)

it

v.
may
may

Perales,
not
draw

402

base

U.S.
its

reasonable

389,

401

inference
inferences

Id.

(1971)).
on

pure

from

the

Overnite Transp. Co. v. NLRB, 280 F.3d 417, 428 (4th
(en

banc)

(alteration,

quotation marks omitted).
1
- 14 -

ellipsis,

and

internal

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Enterprise first contends that the results of the election
must

be

set

Enterprise
without

aside

because

employee

Henriquez’s

Local

Roberto
prior

391

used

Henriquez

on

a

photograph

a
In

authorization.

campaign
rejecting

of

flyer
this

contention, the Board found that, at most, Local 391 “implicitly
misrepresented that Henriquez authorized the use of his image in
the flyer.”
6853530,

Enterprise Leasing Co. — Southeast, LLC, 2011 WL

at

*2

(NLRB

2011).

According

to

the

Board,

such

misrepresentation did not warrant setting aside the results of
the election, because there was no evidence that Local 391 in
fact misrepresented Henriquez’s support for Local 391 or that he
objected to Local 391’s use of his photograph on the flyer.

The

Board also emphasized that there was no evidence of pervasive
misrepresentations

regarding

Enterprise

employee

authorization

for use of photographs or any claim that eligible Enterprise
employees were unable to recognize the flyer as anything else
than Local 391 propaganda.
In Midland National Life Insurance Company, 263 NLRB 127
(1982), which was approved by this court in Case Farms of North
Carolina, Incorporated v. NLRB, 128 F.3d 841 (4th Cir. 1997),
the

Board

outlined

the

standard

regarding

misrepresentations

occurring in the context of campaign statements.
NLRB

at

longer

129-33.
probe[s]

Under
into

the

the

Midland

truth

or

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standard,
falsity

of

Midland, 263
the
the

Board

“no

parties’

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campaign statements” nor will it “set elections aside on the
basis of misleading campaign statements.”

Id. at 133; see also

Case Farms, 128 F.3d at 844 (quoting Midland).
The only exception to the Midland standard concerns forged
documents.

Midland, 263 NLRB at 133.

The premise behind this

particular exception evidences the Board’s central concern that
employee voters not be deceived with respect to the true nature
of the statement in campaign propaganda.

Id.

In outlining the

Midland standard, the Board displayed its faith in the employee
voters’ ability not to accept what they are told at face value,
but, instead, to weigh it according to its potential for bias.
Accordingly, the Board determined that it would “set an election
aside not because of the substance of the representation, but
because of the deceptive manner in which it was made, a manner
which renders employees unable to evaluate the forgery for what
it

is.”

Id.

The

Board

further

distinguished

misrepresentations, which would not require the election to be
set aside, from other types of campaign misconduct, “such as
threats,

promises,

or

the

like,”

which

if

adequately

would warrant setting aside the results of an election.

proven

Id.

In this case, we cannot say that the Board misapplied “the
permissive
Even

if,

Midland
as

standard.”

Enterprise

Case

suggests,

Farms,
the

128

evidence

F.3d

at

845.

proved

that

Henriquez did not authorize the use of his image, such evidence
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would still amount to a mere misrepresentation in the campaign
context.

Local 391’s conduct involved no forgery, and there is

nothing in the record to indicate that the eligible Enterprise
employees’ ability to recognize the flyer as campaign propaganda
was

compromised.

Moreover,

the

Board’s

rejection

of

Enterprise’s campaign flyer claim is consistent with its prior
precedent.
4498270,

See Somerset Valley Rehab. & Nursing Center, 2011 WL

at

**1-3

(NLRB

2011)

(overruling

objection

where

a

union falsely quoted union supporters as actually stating that
they would vote for the union); BFI Waste Servs., 343 NLRB 254,
254

n.2

(2004)

(overruling

objection

where

a

union

arguably

misrepresented quotes from two employees); Champaign Residential
Servs.
where

Inc.,
two

325

NLRB

employees

687,

did

687

not

(1998)

know

(overruling

that

their

objection

signatures

in

support of a union would be shared with others on a flyer);
Findlay Indus. Inc., 323 NLRB 766, 766 n.2 (1997) (overruling
objection

where

a

union,

at

most,

misrepresented

that

two

employees would vote for it).
In support of its position, Enterprise asserts that the
Board

has

established

a

per

se

rule

preventing

unions

and

employers from using the photograph of an employee without the
employee’s prior authorization, citing Brentwood At Hobart v.
NLRB, 675 F.3d 999 (6th Cir. 2012), Sprain Brook Manor Nursing
Home, LLC, 348 NLRB 851 (2006), Allegheny Ludlum Corporation,
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333 NLRB 734 (2001), and Sony Corporation of America, 313 NLRB
420 (1993).

However, the Board’s precedent has not established

such a per se rule.
In

Brentwood

At

Hobart,

the

court

merely

recited

an

unremarkable proposition that unauthorized photos “may taint” an
election,

but

found

that

the

employer

failing to present it to the Board.

waived

its

claim

by

675 F.3d at 1001, 1005-07.

Thus, the court did not recognize a per se rule.

In Sprain

Brook, the Board declined to overturn an election because the
union

had

purportedly

photographed

employees

without

their

consent and then used the photographs in its campaign materials.
348 NLRB at 851.
signed

consent

The Board noted that the union had obtained
forms

from

employees

prior

to

using

their

photographs, id., but it did not hold that the use of employee
photographs without such consent is per se objectionable.
In Allegheny Ludlum, the Board set forth five prerequisites
for permissible employer videotaping of employees for a campaign
video which included assurances that an employee’s participation
was voluntary, 333 NLRB at 743; it also explicitly stated that
it was not creating a per se rule that “employers must obtain
employees’

explicit

campaign videotapes.”

consent

before

Id. at 744.

including

their

images

in

Further, to the extent that

its earlier decision in Sony was being construed as establishing
a per se rule requiring explicit employee consent, the Board in
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Allegheny Ludlum said that such a construction was “unintended
and unwarranted.”

Id.

In sum, we hold that the Board’s determination that the
results of the election should not be set aside because Local
391 used a photograph of Enterprise employee Roberto Henriquez
on a campaign flyer without Henriquez’s prior authorization is
supported by substantial evidence.
2
Enterprise also contends that the election results should
be set aside because an ice/snow storm on December 16, 2010 in
the

Wake

number

County,

of

North

eligible

Carolina

Enterprise

area

caused

employees

election held on December 16 and 17.

a

not

determinative

to

vote

in

the

Adopting the reasoning of

the Board Hearing Officer, the Board concluded that Enterprise
failed

to

reasonably

show

that

denied

the

severity

eligible

of

the

Enterprise

weather

employees

conditions

an

adequate

opportunity to vote.
In

In

re

Baker

Victory

Services,

Inc.,

331

NLRB

1068

(2000), the Board stated that an election “should be set aside
where

severe

reasonably

weather

denied

conditions

eligible

on

voters

an

the

day

of

adequate

vote and a determinative number did not vote.”

the

election

opportunity

to

Id. at 1070; see

also V.I.P. Limousine, Inc., 274 NLRB 641, 641 (1985) (noting
that an election should be set aside where the inclement weather
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“affect[s]

Filed: 07/17/2013

the

electorate

as

Pg: 20 of 167

a

whole”

and

“[a]

substantial

number of employees did not vote in the election”).
this

standard,

we

find

no

reason

to

disturb

Applying

the

Board’s

decision.
Neither

the

RDU

Airport

nor

Enterprise’s

car

rental

facility closed at any time on December 16 or 17, 2010 because
of the inclement weather.
the

weather

Enterprise
improved

conditions
employee

on

affected

to

December

Moreover, there is no evidence that

vote,

17,

a

the

ability

day

where

any

eligible

when

especially

of

the

weather

eligible

Enterprise

employees were offered two different time periods in which to
vote.
Enterprise turns our attention to the testimony of Jill
Trout,

Enterprise’s

Human

Resources

Manager,

that

Enterprise

received about ten “call outs” on December 16, 2010 and four
more on December 17.

However, Enterprise presented no evidence

regarding its normal call-out rate, and, thus, the meaning of
this evidence cannot be discerned.

Moreover, Trout testified

that she had no personal knowledge of the reason for the callouts, nor did she have any knowledge of any eligible Enterprise
employee who did not vote on account of the weather.
circumstances,
eligible

Trout’s

Enterprise

testimony

employees

sheds

were

vote.
- 20 -

no

denied

light
an

Under such
on

whether

opportunity

to

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The

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Board’s

ruling

on

Pg: 21 of 167

Enterprise’s

contention

concerning

the inclement weather is consistent with its reasoned decisions.
For example, in V.I.P. Limousine, the Board understandably set
aside an election where twenty inches of snow fell around the
election site in Connecticut during the polling period, “making
navigation of the roads extremely difficult, if not impossible.”
274

NLRB

at

641.

Similarly,

in

Baker

Victory,

the

Board

properly set aside an election where more than four feet of snow
had fallen in the City of Buffalo during the two-week period
preceding

the

election,

and

a

state

of

emergency

declared for the city during the week of the election.

had

been

331 NLRB

at 1069.
Unlike the weather conditions in V.I.P. Limousine and Baker
Victory, there is no evidence that weather conditions impacted
the ability of the eligible Enterprise employees to vote.
noted

above,

Enterprise’s

car

rental

facility

remained

As
open

throughout the inclement weather on December 16, 2010, and there
is no evidence that weather was a serious issue when the polls
were

open

on

December

17.

Accordingly,

the

Board’s

determination that the results of the election should not be set
aside because of the ice/snow storm on December 16 in the Wake
County,

North

Carolina

area

is

evidence.
3
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by

substantial

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Enterprise contends that the results of the election should
be set aside because union organizer Steve Jones told Enterprise
employee

Damion

employees

that

Knowles
“[y]ou

in

the

never

presence

want

to

of

burn

other

any

Enterprise

bridges.”

In

support of this contention, Enterprise heavily relies on the
subjective
threatened

reaction
by

of

Knowles,

Jones’s

who

statement.

says

he

felt

However,

physically

adopting

the

reasoning of the Board Hearing Officer, the Board concluded that
Jones’s statement failed to establish that the free choice of a
reasonable employee would have been hindered.

We agree with the

Board.
First

off,

we

have

recognized

that

the

“‘[s]ubjective

reactions of employees are irrelevant to the question of whether
there

was,

in

fact,

objectionable

conduct.”

Media

Gen.

Operations, 360 F.3d at 442 (quoting Kmart Corp., 322 NLRB 1014,
1015 (1997)).

This is so because the test for coercion is an

objective one.

Id.

Second, embracing Enterprise’s argument would do harm to
the precedent that recognizes that “election campaigns, by their
nature, are rough and tumble affairs, and they typically involve
elements of pressure or inducement.”

Id.

A certain amount of

hyperbole and exaggeration is expected in an election campaign,
which is why the responsibility for assessing the relevant facts
and

deciding

whether

the

union’s
- 22 -

conduct

interfered

with

a

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reasonable employee’s free and fair choice in a representation
election lies with the Board.

Id.

This case is no different.

Third and finally, we agree with the Board that, even if
Knowles’ statement could somehow be construed as a threat, the
statement merely implied that Knowles should not forsake a good
relationship with Jones, even if Knowles moved into management,
because no one knows what the future may bring.

As such, the

statement would not coerce a voter or cause a voter to change
his or her vote.
engage

in

Cf. id. (holding that a union agent did not

coercive

conduct

when

he

told

employees

that

they

should sign a petition stating they would vote for the union to
“‘separate the men from the boys’”).
In sum, the Board’s determination that the results of the
election should not be set aside because Jones told Knowles that
“[y]ou

never

want

to

burn

any

bridges”

is

supported

by

substantial evidence.

III
A
Huntington,

formerly

Northrop

Grumman

Shipbuilding,

operates a shipbuilding and dry dock facility in Newport News,
Virginia.
and

Its principal business is the construction, repair,

overhaul

of

United

States

Navy

vessels,

nuclear-powered aircraft carriers and submarines.
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The construction of an aircraft carrier is a complicated
task.

Its construction requires a carefully planned and highly

integrated design and manufacturing process involving thousands
of employees.

The lifespan of an aircraft carrier construction

project,

the

from

time

the

keel

is

laid

through

completion,

takes between five and six years.

Submarines are smaller than

aircraft

challenging

carriers

construct.

but

similarly

to

design

and

The process used to build submarines is not unlike

that used for aircraft carriers.
Huntington
overhaul

work.

also

performs

considerable

Nuclear-powered

aircraft

refueling
carriers

and

require

refueling of their nuclear core after about twenty-five years of
operation.

This intricate process requires over three years to

complete.

During refueling, Huntington also performs a general

overhaul of the ship, updating computer, electronic, and combat
systems.

As with initial construction, refueling and overhaul

involves the integrated work of thousands of employees.
Huntington employs approximately 18,500 people.
its

workforce

into

four

It divides

categories—-professional,

administrative, production and maintenance, and technical.
case

concerns

Huntington’s

approximately

- 24 -

2,400

This

technical

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employees. 4

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Technical

Pg: 25 of 167

employees

perform

requiring some sort of specialized training.

non-manual

work

Huntington groups

technical employees into ten job classifications: (1) quality
inspectors; (2) test technicians; (3) designers; (4) engineering
technicians; (5) dimensional control technicians; (6) laboratory
technicians;
radiological

(7)
control

chemical

handlers;

technicians

(RCTs);

(8)
and

planners;
(10)

(9)

calibration

technicians.
The

technical

employees

in

almost

all

of

these

job

classifications work in various divisions and departments, and
work at various locations throughout the shipyard. 5

The RCTs and

4

In addition to the technical employees, Huntington employs
approximately 2,000 professional employees (mostly engineers),
approximately 1,500 administrative employees (mostly office and
clerical staff), approximately 8,500 production and maintenance
employees (electricians, welders, machinists, janitors, and
riggers,
among
others),
approximately
2,500
supervisory
employees
(foremen,
managers,
superintendents,
supervisors,
directors, and vice presidents), and approximately 1,600 other
employees who perform various tasks.
The production and
maintenance employees, the guards, and the firefighters are the
only employees represented by a union.
5

Structurally, Huntington is headed by a General Manager,
who oversees six operating divisions.
The six operating
divisions are: (1) Navy Programs Division, which provides
overall management and oversight over aircraft carrier and
submarine construction and aircraft carrier overhaul; (2) the
Operations
and
Manufacturing
Division,
which
handles
the
manufacture of ship components in the first phase of production
for assembly on the ships; (3) the Quality and Process
Excellence Division, which audits and inspects production work
and
provides
record
reviews
and
ensures
that
contract
specifications are met; (4) the Waterfront Nuclear Engineering
(Continued)
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calibration
within

Filed: 07/17/2013

technicians

Huntington’s

RADCON.”

are

Pg: 26 of 167

only

Nuclear

assigned

Services

to

one

Division

department

called

“E85

Technical employees are salaried, have their own labor

and salary grades separate from all other employees and are paid
under the same bi-weekly payroll system.
the

same

personnel

pension,
plans

policies

and

are

401(k),

medical,

dental,

other

benefits

programs,

and

salaried

employees.

They

technical

nature,

requiring

training,

some

extensive

on-the-job

coursework.

classifications

have

all

insurance,
as

the

others

limited

are

of

for

and

all

radiation

same
leave

unrepresented

of

work

of

a

specialized

requiring
the

the

sick

non-manual

exercise

Seven

some

eligible

perform

and

They are covered by

additional

ten

technical

worker

training.

Aside from the RCTs, who have extensive radiological control
training,

designers,

laboratory

technicians,

test

technicians,

calibration

quality

technicians,

inspectors,
and

chemical

handlers all are given dosimetry training of two to five days
because

their

duties

controlled areas.

require

that

they

enter

radiological

Many employees do not enter such areas.

and Test Services Division (Nuclear Services Division), which
provides oversight of the nuclear aspects of Huntington’s
operations; (5) the Commercial Nuclear Programs Department,
which is involved in the construction of commercial nuclear
plant equipment and systems; and (6) the Department of Energy
Programs Office, which is involved with various programs offered
by the Department of Energy.
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Quality inspectors provide oversight for the construction,
maintenance and overhaul, and refueling of the nuclear vessels.
They use drawings prepared by other technicians to ensure that
all

construction

and

repair

work

is

performed

within

the

specifications of the drawing requirements.
Test

technicians

perform

a

variety

of

nuclear

and

non-

nuclear mechanical and electrical testing on a ship’s component
systems.

The non-nuclear test technicians work on propulsion

and combat systems while the nuclear test technicians work on
various

nuclear

systems.

Both

nuclear

and

non-nuclear

test

technicians help establish system conditions and execute work
control documents during the shipbuilding process.
Designers
guides

for

create

the

assembly.

drawings

and

manufacturing

of

blueprints
ship

that

components

serve
and

as

ship

They frequently visit the ships to analyze various

components and systems on which they are working.
Engineering technicians typically are former Navy personnel
with

aptitude

interface

with

in

mechanical

engineers,

and

electrical

designers,

workers who build ship systems.

and

systems.
the

They

construction

They also prepare technical

work documents that guide certain work processes.
Dimension control technicians provide metrology services.
They
large

use

precision

ship

instruments

structures

and

to

measure

machinery
- 27 -

the

dimensions

foundations

so

of

that

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components can be constructed to fit together properly.

They

map these materials with photogrammetric instruments and laser
trackers, which requires extensive training.
Laboratory

technicians

test

elements generated by shipbuilding.

production

materials

and

They perform environmental

sampling, metals and coating analysis, water chemistry analysis,
and mechanical and metallurgy testing.

They also examine and

test materials generated during nuclear work.
Chemical Handlers dispose of hazardous materials generated
during shipbuilding and overhaul.

They primarily handle the

radioactive waste generated during nuclear work.
Planners review ship designs, technical work documents, and
other drawings to determine the proper sequencing of work and
material procurement.

They determine needed materials and when

they need to be delivered.
RCTs are part of a department within Huntington’s Nuclear
Services Division called “E85 RADCON.”

There are approximately

140 RCTs in the E85 RADCON department.

There are also other

technical employees in the department, namely, twenty laboratory
technicians,

three

calibration

technicians,

and

sixty

RCT

trainees.
RCTs

essentially

perform

a

safety

function:

providing

independent radiological oversight for nuclear work areas.
track

radiation

levels

and

ensure
- 28 -

that

individual

RCTs

employees’

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exposure remains within safe limits.
for

ensuring

that

employees

They are also responsible

meet

the

radiological

control

standards required for Huntington to maintain its license to
work with nuclear materials.

Huntington’s overall radiological

control philosophy is known as “ALARA” (As Low As Reasonably
Achievable), and RCT independence is the key to that approach.
Under

ALARA,

although

all

nuclear

workers

are

expected

to

minimize both their personal exposure and wider contamination,
RCTs are responsible for maintaining protocols and achieving the
required containment.

Therefore, under the ALARA program, RCTs

are in a separate department from the rest of the work force in
order

to

facilitate

oversight

that

is

independent

of

both

production and quality control.
RCT

oversight

has

two

prongs:

maintaining

radiological

control areas and performing routine radiological surveys.

RCTs

set up control areas to restrict access near nuclear reactors,
work sites, components, and materials, both on ships and in the
shops.

They use Technical Work Documents (TWDs) and drawings to

make a map of areas that require controls and then survey to
establish the baseline radiation levels and find “hot spots,”
which are then marked on the maps.

In monitored controlled

areas, RCTs set up barriers, signs, and employee checkpoints.
In

less

restricted

control

areas,

RCTs

simply

leave

an

roped off with signs designating the requirements for entry.
- 29 -

area

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At

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control

with

monitored

areas

established

RCTs observe and restrict employee traffic.

checkpoints,

Only employees with

radiological safety training can enter, and RCTs question them
about their jobs and the materials and tools they are taking in
with

them.

Then,

RCTs

assign

each

employee

a

dosimeter

to

record the employee’s dose of radiation, and brief employees
about the hot spots before allowing entry.

As employees leave,

RCTs collect the dosimeters, note employees’ exposure, confirm
that they followed control protocols and screen materials that
they bring out of the area.
irregularity,

they

order

When they observe contamination or

that

work

be

stopped

and

submit

a

radiological deficiency report.
RCTs

conduct

shipyard

on

addition

to

particular

routine

rotations

ranging

performing

tests

and

radiological
from

surveys

projects.

daily

that
For

surveys

are

the

annually,

to

around

in

required

“contamination

during

surveys,”

RCTs wipe surfaces to test for contaminants and in “radiation
surveys,” they use a probe to take contact or ambient radiation
readings.

Surveys can take anywhere from fifteen minutes to two

hours, depending on the type of survey required.
Laboratory
test

the

technicians

materials

dosimetry

equipment,

materials

that

within

collected
and

require

the

E85

the

RCTs,

by

screen

laboratory
- 30 -

RADCON
help

potentially
tests.

department
calibrate

contaminated
E85

RADCON

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calibration technicians maintain and calibrate the instruments
used by RCTs.

As a result, they are qualified to operate all of

the instruments that RCTs use.

They interact with RCTs when

they pick up and replace faulty equipment.
RCT

trainees

perform

some

of

the

routine

surveys

and

monitor limited control points during their on-the-job training.
They can set up the area and allow certain workers inside.
Occasionally,
similar

to

the

other
surveys

laboratory

technicians

surveys

drainage

of

technical
performed
perform

ditches

employees
by

RCTs.

radiation

and

perform

outfalls

Environmental

and
to

work

contamination

make

sure

that

various contaminants do not spread to the environment, but it is
unclear

from

chemical

the

record

handlers

are

how

often

qualified

they

do

to

this.

do

Nuclear

radiation

and

contamination surveys on their vehicles, although, again, the
record does not show how often they actually do so.
no

temporary

transfers

classifications.
There

is

into

or

out

of

There are

E85

RADCON

However, there have been permanent transfers.

evidence

that

RCTs

have

transferred

into

other

technical classifications, but no evidence about how many or how
often this occurs.
RCTs

receive

highly

specialized

training.

They

attend

orientation at the shipyard for their first month and then leave
for a twenty-two week training course run by the United States
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Navy.

This

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training

Pg: 32 of 167

requires

math

and

physical

sciences

aptitude and only half of the RCT trainees graduate.

After

graduation, Huntington conducts five weeks of training at its
facility and then administers a full-day oral examination.
must

take

requalification

training

every

thirty

RCTs

months

and

attend “spill drills” to practice responding to emergencies on a
quarterly basis.

Other technical employees receive, at most,

only a few days of radiological safety training.

Like most

other

government

employees,

RCTs

are

required

to

possess

security clearance of “confidential” or higher.
RCTs use specialized tools, including approximately twentyseven radiation detection instruments.

They receive orange kit

bags and additional supplies such as “wipes, laws, tweezers,
[and] bags.”

Only RCTs receive the orange bags.

A few other

technical classifications are qualified to use some of these
tools,

including

environmental

laboratory

technicians

and

nuclear chemical handlers who perform occasional surveys.
RCTs have daily, work-related contact with all employees
who enter radiological control areas.
employees
supervisors,

(painters,
and

other

machinists,
non-technical

Most of these are trades
pipefitters,
employees.

At

etc.),
certain

stages during refueling overhauls and during the final months of
new ship construction, RCTs have increased contact at control
points with other technical employees, mostly quality inspectors
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and

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test

technicians,

technicians.
brief

and

working
jobs.

Filed: 07/17/2013

but

Pg: 33 of 167

also

designers

and

engineering

Contact with employees at the control points is

involves

together

monitoring

to

perform

them

as

technical

described
or

above,

not

production-oriented

During new construction, there is a period of five or

more years before RCTs are present on the ships. Even during
refueling overhauls, which require radiological oversight from
the

beginning,

RCTs’

contact

with

other

technicians

varies

substantially throughout the period of the ship’s availability
depending

on

the

phase

of

production

and

whether

RCTs

are

assigned to the ship or the shops.
B
On March 3, 2009, the Machinists Union petitioned the Board
to represent the RCTs in the E85 RADCON department.

In the

alternative,

the

to

election

a

in

Machinists
departmental

Union

agreed

unit

of

all

employees in the E85 RADCON department.

to

proceed

of

the

an

technical

Huntington argued that

the smallest appropriate unit had to include all of its 2,400
technical employees.
Following a hearing, the RD issued a DDE on May 29, 2009,
finding that a unit consisting of the technical employees in the
E85

RADCON

technicians,

department
laboratory

(namely,
technicians,

the
and

RCTs,
RCT

calibration
trainees)

appropriate for purposes of collective bargaining.
- 33 -

was

Huntington

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requested

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Board

review
must

of

Pg: 34 of 167

the

include

DDE,

all

of

contending

that

its

technical

2,400

an

appropriate

unit

employees.

On December 30, 2011, the Board affirmed the RD’s

decision.
In

the

ensuing

Board-conducted

election,

the

technical

employees of the E85 RADCON department voted for representation
by the Machinists Union.

The Board subsequently certified the

Machinists Union as the exclusive representative for purposes of
collective bargaining.
Following certification, Huntington refused to comply with
the Machinists Union bargaining request in order to contest the
validity of the certification.

The Machinists Union filed an

unfair labor practices charge, and the Board’s General Counsel
issued

a

unlawful.

complaint

alleging

that

Huntington’s

refusal

was

The General Counsel subsequently filed a motion for

summary judgment, which Huntington opposed.

Huntington claimed

once again that the bargaining unit must include all 2,400 of
Huntington’s

technical

employees.

Alternatively,

Huntington

argued that the Board lacked a quorum to issue its decision and
order.
On August 14, 2012, the Board issued a decision and order
granting

the

Huntington’s

motion
refusal

for
to

summary

bargain

was

judgment,

finding

unlawful.

The

that

Board’s

decision and order requires Huntington to cease and desist from
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its unlawful conduct and from, in any like or related manner,
interfering

with,

restraining,

or

coercing

exercise of their rights under the NLRA.

employees

in

the

Affirmatively, the

Board’s decision and order requires Huntington to bargain with
the Machinists Union upon request and embody any understanding
reached in a signed agreement.
requires

Huntington

to

The decision and order also

post

a

remedial

notice

and,

if

appropriate, distribute copies of the notice electronically.
C
Section 9(a) of the NLRA provides that a union will be the
exclusive bargaining representative if chosen “by the majority
of

the

employees

bargaining.

in

a

unit

appropriate

29 U.S.C. § 159(a).

for”

collective

Section 9(b) authorizes the

Board to “decide in each case whether, in order to assure the
employees

the

fullest

freedom

in

exercising

the

rights

guaranteed by [the NLRA], the unit appropriate for the purposes
of collective bargaining shall be the employer unit, craft unit,
plant unit, or subdivision thereof.”

Id. § 159(b).

The Supreme

Court, in construing § 9(b), has stated that the determination
of an appropriate unit “lies largely within the discretion of
the

Board,

disturbed.”
Local

627,

whose
South
425

decision,
Prairie

U.S.

800,

quotation marks omitted).

if

not

Constr.
805

final
Co.

(1976)

v.

is

rarely

Operating

(citation

and

to

be

Eng’rs,
internal

Further, the Board is possessed of
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the widest possible discretion in determining the appropriate
unit.

Sandvik Rock Tools, Inc. v. NLRB, 194 F.3d 531, 534 (4th

Cir. 1999).
Section 9(b), however, does not direct the Board how it is
to

decide

in

a

given

case

employees is appropriate.

whether

a

particular

grouping

of

Accordingly, the Board’s selection of

an appropriate unit “involves of necessity a large measure of
informed discretion.”

Packard Motor Car Co. v. NLRB, 330 U.S.

485, 491 (1947).
Nothing in the NLRA requires that the unit for bargaining
be the only appropriate unit, or the ultimate unit, or the most
appropriate

unit;

“appropriate.”

the

NLRA

only

requires

that

the

unit

be

Sandvik Rock, 194 F.3d at 534; see also Overnite

Transp. Co., 322 NLRB 723, 723 (1996) (“The Board, however, does
not compel a petitioner to seek any particular appropriate unit.
The Board’s declared policy is to consider only whether the unit
requested is an appropriate one, even though it may not be the
optimum or most appropriate unit for collective bargaining.”).
As the Supreme Court has stated, “employees may seek to organize
‘a unit’ that is ‘appropriate’−−not necessarily the single most
appropriate unit.”

Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 610

(1991).
The

focus

of

the

Board’s

determination

begins

with

the

bargaining unit sought by the petitioner, because, under § 9(d)
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of the NLRA, “the initiative in selecting an appropriate unit
resides with the employees.”

Id.

Further, “[i]n many cases,

there is no ‘right unit’ and the Board is faced with alternative
appropriate units.”

Corrie Corp. of Charleston v. NLRB, 375

F.2d

Cir.

149,

discretion
employees

154

(4th

to

select

in

1967).

among

determining

It

different

an

is

within

potential

appropriate

the

Board’s

groupings

unit.

Fair

of

Oaks

Anesthesia Assocs., P.C. v. NLRB, 975 F.2d 1068, 1071 (4th Cir.
1992).
1
In this case, the RD applied the bargaining unit standard
the Board has applied in cases involving technical employees. 6
Under this standard, a unit consisting of only a subset of an
employer’s

technical

employees

is

appropriate

“when

the

employees in the requested unit possess a sufficiently distinct
community of interest apart from other technicals to warrant
their establishment as a separate appropriate unit.”

TRW Carr

Div.,

TRW

266

NLRB

326,

326

n.4

(1983).

Under

the

Carr

standard, the burden is on the union seeking representation of
the subset of technical employees to demonstrate the distinct

6

Technical employees are those who do not meet the NLRA’s
definition of professional employee, 29 U.S.C. § 152(12), but
whose
work
involves
independent
judgment
and
requires
specialized training. NLRB v. Sweetwater Hosp. Ass’n, 604 F.2d
454, 456 n.2 (6th Cir. 1979).
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community

of

Filed: 07/17/2013

interest.

Id.

Pg: 38 of 167

at

326

n.3

(“Showing

that

some

technical employees perform their duties in another phase of the
Employer’s operation is not enough to establish affirmatively
why

the

segmented

group

of

technical

employees

should

be

represented separately.”); see also Bendix Corp., 150 NLRB 718,
720 (1964) (“But it is not enough for the Petitioner to show
that it is willing to represent all the electronic technicians
at

the

plant;

it

must

also

establish

affirmatively

why

they

should be represented separately.”).
The RD concluded that Huntington’s RCTs possess a distinct
community of interest from all other technicals outside of the
E85 RADCON department.
possess

unique

specialized

The RD noted that the RCTs, inter alia,

skills,

training,

undergo

have

intensive,

distinct

job

lengthy,

functions,

and

utilize

special tools and equipment, do not temporarily interchange with
other technicals, and have separate supervision.

The RD further

noted that the level of functional integration and contact with
non-radiological control technicals was not so substantial as to
negate their separate and distinct community of interest.
With regard to the RCT trainees, calibration technicians,
and laboratory technicians in the E85 RADCON department, the RD
concluded that these employees share a community of interest
with

the

RCTs

bargaining unit.

sufficient

to

require

their

inclusion

in

the

The RD noted that the calibration technicians
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and laboratory technicians are in the same department, have job
duties

functionally

responsible

for

related

and

radiological

integrated

control

at

in

that

are

facility,

the

all

are

trained to use the same specialized equipment, work out of the
E85

RADCON

facilities,

and

are

supervision

hierarchy.

The

RD

also

laboratory

technicians

in

the

E85

progressed

from

technicians

the

RCT

generally

do

under

the

same

departmental

noted

that

most

RADCON

of

department

the
have

classification

and

that

laboratory

not

with

the

laboratory

interact

technicians outside of the E85 RADCON department.
With
RADCON

regard

to

department,

the

the

RD

calibration
noted

technicians

that,

while

in

not

the

E85

required

to

possess the same training or perform the same duties as the
RCTs, these employees work on and operate the instruments and
equipment used by the RCTs and are responsible for ensuring that
these

instruments

and

equipment

are

in

working

order.

With

regard to the RCT trainees, the RD noted that it was undisputed
that these employees received the same training as the RCTs in
order for them to become monitors in the next step of their job
progression.
Based
departmental

on

all
unit

of
of

this

evidence,

technical

the

employees

RD

held

(RCTs,

that

a

laboratory

technicians, calibration technicians, and RCT trainees) in the
E85 RADCON department constituted a functionally distinct group
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with a sufficiently distinct community of interest as to warrant
a

separate

unit

appropriate

for

the

purposes

of

collective

bargaining.
On review of the RD’s decision, the Board analyzed the case
under both the TRW Carr standard and the “community of interest”
standard, which the Board clarified in Specialty Healthcare &
Rehab.

Ctr.

of

Mobile,

2011

WL

3916077

decided after the RD’s decision. 7

(NLRB

2011),

a

case

Following a line of Board

authority, Specialty Healthcare made clear that the appropriate
bargaining unit determination turns on whether the petitionedfor

employees

Healthcare,

share

2011

WL

a

“community

3916077,

quotation marks omitted). 8

at

of
*14

interest.”
(citation

Specialty
and

internal

An employer challenging the Board’s

7

The Board observed that, “arguably,” it had developed a
different standard for determining whether a unit of technical
employees is appropriate.
Northrop Grumman Shipbuilding, Inc.,
2011 WL 7121890, at *6 (NLRB 2011). The Board further observed
that it need not reach the question of “whether a distinct test
exists for technical employees,” because it would “reach the
same result even under the technical employee line of cases.”
Id. The RD understandably did not cite to Specialty Healthcare
because, as noted above, the case was decided after he issued
his decision.
8

The “community of interest” test requires the Board to
examine twelve equally important criteria in determining whether
the employees seeking to be represented by a union share a
sufficient community of interest to form an appropriate
bargaining unit. NLRB v. Lundy Packing Co., 68 F.3d 1577, 1580
(4th Cir. 1995). The twelve factors the Board must examine are
the following:
(Continued)
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unit determination under the community of interest standard has
the

burden

“utterly

to

prove

that

the

inappropriate.”

bargaining

Sandvik

Rock,

unit
194

selected
F.3d

at

is
534

(citation and internal quotation marks omitted); see also Blue
Man Vegas, LLC v. NLRB, 529 F.3d 417, 421 (D.C. Cir. 2008)
(noting

that,

if

the

objecting

party

shows

that

excluded

employees “share an overwhelming community of interest” with the
employees in the otherwise appropriate unit, then there is no
legitimate basis to exclude them); Specialty Healthcare, 2011 WL
3916077,

at

*17

petitioned-for
contention
larger

unit

that

unit

(noting
to

be

employees

which

would

that
an

in

“the

appropriate

the

also

Board

be

unit

could

will
unit,
be

appropriate

find
despite

placed
or

the

even

in

a
a

more

appropriate, unless the party so contending demonstrates that

(1) similarity in the scale and manner of determining
the earnings; (2) similarity in employment benefits,
hours of work, and other terms and conditions of
employment; (3) similarity in the kind of work
performed; (4) similarity in the qualifications,
skills and training of the employees; (5) frequency of
contact or interchange among the employees; (6)
geographic proximity; (7) continuity or integration of
production processes; (8) common supervision and
determination
of
labor-relations
policy;
(9)
relationship to the administrative organization of the
employer; (10) history of collective bargaining; (11)
desires of the affected employees; [and] (12) extent
of union organization.
Id.
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employees in the larger unit share an overwhelming community of
interest with those in the petitioned-for unit”).

In Specialty

Healthcare, the Board noted that additional employees share an
overwhelming

community

of

interest

with

the

petitioned-for

employees only when there is no legitimate basis upon which to
exclude

the

traditional
completely.’”

employees
community

from
of

the

larger

interest

2011 WL 3916077, at *16

unit

factors

because

“‘overlap

the

almost

(quoting Blue Man Vegas,

529 F.3d at 422). 9
In analyzing the case under both of these standards, the
Board

first

turned

to

the

Specialty

Healthcare

standard.

Applying this standard, the Board concluded that the E85 RADCON
technical employees shared a community of interest under the
Board’s community of interest criteria.
the

E85

RADCON

technical

employees

all

The Board noted that
worked

in

the

same

department under common supervision and their work had a shared
9

There is obvious tension between the TRW Carr standard and
the community of interest standard clarified in Specialty
Healthcare.
The TRW Carr standard places the burden on the
union, while the community of interest standard clarified in
Specialty Healthcare places the burden on the employer.
Moreover, the overwhelming community of interest component of
the community of interest standard may run afoul of our decision
in Lundy Packing. See 68 F.3d at 1581 (“By presuming the unionproposed unit proper unless there is an overwhelming community
of interest with excluded employees, the Board effectively
accorded controlling weight to the extent of union organization.
This is because “the union will propose the unit it has
organized.”) (citation and internal quotation marks omitted).
These are tensions, however, which we need not resolve here.
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purpose

and

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was

functionally

Pg: 43 of 167

integrated.

The

Board

further

noted that the RCTs monitor employees and collect samples when
appropriate; they rely on laboratory technicians to analyze the
samples they collect; and calibration technicians keep the RCTs’
instruments in proper working order.

The Board noted that RCT

trainees assist RCTs and operate limited control checkpoints as
they learn the job, and that many of the E85 RADCON laboratory
technicians used to be RCTs.
The Board rejected Huntington’s argument that the technical
employees

outside

of

the

E85

RADCON

department

shared

an

overwhelming community of interest with the E85 RADCON technical
employees.

The Board noted that all of the facts relied upon by

Huntington (namely, that all of Huntington’s technicians operate
under the same salary structure and personnel policies, share
break facilities, and enjoy the same benefits) were outweighed
by the facts distinguishing the E85 RADCON technicians from the
other technicians.

In so noting, the Board emphasized that the

RCTs’ job function was to ensure workplace safety and control
radioactive contamination at the shipyard, a task distinct from
the production-oriented jobs of technical employees outside of
the E85 RADCON department.
that

the

production

RCTs

are

not

work

flow

of

Consequently, the Board concluded
functionally
the

shipyard,

integrated
but

instead

into
have

the
an

independent oversight role, and often their role conflicted with
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production

and

quality

Pg: 44 of 167

control

goals

of

other

technical

employees.
The Board also emphasized that, in keeping with the RCTs’
independent oversight role, Huntington had placed all the RCTs
in a separate department, under separate supervision from its
production employees.

In addition, work contacts between the

RCTs and other technical employees were brief and limited to the
same radioactive screening at safety checkpoints that thousands
of trades employees receive, with only a few exceptions during
particular projects.

The Board further emphasized that the RCTs

receive extensive and highly-specialized radiological training
and

use

numerous

radiation

detection

instruments

specific

their job; as a result, they possess unique skills.

to

Based on

this evidence, the Board concluded that the technical employees
in

the

E85

sufficiently

RADCON

department

distinct

from

shared

a

community

Huntington’s

of

interest

production-oriented

technical employees at the shipyard.
The Board then turned to the standard set forth in TRW
Carr.

The

Board

agreed

with

the

RD’s

extensive

reasoning,

discussed above, supporting his conclusion that, under the TRW
Carr

standard,

the

technical

employees

in

the

E85

RADCON

department shared a community of interest distinct from that
which

they

employees

in

share

with

Huntington’s

the

production-oriented

shipyard.
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technical
the

Board

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concluded that, under the TRW Carr standard, a unit of all of
the

technical

employees

in

the

E85

RADCON

department

was

an

appropriate unit for collective bargaining.
2
Huntington attacks the Specialty Healthcare standard on a
variety

of

Board’s

fronts.

For

Specialty

overwhelming
improperly

Healthcare

community

gives

example,

of

Huntington

standard,

interest

controlling

in

portion

weight

to

argues

a

that

particular

of

that

union’s

the
the

standard,

extent

[of

organization] in the workplace and, thus, offends § 9(c)(5) of
the

NLRA,

which

provides

that

the

Board,

in

making

unit

determinations, shall ensure that “the extent of organization
shall not be controlling.”

29 U.S.C. § 159(c)(5).

Huntington

also argues that the Specialty Healthcare standard usurps the
well-settled standard for technical employees set forth in TRW
Carr.

According to Huntington, the TRW Carr standard applies

here, and the Board erred when it concluded under that standard
that all of the technical employees in the E85 RADCON department
was an appropriate unit for collective bargaining.
We need not decide whether the Board erred in applying the
standard

set

submits,

or

forth
even

in

Specialty

address

whether

Healthcare,
Specialty

as

Huntington

Healthcare

consistent with the NLRA or our decision in Lundy Packing.

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is so because the Board’s decision under the TRW Carr standard
is supported by substantial evidence.
Under the TRW Carr standard, when technical employees work
in

similar

jobs

and

have

similar

working

conditions

and

benefits, the smallest appropriate unit for a group of technical
employees

must

include

all

technical

employees

similarly

employed.

See Western Electric, 268 NLRB 351, 352 (1983) (“In

general, the smallest appropriate unit of technical employees
working

in

similar

jobs

with

similar

working

conditions

and

benefits comprises all such technical employees.); TRW Carr, 266
NLRB at 326 (“When technical employees work in similar jobs and
have

similar

working

conditions

and

benefits,

the

only

appropriate unit for a group of technicals must include all such
employees

similarly

employed.”).

Thus,

while

the

Board

has

found units of some, but not all, similarly situated technical
employees to be inappropriate, it has also found a smaller unit
to

be

appropriate

when

the

petitioned-for

technical

unit

possesses a sufficiently distinct community of interest apart
from other technical units to warrant their establishment as a
separate appropriate unit.

See Western Electric, 268 NLRB at

352 (“Although a unit of less than all professional employees
may

be

appropriate

if

that

unit

consists

of

a

readily

identifiable group with distinct skills and functions, the Board
will not certify an arbitrarily defined segment of an employer’s
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similarly situated professionals.”); TRW Carr, 266 NLRB at 326
n.4 (“[I]t is the Board’s policy to grant a unit including some,
but not all, technical employees only when the employees in the
requested

unit

possess

interest

apart

from

a

sufficiently

other

distinct

technicals

to

community
warrant

of

their

establishment as a separate appropriate unit.”).
In this case, it was within the discretion of the Board to
find that the technical employees in the E85 RADCON department
possessed a sufficiently distinct community of interest apart
from other technical employees at the shipyard to warrant their
establishment as a separate bargaining unit.

First, the RCTs

perform--with the integrated support of calibration technicians,
laboratory

technicians,

department--the

unique

and

RCT

trainees

function

of

radiological oversight at the shipyard.

in

the

providing

employees

are

also

distinct

RADCON

independent

No employees outside of

the E85 RADCON department perform that task.
technical

E85

from

The E85 RADCON
other

technical

employees because they possess unique skills, have distinct job
functions, are qualified to use specialized tools and equipment,
have separate supervision, and do not temporarily interchange
with other technical employees.
The
other

E85

RADCON

technical

technical

employees,

employees’

and

their

work

level

contacts
of

with

functional

integration, is not so substantial as to negate their separate
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and distinct community of interest.

The RCTs’ work contacts

with technical employees outside the E85 RADCON department are
limited to subjecting them to the same radiological screening
that

other

employees

classifications

receive.

outside

of

the

Employees

E85

RADCON

in

technical

department

perform

tasks that are directly related to production, as opposed to
radiological safety, and the E85 RADCON technical employees are
not part of the production work flow.

In sum, the technical

employees in the E85 RADCON department perform a radiological
safety function that is sufficiently distinct from all other
employees at the shipyard to warrant their having a separate
bargaining unit.
In

support

bargaining

of

unit

its

must

contention

include

all

that
of

the

only

appropriate

Huntington’s

technical

employees, Huntington heavily relies on two cases in which the
Board

found

that

units

not

including

all

technical employees were not appropriate.
RCTs

at

Westinghouse

Electric

of

the

employer’s

Both cases involved

Corporation’s

Naval

Reactors

Facility (NRF) at the National Reactor Testing Station in Idaho
Falls, Idaho.

Westinghouse Elec. Corp., 137 NLRB 332 (1962)

(Westinghouse I), and Westinghouse Elec. Corp., 300 NLRB 834
(1990) (Westinghouse II).

According to Huntington, our case is

controlled by the Westinghouse cases because Huntington’s RCTs

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perform similar, if not identical, duties at its facility as did
the employees at issue in the Westinghouse cases.
In Westinghouse I, the union sought to establish two units
of technical employees, excluding industrial hygiene technicians
among others.

137 NLRB at 332. 10

petitioned-for

units

homogenous

groups

were
of

departmental units.”

The Board found that the

not

“functionally

employees,

Id. at 337.

or

administrative

[or]

distinct

or

In so finding, the Board

explained that NRF was “one big scientific laboratory for the
development

and

simulation

of

scientific

problems,

and

analysis and discovery of answers to those problems.”
334.

Consequently,

the

Board

found

that

the

the

Id. at

“technical

functions of NRF [were] thoroughly integrated,” that the skills
of

all

the

technical

employees

were

“quite

similar,”

that

technical employees all “receive the same training course,” and
that

the

unit.”

petitioned-for

Id. at 337.

employees

were

not

a

“departmental

The Board concluded that all of the NRF’s

technical employees “must be taken together as constituting an
appropriate unit.”

Id.

In Westinghouse II, the RD found a bargaining unit of RCTs
and chemistry technicians, excluding other technical employees,

10

The industrial hygiene technicians in Westinghouse I
performed a radiological control function similar to the RCTs at
Huntington’s shipyard. 137 NLRB at 336.
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to be appropriate.

Pg: 50 of 167

300 NLRB at 834.

On review, the Board found

that that unit was not appropriate.
heavily

relied

concerning

on

the

employees.

Id.

its

earlier

functional

Id. at 835.

decision

integration

The Board

in

Westinghouse

of

the

I

technical

Thus, the Board found that radiological control

was not a task “discrete from the [e]mployer’s major service” of
handling and processing nuclear material and operating reactors.
Id.
to

According to the Board, this control function required RCTs
have

“close

contact

with

other

technical

employees”

provide them with “direct support services.”

Id.

and

The Board

further noted that the record concerning the working conditions
of RCTs and other technical employees was “strikingly similar”
to the facts presented in Westinghouse I.
the

Board

holding

found

and

no

grounds

concluded

that

for

Id.

departing

only

a

from

Board

distinguished

Huntington’s case.
cases

involved

RCTs

the

its

comprehensive

technical employees was appropriate at the NRF.
The

Consequently,
earlier
unit

of

Id.

Westinghouse

cases

from

The Board noted that, although all three
who

performed

similar

functions,

the

similarity between Huntington’s case and the Westinghouse cases
ended there.

The Board observed that the overall technical work

force at Huntington and Westinghouse is quite different, due in
large measure to the substantial differences between running a
nuclear research and training lab, as in the Westinghouse cases,
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and operating a shipyard that builds and refurbishes aircraft
carriers

and

submarines,

as

in

Huntington’s

case.

In

the

Westinghouse cases, the RCTs provided radiological safety for a
relatively small complement of technical employees, all working
near

nuclear

reactors

and

materials.

In

contrast,

in

Huntington’s case, a large proportion of its shipyard is engaged
in

non-nuclear

employees

construction,

require

no

so

hundreds

radiological

of

its

oversight,

technical

and

it

is

undisputed that many employees are not even qualified to enter
nuclear work areas.
Moreover,
radiological

the

Board

oversight

that

observed
is

that

required

the

varies

amount

of

substantially

over the course of work on any given ship at the Huntington
shipyard,

and

beginning

of

there
new

is

ship

necessary at all.

a

period

of

construction

several
where

years

no

at

oversight

the
is

In contrast, the Board explained, in the

Westinghouse cases, the RCTs’ “presence is an absolute necessity
at all stages of some functions of [the] facilities.”

Northrop

Grumman Shipbuilding, Inc., 2011 WL 7121890, at *7 (citation and
internal

quotation

Westinghouse
support

to

marks

cases,
or

classifications.

have

omitted).

Huntington’s
close

Unlike

RCTs

contact

do

with

the

not
the

RCTs

provide
other

in

the

direct

technical

To the contrary, the Board noted, Huntington’s

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RCTs have little or no regular working contact with a majority
of the other technical employees.
The Board also observed that the absence of even temporary
interchange between RCTs and other technical classifications at
the Huntington shipyard further distinguished this case from the
Westinghouse cases, where there was such temporary interchange.
In light of all the meaningful distinctions between Huntington’s
case and the Westinghouse cases, the Board concluded that the
Westinghouse cases were not controlling.
We agree with the Board that the Westinghouse cases are
distinguishable from our case, for the reasons persuasively set
forth

by

the

Board.

Accordingly,

we

hold

that

the

Board’s

decision, that under the standard set forth in TRW Carr, the
technical

employees

community

of

in

interest

the

E85

RADCON

sufficiently

department

distinct

from

share
the

a

other

technical employees at Huntington’s shipyard, is supported by
substantial evidence.

IV
Having

determined

that

Enterprise

and

Huntington

do

not

prevail on their statutory challenges under the NLRA, we must
proceed to the constitutional question presented: Whether the
President’s three appointments to the Board on January 4, 2012

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are valid under the Recess Appointments Clause of the United
States Constitution.
A
Section 3(b) of the NLRA provides in relevant part:
The Board is authorized to delegate to any group of
three or more members any or all of the powers which
it may itself exercise. . . . A vacancy in the Board
shall not impair the right of the remaining members to
exercise all of the powers of the Board, and three
members of the Board shall, at all times, constitute a
quorum of the Board, except that two members shall
constitute a quorum of any group designated pursuant
to the first sentence hereof.
29 U.S.C. § 153(b).

In New Process Steel, the Supreme Court

addressed the question of whether, under § 3(b), following a
delegation of the Board’s powers to a three-member group, two
members may continue to exercise that delegated authority once
the group’s (and the Board’s) membership falls to two.
Ct. at 2638.

130 S.

The Supreme Court held that the two remaining

Board members could not exercise such authority.

Id.

The Court

identified three reasons supporting its reading of § 3(b).
First, the Court noted that reading the first sentence of
§ 3(b)

to

require

“the

Board’s

delegated

power

be

vested

continuously in a group of three members [was] the only way to
harmonize and give meaningful effect to all of the provisions in
§ 3(b).”

Id. at 2640.

Second, the Court noted that,

if Congress had intended to authorize two members
alone to act for the Board on an ongoing basis, it
could have said so in straightforward language.
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Congress instead imposed the requirement that the
Board delegate authority to no fewer than three
members, and that it have three participating members
to constitute a quorum. Those provisions are at best
an unlikely way of conveying congressional approval of
a two-member Board.
Id. at 2641.

Third, the Court noted that its interpretation of

§ 3(b)

was

consistent

Board.

with

the

longstanding

practice

of

the

Id. at 2641-42.

At the time it issued its 2012 decisions in the unfair
labor practices cases currently before us, 11 the Board had two
properly seated members, namely, Mark Gaston Pearce and Brian
Hayes, both of whom were confirmed by the Senate on June 22,
2010.

Its third member, Craig Becker, had been appointed to a

recess term that ended on January 3, 2012.
Board

lost

pursuant

to

its

quorum.

the

Recess

The

President,

Appointments

As of that date, the
purportedly

Clause,

acting

appointed

Sharon

Block, Richard Griffin, Jr., and Terence Flynn (who has since
resigned his seat) to the Board the next day, January 4, 2012. 12
The lawfulness of the Board’s 2012 unfair labor practices
decisions in both the Enterprise and Huntington cases turns on

11

April 2012
Huntington’s case.

in

Enterprise’s

12

case,

and

August

2012

in

Block replaced Becker on the Board.
Flynn filled the
seat which became vacant on August 27, 2010 when Peter
Schaumber’s term expired.
Griffin filled Wilma Leibman’s seat,
which became vacant when her term expired on August 27, 2011.

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Clause

Pg: 55 of 167

appointments

are

valid. 13

pursuant
If

the

to

the

Recess

appointments

are

invalid, the Board’s quorum requirement was not met at the time
it issued the 2012 decisions.
challenge

these

Presidential

Both Enterprise and Huntington
appointments;

the

Board

asserts

that the President validly exercised his delegated authority.
We

begin

our

discussion

by

setting

forth

the

governing

interpretative law and the relevant constitutional provisions at
issue. 14

13

Understandably,
neither
Enterprise
nor
Huntington
challenge the validity of Becker’s appointment to the Board
under the Recess Appointments Clause.
In NLRB v. New Vista
Nursing and Rehabilitation, LLC., 2013 WL 2099742, at **11-30
(3d Cir. May 16, 2013), the court held that Becker’s appointment
was invalid under the Recess Appointments Clause. The validity
of Becker’s appointment is not before us because direct judicial
review of Board representation decisions is unavailable; rather,
only indirect review of such decisions is available, and this is
obtained through a refusal to bargain and the filing of an
unfair labor practices charge.
NLRB v. Kentucky River Cmty.
Care Inc., 532 U.S. 706, 709 (2001); AFL v. NLRB, 308 U.S. 401,
409–11 (1940).
Thus, the only Board decisions under direct
review in these cases are the ones issued in the unfair labor
practices cases in 2012.
14

Neither Enterprise nor Huntington argue that § 3(b)’s
three-member-composition requirement deprives us of jurisdiction
to review the Board’s 2012 unfair labor practices decisions in
the cases before us. However, as a federal appellate court, we
have
an
obligation
to
satisfy
ourselves
that
we
have
jurisdiction to review these decisions.
See Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)
(observing that “every federal appellate court has a special
obligation to satisfy itself not only of its own jurisdiction,
but also that of the lower courts in a cause under review, even
though the parties are prepared to concede it”) (citation and
(Continued)
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B
When interpreting the text of the Constitution, we begin
with the presumption that every word in the Constitution has
independent meaning, “that no word was unnecessarily used, or
needlessly added.”
(1938).

Wright v. United States, 302 U.S. 583, 588

Moreover, we must bear in mind in our evaluation of the

constitutional provisions at issue that “‘[t]he Constitution was
written to be understood by the voters; its words and phrases
were used in their normal and ordinary as distinguished from

internal quotation marks omitted).
In Arbaugh v. Y & H
Corporation, 546 U.S. 500 (2006), the Supreme Court set forth a
“readily administrable bright line” jurisdictional standard.
Id. at 516. “If the Legislature clearly states that a threshold
limitation on a statute’s scope shall count as jurisdictional,
then courts and litigants will be duly instructed and will not
be left to wrestle with the issue.”
Id. at 515–16.
In New
Process Steel, the Supreme Court held that § 3(b)’s threemember-composition requirement mandated that a delegee group
maintain a membership of three in order to exercise the
delegated authority of the Board. 130 S. Ct. at 2639-42. Such
a requirement is a threshold limitation on the scope of the
Board’s delegated power under the NLRA, and, therefore, we are
satisfied that we have jurisdiction to determine whether there
is any reason for which the delegee group consists of fewer than
three members, including whether one member is invalidly
appointed under the Recess Appointments Clause.
See New Vista
Nursing, at *5 (“By explaining that three members are required
in order to exercise the delegated authority of the Board, . . .
the Supreme Court has in essence declared that the three-membercomposition requirement goes directly to the board’s power to
hear a case, which is exactly what jurisdictional questions
relate to”) (citations and internal quotation marks omitted);
Noel Canning, 705 F.3d at 497 (“[T]he objections before us
concerning lack of a quorum raise questions that go to the very
power of the Board to act.”).
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technical meaning.’”

Pg: 57 of 167

District of Columbia v. Heller, 554 U.S.

570, 576 (2008) (quoting United States v. Sprague, 282 U.S. 716,
731 (1931)).

The “[n]ormal meaning may of course include an

idiomatic meaning, but it excludes secret or technical meanings
that

would

not

have

founding generation.”

been

known

to

ordinary

citizens

in

the

Id. at 576–77.

The Appointments Clause of the Constitution provides that
the President “shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the [S]upreme Court, and all
other Officers of the United States . . . .”
II, § 2, cl.2. 15

U.S. Const. art.

The shared responsibility between the President

and the Senate was created to act as a “check upon a spirit of
favoritism in the President,” and to prevent the appointment of
“unfit characters.”

The Federalist No. 76, at 392 (Alexander

Hamilton) (Carey and McClellan ed., 1990).
The Recess Appointments Clause was created to supplement
the

Appointments

(Alexander
“shall

have

Clause.

Hamilton).
Power

to

The
fill

The

Federalist

clause

states

up

Vacancies

all

No.

that

67,
the

that

at

350

President
may

happen

during the Recess of the Senate, by granting Commissions which

15

The parties agree that members of the Board are “Officers
of the United States” within the meaning of the Appointments
Clause.
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shall expire at the End of their next Session.”
art. II, § 2, cl.3.

U.S. Const.

“Recesses can generally be classified into

two categories: intersession recesses--or, recesses that occur
between two sessions of Congress--and intrasession recesses--or
recesses that occur within one particular session of Congress.”
Alexander

Wolf,

Taking

Back

What’s

Theirs:

The

Recess

Appointments Clause, Pro Forma Sessions and A Political Tug-ofWar, 81 Fordham L. Rev. 2055, 2062 (2013) (footnotes omitted).
Stated differently, an intersession break of the Senate refers
to the period of time between an adjournment sine die and the
start of the Senate’s next session, while an intrasession break
refers to the period of time between a non-sine die adjournment
and the time the Senate reconvenes.
The Recess Appointments Clause has two important features
relevant

here.

government

would

First,

it

was

designed

remain

in

operation

to

during

ensure

that

the

times

when

the

Senate would be unable to advise and consent to a nomination.
Id. at 2062-63.

When the Constitution was written, intersession

recesses regularly lasted between six and nine months.

Michael

B. Rappaport, The Original Meaning of the Recess Appointments
Clause, 52 UCLA L. Rev. 1487, 1498 (2005).

Consequently, in the

absence of a recess appointments provision, there was a genuine
possibility that an important government position, for example,
a cabinet post, would remain vacant for a long period of time,
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because recalling the Senate, U.S. Const. art. II, § 3, was not
an easy task considering the slow transportation of the late
1700s.

Rappaport, 52 UCLA L. Rev. at 1498.

importantly,

the

Recess

Appointments

Second, and more

Clause

was

designed

to

prevent the President from unilaterally exercising appointment
power, thereby preserving the separation of the powers between
the Legislative and Executive Branches.

Id. at 1511 n.68; cf.

Freytag v. C.I.R., 501 U.S. 868, 884 (U.S. 1991) (“The Framers
understood,

however,

that

by

limiting

the

appointment

power,

they could ensure that those who wielded it were accountable to
political force and the will of the people.”); cf. id. (noting
that the Appointments Clause “bespeaks a principle of limitation
by dividing the power to appoint the principal federal officers—
ambassadors, ministers, heads of departments, and judges—between
the Executive and Legislative Branches”).
There was no debate surrounding the inclusion of the Recess
Appointments Clause into the Constitution, and the clause was
included in the Constitution without a single dissenting vote.
Wolf, 81 Fordham L. Rev. at 2063.
established

that

the

phrase

“End

Moreover, it is clearly
of

[the

Senate’s]

next

Session,” U.S. Const. art. II, § 2, cl.3, means “the end of the
session following the final adjournment of the current session
of Congress.

Thus, an appointment made during the first session

of a particular Congress will not expire until the end of the
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second session of that Congress.”
2064

(footnotes,

citations,

Wolf, 81 Fordham L. Rev. at

and

internal

quotation

marks

omitted).
Under the Adjournments Clause, “neither [chamber], during
the

Session

of

Congress,

shall,

without

the

other, adjourn for more than three days.”
§ 5, cl.4. 16
chamber

of

chamber.
the

of

the

U.S. Const. art. I,

An adjournment of more than three days by one
Congress

thus

requires

the

consent

of

the

other

Such an adjournment usually is accomplished through

passage

adjournment.
agree

Consent

that

Adjournments

of

concurrent

resolutions

permitting

Wolf, 81 Fordham L. Rev. at 2065.
the

Senate

Clause

when

was

not

the

adjourned

President

16

made

The parties

pursuant
the

such

to

three

the
2012

“Adjourn” or “adjournment” is used in the Constitution on
five more occasions (in four clauses): (1) Article I, § 5,
Clause 1 (allowing a minority of members to “adjourn from day to
day”); (2) Article I, § 7, Clause 2 (“If any Bill shall not be
returned by the President within ten Days (Sundays excepted)
after it shall have been presented to him, the Same shall be a
Law, in like Manner as if he had signed it, unless the Congress
by their Adjournment prevent its Return, in which Case it shall
not be a Law”); (3) Article I, § 7, Clause 3 (“Every Order,
Resolution, or Vote to which the Concurrence of the Senate and
House of Representatives may be necessary (except on a question
of Adjournment) shall be presented to the President of the
United States”); and (4) Article II, § 3 (“[The President] may,
on extraordinary Occasions, convene both Houses, or either of
them, and in Case of Disagreement between them, with Respect to
the Time of Adjournment, he may adjourn them to such Time as he
shall think proper.”).

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recess appointments to the Board at issue in the cases before
us. 17
The Take Care Clause requires the President to “take Care
that the Laws be faithfully executed.”
§ 3.

U.S. Const. art. II,

This clause’s application here is subtle.

On the one

hand, it may be said that the Take Care Clause requires the
President to ensure that the laws of the United States, such as
the NLRA, be faithfully executed and that the use of pro forma
sessions prevents such execution.
said

that

the

use

of

pro

On the other hand, it may be

forma

sessions

ensures

that

the

President will seek the advice and consent of the Senate in
exercising his appointment power.
C
In
before

pressing
this

court,

their
the

respective
parties

supporting their position.

take

constitutional
umbrage

under

arguments
authority

The Board’s view is supported by

decisions out of the Second, Ninth, and Eleventh Circuits.

See

Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004); United States
v. Woodley, 751 F.2d 1008 (9th Cir. 1985); United States v.

17

The use of pro forma sessions every three days allows one
chamber of Congress effectively to adjourn when the other
chamber will not consent to an adjournment. A Senate pro forma
session usually begins with a single senator gaveling-in the
session and concludes with the same senator ending the session
only several seconds or minutes later. Wolf, 81 Fordham L. Rev.
at 2067.
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Allocco, 305 F.2d 704 (2d Cir. 1962).

Two recent decisions

support the position pressed by Enterprise and Huntington.

See

New Vista Nursing, 2013 WL 2099742; Noel Canning, 705 F.3d 490.
An analysis of the Eleventh Circuit’s decision in Evans, the
D.C. Circuit’s decision in Noel Canning, and the Third Circuit’s
decision

in

New

Vista

Nursing

is

helpful

in

resolving

the

constitutional question before us.
1
In Evans, between February 12 and February 23, 2004, the
Senate took a break in their session.

387 F.3d at 1221.

During

that break, on February 20, the President, relying on the Recess
Appointments

Clause,

appointed

William

Eleventh Circuit Court of Appeals.
challenged

the

authority

States Circuit Judge.

of

Id.

Judge

Pryor,

Jr.,

to

the

The plaintiffs in Evans

Pryor

to

act

as

a

United

Id. at 1222.

The Evans court first held that a recess appointment to an
Article III court is permitted under the Recess Appointments
Clause.

Id. at 1222-24.

The court also held that the term “the

Recess” also includes an intrasession break.
In

so

holding,

the

court

first

indicated

Id. at 1224-26.
that

the

Senate’s

twelve-day break fit within the definition of a “recess” that
was “in use when the Constitution was ratified: the dictionary
definitions that have been called to our attention (or that we

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have found) did not, for example, speak of a minimum time.”

Id.

at 1224.
The Evans court then rejected the argument that the term
“the Recess” limits the opportunity to make recess appointments
to one particular recess, that is, the recess at the end of a
session.

Id.

Rather, the court observed, the term “the Recess”

could refer to both intersession as well intrasession breaks.
Id. at 1224-45.
The court in Evans was not persuaded that the Framers’ use
of the term “adjournment” in other clauses and not the term “the
Recess” necessarily limited the meaning of the term “the Recess”
to a break at the end of a session.

Id. at 1225.

The court

stated that, “[i]nstead of describing a block of time, the term
‘Adjournment’

in

parliamentary

action:

break.”

the

Constitution
Congress’s

can

be

taking

read
or

to

having

signify

a

taken

a

Id.

The Evans court noted that the “Constitution, on its face,
does not establish a minimum time that an authorized break in
the Senate must last to give legal force to the President’s
appointment power under the Recess Appointments Clause,” and the
court elected not to establish a minimum time.

Id.

The court

did observe that, although a President had not before appointed
a judge to an Article III court during an intrasession break as
short as the one in Judge Pryor’s case, appointments to other
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requiring

Senate

Pg: 64 of 167

confirmation

had

been

made

intrasession breaks of about this length or shorter.

during

Id.

The Evans court noted that its interpretation of the term
“the Recess” was consistent with one of the main purposes behind
the Recess Appointments Clause.
the

proper

breaks
theory,

and

functioning

of

intersession

an

intersession

intrasession break.

The court noted that, to assure

the

government,

breaks

were

break

could

both

permitted,
be

intrasession
because,

shorter

than

in
an

Id. at 1226.

The Evans court then turned to the question of whether the
vacancy

needs

to

“happen”

order to be filled.

or

“arise”

during

“the

Recess”

in

The court concluded that such vacancies can

be filled if they happen to exist during a recess, id. at 122627,

citing

the

Ninth

Circuit’s

decision

Second Circuit’s decision in Allocco.

in

Woodley

Id. at 1226.

and

the

The court

agreed that the phrase “that may happen” is subject to more than
one interpretation, noting that the word “happen” can be defined
as “befall,” which can mean “happen to be.”
internal quotation marks omitted).

Id. (citation and

Such a definition, which the

court described as the “most accepted,” does not contradict the
plain meaning rule.

Id.

The Evans court also relied on the past practice of early
Presidents (in particular, President Washington) making recess
appointments that originated while the Senate was in session.
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Id.

Finally,

“that

may

the

happen”

court
to

Pg: 65 of 167

noted

“prohibit

that,
the

interpreting
President

the

from

phrase

filling

a

vacancy that comes into being on the last day of a Session but
to

empower

immediately

the

President

thereafter

(on

to

fill

the

a

vacancy

first

day

that

arises

a

recess)

of

contradicts what we understand to be the purpose of the Recess
Appointments Clause: to keep important offices filled and the
government functioning.”

Id. at 1227.
2

In Noel Canning, the D.C. Circuit held that the President’s
three January 4, 2012 appointments to the Board were invalid
under the Recess Appointments Clause.

705 F.3d at 499-514.

In

its decision, the court first tackled the meaning of the term
“the Recess” as used in the Recess Appointments Clause.

The

court

the

concluded

that

the

term

“the

Recess”

refers

to

intersession break of the Senate, that is, the period between
sessions of the Senate when the Senate is by definition not in
session

and

therefore

unavailable

nominations from the President.

to

receive

and

Id. at 499-507.

act

upon

The court

relied on eight key points to support its conclusion.
First, the court in Noel Canning emphasized that the use of
the definite article “‘the’” suggested “specificity.”
500.

Id. at

According to the court, as a “matter of cold, unadorned

logic, it makes no sense to adopt the Board’s proposition that
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when the Framers said ‘the Recess,’ what they really meant was
‘a recess.’”

Id.

In support of its definite/indefinite article distinction,
the court in Noel Canning observed that on six occasions the
Constitution uses some form of the verb “adjourn” or the noun
“adjournment” to refer to breaks in the proceedings of one or
both houses of Congress, and in each case, an indefinite article
is used.

Id.

In contrast, the two uses of “Recess” (once in

the Recess Appointments Clause and the other in the original
Senate

Vacancies

superseded

by

Clause,

id.

U.S.

Amend.

(“the”).

According

inescapable

to

conclusion

Const.

XVII)
the

that

art.

contain

court,
the

a

§ 3,

cl.2,

definite

article

“points

this

Framers

I,

to

intended

the

something

specific by the term “‘the Recess,’ and that it was something
different than a generic break in proceedings.”

Id.

Second, the Noel Canning court looked to the structure of
the Recess Appointments Clause.

The court noted that the clause

“sets

a

appointments

those

commissions

time

limit

on

recess

shall

Senate’s] next Session.’”

expire

‘at

Id.

the

by

End

providing

that

of

[the

their

The court observed that the

structure of the clause was such that the there was a difference
between the term “‘the Recess’” and the term “‘Session.’”

Id.

Accordingly, “[e]ither the Senate is in session, or it is in the
recess.

If it has broken for three days within an ongoing
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it

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is

not

in

‘the

Pg: 67 of 167

Recess.’”

Id.

Since

it

was

“universally accepted that ‘Session’ here refers to the usually
two

or

sometimes

three

sessions

per

Congress

.

.

.

,

‘the

Recess’ should be taken to mean only times when the Senate is
not in one of those sessions.”
Third,

the

interpretations

Noel

of

the

Id.

Canning
terms

court

“the

observed

Recess”

supported by constitutional history.

and

that

“Session”

its
was

The court cited to The

Federalist No. 67, where Alexander Hamilton noted that recess
appointments would expire at the end of the ensuing session of
Congress.

Id.

For there to be an ensuing session, the court

stated, recess appointments must be “made at a time when the
Senate was not in session−that is, when it was in ‘the Recess.’”
Id. at 500-01.
Fourth,

the

Noel

Canning

court

noted

that

historical

practice supported its interpretation of the term “the Recess.”
The

court

observed

appointments

for

that
the

there
first

were

no

eighty

intrasession

years

recess

following

the

Constitution’s ratification, id. at 501, and there were only
three documented intrasession recess appointments prior to 1947.
Id.

at

502.

According

to

the

court,

the

“infrequency

of

intrasession recess appointments during the first 150 years of
the Republic suggests an assumed absence of the power to make

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such appointments.”

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Id. (citation, alterations, and internal

quotation marks omitted).
Fifth,

the

Constitution’s

Noel

Canning

overall

court

indicated

appointments

additional support for its position.

that

structure

the

provided

According to the court,

the Framers emphasized that the “recess appointment power served
only

as

a

stopgap

for

times

provide advice and consent.”

when

the

Senate

Id. at 502.

was

unable

to

The court quoted from

Hamilton’s The Federalist No. 67, where Hamilton observed that
advice and consent “‘declares the general mode of appointing
officers of the United States,’ while the Recess Appointments
Clause serves as ‘nothing more than a supplement to the other
for

the

purpose

appointment,
inadequate.’”
350).

in

of

establishing

cases

to

which

an

auxiliary

the

general

method
method

of
was

Id. at 502-03 (quoting The Federalist No. 67, at

Such a structure was important to the Framers, the court

observed, because appointments made pursuant to the advice and
consent of the Senate under the Appointments Clause served to
prevent

Presidential

unqualified.
By
lengthy

favoritism

and

the

appointment

of

the

Id. at 503.

contrast,

to

intersession

keep

the

periods

government

(typically

functioning

six

to

nine

during
months)

where it was difficult to recall the Senate, the Framers created
a supplemental method for appointments.
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Id.

The court noted,

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however, that the Framers placed strict limits on the execution
of this supplemental method.

Id.

According to the court,

[i]t would have made little sense to extend this
“auxiliary” method to any intrasession break, for the
“auxiliary” ability to make recess appointments could
easily swallow the “general” route of advice and
consent.
The President could simply wait until the
Senate
took
an
intrasession
break
to
make
appointments, and thus “advice and consent” would
hardly restrain his appointment choices at all.
Id.
Seventh, the court in Noel Canning observed that there was
no other plausible interpretation of the term “the Recess.”
term

could

not

refer

to

all

breaks,

otherwise

the

could make an appointment during a Senate lunch break.

The

President
Id.

The

court also noted that this interpretation could not “explain the
use of the definite article ‘the,’ the singular ‘Recess’ in the
Clause, or why the Framers used ‘adjournment’ differently from
‘Recess.’”

Id.

The next interpretation addressed by the Noel Canning court
was

that

the

term

passage of time.
General

Harry

“the

Recess”

refers

to

some

substantial

This interpretation was adopted by Attorney

Daugherty

in

1921.

In

an

opinion,

Attorney

General Daugherty argued that “[t]o give the word ‘recess’ a
technical

and

not

a

substance for form.”

practical

construction,

is

to

33 Op. Att’y Gen. 20, 22 (1921).

disregard
In this

opinion, Attorney General Daugherty did not put an exact time on

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the length of the break necessary for a recess, stating that
“[i]n the very nature of things the line of demarcation can not
be accurately drawn.”

Id. at 25.

However, Attorney General

Daugherty rejected the proposition that an adjournment for five
or ten days met his definition, though he did conclude that a
break of twenty-eight days did.
The

Noel

Canning

Id.

court

rejected

Attorney

General

Daugherty’s vague alternative in favor of the clarity of the
intersession
inherent
against

interpretation.

vagueness
it,”

of

because

According

Daugherty’s
“the

Framers

introduced such a flimsy standard.”

to

the

court,

interpretation
would

not

“the

counsels

likely

have

Id. at 504.

The court in Noel Canning likewise rejected the notion that
the term “the Recess” refers to any adjournment of more than
three days pursuant to the Adjournments Clause, because such an
interpretation lacked “any constitutional basis.”

According to

the court,
[t]he Framers did not use the word “adjournment” in
the Recess Appointments Clause.
Instead, they used
“the Recess.”
The Adjournments Clause and the Recess
Appointments Clause exist in different contexts and
contain no hint that they should be read together.
Nothing
in
the
text
of
either
Clause,
the
Constitution’s structure, or its history suggests a
link between the Clauses.
Without any evidence
indicating that the two Clauses are related, we cannot
read one as governing the other.
We will not do
violence to the Constitution by ignoring the Framers’
choice of words.

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Id.
The

Noel

Canning

court

also

rejected

an

interpretation

adopted by the Office of Legal Counsel in 2012.
interpretation

of

discretion

determine

to

the

term

“the

when

Recess,”

the

Senate

is

the
in

Under this

President

has

recess.

See

Lawfulness of Recess Appointments During a Recess of the Senate
Notwithstanding Periodic Pro Forma Sessions, 36 Mem. Op. O.L.C.
1,

23

(2012)

(“[T]he

President

therefore

has

discretion

to

conclude that the Senate is unavailable to perform its adviseand-consent function and to exercise his power to make recess
appointments.”).

The

court

in

Noel

Canning

rejected

this

interpretation because to allow
the President to define the scope of his own
appointments power would eviscerate the Constitution’s
separation of powers.
The checks and balances that
the Constitution places on each branch of government
serve as “self-executing safeguard[s] against the
encroachment or aggrandizement of one branch at the
expense of the other.” Buckley v. Valeo, 424 U.S. 1,
122, 96 S. Ct. 612, 46 L. Ed. 2d. 659 (1976).
An
interpretation of “the Recess” that permits the
President to decide when the Senate is in recess would
demolish the checks and balances inherent in the
advice-and-consent requirement, giving the President
free rein to appoint his desired nominees at any time
he pleases, whether that time be a weekend, lunch, or
even when the Senate is in session and he is merely
displeased with its inaction.
705 F.3d at 504.
Eighth, the Noel Canning court rejected the analysis of the
Eleventh Circuit’s decision in Evans.

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The court observed that

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analysis

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failed

to

recognize

one

of

the

important purposes of the Recess Appointments Clause, that is,
that the clause allows the President to fill a vacancy only when
the Senate cannot provide advice and consent.

Id. at 505.

The

Noel Canning court also rejected the implication of the Evans
court’s

analysis−that

recess.

Id.

the

term

“the

Recess”

applies

to

any

Finally, the Noel Canning court observed that the

court in Evans failed to distinguish between “adjournment” and
“recess,”

“rendering

the

latter

superfluous

Framers’ specific choice of words.” Id.

and

ignoring

the

at 506.

Summarizing its holding concerning the meaning of the term
“the Recess,” the court in Noel Canning stated:
Finally, we would make explicit what we have implied
earlier.
The dearth of intrasession appointments in
the years and decades following the ratification of
the Constitution speaks far more impressively than the
history of recent presidential exercise of a supposed
power to make such appointments.
Recent Presidents
are doing no more than interpreting the Constitution.
While we recognize that all branches of government
must of necessity exercise their understanding of the
Constitution
in
order
to
perform
their
duties
faithfully thereto, ultimately it is our role to
discern the authoritative meaning of the supreme law.
As Chief Justice Marshall made clear in Marbury v.
Madison, “[i]t is emphatically the province and duty
of the judicial department to say what the law is.
Those who apply the rule to particular cases, must of
necessity expound and interpret that rule.
If two
laws conflict with each other, the courts must decide
on the operation of each.” 5 U.S. (1 Cranch) at 177.
In Marbury, the Supreme Court established that if the
legislative branch has acted in contravention of the
Constitution, it is the courts that make that
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determination.
In Youngstown Sheet & Tube Co. v.
Sawyer, the Supreme Court made clear that the courts
must make the same determination if the executive has
acted contrary to the Constitution. 343 U.S. 579, 72
S. Ct. 863, 96 L. Ed. 1153 (1952).
That is the case
here . . . .
In short, we hold that
intersession recesses.

“the

Recess”

is

limited

to

705 F.3d at 506.
Although the court in Noel Canning needed to go no further,
it went on to address the scope of the meaning of the word
“happen” in the Recess Appointments Clause.
that two interpretations were available.

The court indicated

The first, pressed by

Noel Canning, was that “happen” means “‘arise’” or “‘begin’” or
“‘come into being.’”

Id. at 507.

The second, pressed by the

Board, was that “happen” means “‘happen to exist.’”
court agreed with Noel Canning’s interpretation.
The

Noel

Canning

court

first

observed

Id.

The

Id. at 507-14.
that

the

word

“happen” cannot logically mean vacancies that happened to exist
during “the Recess,” because such a construction rendered the
phrase “that may happen” unnecessary.

Id. at 507.

The court

next observed that its interpretation of the word “happen” was
consistent with the understanding of the word contemporaneous
with the Constitution’s ratification, citing to a dictionary at
the time of ratification defining the word “happen” as “[t]o
fall

out;

to

chance;

to

come

to

internal quotation marks omitted).
- 73 -

pass.”

Id.

(citation

and

The court posited that a

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“vacancy happens, or comes to pass, only when it first arises,
demonstrating that the Recess Appointments Clause requires that
the relevant vacancy arise during the recess.”

Id. (alterations

and internal quotation marks omitted).
The Noel Canning court next turned to the structure of the
Constitution

to

support

its

view.

The

court

noted

that

it

“would have made little sense to make the primary method of
appointment

the

cumbersome

advice

and

consent

procedure

contemplated by that Clause if the secondary method would permit
the President to fill up all vacancies regardless of when the
vacancy arose.”

Id. at 508.

Otherwise, the court indicated,

the President could sidestep the Appointments Clause altogether
by simply waiting for a recess.
The

court

in

Noel

Id.

Canning

also

observed

that

its

interpretation of the word “happen” was consistent with other
uses of the term in the Constitution.
Senate

Vacancies

adoption

of

Clause,

the

which

See id.

provided

Constitution

“if

at

(noting that the
the

time

Vacancies

of

the

happen

by

Resignation, or otherwise, during the Recess of the Legislature
of

any

State,

the

Executive

thereof

may

make

temporary

Appointments until the next Meeting of the Legislature, which
shall then fill such Vacancies,” U.S. Const. art. I, § 3, cl.2,
superseded by id. Amend. XVII, would make no sense if it refers
to vacancies that happen to exist at the time of a recess).
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interpretation

in
of

Noel

the

Pg: 75 of 167

Canning

word

“happen”

also

observed

was

that

consistent

with

its
the

earliest Presidential interpretation of the word, examining the
actions

of

President

Washington.

According

to

the

court,

President Washington understood the recess appointment power to
extend only to vacancies that arose during a Senate recess.

Id.

Specifically, President Washington followed a practice that if
not enough time remained in the session to ask a person to serve
in an office, he would nominate a person without the nominee’s
consent,

and

recessing.

the

Senate

would

confirm

the

individual

Rappaport, 52 UCLA L. Rev. at 1522.

before

Then, if the

person declined to serve during the recess, thereby creating a
new vacancy during the recess, President Washington would fill
the

position

using

his

recess

appointment

power.

Id.

“If

President Washington and the early Senate had understood the
word ‘happen’ to mean ‘happen to exist,’ this convoluted process
would have been unnecessary.”

Noel Canning, 705 F.3d at 508.

The Noel Canning court also distinguished Evans, Woodley,
and Allocco on the basis that these decisions did not focus
their

analyses

“happen.”

Id.

demonstrated

on

the

original

public

meaning

of

the

word

The court also noted that modern scholarship had
that

President

Washington’s

exercise

of

the

appointment power was an example of “‘the practice of appointing
an individual without his consent and then, if he turns down the
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appointment during the recess, making a recess appointment at
that time.’”

Id. at 509-10 (quoting Rappaport, 52 UCLA L. Rev.

at 1522 n.97).
The Noel Canning court also rejected the notion that its
interpretation of the word “happen” ran afoul of the Take Care
Clause.

The court noted that the constitutional dilemma raised

by the case was an easy fix−Congress could provide that a Board
member’s service extends until the qualification of a successor,
or provide for action by less than the current quorum, or deal
with any inefficiencies in some other manner.

Id. at 511.

Applying its interpretation of the word “happen,” the court
in Noel Canning held that the relevant vacancies did not arise
during the intersession break of the Senate.

Id. at 512.

The

three Board seats that the President filled on January 4, 2012
had

become

vacant

on

August

January 3, 2012, respectively.

27,

2010,

August

27,

2011,

and

On August 27, 2010, the Senate

was in the midst of an intrasession break, so the vacancy that
arose

on

that

date

did

not

arise

during

purposes of the Recess Appointments Clause.

“the
Id.

Recess”

for

Similarly, the

Senate was in an intrasession break on August 27, 2011, so the
vacancy that arose on that date also did not qualify for a
recess appointment.

Id.

The seat formerly occupied by Becker

became vacant at the end of the Senate’s session on January 3,
2012.

According to the court, it did not “‘happen during the
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because

the

Senate

did

not

take

an

intersession recess between the first and second sessions of the
112th Congress.

Id.
3

In New Vista Nursing, the court addressed the question of
whether the President’s March 27, 2010 appointment of Becker to
the Board was valid under the Recess Appointments Clause.
WL

2099742,

“adjourned”

at
for

**11-30.

On

a

period.

two-week

March

26,

2012,

Id.

at

2013

the

Senate

*6

(citation,

alterations, and internal quotation marks omitted).

The court

in New Vista Nursing held that Becker’s appointment was invalid
under

the

Recess

Appointments

Clause

because

the

Recess

Appointments Clause only applies to intersession breaks.

Id. at

**11−30.
In beginning its analysis, the court in New Vista Nursing
identified

three

plausible

Recess of the Senate.”
phrase

“the

intersession

Recess
breaks

definitions

Id. at *13.
of

as

the
the

the

phrase

“the

According to the court, the

Senate”

court

for

held

could
in

refer

Noel

to:

Canning;

(1)
(2)

intrasession breaks that last at least ten days as developed in
Evans and Attorney General Daugherty’s opinion; or (3) any time
in which “the Senate is not open for business and is unavailable
to provide its advice and consent” as developed by the Office of
Legal Counsel in 2012.

Id.
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In deciding which definition to adopt, the court in New
Vista Nursing first examined dictionaries from the time of the
Constitution’s
dictionaries

ratification.
were

The

inconclusive,

court

because

noted

the

that

definitions

such
of

“recess” in Founding-era dictionaries supported each definition
of the phrase “the Recess of the Senate.”

Id. at **13-14; id.

at *13 (noting that Samuel Johnson’s 1785 dictionary defined
“recess” to mean “retirement; retreat; withdrawing; secession”
as well as “departure” and “removal to distance”) (citation,
alterations, and internal quotation marks omitted).
The New Vista Nursing court then examined the parliamentary
practice of the English Parliament to see if it shed light on
the meaning of the phrase “the Recess of the Senate,” because
the parliamentary procedures of the first Senate were based on
the parliamentary procedures employed by the English Parliament.
Id. at *14.

English parliamentary procedure during the Founding

era had three types of breaks: adjournments, prorogations, and
dissolutions.

Id.

Adjournments

were

“continuances

of

the

session from one day to another . . . and sometimes a fortnight
or

a

marks

month

together.”

omitted).

Id.

(citation

Prorogations

were

and

internal

“continuances

quotation
of

the

parliament from one session to another initiated by the king,”
id.

(citation

and

internal

quotation

marks

omitted),

and

dissolutions were “terminations of a Parliament initiated by the
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king’s order, his death, or a length of time that necessitated
new elections before another Parliament could be convened.”

Id.

(citation and internal quotation marks omitted).
The

court

in

New

Vista

Nursing

stated

that

it

was

“tempt[ed] to say” that the phrase “the Recess of the Senate”
corresponded to a prorogation and, thus, the phrase “must refer
only to terminations of sessions and the intersession breaks
that follow them.”

Id. at *15.

However, the court stopped

short of such a conclusion because “adjournment,” as used in the
Constitution, did not mean the same thing to the Framers as it
did to the English Parliament.

Specifically, the Constitution

employs “adjourn” and “adjournment” to refer to an intrasession
break (e.g., U.S. Const. art. I, § 5, cl.1 (allowing a minority
of

members

to

“adjourn

intersession break.

from

day

to

day”)),

as

well

as

an

See id. (noting that the Supreme Court in

The Pocket Veto Case, 279 U.S. 655 (1929), adopted a definition
of

“adjournment”

that

included

intrasession

as

well

as

intersession breaks).
Because

the

Parliament

proved

turned

other

to

constitutions
governors.
historical

parliamentary
inconclusive,
historical

and
Id.

procedure

the
at

evidence

the

New

sources,

practices

*15-16.

of

The

demonstrated
- 79 -

of

Vista

the

Nursing

court

numerous

state

namely,
state

court

that,

at

English

legislatures

observed
the

that

time

of

and
this
the

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Constitution’s ratification, the word “recess” had one of two
meanings,
breaks

“either

plus

intersession

breaks

intrasession

breaks,”

long

legislatures

preferring

the

former

governors preferred the latter.
that

the

historical

is

id.

or

intersession

at

definition,

Id.

evidence

only

*16,

with

while

the

While the court concluded

unclear

on

whether

“recess”

refers to intersession breaks only or intersession breaks plus
long

intrasession

historical

breaks,

evidence

business definition.
evidence
necessary

suggests
to

does

the
not

court

made

support

the

clear

that

the

unavailable-for-

The court first noted that the historical
that

trigger

a

a

break

recess

of

and

considerable

that

the

length

is

unavailable-for-

business definition does not require a break of any particular
duration.

Id.

Second, the court noted that, at the time of the

Constitution’s ratification, a “recess” was “determined solely
by

when

the

legislature

adjourned—rather

than

by

some

functionalist definition of when the body was unavailable for
business.”

Id. at *17.

The court could find no examples, and

the Board had provided none, suggesting that the definition of
the word “recess” turned on such factors “as whether members
were required to attend, the legislative chamber was empty, and
the body could receive messages.”

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Id.

Rather, whether there

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was a “recess” turned on the “type, or possibly the duration, of
Id. 18

the legislature’s self-defined adjournment.”

In trying to break the intersession/intrasession knot, the
New

Vista

Nursing

court

addressed

the

significance

of

the

definite article “the” in the phrase “the Recess of the Senate.”
The court observed that “the” might refer to a “specific thing,”
such an intersession break.
court

also

noted

that

Id. (citing Noel Canning).

“the”

could

refer

to

another

thing, such as whenever the Senate was in recess.
Evans).

The

court

also

observed

that

“the” in several different contexts.

the

But the
specific

Id. (citing

Constitution

used

Id. (citing U.S. Const.

art. I, § 3, cl.4 (stating that “[t]he Vice President . . .
shall be President of the Senate”); art. I, § 3, cl.5 (stating
that that the Senate shall select a President Pro Tempore “in
the Absence of the Vice President”).

18

Based on this evidence,

The court in New Vista Nursing found additional faults in
the unavailable-for-business definition.
The court noted that
the structure of the Appointments and Recess Appointments
Clauses meant that the unavailable-for-business definition was
“implausibl[e],” 2013 WL 2099742, at *19, because adopting this
definition “would eviscerate the divided-powers framework the
two Appointments Clauses establish.” Id. The court noted that,
if the Senate refused to confirm one of the President’s
nominations, then the President could circumvent the Senate’s
constitutional role simply by waiting for the Senate to adjourn
for lunch or the evening; thus, the “exception of the Recess
Appointments Clause would swallow the rule of the Appointments
Clause.” Id.
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the court found the use of “the” in the phrase “the Recess of
the Senate” to be “uninformative.”
The

court

in

New

Vista

Id.
Nursing

then

turned

to

the

constitutional context of the phrase “the Recess of the Senate.”
Following the reasoning of Noel Canning, the court observed that
the

structure

of

the

Appointments

Clause

and

the

Recess

Appointments Clause was such that the Recess Appointments Clause
is a “secondary, or exceptional, method of appointing officers,
while the Appointments Clause provides the primary, or general,
method

of

“clauses

appointment.”

thus

reveal

a

Id.

According

constitutional

to

the

preference

court,
for

the

divided

power over the appointments process, which is deviated from only
in specified situations.”

Id. (footnote omitted).

In support

of this conclusion, the court discussed at length Hamilton’s The
Federalist No. 67.

Id. at *18.

Thus, the court posited that

the main purpose of the Recess Appointments Clause was not, as
the

Evans

court

suggested,

to

enable

the

President

to

fill

vacancies to assure the proper functioning of our government,
but rather “to preserve the Senate’s advice-and-consent power by
limiting
According

the
to

president’s
the

court,

unilateral
ignoring

appointment
the

power.”

separation

of

Id.
powers

between the Legislative and Executive Branches “neglect[ed] a
central principle that underlies the two Appointments Clauses.”
Id. (footnote omitted).
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The court in New Vista Nursing found further guidance in
several relevant constitutional provisions.

First, the court

looked to the word “adjournment,” a term the court noted that
could refer to a break of any type or length.
court

observed

that,

“if

the

framers

had

Id. at *20.
intended

The

for

the

president to be able to appoint officers during intrasession
breaks,
worded

then

the

Recess

differently,

Appointments

allowing

recess

Clause

could

appointments

have

been

‘during

the

Adjournment of the Senate.’”

Id.

For this reason, the court

concluded

the

word

that

the

use

of

“recess”

instead

of

“adjournment,” meant that “recess” had a different meaning than
“adjournment.”
To

Id. (citing Noel Canning).

discern

the

meanings

of

the

words

“adjournment”

and

“recess,” the court in New Vista Nursing examined such words in
their constitutional context.

The court noted that the lack of

temporal guideposts in the Constitution concerning the phrase
“the Recess of the Senate.”
notion

that

chamber

of

the

Id. at 21.

Adjournments

Congress

to

obtain

Clause,
the

The court rejected the
which

consent

requires
of

the

either

other

to

adjourn for more than three days, U.S. Const. art. I, § 5, cl.4,
provides such a guidepost for the Recess Appointments Clause,
because

“‘[n]othing

in

the

text

of

either

Clause,

the

Constitution’s structure, or its history suggests a link between
the

Clauses.’”

New

Vista

Nursing,
- 83 -

2013

WL

2099742,

at

*21

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(quoting Noel Canning, 705 F.3d at 504).

Without the hint of a

connection, the court noted that there was “no reason to believe
that the Adjournment Clause’s duration requirement controls the
meaning of the Recess Appointment[s] Clause.”

Id.

The court

further noted that “nothing in the Constitution establishe[d]
the

necessary

length

constitute a recess.”
The

court

in

of

an

intrasession

break

that

would

Id. (footnote omitted).
New

Vista

Nursing

then

turned

to

the

durational component of the Recess Appointments Clause−that the
term of the officer recess-appointed expired “at the End of [the
Senate’s] next Session,” U.S. Const. art. II, § 2, cl.3.

The

court noted that all parties agreed that a session of the Senate
begins at the Senate’s first convening and ends either when the
Senate adjourns sine die or automatically expires at noon on
January

3

in

any

2099742, at *22.

given

year.

New

Vista

Nursing,

2013

WL

According to the court, the expiration of an

officer’s term “‘at the End of [the Senate’s] next Session’”
implies that the appointment is made during a period between
sessions.

Id.

Such implication arises because the appointment

is designed to last only as long as it would normally take to
confirm the President’s nomination.

Id.

The court noted that

“[l]imiting the duration to a single opportunity follows from
the auxiliary nature of the Clause” and is consistent with the

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principle that “the Senate’s decision not to act on a nomination
effectively is a rejection of that nomination.”

Id.

According to the New Vista Nursing court, the durational
component of the Recess Appointments Clause suggested that the
Framers adopted the intersession definition of the phrase “the
Recess

of

the

Senate,”

because

such

definition

retained

the

primacy of the Appointments Clause over the Recess Appointments
Clause.

Id. at *23.

The court stated:

Under the intersession-only definition, the president
would make a recess appointment between sessions of
the Senate, which ensures the continued operation of
the government even though the Senate has not
considered the president’s selection. Once the Senate
begins its “next Session” by reconvening, the primary
appointments process becomes available and—because the
Constitution requires joint appointment authority—must
be undertaken by the Senate and the president.
However, to allow the operation of government to
continue, the Senate has until the end of this session
to consider the president’s selection and confirm or
deny it. And if the body does not act or denies that
appointment, then the recess appointment ends because
the constitutional requirement of joint agreement has
not
been
reached.
Through
this
process,
the
Appointments
Clause retains
its
primacy
as
the
preferred
constitutional
method
of
appointing
officers, while the Recess Appointments Clause retains
its auxiliary role that allows the president to fill
positions when the ordinary process is unavailable.
Under an intrasession definition, the Clause would no
longer have an auxiliary role.
The president would
make the recess appointment during a break within a
Senate session.
But the Senate’s reconvening and
first subsequent adjournment—whether that be for a
long intrasession break or for the intersession break—
would
have
no
immediate
effect
on
the
recess
appointment because the appointment lasts until the
“next Session,” as demarked by adjournments sine die.
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The appointment would not expire until the Senate
reconvened, adjourned sine die, reconvened, and then
adjourned sine die a second time.
Thus, the
appointment would continue even though the opportunity
to undergo the ordinary, preferred process had come
and gone.
This shows that when the intrasession
definition of recess is combined with the durational
provision,
a
fundamentally
different
relationship
between the clauses is created: the intrasession
definition makes the Recess Appointments Clause an
additional rather than auxiliary method of appointing
officers.
Id. at *23.
The

court

in

New

Vista

Nursing

next

observed

that

the

intersession definition of the phrase “the Recess of the Senate”
was supported by the language of the original Senate Vacancies
Clause,

which

component.

used
Id.

“‘the

next

Meeting’”

(quoting

U.S.

Const.

superseded by id. Amend. XVII).

as

art.

its
I,

durational
§

3,

cl.2,

According to the court, the

durational component of the Recess Appointments Clause
could have been phrased in a manner that would have
allowed the Senate and president only one opportunity
to undergo the ordinary process if recess instead
included intrasession breaks. By setting the duration
to the “‘next Meeting,’” it becomes irrelevant what
type of break the legislature took because once it
convenes, the appointment expires and the legislature
must act. That the Clause uses “next Session” rather
than
“next
Meeting”
thus
shows
that
recess
contemplates a particular type of break.
And, in
light of the competing operations of the definitions,
that type is the intersession break.
Id. (footnote omitted).
The court in New Vista Nursing next rejected the Board’s
argument

that

the

durational
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component

of

the

Recess

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Clause

is

Pg: 87 of 167

consistent

with

the

intrasession

definition of the phrase “the Recess of the Senate.”

The Board

argued that “if recess appointees’ tenures did not extend until
the end of the next session, then the Senate would lack an
opportunity to consider a recess appointee when an intrasession
break coincides with the end of a session.”

Id. at *24.

The

court rejected this argument, first, because the problem arises
only if the intrasession definition of recess is adopted.

Id.

It does not arise under the intersession definition because,
under that definition, the Senate can only weigh in one time,
when it reconvenes for its next session.

Id.

Second, the court

indicated the Board’s reading of the durational component was
not

the

most

natural

reading

of

the

phrase

“next

Session”;

otherwise, the phrase would be intended to address an unusual
situation−where an intrasession break coincides with the end of
a session.

Id.

The court noted that an intrasession break

extended until the end of one of the Senate’s 296 completed
sessions at most only three times.

Id.

“The complete absence

of the problem described by the Board in the last 225 years”
implied that the durational component of the Recess Appointments
Clause

“was

most

likely

written

simply

to

reinforce

the

auxiliary nature of the Recess Appointment[s] Clause by limiting
recess appointees’ terms to last only as long as necessary to

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afford

the

process.”
The

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Senate

one

Pg: 88 of 167

opportunity

to

undergo

the

ordinary

Id.
New

Vista

Nursing

court

then

observed

that

its

construction of the phrase “the Recess Appointments Clause” was
supported by early historical practice, relying on much of the
authority relied upon by the court in Noel Canning.

Id. at *25.

The court observed that, from ratification until 1921, there was
a general consensus that recess appointments could be made only
during intersession breaks.
supported

the

intersession

Id.

This general understanding

definition.

Id.

at

**26-27.

In

relying on this early historical practice, the court rejected
the notion that recent Presidential practices could alter the
structural

framework

of

the

Constitution,

especially

the

presumption that actions by the President are constitutional.
Id. at *27.
applies

The court expressed doubt that such a presumption

in

separation-of-powers

cases.

Id.

The

court

also

observed that recent Presidential practice was inconsistent with
the

structure

provides

no

of

the

measure

Constitution
of

a

“‘long’

because
duration

the
and

Constitution
limits

the

duration of recess appointees’ terms in a manner that indicates
an intersession-only definition.”

Id. at *28.

Finally, the court in New Vista Nursing identified some
additional
noted

that

considerations
the

supporting

its

unavailable-for-business
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holding.
definition

The
was

court
vague,

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making the standard “difficult for the Senate and the president
to predictably apply.”

Id.

The court next noted that the

intrasession definition that limits the term “recess” to long
breaks is not “judicially defensible because whatever duration
is selected as long [enough] would be based on something other
than

the

Constitution.”

quotation marks omitted).
definition

was

“fraught

Id.

at

*29

(citation

and

internal

The court noted that the intrasession
with

ambiguity,”

because

if

an

“intrasession break of over ten days constitutes a recess, it is
unclear at which point the adjournment evolves into a recess.”
Id.

The court candidly noted that all of the definitions of the

phrase “the Recess of the Senate” provided an opportunity for
abuse.

Id.

However, such potential for abuse simply was the

product of the separation-of-powers framework.

Id. at *30.

The

solution to such abuse was not to tinker with the definition of
“recess,” but rather to allow the political process to play out,
with each branch exercising their allocated powers.

Id.

Because Becker was invalidly recess appointed to the Board
during the March 2010 intrasession break, the court in New Vista
Nursing concluded that the Board did not have the authority to
issue its unfair labor practices decision in that case.

Id.

In

so holding, the court declined to address the meaning of the
word “happen” in the Recess Appointments Clause.
D
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Id.

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All

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parties

agree

that

Pg: 90 of 167

the

President

may

exercise

his

recess appointment power only “during the Recess of the Senate.”
There are three plausible definitions of the term “the Recess”
as used in the Recess Appointments Clause.

Id. at *13. 19

First

is the definition adopted by the Noel Canning and New Vista
Nursing courts: the term “the Recess” refers to intersession
breaks of the Senate, that is, the period of time between an
adjournment sine die and the start of the Senate’s next session.
See id. (“We hold that ‘the Recess of the Senate’ means only
intersession breaks.”); Noel Canning, 705 F.3d at 499 (observing
that the term “the Recess” means “the period between sessions of
the Senate when the Senate is by definition not in session and
therefore unavailable”).

Second is the definition adopted by

the court in Evans: the term “the Recess” includes intersession
breaks as well as intrasession breaks.

387 F.3d at 1224.

As

noted above, an intrasession break is the period of time between
a non-sine die adjournment and the time the Senate reconvenes.
Although

the

court

in

Evans

did

not

create

any

temporal

boundaries, a twelve-day break was at issue there, presumably
the

court

in

that

case

would

agree

19

with

Attorney

General

The Board does not argue that the President may exercise
his recess appointment power anytime the Senate takes a break,
and we note that such a definition of the term “the Recess” has
never been embraced by the Executive or Legislative Branches, or
the courts. This anytime definition, though possible, simply is
not plausible.
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Daugherty’s 1921 observation that a break for five or ten days
does not fall within the definition of the term “the Recess.”
33 Op. Att’y Gen. at 25.

Although the Board agrees with the

definition of the term “the Recess” as developed in Evans and
Attorney

General

Daugherty’s

opinion,

it

definition, which gives us a third option.

offers

another

The Board posits

that the term “the Recess” refers to a period when the Senate is
not open for business and, thus, unable to provide advice and
consent on the President’s nominations.
for-business
sessions,

definition,

the

President

when
may

the

Under this unavailable-

Senate

exercise

his

holds
recess

pro

forma

appointment

power because the Senate is neither doing business nor available
to provide its advice and consent.
As noted above, Enterprise and Huntington urge us to follow
the first definition of the term “the Recess” set forth above,
that is, the definition adopted by the Noel Canning and New
Vista Nursing courts.

The Board urges us to adopt one of the

two remaining definitions.

For the reasons stated below, we

agree with the Noel Canning and New Vista Nursing courts that
the

term

“the

Recess,”

as

used

in

the

Recess

Appointments

Clause, refers to the legislative break that the Senate takes
between its “Session[s].”

In other words, the term “the Recess”

means the intersession period of time between an adjournment
sine die and the start of the Senate’s next session.
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As noted above, the Recess Appointments Clause states that
the President “shall have Power to fill up all Vacancies that
may

happen

during

Commissions

the

which

Session.”

U.S.

Recess

shall

Const.

of

expire
art.

the

at

II,

§

Senate,

the
2,

End

cl.3.

of

by

granting

their

From

next

the

itself, the meaning of the term “the Recess” is not evident.

text
As

noted by the New Vista Nursing court, Founding-era dictionaries
are inconclusive on the meaning of the word “recess,” with some
definitions

favoring

an

intersession

definition

and

others

favoring an intrasession or unavailable-for-business definition.
2013

WL

2099742,

dictionary

at

defined

*13

(noting

“recess”

to

that

Samuel

Johnson’s

mean

“retirement;

1785

retreat;

withdrawing; secession” as well as “departure” and “removal to
distance”) (citation, alterations, and internal quotation marks
omitted).

The clarity of the term “recess” is only marginally

improved with the inclusion of the definite article “the.”

On

the one hand, the definite article “the” arguably points to a
specific type of recess (an intersession break), on the other
hand,

“the”

points

intrasession break).

to

anytime

the

Id. at *17.

Senate

is

in

recess

(an

While we may not agree with

the level of significance placed upon “the” by the court in Noel
Canning, we agree that the use of the definite article suggests
some “specificity.”

Noel Canning, 705 F.3d at 500.

This is

especially true since the Recess Appointments Clause does not
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refer

to

“a

Filed: 07/17/2013

recess,”

“recesses.” 20

The

nor

use

Pg: 93 of 167

does
of

it

the

refer

to

definite

the

plural

article

over

form
the

indefinite and plural forms provides some instructive evidence
that

“the

Recess”

refers

to

a

legislative

break

between

two

“[s]ession[s].”
Even

though

compelling

reasons

the

textual

exist

evidence

inconclusive,

adopting

for

is
the

intersession

definition over the other two available definitions.
Constitution

uses

the

more

inclusive

term

First, the

“adjourn”

or

“Adjournment” to refer to those parliamentary breaks that could
occur either after or during a session of Congress.

See, e.g.,

U.S. Const. art. I, § 5, cl.1 (less than a majority of each
House “may adjourn from day to day”); id. art. I, § 7, cl.2 (a
bill not signed by the President shall not become law if “the
Congress

by

their

Adjournment

prevent

its

Return”).

Most

instructive, the Adjournments Clause specifically provides that
“during the Session of Congress” neither House may “adjourn for
more than three days” without the “Consent of the other.”
art. I, § 5, cl.4.
only

once

in

the

Id.

By contrast, the term “the Recess” appears
Constitution

in

relation

to

congressional

breaks-−in the Recess Appointments Clause, where it refers to a

20

Interestingly, the Framers did use
“vacancies” in the Recess Appointments Clause.

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the

plural

form

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particular sort of adjournment, the break between sessions of
the Senate.
The

Board

responds

by

emphasizing

that

when

the

word

“Adjournment” appears in the Constitution, it refers to both
intersession

and

intrasession

certainly is true.

legislative

breaks.

This

See The Pocket Veto Case, 279 U.S. at 680

(noting that the word “Adjournment” is used in the Constitution
to refer not only to the final adjournment at the end of a
Congress, but also to adjournments “from day to day”).
the

Board’s

“adjourn”

or

arrow

misses

the

“Adjournment”

target.

appears

in

Each
the

time

However,
the

term

Constitution,

it

refers to an intrasession cessation of business, even when it
may

also

encompass

intersession

breaks.

Thus,

the

Framers

consistently used the term “adjournment,” rather than the term
“the Recess,” when it wanted to refer to a legislative break
that could occur either during or between sessions of Congress.
Cf. Noel Canning, 705 F.3d at 500 (“Not only did the Framers use
a

different

preceded

by

inescapable

word,
the

but

none

definite

conclusion

of

the

article.

that

the

‘adjournment’
All

Framers

this

usages

points

intended

to

is
the

something

specific by the term ‘the Recess,’ and that it was something
different than a generic break in proceedings.”).

As noted by

the court in New Vista Nursing, “if the framers had intended for
the president to be able to appoint officers during intrasession
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breaks,
worded

then

Filed: 07/17/2013

the

Recess

differently,

Appointments

allowing

Adjournment of the Senate.’”
Second,

our

Pg: 95 of 167

recess

Clause

could

appointments

have

been

‘during

the

2013 WL 2099742, at *20.

interpretation

of

the

term

“the

Recess”

is

supported by the Framers’ understanding of the term.

In The

Federalist

recess

No.

appointment

power

appointment.”
power,

67,

under

Hamilton

explained

supplemented

the

that

“ordinary

The Federalist No. 67, at 350.
the

Appointments

the

Clause,

was

“jointly” by the President and Senate.

Id.

power

of

This ordinary

to

be

exercised

The supplemental

authority only was to be exercised when “it might be necessary
for the public service” to fill without delay certain vacancies
that “might happen in [the Senate’s] recess.”

Id.

The Recess

Appointments Clause was added because the joint power could only
be “exercised during the session of the Senate.”
necessary

implication,

appointments

would

be

under

Hamilton’s

necessary,

and

thus

Id.
view,

Thus, by
recess

permissible,

only

outside the session of the Senate.
The

Framers’

understanding

of

the

Recess

Appointments

Clause is underscored by the appointment of duties inspectors by
the First Congress, which contained twenty members who had been
delegates to the Philadelphia Convention, see Bowsher v. Synar,
478 U.S. 714, 724 n.3 (1986).

The Act of March 3, 1791, ch. 15,

1 Stat. 199, authorizing the appointment of duties inspectors,
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provided “[t]hat if the appointment of the inspectors of surveys
. . . shall not be made during the present session of Congress,
the

President

appointments
commissions
session.”

may,

which

is

hereby

the

recess

of

shall

during

and

he

expire

at

empowered

the

to

Senate,

the

end

make

by

of

such

granting

their

next

Id. § 4, 1 Stat. at 200; see also Act of Sept. 22,

1789, Ch. 17, § 4, 1 Stat. at 71 (authorizing payment to Senate
clerk of “two dollars per day during the session, with the like
compensation

to

such

clerk

while

he

shall

be

necessarily

employed in the recess”).
The Framers’ understanding is further underscored by the
valid

reasons

supporting

and intrasession breaks.

the

distinction

between

intersession

As noted above, at the time of the

Constitution’s ratification, breaks between sessions of Congress
typically were six to nine months.

During such periods, it was

unrealistic to think the Senate could perform its advice and
consent function.

By contrast, there is no evidence that the

Framers thought it was necessary to empower the President to
make

unilateral

appointments

while

the

within its session for short periods.

Senate

was

adjourned

The Framers would not

have contemplated any need to set aside “the ordinary power of
appointments,”

The

Federalist

No.

67,

at

350,

breaks, let alone lunch, evening, or weekend breaks.

- 96 -

during

short

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Third,

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the

historical

Pg: 97 of 167

record

supports

definition of the term “the Recess.”

the

intersession

From 1789 until 1921,

Presidents frequently made recess appointments between sessions
of

Congress.

Notably,

however,

Executive

practice

was

dramatically different during the thousands of instances when
the Senate ceased or suspended business during its sessions over
the

course

of

adjournments
including

those

were

almost

132

for
every

years.

Admittedly,

periods

of

evening

fewer

and

most

weekend;

days,

on

but

those

three

than

of

least

at

sixty occasions the Senate also adjourned for more than three
days.

See

U.S.

Gov’t

Printing

Office,

2003-2004

Official

Congressional Directory: 108th Cong. 512-17 (2004).

Taken to

its

of

logical

conclusion,

in

the

Board’s

view,

each

these

intrasession breaks was “the Recess” for purposes of the Recess
Appointments Clause, during which the President could have made
unilateral

appointments.

possible exception

However,

(President

with

Andrew

only

Johnson),

a

single

Presidents

not make recess appointments during these breaks.
Hartnett,

Recess

Appointments

of

Article

III

known
did

Edward A.

Judges:

Three

Constitutional Questions, 26 Cardozo L. Rev. 377, 408–09 (2005).
In

1901,

the

Executive

Branch

first

considered

constitutionality of intrasession recess appointments.

the

At that

time, Attorney General Philander Knox opined “that the President
is not authorized to appoint an appraiser at the port of New
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York

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during

Senate.”

Filed: 07/17/2013

the

current

Pg: 98 of 167

[intrasession]

adjournment

23 Op. Att’y Gen. 599, 604 (1901).

of

the

Attorney General

Knox explained that, in contrast to the Constitution’s use of
the broader term “adjourn[ment],” the term “the Recess” refers
to “the period after the final adjournment of Congress for the
session, and before the next session begins.”
“intermediate

temporary

adjournment”

Id. at 601.

during

the

An

session,

“although it may be a recess in the general and ordinary use of
that term,” is not “the recess during which the President has
power

to

fill

vacancies

by

granting

expire at the end of the next session.”

commissions

which

shall

Id.

As noted earlier, Attorney General Daugherty’s opinion in
1921 changed the Executive Branch’s understanding of the Recess
Appointments Clause in favor of a functional approach, asking,
in a practical sense, whether the Senate was in session so that
its advice and consent could be obtained.
21-22.

33 Op. Att’y Gen. at

He concluded that an intrasession adjournment could be

deemed

“the

Recess”

Clause

only

when

for

the

purposes

Senate

is

of

the

“absent

Recess
so

that

Appointments
it

can

not

receive communications from the President or participate as a
body in making appointments.”

Id. at 25.

Notably, Attorney

General Daugherty rejected the argument that the President may
make a recess appointment during any pause in Senate business.
“[L]ooking

at

the

matter

from

a

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practical

standpoint,”

he

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reasoned that “no one . . . would for a moment contend that the
Senate is not in session when an adjournment [of two or three
days] is taken,” and added that even an adjournment “for 5 or
even 10 days” could not satisfy his “practical” test.

Id.

As noted by the court in Noel Canning, the infrequency of
intrasession recess appointments in the historical record and
the relative disdain harbored toward such appointments in at
least the first 132 years of our Nation suggests an “absence of
[the]

power”

to

make

such

appointments.

705

F.3d

(citation and internal quotation marks omitted).

at

502

The marked

increase in the number of recess appointments since the Reagan
Administration may be attributed to political polarization being
at an all-time high, rather than fidelity to the plain language
and

structure

of

the

Recess

Appointments

Clause.

Wolf,

81

Fordham L. Rev. at 2078.
Fourth,

we

are

unavailable-for-business

troubled

by

definitions

the

of

the

intrasession
term

“the

and

Recess”

because they thwart the advice and consent function engrained in
the Appointments Clause.

Clearly, an expansive reading of the

Recess Appointments Clause gives the President the ability to
appoint controversial individuals to high government posts by
preventing the Senate from performing its constitutional advice
and

consent

function.

Obviously,

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such

use

of

the

Recess

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Appointments Clause is at odds with the original purposes of
both the Appointments and Recess Appointments Clauses.
The Board urges us to recognize an expansive reading of the
Recess Appointments Clause as a way to ensure that the President
can

adhere

to

the

Take

Care

Clause.

The

growing

animosity

between the Executive and Legislative Branches over Presidential
nominees is an obvious concern, and such animosity explains the
Board’s reliance on Presidential discretion to determine when
the Senate is in recess.

See Lawfulness of Recess Appointments,

36

23

Mem.

Op.

O.L.C.

at

(“[T]he

President

therefore

has

discretion to conclude that the Senate is unavailable to perform
its advise-and-consent function and to exercise his power to
make recess appointments.”).

But, ultimately, as noted by the

Noel Canning court, it is incumbent on the judiciary to state
what the law is, notwithstanding any presumption that arises
under the Take Care Clause.
U.S. (1 Cranch) at 177).

705 F.3d at 506 (quoting Marbury, 5
We simply cannot rely on political

gridlock to embrace the Board’s interpretation of the term “the
Recess.”

Id. at 504 (“Allowing the President to define the

scope

his

of

own

appointments

power

would

eviscerate

the

Constitution’s separation of powers.”).
Fifth,

the

intrasession

unavailable-for-business
guideposts.

definition

definition

offers

offers

vague
no

and

the

durational

Under these definitions of the term “the Recess,”
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the President simply is left to determine whether the Senate is
in recess, with little or no guidance and/or judicial oversight.
Yet, the constitutional structure of the Appointments and Recess
Appointments Clauses demands more to ensure that the separation
of

the

Executive

and

Legislative

Branches

is

maintained.

Drawing the line between intersession and intrasession breaks,
in our view, strikes the appropriate balance.
To

be

sure,

the

durational

component

of

the

Recess

Appointments Clause (“End of [the Senate’s] next Session,” U.S.
Const.

art.

II,

§

2,

cl.3),

only

makes

sense

intersession definition of the term “the Recess.”
intrasession

and

the

unavailable-for-business

under

the

Under the

definitions,

a

Presidential appointment does not proceed through the ordinary
and preferred confirmation process because the Senate does not
necessarily have to take up the appointment in the next session.
As noted by the court in New Vista Nursing, the appointment
would not expire until the Senate reconvened, adjourned sine
die,

reconvened,

and

then

2013 WL 2099742, at *23.
Clause

an

alternative

appointment.
Along

adjourned

sine

die

a

second

time.

This makes the Recess Appointments

rather

than

an

auxiliary

method

of

Id.
a

similar

vein,

because

a

recess

appointee’s

commission lasts until the end of the Senate’s “next [s]ession,”
there is no reason to think that the Framers would have designed
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a scheme in which intrasession appointments could last longer
than

intersession

appointments,

i.e.,

to

last

throughout

the

remainder of the session, one additional intersession break, and
the entire subsequent session, a period that could last almost
two years.

Thus, the relevant question is not, as the Evans

court intimated, how long an intersession or intrasession recess
may last, 387 F.3d at 1226, but rather how long such appointees
may serve. 21
Sixth,

the

intrasession

and

unavailable-for-business

definitions of the term “the Recess” essentially prevent the
Senate from establishing its own rules concerning the conduct of
its proceedings.
may

determine

See U.S. Const. art. I, § 5, cl.2 (“Each House

the

Rules

of

its

Proceedings.”).

It

is

the

Senate, not the President, who has the privilege of determining
the manner
session.

in

which

the

Senate

meets

during

a

Congressional

In this case, the Senate decided to meet in pro forma

sessions during a five-week period.
Senate is called to order.

During such sessions, the

On December 23, 2011, during a pro

21

The language of the original Senate Vacancies Clause,
which used the phrase “‘the next Meeting’” as its durational
component, U.S. Const. art. I, § 3, cl.2, superseded by id.
Amend. XVII, also supports the intersession definition of the
term “the Recess” because the Recess Appointments Clause’s use
of the term “the Recess” instead of the phrase “the next
Meeting” demonstrates that the Framers had a particular type of
break in mind when it created the Recess Appointments Clause,
instead of any type of break in Senate business, which
essentially is what the intrasession definition allows.
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session,

the

Senate

Pg: 103 of 167

passed

payroll

tax

extension

legislation, and that same day the President signed into law the
payroll tax extension.

This coordination of the Legislative and

Executive Branches during pro forma sessions suggests that the
Senate can perform its advice and consent function during such
sessions. 22
For the reasons set forth above, we agree with the Noel
Canning and New Vista Nursing courts that the term “the Recess,”
as

used

in

the

legislative

break

“Session[s].”

Recess

Appointments

that

the

Clause,

Senate

takes

refers

to

between

the
its

That is to say “the Recess” occurs during an

intersession break--the period of time between an adjournment
sine die and the start of the Senate’s next session.

Such an

interpretation adheres to the plain language of the Appointments
and

Recess

Appointments

Clauses,

and

is

consistent

with

the

structure of the Constitution, the history behind the enactment
of

these

clauses,

and

the

recess

appointment

practice

of

at

least the first 132 years of our Nation.
E
22

We note that this case is not, as the Board would have us
believe, about the propriety of legislative pro forma sessions.
While the use of such sessions arguably can have an impact on
the President’s ability to make recess appointments, the
practice does not alter our conceptual understanding of the
Recess Appointments Clause, especially since the Senate is more
than capable of conducting business during this time, as
evidenced by the passage of the payroll tax extension.
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In his spirited dissent, our good colleague embraces the
unavailable-for-business

definition

of

the

term

“the

Recess,”

opining that the Senate is in “‘the Recess’ when it is not
available to provide advice and consent on nominations.”
at 143.

Post

As the dissent sees it, the Senate is in “the Recess”

if it “is not engaged in its regular course of business, is
unavailable to receive messages from the President, or cannot
meet to consider a nomination for a position.”
The

unavailable-for-business

Post at 143.

definition

embraced

by

the

dissent is a contemporary definition of the term “the Recess.”
Such

definition,

as

the

dissent

recognizes,

sets

no

minimum

length for an intrasession break to be considered “the Recess.”
Post at 149.

According to the dissent, the absence of such a

minimum is not “a flaw, but rather a part of the[] grand design
in drafting a compact” that would remain relevant for future
generations.

Post at 153.

Untethering the recess appointment

power

a

guidepost,

from

durational

says

our

dissenting

colleague, “operates to exclude the altogether silly scenario of
the

President

breaks

for

weeks-long

making

meals

or

recess

appointments

weekends,

intrasession

while

recesses

during

including
that

could

the
the

Senate’s
types

stall

of
the

functioning of government if an important post is left vacant.”
Post at 153.

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This contemporary definition of the term “the Recess” has
no historical support.

As noted earlier, up until 1921, that

the President could only exercise his recess appointment power
during

an

intersession

break

was

settled.

Attorney

General

Daugherty’s 1921 opinion introduced a functional approach, yet
even

his

definition

recognized

that

intrasession break would not suffice.

a

five

or

ten-day

33 Op. Att’y Gen. at 25

(“Nor do I think an adjournment for 5 or even 10 days can be
said to constitute the recess intended by the Constitution.”).
Moreover, the Office of Legal Counsel’s 2012 memorandum opinion
recognizes some durational minimum in reaching the conclusion
that

“the

President’s

authority

to

make

recess

appointments

extends to an intrasession recess of twenty days.”
of Recess Appointments, 36 Mem. Op. O.L.C. at 9.

Lawfulness

However, under

the unavailable-for-business definition espoused by the dissent,
a break as little as a couple of work days would suffice if the
Senate could not meet to consider a nomination.
support

exists

historical

for

support

this
begs

proposition.
the

question:

The
How

No historical
utter

could

lack
all

of

three

branches of the federal government have been so wrong for so
long?

But the lack of historical support is just the beginning

of the unavailable-for-business definition’s shortcomings, and
we have identified some of them in the previous section of this
opinion.

A

closer

analysis

of

the

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reveals

why

the

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definition

simply

is

not

a

viable

option.
The dissent begins where it should--with the language of
the Recess Appointments Clause.

Upon examining such language,

the dissent concludes the term “the Recess” is ambiguous.

To

reach this conclusion, the dissent starts with the unremarkable
proposition that the use of the definite article “the” in the
term “the Recess” is inconclusive on the meaning of the term.
From there, the dissent stresses that, if the term “the Recess”
in the Recess Appointments Clause refers only to intersession
breaks, the use of the term “the Recess” in the original Senate
Vacancies Clause, U.S. Const. art. I, § 3, cl. 2, superseded by
id. Amend. XVII, should mean the same thing.

The dissent posits

that the term “the Recess” in the Senate Vacancies Clause cannot
mean a singular recess (i.e., an intersession break) because
“the

clause

is

used

to

refer

collectively

recesses of the several state legislatures.”
follows,

then,

Recess”

in

the

according
Recess

to

the

dissent,

Appointments

the

various

Post at 137.

that

Clause

intrasession and intersession recesses.

to

It

the

term

“the

points

to

both

However, comparing the

term “the Recess” in the Recess Appointments Clause to the term
“the Recess” in the Senate Vacancies Clause is like comparing
apples to oranges.
and

the

Senate

Critically, the Recess Appointments Clause

Vacancies

Clause
- 106 -

have

different

durational

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“the

next

Pg: 107 of 167

[s]ession”

in

the

case

of

the

Recess

Appointments Clause, and “the next [m]eeting” in the case of the
Senate Vacancies Clause.

Because the durational component in

the Senate Vacancies Clause is tied to “the next [m]eeting,” the
type of break the state legislature takes before it reconvenes
is

irrelevant

reconvention.
does

not

because

the

Equally

critical,

involve

Legislative

the

Branches

recess

the

relationship
of

the

appointment
Senate

between

federal

expires

Vacancies

the

upon
Clause

Executive

government,

nor

and

does

it

involve the relationship between the Appointments Clause and the
Recess Appointments Clause.

Thus, the term “the Recess” must be

construed in two very different contexts.

The Supreme Court has

recognized that some words in the Constitution have different
meanings

“according

to

the

connection

in

which

[they

are]

employed” and “the character of the function” in which the word
is found.

Atlantic Cleaners & Dryers v. United States, 286 U.S.

427, 433–34 (1932).

Such is the case here.

The term “the

Recess” in the Senate Vacancies Clause must apply in a variety
of

situations

to

account

for

the

procedures used by state legislatures.

various

parliamentary

The same cannot be said

about the term “the Recess” as used in the Recess Appointments
Clause.
next

Moreover, the Recess Appointments Clause’s use of “the

[s]ession”

shows

that

the

Recess

Appointments

Clause

“contemplates a particular kind of break[, a]nd, in light of the
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operations

intersession break.”

of

the

Pg: 108 of 167

definitions,

that

type

is

the

New Vista Nursing, 2013 WL 2099742, at

*23.
The

dissent

finds

further

ambiguity

in

the

term

“the

Recess” because the intersession definition of the term “the
Recess”

requires

the

insertion

of

a

modifier,

“intersession,” before the term “the Recess.”

namely

However, if the

intersession definition requires the insertion of a modifier, so
does

the

unavailable-for-business

definition

work,

one

has

to

definition.

read

“the

Recess”

To

make

that

to

mean

“the

Recess in which the Senate cannot provide advice and consent.”
Thus, the dissent’s modifier argument misses the mark.

Both the

majority and the dissent are attempting to divine the meaning of
the term “the Recess” by examining the text of the Constitution
and

historical

usages

and

practices.

We

believe,

for

the

reasons expressed above, such evidence decidedly points to the
intersession

definition,

pointing

a

in

different

while

the

dissent

direction.

Put

sees

the

another

evidence

way,

after

examining such evidence, the intersession definition does not
use “intersession” as a modifier because “the Recess” “means
only intersession breaks.”

New Vista Nursing, 2013 WL 2099742,

at *25 n.30.
Next,

continuing

its

ambiguity

analysis,

the

dissent

downplays the significance that the Constitution uses the terms
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“adjourn” and “adjournment” in a broader sense than the term
“the Recess,” describing “the distinction between adjournments
and ‘the Recess’” as a “convenient correlation” with “no basis
in the text of the Constitution.”
fact

remains

necessarily

that
apply

the
to

terms
both

Post at 139.
“adjourn”

intersession

However, the

and

“adjournment”

and

recesses, while the term “the Recess” does not.

intrasession
This certainly

indicates that the Framers believed “the Recess” applied in a
narrower context.
Concluding its ambiguity analysis, the dissent rejects as
irrelevant the fact that an intrasession appointee’s term could
last twice as long as an intersession appointee.

According to

the dissent, “nothing in the Recess Appointments Clause,” or
anywhere else in the Constitution for that matter, “requires
that all recess appointments be of the same length, and such an
interpretation

does

Post at 140.

But the dissent’s view ignores the structure of

the

Recess

not

Appointments

further”

Clause.

the

It

purpose

provides

of

the

that

a

clause.

recess

appointment expires at the end of the Senate’s “next [s]ession.”
Thus, there is a dichotomy between “the Recess” and the “next
[s]ession” such that the Senate is either in session or it is in
recess.

Recess appointments are allowed during “the Recess”

preceding the “next [s]ession” and that “next [s]ession” then
caps the length of any such appointments--one Senate session.
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This ensures that the Senate always has one full session to
consider confirmation.

Once the Senate has that opportunity to

consider confirmation, the need for an emergency appointment is
gone.

As

Justice

Story

explained

way

back

in

1833,

“the

president should be authorized to make temporary appointments
during the recess, which should expire, when the senate should
have had an opportunity to act on the subject.”

3 Joseph L.

Story, Commentaries on the Constitution of the United States
§ 1551 (1833); see also New Vista Nursing, 2013 WL 2099742, at
*22

(“The

Clause’s

function

is

.

.

.

fulfilled

once

an

opportunity for the Senate to act has come and gone.”).
More telling, the dissent offers no explanation for why the
Constitution would empower the President to double the length of
recess appointments through strategic timing.
But

the

creates

fact

remains,

the

inexplicable

appointees

may

serve

the

We can find none.

unavailable-for-business
anomaly

twice

as

that

long

definition

intrasession

as

their

recess

intersession

counterparts.

It strains credulity that the Framers intended

such a result.

Rather, they intended all recess appointments to

be made during the intersession break, which would result in all
such appointments lasting one Senate session.
Having

found

“a

strictly

textual

interpretation”

of

the

Recess Appointments Clause “inconclusive,” the dissent turns its
attention to the purpose underlying the clause.
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The dissent

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concludes that the sole purpose of the clause is to “ensure the
proper functioning of government,” Post at 144, and that the
unavailable-for-business definition fits comfortably within that
purpose.

Telling

from

the

dissent’s

discussion

is

its

reluctance to give one of the core functions of the clause its
proper

place.

Appointments

One

Clause

of

is

the

“to

purposes

preserve

behind

the

Senate’s

the

Recess

advice-and-

consent power by limiting the president’s unilateral appointment
power.”

New Vista Nursing, 2013 WL 2099742, at *18.

Yet, the

dissent downplays the Senate’s role almost to the point of a
casual bystander, noting that it is not permitted to “weigh the
executive’s policy choice.”

Post at 142.

What the dissent is

doing, really by necessity, is placing all of the face cards in
the hands of the President.

However, the Framers had something

completely different in mind when it created the Appointments
and Recess Appointments Clauses.
the

Framers

were

skeptical

executive appointments power.

At the time of ratification,

with

the

notion

of

unilateral

As noted by the Supreme Court in

Freytag, the “power of appointments to offices was deemed the
most

insidious

despotism.”

and

powerful

weapon

of

eighteenth

century

501 U.S. at 883 (citation and internal quotation

marks omitted); see also Edmond v. United States, 520 U.S. 651,
659 (1997) (noting that the advice and consent feature in the
Constitution

“serves

both

to

curb

- 111 -

Executive

abuses

of

the

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appointment power, . . . and to promote a judicious choice of
persons

for

internal

filling

offices

marks,

quotation

the

and

of

the

union”)

alterations

(citations,

omitted).

As

a

consequence of this concern, the Framers sought to “ensure that
those

who

wielded

[appointments

powers]

were

accountable

to

political force and the will of the people” by limiting the
power of the Executive and Legislative Branches.
U.S. at 884.

This was accomplished through a division of power

between these two branches.
power,

as

central

Freytag, 501

the

dissent

pillars

Id.

And to ignore this division of

essentially

undergirding

does,

the

destroys

one

Appointments

and

of

the

Recess

Appointments Clauses.
Moving from its discussion of the purpose of the Recess
Appointments
discussion

Clause,

the

concerning

dissent
how

engages

the

in

an

extended

unavailable-for-business

definition “fits with historical practice.”

Post at 144

The

dissent begins its discussion by downplaying the significance of
the fact that it was universally recognized for the first 132
years

of

recess.

our
See

interpretation

Nation
post
of

that
at

the

“the
145

Recess

Recess”
(“In

my

meant

an

view,

Appointments

intersession
a

Clause

functional
properly

counsels against a blind adherence to the precise procedural
conditions in which earlier executives exercised the power.”).
Yet historical practice is extremely important to the Recess
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Appointments Clause analysis.

Pg: 113 of 167

See, e.g., District of Columbia

v. Heller, 554 U.S. 570, 600-19 (2008) (examining historical
practices and understandings concerning the Second Amendment’s
right

to

bear

arms);

Freytag,

501

U.S.

at

883-84

(examining

history to determine the scope of the Appointments Clause).
In any event, what the dissent ignores here is that, in the
first 132 years of our Nation, there were numerous opportunities
to make intrasession recess appointments, but none, with the
lone possible exception of one by President Andrew Johnson, were
made.

The

1817,

and

Senate
1828,

took

and,

three

intrasession

beginning

in

1863,

recesses
the

in

Senate

1800,

started

taking annual intrasession recesses of approximately two weeks
from

the

Michael

end

A.

of

December

Carrier,

Note,

through

the

beginning

When

the

Senate

is

of

in

January.

Recess

for

Purposes of the Recess Appointments Clause?, 92 Mich. L. Rev.
2204,

2211

(1994).

Despite

this

increase

in

intrasession

breaks, and the corresponding increase in opportunities to make
appointments during such breaks, Presidents continued to make
recess

appointments

Andrew

Johnson

Unlike

our

exclusively

exception)

dissenting

(with

during

the

possible

intersession

colleague

who

must

President

breaks.

view

the

Id.
Recess

Appointments Clause in a contemporary, “practical light,” post
at

149,

we

find

this

historical

understanding

appointments procedure telling.
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of

the

recess

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The dissent next turns its focus to a purported flaw in the
intersession definition of the term “the Recess”--the lack of a
durational

minimum.

The

dissent

notes

that,

like

the

unavailable-for-business definition, the intersession definition
fixes no minimum length.

See post at 149 (“Thus, if Congress

takes a one-day break between sessions, the majority apparently
would

find

no

fault

with

the

President

making

a

recess

appointment during that time, despite the fact that the Senate
would have returned to business the next day and been available
to provide its advice and consent on the nominee.”).

According

to the dissent, the intersession definition is flawed because it
allows for a recess appointment during a momentary intersession
break.

The

dissent’s

argument

here

is

a

red-herring.

All

courts and commentators agree that the President may make recess
appointments

during

break’s length.

intersession

breaks,

regardless

of

the

So the lack of a durational minimum in the

intersession definition simply is of no consequence.

But the

lack of such a minimum is understandable for another reason.
The

durational

component

of

the

Recess

Appointments

Clause

entered the discussion only when the Executive Branch sought in
1921

to

Recess.”

expand

the

settled

understanding

of

the

term

“the

Until that time, a durational minimum was not brought

to the forefront because it was understood that the President’s

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recess

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appointment

power

Pg: 115 of 167

could

only

be

exercised

during

the

intersession break, regardless of its length.
The dissent next argues that the intersession definition of
the

term

“the

Recess”

is

flawed

because

it

assumes

President might abuse his power to appoint officials.”
150.

“the

Post at

In this regard, the dissent likens the President’s recess

appointment power to his veto and pardoning powers, noting that
there are no limits on the exercise of these latter powers;
thus,

we

must

“expect

some

modicum

of

good

faith

in

the

individual our fellow citizens elect to the most powerful office
in the world.”

Post at 150-51.

And the dissent adds that we

give “short shrift” to the “presumption of constitutionality”
accorded to Presidential actions.

Post at 152.

The dissent’s

argument once again misses its intended target.

First off, we

harbor doubt that a presumption of constitutionality applies in
separation-of-powers

cases.

See

New

Vista

Nursing,

2013

WL

2099742, at *27 (“Our role as the ultimate interpreter of the
Constitution requires that we ensure its structural safeguards
are preserved. . . .

It is a role that cannot be shared with

the other branches anymore than the president can share his veto
power

or

Congress

can

share

its

power

to

override

vetoes.”)

(citations and internal quotation marks omitted); see also Free
Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct.
3138, 3155 (2010) (noting that “the separation of powers does
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not depend on the views of individual Presidents, nor on whether
the encroached-upon branch approves the encroachment”) (citation
and internal quotation marks omitted); Clinton v. New York City,
524 U.S. 417, 428-48 (1998) (analyzing the constitutionality of
the line-item veto without expressing the need to defer to the
other branches’ constitutional judgments); New York v. United
States,

505

U.S.

144,

182

(1992)

(noting

that

the

“Constitution’s division of power among the three branches is
violated

where

whether

or

one

not

encroachment”).
the

branch
the

invades

the

territory

encroached-upon

branch

of

another,

approves

the

But notwithstanding any presumption, comparing

President’s

veto

and

pardoning

powers

to

his

recess

appointment power is just another apples to oranges comparison.
These other powers were not “the most insidious and powerful
weapon of eighteenth century despotism.”

Freytag, 501 U.S. at

883 (citation and internal quotation marks omitted).

The power

that can be wielded by a President who desires to make an endrun around Senate approval is obvious.

The dissent says that

Presidents will not act so unruly because the President will
want to maintain favor with the Senate and with the public at
large.
the

But the recent historical record suggests otherwise.

past

two

Presidential

administrations,

nearly

all

In

recess

appointees themselves previously were nominated to their posts,
usually

by

several

months.

See
- 116 -

Henry

B.

Hogue

&

Maureen

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Bearden,

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Cong.

Research

Pg: 117 of 167

Service,

Made by President Barack Obama,
Maureen

Bearden,

Cong.

R42329,

Recess

Appointments

at 7 (2012); Henry B. Hogue &

Research

Service,

RL33310,

Recess

Appointments Made by President George W. Bush, January 20, 2001October

31,

2008,

at

3-5

(2008).

If

anything,

this

recent

evidence shows that recess appointments have become a means to
sidestep the confirmation process.
The dissent next posits that the intersession definition of
the term “the Recess” is flawed because it leaves the President
powerless to act.
to

read

out

appointment

According to the dissent, “the Senate is free

of

power

the
by

Constitution

refusing

to

the

take

President’s

intersession

recess

recesses,

opting instead to take an extended intrasession break, returning
just before the session ends, and then moving directly into the
next session.”
its

case.

Post at 153.

For

starters,

The dissent here is overstating

under

the

unavailable-for-business

definition, the President easily can get around Senate advice
and consent by strategically making his recess appointments, as
he did in this case.

More importantly, the Senate already is in

a position to substantially limit the President’s appointments
power by remaining in session.
not

ensure

that

nominations.
potential

for

the

Senate

But remaining in session does
will

act

on

the

President’s

The upshot is that the Constitution envisions the
gridlock

between

the

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and

Legislative

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Branches, with neither side having the upper hand in resolving
such gridlock.

Such gridlock simply is resolved through the

political process.
The dissent next claims that the intersession definition of
the term “the Recess” is flawed because it “actually gives the
House of Representatives a de facto veto on Presidential recess
appointments.”

Post at 155.

According to the dissent, because

the Adjournments Clause requires the House and Senate to agree
on

any

adjournment

Adjournments

Clause

lasting
enables

longer
the

House

than
of

three

days,

Representatives

prevent the Senate from adjourning sine die.

the
to

This, the dissent

says, inserts the House of Representatives into the appointments
process even though the Constitution purposely excludes it from
that process.

Such is not the case.

The Constitution allows

the President to adjourn both houses of Congress if the two
houses cannot agree on a date of adjournment.
II, § 3.

U.S. Const. art.

This provision allows the President to prevent the

House of Representatives from interfering in the appointments
process

if

the

House

and

Senate

cannot

agree

on

a

date

of

adjournment.
The dissent “confess[es] to some surprise” concerning the
basis for our rejection of the dissent’s de facto veto argument.
Post at 156.

Because we reject the dissent’s de facto veto

argument on the basis that the President may adjourn Congress
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when

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there

concerning

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is

a

the

disagreement
date

of

Pg: 119 of 167

between

the

houses

adjournment,

the

of

dissent

Congress

says

such

reasoning necessarily means that the President gets to decide
when the Senate is in “the Recess.”

See post at 156 (“[I]t

would allow the President to decide when the Senate is in “‘the
Recess,’ thereby granting the President the precise unilateral
power of appointment that the majority finds objectionable.”).
Not so.

Either the House will agree to a date of adjournment

sine die or it will not.

In the latter case, the Senate has two

choices, remain in session or ask the President to set a date of
adjournment and a date of reconvention.

Here, the Senate chose

to remain in session by way of pro forma sessions, which meant
that the Appointments Clause was the proper mechanism to make
the Board appointments at issue.

Moreover, Article II, § 3 does

not give the President unilateral power concerning adjournments.
There must be a disagreement concerning the date of adjournment
which

would

give

rise

Presidential intervention.
of

Congress

has

ever

to

one

house

of

Congress

seeking

As far as we can tell, neither house

sought

such

intervention.

But

if

the

Senate felt the need to request Presidential intervention, it is
an available option if the House and Senate cannot reach an
agreement on the date of adjournment.
intervention

is

sought,

and

the

And once Presidential

President

sets

a

date

of

adjournment sine die and a date of reconvention, the President
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may

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exercise

Appointments

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his

appointments

Clause.

Of

Pg: 120 of 167

power

course,

pursuant

that

is

to

not

the

what

Recess

happened

here. 23
Finally,

the

dissent

suggests

that

the

unavailable-for-

business definition does not interfere with the Senate’s ability
to regulate its own rules.

According to the dissent, “while the

Senate may meet in pro forma sessions when its members see fit,
the

President

power

during

may
such

also

choose

sessions

to
if

use
the

his

recess

Senate

is

appointment
practically

unavailable to provide its advice and consent for nominees.”
Post at 157.
saber.

The dissent here gives the President a dual light-

The President has the power to both unilaterally make

recess appointments and unilaterally declare when the Senate is
23

There is an important similarity between the President’s
adjournment power and his appointment power worth noting.
In
the adjournment setting, both houses of Congress work together
on setting a date of adjournment. If they cannot agree and one
house is determined to adjourn for more than three days, that
house can seek Presidential intervention. Before the moment of
Presidential intervention, each house is acting pursuant to its
own chosen rules of procedure, and the President must respect
such rules before acting; otherwise the President can exercise
almost absolute power over when Congress can meet.
The same
Presidential respect is necessary to make the Appointments
Clause and Recess Appointments Clause function properly.
The
Senate operates pursuant to its own rules and determines in what
manner it will meet. If the Senate decides to meet in pro forma
sessions, the President must respect such decision and make
appointments pursuant to the Appointments Clause. If he chooses
to ignore such Senate action, he can exercise almost absolute
power over appointments.
The intersession definition of the
term “the Recess” preserves this necessary Presidential respect;
the unavailable-for-business definition does not.
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Pg: 121 of 167

Such a view gives the President the very absolute

power of appointment that the Framers sought to withhold.
dual light-saber has disastrous consequences.

This

If the President

dictates when the Senate is in recess, essentially he can make
recess appointments any time he feels the Senate is unavailable
to advise and consent.

This results in the Recess Appointments

Clause swallowing the Appointments Clause.

Appointments under

the Appointments Clause could become the exception rather than
the rule.

In this regard, the circumstances surrounding the

appointments in this case are telling.
nominated

approximately

appointments.

The

three

President

weeks

Block and Griffin were
before

nonetheless

made

their

recess

these

recess

appointments even though the Senate was in a position to advise
and consent.

One of the central features of a pro forma session

is that the Senate convenes.

Neither the dissent nor the Board

can distinguish pro forma sessions from ordinary sessions on the
basis

of

sessions

the
the

Senate’s
Senate

availability

convenes

in

a

because
manner

during
that

pro

allows

forma
it

to

consent to nominations if it wants to do so.

This is evidenced

by

tax

the

Senate’s

passing

of

the

payroll

legislation.

“Holding that the Senate is unavailable during these sessions
requires

a

definition

of

availability

that

allows

the

counterintuitive situation in which the Senate is available to
enact

legislation

while

simultaneously
- 121 -

unavailable

to

provide

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its advice and consent.”

Pg: 122 of 167

New Vista Nursing, 2013 WL 2099742, at

*19 n.23.
The dissents says that the payroll tax legislation was an
“extraordinary

bill

that

was

part

of

a

broader

legislative

effort to avert a national financial catastrophe, and was passed
by unanimous consent, thus not requiring the Senate to return to
Washington.”

Post at 158.

Yet, the dissent never explains why

legislation passed pursuant to a unanimous-consent agreement is
permissible, but a similar procedure would be inadequate to give
advice and consent on a nominee. 24
reasoning

explains

why

the

This flaw in the dissent’s

Senate

is

responsible

for

establishing its own rules subject to the limitations outlined
in the Constitution. 25

Reduced to its essence, then, the dissent

is objecting not to the Senate’s inability to conduct business,

24

Of course, the payroll tax legislation is not the only
piece of legislation to have been passed during a pro forma
session.
There have been many.
See, e.g., Airport and Airway
Extension Act of 2011, 157 Cong. Rec. S5297 (daily ed. Aug. 5,
2011) (passed by the Senate during its August 5, 2011 pro forma
session).
25

The constraints on the manner in which the Senate
conducts its business are minor.
It must meet once a year on
January 3 (or another date Congress chooses), U.S. Const. amend.
XX, § 2, and when called into special session by the President,
id. art. II, § 3. And once convened, the Senate cannot adjourn
for more than three days (or to another place) without the
House’s consent. Id. art. I, § 5, cl.4. As noted earlier, only
if the House and Senate disagree does the President play a role
in adjournments. Id. art. II, § 3.

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but rather to the procedure chosen by the Senate to conduct its
business.

And the Senate has chosen to conduct business through

unanimous-consent
call votes. 26

agreements

rather

than

through

actual

roll-

But this is a judgment call made by the Senate.

It simply is not the province of this court to dictate the
manner in which the Senate chooses to conduct its business.

Yet

this is exactly what the dissent would do here--it is saying
that the Senate was not in session even though it was fully
capable of acting if it desired to do so.
We

certainly

respect

colleague in dissent.

the

position

taken

by

our

good

The dissent attempts to craft a solution

to a very difficult problem that hopefully the Supreme Court
will resolve in Noel Canning.

At the end of the day, we have an

honest disagreement with a colleague we hold in high esteem.
But

for

the

reasons

stated

above,

we

cannot

embrace

the

unavailable-for-business definition.
F
In

this

case,

the

President’s

three

January

4,

2012

appointments to the Board were not made during an intersession
recess because Congress began a new session on January 3, 2012.
26

The use of unanimous-consent agreements is commonplace.
From the 101st to the 110th Congresses, “an average of 93
percent of approved measures did not receive roll call votes and
in the 111th Congress through February 1, 2010, 94 percent of
approved measures were approved without a roll call vote.” 156
Cong. Rec. S7137-38 (daily ed. Sept. 15, 2010).
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Consequently,

“these

inception.”

Pg: 124 of 167

appointments

were

invalid

Noel Canning, 705 F.3d at 507.

from

their

Because the Board

lacked a quorum of three members when it issued its 2012 unfair
labor practices decisions in both the Enterprise and Huntington
cases, its decisions must be vacated.

New Process Steel, 130 S.

Ct. at 2644–45. 27

V
Unfortunately, in modern times, the question concerning the
scope
Recess

of

President’s

Appointments

regarding
rather

the

the

than

a

recess

Clause

has

qualifications
genuine,

meaning of the clause.

appointment

of

become
the

meaningful

a

power

political

President’s

debate

under

the

debate

nominations,

regarding

the

true

Today, it is the Executive Branch, with

a Democratic president in office, seeking to exercise expansive
recess appointment power.

Republicans are crying foul.

See

Brief of Senate Republican Leader Mitch McConnell and 44 Other
Members of the United States Senate as Amici Curiae in Support
of Certiorari in NLRB v. Noel Canning, 2013 WL 2352593, at **519 (May 28, 2013) (challenging, inter alia, President Obama’s
27

Because we agree with Enterprise and Huntington that “the
Recess,” as used in the Recess Appointments Clause, refers to
the legislative break that the Senate takes between its
“Session[s],” we need not decide whether the appointments at
issue are also invalid because the vacancies did not “happen”
during “the Recess.”
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three January 4, 2012 recess appointments to the Board); Senator
Roger Wicker, Executive Overreach and Recess Appointments, 31
Miss. C. L. Rev. 319, 321-27 (2013) (same).

In the case of

Judge Pryor, it was a Republican president, President Bush, in
office, seeking to exercise expansive recess appointment power,
with the Democrats crying foul.

See Brief of Amicus Curiae

Senator Edward Kennedy in Support of Petitioner’s Petition for
Writ

of

Certiorari

in

Franklin

v.

United

States,

2004

WL

2326801, at **6-19 (October 12, 2004) (challenging the recess
appointment
bring?

of

Judge

Pryor).

Who

knows

what

tomorrow

will

Regardless, one thing must remain constant--the meaning

of the Recess Appointments Clause, and it is the duty of this
court

to

fortunes.

set
We

forth

that

meaning

have

done

so

irrespective

here. 28

We

deny

of

political

the

Board’s

applications for enforcement of its orders.
ENFORCEMENT DENIED

28

The Board does not suggest that we should decline to
address the meaning of the term “the Recess” because it is a
non-justiciable political question. See Baker v. Carr, 369 U.S.
186,
198,
217
(1962)
(outlining
requirements
of
nonjusticiability). However, if the Board raised such an argument,
we would reject it. See New Vista Nursing, 2013 WL 2099742, at
**8-10 (rejecting non-justiciability argument); Evans, 387 F.3d
at 1227 (same).
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DUNCAN, Circuit Judge, concurring:
I concur in Parts I-III of the majority opinion.

I also

fully concur in Parts IV and V, because I agree that the most
plausible

reading

of

the

Constitution’s

Recess

Appointments

Clause limits “the Recess” to the so-called “intersession break”
between two legislative sessions.

I write separately to briefly

underscore what, in my view, compels the conclusion reached by
the majority in this regard.
I begin by explicitly recognizing what should be evident
from

the

spirited

colleagues:

this

and

principled

appeal

presents

debate
a

between

challenging

respect to which there is limited guidance.

my

issue

two
with

The Constitution

does not define “the Recess,” and we find no discussion of the
Recess Appointments Clause at the Constitutional Convention in
Philadelphia

or

the

state

ratifying

conventions.

Alexander

Hamilton’s brief essay in Federalist 67 addresses the Recess
Appointments

Clause

counteracting

the

only

in

passing,

misrepresentation

focusing

made

by

instead

on

opponents

of

ratification that the Constitution permitted the President to
fill

vacancies

in

the

Senate.

Historical

practice

in

the

decades following ratification of the Constitution is similarly
sparse,

and

too

easily

subject

to

lawyers,” as the dissent rightly notes.

manipulation

by

“savvy

Diss. Op. at 147.

Nor

is it obvious how the uptick in intrasession recess appointments
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since

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1981

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ought

Pg: 127 of 167

to

analysis.

affect

our

Compare

Marsh

v.

Chambers, 463 U.S. 783, 792 (1983) (upholding the practice of
beginning legislative sessions with a prayer because its long
history of use had made it “part of the fabric of our society”),
with INS v. Chadha, 462 U.S. 919, 944 (1983) (observing that the
increased

frequency

of

the

Congressional

veto

in

statutes

“sharpened rather than blunted” the judicial inquiry).
But therein lies the flaw at the heart of the dissent’s
logic.

It

faults

the

majority’s

textual

arguments,

but,

significantly, proffers none in response.

Rather, the dissent

falls

of

back

on

the

same

purposive

reading

legislative

tea

leaves for which it chides the majority, but without any textual
underpinning.

It is certainly noteworthy that “the Recess” sits

in grammatical tension with a reference to all inter-and intrasession

breaks.

And

although

perhaps

not

decisive,

the

interplay of “recess” and “adjourn/adjournment” and the framers’
use of “Session,” see Maj. Op. at 91-95, at least tips the scale
of the textual argument in favor of the majority’s intersessiononly reading of the Recess Appointments Clause when there is no
counter-weight in the balance.
I
skating

am

further
the

Diss. Op. at 148.

If,

as

is

the

text

- 127 -

and

dissent’s

purpose of the clause as our lodestar.”
contends,

text

the

the

dissent

constitutional

unpersuaded--by

to

the

past

troubled--and

“look[ing]

ambiguous,

surely

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discerning

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the

proper

Pg: 128 of 167

application

of

Clause’s purpose is even more so.
the

dissent

acknowledges,

functioning
between

government

the

government.”

and

executive

Recess

Appointments

The clause’s purpose is, as

actually

twofold:

maintain

and

Id. at 131.

the

the

“to

separation

legislative

branches

ensure
of

a

powers

of

that

The dissent reaches its conclusion

only by elevating the goal of ensuring the functioning of the
government

when

the

Senate

is

(ostensibly)

unavailable

to

provide its advice and consent, and ignoring that of maintaining
the separation of powers by cabining the President’s unilateral
appointments
failure

to

power

to

explain

Appointments

limited

why

Clause’s

it

circumstances.

has

purposes

emphasized
and

The

one

largely

of

dissent’s
the

ignored

Recess

the

other

also gives one pause.
Finally, the majority offers a more judicially manageable
interpretation of “the Recess” than that offered by the dissent.
Although the dissent criticizes the majority’s reading of the
Recess Appointments Clause as “unworkable in practice,” id. at
134, in my view, that description more aptly applies to the
dissent’s
breaks

position.

creates

clear

Limiting

“the

parameters

Recess”

for

the

to

intersession

Legislative

and

Executive branches on when the Senate is in recess for purposes
of

the

Recess

Appointments

Clause.

Such

clarity

is

of

particular importance when, as here, the case implicates the
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separation of powers doctrine.

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See Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211, 239 (1995) (identifying the separation of
powers

doctrine

“establishing

as

high

a

structural

walls

and

safeguard

clear

which

distinctions

requires

because

low

walls and vague distinctions will not be judicially defensible
in the heat of interbranch conflict”).
The

dissent’s

proposed

standard,

guidance, meaningful or otherwise.

by

contrast,

offers

no

Its view that the Senate

would be in “the Recess” when it “is not engaged in its regular
course of business, is unavailable to receive messages from the
President, or cannot meet to consider a nominee for a position,”
Diss. Op. at 143, raises more questions than it answers.

What

constitutes the Senate’s “regular course of business”?

What

precludes

the

Senate

during

pro

forma

a

from

providing

session?

How

its
long

advice
must

and

the

consent

Senate

be

unavailable to receive messages, and what (and who) determines
its unavailability?

Would a senator filibustering a nominee

mean the Senate “cannot meet to consider th[at] nominee for a
position,” and therefore give rise to the President’s recess
appointments power?

I fear that these and other questions, for

which the dissent provides no answers, would be more, rather
than less, problematic.
I therefore fully concur in the majority’s reading of the
Recess Appointments Clause.
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DIAZ, Circuit Judge, concurring in part and dissenting in part:
When

they

convened

in

Philadelphia

in

May

1787

for

the

Constitutional Convention, the Framers understood that they were
engaged

in

something

more

than

a

drafting

exercise.

Their

effort was an inspired work following a debate for the ages
about the role of government, its relationship to the people,
and--as

we

consider

coordinate branches.

today--the

division

of

power

among

its

These consolidated appeals require us to

interpret the Recess Appointments Clause of Article II of the
Constitution, which received little attention or discussion at
the Founding, and yet serves as a linchpin of the division of
power between the President and the Senate.
I am pleased to join my colleagues’ resolution of these
cases

as

issues,
opinion.

to

the

merits

contained
But

in
I

of

parts
part

the
I,

National
II,

company

constitutional questions before us. 1

1

and
with

Labor

Relations

III

of

the

my

friends

Act

majority
on

the

In interpreting the Recess

The Board contends that Enterprise Leasing Co. and
Huntington Ingalls, Inc. (the “Employers”) have waived certain
constitutional arguments--namely, that “the Recess” refers to
intersession recesses only and that “may happen” means “happen
to arise”--by first raising them in their reply briefs. But we
have discretion to consider an untimely constitutional challenge
to an officer’s appointment, see Freytag v. CIR, 501 U.S. 868,
878-79
(1991),
and
considering
the
significance
of
the
constitutional questions presented by these appeals, such
discretion is properly exercised here.
We also remedied any
(Continued)
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Appointments Clause, we must be mindful of the Framers’ intent
in drafting it: to ensure a functioning government and maintain
the separation of powers between the executive and legislative
branches of that government.
mind,

and

for

the

With this purpose fixed firmly in

reasons

I

explain

below,

I

find

no

constitutional defect in President Barack Obama’s intrasession
recess appointments of National Labor Relations Board (“NLRB” or
the “Board”) Members Sharon Block, Terence Flynn, and Richard
Griffin, Jr.

I.
These appeals originate from the Senate’s unanimous consent
resolution to “adjourn and convene for pro forma sessions only,
with

no

business

January 23, 2012.
2011).
part,

conducted,”

between

December

20,

2011

and

157 Cong. Rec. S 8783-03 (daily ed. Dec. 17,

These pro forma sessions were necessary, at least in
because

the

House

of

Representatives,

relying

on

the

Adjournments Clause of the Constitution, 2 refused to give consent
for the Senate to take its normal extended intersession recess.

harm the Board would have suffered by granting both parties
permission to address the arguments in supplemental briefs.
2

The Adjournments Clause provides that “[n]either House,
during the Session of Congress, shall, without the Consent of
the other, adjourn for more than three days.” U.S. Const. art.
I, § 5, cl. 4.
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See NLRB v. New Vista Nursing and Rehabilitation, LLC, Nos. 113440, 12-1027, 12-1936, 2013 WL 2099742, at *32 n.6 (3d. Cir.
May 16, 2013) (Greenaway, J., dissenting) (citing Lawfulness of
Recess

Appointments

During

a

Recess

of

the

Senate

Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. 1, 2–
3 (2012)).

As a result, the pro forma sessions created two

intrasession recesses: one lasting from December 17, 2011, to
January 2, 2012, and another lasting from January 3 (when a new
session of Congress began) to January 23, 2012.
Each

Tuesday

and

Friday

during

these

periods,

a

single

senator took to the floor to convene and adjourn each pro forma
session, which typically lasted for no more than a minute.

The

Senate did not say a prayer or recite the Pledge of Allegiance
during these sessions, see 158 Cong. Rec. S3-11 (daily eds. Jan.
6-20, 2012), nor did it receive messages from the President or
the House, see 158 Cong. Rec. S37 (daily ed. Jan. 23, 2012).
During one such session, the Senate agreed by unanimous consent
to the payroll tax extension, see 157 Cong. Rec. S 8789 (daily
ed. Dec. 23, 2011), which the President signed into law that
same day.
On

January

appointment

term

3,

2012,

ended,

Board
leaving

Member
the

Craig

Board

Becker’s

without

a

recess
quorum.

President Obama had nominated Sharon Block and Richard Griffin
to the Board on December 14, 2011, but the Senate had not yet
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voted on their nominations before recessing on December 17.

On

January 4, the President, apparently concluding that the Senate
had

entered

“the

Recess”

despite

its

pro

forma

sessions,

appointed Members Block, Griffin, and Flynn using his recess
appointment
President

power.
Obama

Administration

See

Press

Announces
Posts

Release,

Recess

(Jan.

The

White

Appointments

4,

House,
Key

available

2012),

to

at

http://www.whitehouse.gov/the-press-office/2012/01/04/presidentobama-announces-recess-appointments-key-administration-posts.
The

President

acted

pursuant

to

the

Recess

Appointments

Clause, which gives him the “Power to fill up all Vacancies that
may happen during the Recess of the Senate, by granting the
Commissions
Session.”

which

shall

expire

at

the

End

U.S. Const. art. II, § 2, cl. 3.

of

their

next

The majority says

that, as used in the clause, “the Recess” refers to the break
between the end of one regular session of the Senate and the
convening

of

the

next

(the

so-called

“intersession

recess”).

Because the Senate was not in an intersession recess when the
President made his appointments, the majority holds that they
are constitutionally invalid.
the

Recess

Appointments

As the Board notes, this view of

Clause

also

deems

invalid

over

500

appointments by fourteen Presidents dating back to the 1860s.
See NLRB Supp. Br. 17.

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definition

of

“the

Recess”

presumes

a

textual clarity not found in the clause and, more importantly,
upsets

the

between

the

process.
intra-

Framers’

carefully

President

and

crafted

the

allocation

Senate

in

the

of

power

appointments

I would hold instead that “the Recess” “refers to both

and

intersession

recesses

because

the

Senate

can

unavailable to provide advice and consent during both.”
Vista,

2013

WL

2099742,

at

*30

(Greenaway,

J.,

be
New

dissenting).

Interpreting the clause as I propose, that is, with an eye to
its original purpose, lends a pragmatic understanding of the
scope

of

the

authority

it

confers,

while

maintaining

delicate balance of power that the Framers intended.

the

Because

the majority’s reading of the clause is not supported by the
language itself and is unworkable in practice, I respectfully
dissent from parts IV and V of the opinion.

II.
The Appointments Clause of the Constitution provides that
the President shall nominate, “and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers

and

Consuls,

Judges

of

the

other Officers of the United States[.]”

supreme

§ 2, cl. 2.

Court,

and

all

U.S. Const. art. II,

Recognizing that it would be impractical for the

Senate to remain perpetually in session to consider presidential
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nominees, The Federalist No. 67, at 410 (Alexander Hamilton) (C.
Rossiter ed., 1961), the Framers also gave the President the
power to make recess appointments.
The majority has accurately summarized the law supporting
the

conflicting

Clause:

the

interpretations

first,

championed

of

by

the

the

Recess

Employers

Appointments
and

recently

embraced by the Third and D.C. Circuits, 3 reads the clause so as
to allow the President to make recess appointments only during
an intersession recess, while the second, favored by the Board
and by the Second, Ninth, and Eleventh Circuits, 4 as well as by
Judge

Greenaway

in

dissent

in

New

Vista,

maintains

that

the

President’s power to appoint extends to recesses generally, no
matter when they occur. 5

I find the latter reading--also termed

the “functional approach” 6--to be more persuasive.

3

See New Vista, 2013 WL 2099742; Noel Canning v. NLRB, 705
F.3d 490 (D.C. Cir.), cert. granted, __ U.S. ____ (2013).
4

See Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (en
banc); United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985)
(en banc); United States v. Allocco, 305 F.2d 704 (2d Cir.
1962).
5

The majority says that the Board espouses a third
interpretation of the clause, i.e., that a break need not meet a
minimum time threshold in order to be considered “the Recess.”
I do not think the Board goes so far.
To the contrary, the
Board has specifically distinguished the instant situation from
“an ordinary, long-weekend recess,” NLRB Br. 40, and aligned
itself with the understanding that the clause generally excludes
“very short breaks” of fewer than three days, NLRB Supp. Br. 1516.
(Continued)
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A.
The

first

rule

of

constitutional

interpretation

course, to apply the plain meaning of the text.

is,

of

McPherson v.

Blacker, 146 U.S. 1 (1892); see also District of Columbia v.
Heller, 554 U.S. 570, 576 (2008) (“In interpreting [the] text,
we are guided by the principle that the Constitution was written
to be understood by the voters; its words and phrases were used
in their normal and ordinary as distinguished from technical
meaning.” (internal quotations omitted)).
The

problem

Appointments

with

Clause

is

a

textualist

that

the

view

language,

of

the

while

Recess

sparse,

is

anything but clear.

See New Vista, 2013 WL 2099742, at *13

(“The

lacks

word

‘recess’

a

natural

meaning

that

clearly

identifies whether it includes only intersession breaks or also
includes

intrasession

breaks,

whether

they

duration or a period of unavailability.”).

be

of

a

certain

Most Americans would

understand a “recess” to be a break from something--in this case
a break from Senate proceedings.

The question, then, becomes

whether the Framers’ use of the definite article (i.e., “the”)

6

See Noel Canning, 705 F.3d at 504 (calling the Board’s
interpretation, as set out by Attorney General Daughtery in
1921, the “functional approach”); New Vista, 2013 WL 2099742, at
*12 (same).
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as a modifier was intended to denominate a particular type of
break.
I think it a stretch to say that the plain language of the
clause shows that the Framers intended to limit the President’s
recess

appointment

power

congressional sessions.

to

the

singular

period

between

two

If that were so, then it would stand to

reason that the other use of “the Recess” in the Constitution-in

Article

temporary
their

I,

Section

appointment

legislatures’

meaning.

3,
of

Clause

2, 7

which

provides

Senators

by

state

executives

recesses--would

have

the

same

for

the

during

singular

Yet we know that is not so because in that latter

context, the clause is used to refer collectively to the various
recesses of the several state legislatures.

The Constitution

also refers repeatedly to “the Congress” and “the President,”
yet I doubt the majority ascribes the same literal meaning to
the definite article in these contexts.
Perhaps the Framers’ use of the definite article has some
unique meaning in this context, but there is nothing in the
clause
things.

that
It

points
seems

unambiguously
to

me

equally

7

to

the

majority’s

plausible

that

the

view

of

Framers

“[I]f Vacancies happen by Resignation, or otherwise,
during the Recess of the Legislature of any State, the Executive
thereof may make temporary Appointments until the next Meeting
of the Legislature, which shall then fill such Vacancies.” U.S.
Const. art. I, § 3, cl. 2.
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choice of words was intended to exclude other types of recesses-for example, when the Senate breaks for lunch by recessing.
Alternatively,

as

the

en

banc

Eleventh

Circuit

concluded

in

Evans, the word “the” might have also been intended to refer
“generically

to

any

one--intrasession

or

intersession--of

Senate’s acts of recessing, that is, taking a break.”

the

387 F.3d

at 1225.
Furthermore, the majority’s reading does more than simply
give meaning to the word “the”--it also requires the court to
inject an additional modifier into the Constitution, a practice
that the Supreme Court has disfavored.
Case, 279 U.S. 655, 679 (1929).

See The Pocket Veto

As Judge Greenaway notes in his

dissent in New Vista, the majority’s reading necessitates that
one insert “intersession” before “Recess” in the clause.
Vista, 2013 WL 2099742, at *34.

New

By contrast, a functional view

of the clause does not require an additional modifier, because
“the Recess” would refer without qualification to any break from
Senate business when that body is functionally unavailable to
give advice and consent.
The

majority

also

concludes

that

because

“adjourn”

and

“adjournment” are used elsewhere in the Constitution to refer to
various

types

of

congressional

breaks,

including

intrasession

recesses, “the Recess” must refer to a specific suspension of
business: an intersession recess.
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“adjourn” is used throughout the Constitution as a broader term
than “the Recess.”

On that point, the Adjournments Clause of

the Constitution demonstrates that an adjournment may either be
very

short--for

longer.

example,

a

break

from

day

to

day--or

much

See U.S. Const. art. I, § 5, cl. 4 (providing that

“during the Session of Congress” neither House may “adjourn for
more

than

three

days”

without

the

“consent

of

the

other”).

However, I fail to see how this fact logically leads to the
conclusion that all intrasession breaks are excluded from “the
Recess.”

The notion that the distinction between adjournments

and

Recess”

“the

applies

with

equal

force

to

intra-

and

intersession recesses is a convenient correlation, but it has no
basis in the text of the Constitution.
Nor does the balance of the clause shed further light on
the question before us.

The Employers argue that because the

clause mandates that recess appointments expire at the end of
Congress’s

“next

necessarily

must

session,”
be

the

limited

President’s
to

power

intersession

to

appoint

recesses.

Otherwise, they say, two recess appointees could have widely
disparate

tenures--that

is,

the

President

could

appoint

one

official during an intrasession recess and another months later,
during a subsequent intersession recess, yet both appointments
would expire at the same time: the end of the next session.

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But nothing in the Recess Appointments Clause requires that
all

recess

appointments

be

of

the

same

length,

interpretation does not further its purpose.
Recess

Appointments

Clause . . . is

that

and

such

an

“The check on the

recess

appointments

have a fixed end, not necessarily a fixed length.”

New Vista,

2013 WL 2099742, at *45 (Greenaway, J., dissenting).

In that

regard, I agree with Judge Greenaway that the Framers likely
expected

that

recess

appointments,

even

those

made

between

sessions, would have varying durations, particularly given that
intersession

recesses

in

the

lasted six months or longer.

nation’s

early

years

routinely

See id.
B.

Finding the clause’s text inconclusive, I turn to consider
its purpose.

The

Supreme

Court

has

embraced

this

approach,

often looking to the spirit and purpose of the language for
guidance

when

constitutional

text

is

ambiguous.

See,

e.g.,

Polar Tankers, Inc. v. City of Valdez, 557 U.S. 1, 6-7 (2009)
(noting that “[t]he Court over the course of many years has
consistently interpreted the language of the [Tonnage Clause] in
light of its purpose . . . .”); Maryland v. Craig, 497 U.S. 836,
849 (1990) (“We have accordingly interpreted the Confrontation
Clause in a manner sensitive to its purposes . . . .”); Tashjian
v. Republican Party of Conn., 479 U.S. 208, 227 (1986) (“Our

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inquiry begins with an examination of the Framers’ purpose in
enacting the first Qualifications Clause.”). 8
Although

The

Federalist

Papers

are

indispensable

in

ascertaining many aspects of the Framers’ intent and purpose,
they

reveal

precious

little

about

the

Recess

Clause, which was adopted without debate.
however,

that

the

clause’s

purpose

was

Appointments

It is undisputed,
to

“establish[]

an

auxiliary method of appointment, in cases to which the general
method was inadequate.”
power

was

designed

to

The Federalist No. 67, at 409.
work

in

concert

with

the

The

Appointments

Clause, which allows the President to fill vacancies with the
advice and consent of the Senate.
Alexander

Hamilton

offered

a

succinct

rationale

for

the

recess appointment power, stating that “it might be necessary
for the public service [for the President] to fill [vacancies]

8

The Supreme Court also applied this functional approach in
a case testing the meaning of the Pocket Veto Clause.
See The
Pocket Veto Case, 279 U.S. at 680.
There, in considering
whether the Senate was available to receive a bill from the
President for the purposes of the Pocket Veto Clause, the Court
eschewed a myopic focus on Congress’s procedural status in favor
of an analysis of the underlying purpose of the clause. See id.
(holding that it was immaterial to whether the Senate had
“adjourned” if it was a “final adjournment” or an “interim
adjournment,” and instead considering “whether [the adjournment]
‘prevents’ the President from returning the bill to the House in
which it originated within the time allowed”).
By ignoring
procedural technicalities, the Court’s interpretation upheld the
purpose underlying the text and preserved the Framers’ intended
governmental structure.
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without delay.”

Id. at 410.

Pg: 142 of 167

Such a view is consistent with the

Executive’s separate constitutional duty to “take Care that the
Laws be faithfully executed,” U.S. Const. art. II, § 3, cl. 5,
which in turn requires that the President have in place the
principal officers necessary to carry out this mandate.
To that end, I submit that the Framers intended to place
the

power

of

appointment

chiefly

in

the

President.

In

The

Federalist No. 76 for example, Hamilton explained that “one man
of

discernment

is

better

fitted

to

analyze

and

estimate

the

peculiar qualities adapted to particular offices than a body of
men of equal or perhaps even of superior discernment.”

The

Federalist No. 76, at 455 (Alexander Hamilton) (C. Rossiter ed.,
1961).
The

Framers

no

doubt

intended

the

Senate

to

play

a

significant role in the process, but its duty primarily was to
ferret

out

appointments

doled

out

based

upon

favoritism

or

corruption, and certainly not to weigh the executive’s policy
choice and impede the selection to an extent that risks shutting
down entire agencies of the government.

As Hamilton described

it, “[The Senate] would be an excellent check upon a spirit of
favoritism in the President, and would tend greatly to prevent
the appointment of unfit characters from State prejudice, from
family connection, from personal attachment, or from a view to
popularity.”

Id. at 457; see also Myers v. United States, 272
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52,

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118

(1926)

(stating

Pg: 143 of 167

that

the

Senate’s

advice

and

consent role should be “strictly construed” and not “enlarged
beyond words used”).
Thus,

while

Hamilton

described

the

recess

power

as

an

“auxiliary method of appointment,” The Federalist No. 67, at
409, his broader view of the coordinate branches’ respective
roles in the process shows that the power was intended primarily
for

the

President,

and

that

the

recess

appointment

power

in

particular was a practical aid in support of the President’s
constitutional obligations as the nation’s chief executive.
Against this backdrop, I discern a meaning of “the Recess”
that I believe would find favor with the Framers:

the Senate is

in “the Recess” when it is not available to provide advice and
consent

on

nominations.

Particularly,

if

the

Senate

is

not

engaged in its regular course of business, is unavailable to
receive messages from the President, or cannot meet to consider
a nominee for a position, it is in “the Recess.”
this

is

not

a

test

foreign

to

Congress;

indeed

I note that
the

Senate

Judiciary Committee long ago opined that “the Recess” denotes “a
period of time when the Senate is not sitting in regular or
extraordinary session . . . when its chamber is empty[,] when,
because of its absence, it cannot receive communications from
the President or participate as a body in making appointments.”
S. Rep. No. 58-4389, at 2 (1905).
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My view of the clause thus does not distinguish between
intrasession

and

intersession

recesses,

because

such

a

distinction, while perhaps grist for wordsmiths, is meaningless
in the context of the recess power’s core purpose--to ensure the
proper

functioning

of

the

government.

Whatever

label

one

chooses to affix to “the Recess,” so long as the Senate is
unable

to

nominees,

provide
the

its

result

advice
is

the

and

consent

same:

on

the

important

President’s

offices

remain

unfilled and the government does not function as intended.

III.
The majority contends that its interpretation of the Recess
Appointments Clause should be favored because it is consistent
with the historical record.

But a closer look at the conduct of

the coordinate branches, both past and present, reveals that the
functional approach not only fits with historical practice, but
also

better

sustains

the

balance

of

powers

inherent

in

our

constitutional structure.
A.
Relying
infrequency
record

and

appointments

on
of

Noel

intrasession

the
in

Canning,

at

relative
least

the

majority

appointments
disdain

the

first

posits

in

harbored
132

years

the

that

historical

toward
of

“the

our

such
Nation

suggests an ‘absence of [the] power’ to make such appointments.”
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Maj. Op. at 99 (quoting Noel Canning, 705 F.3d at 502).
view

though,

a

functional

interpretation

of

the

In my
Recess

Appointments Clause properly counsels against a blind adherence
to the precise procedural conditions in which earlier executives
exercised

the

majority’s

power.

“use

it

In
or

any

lose

event,
it”

I

do

theory

of

not

think

the

constitutional

interpretation is dispositive, particularly since the relevant
history purporting to support it is not so compelling.
In

the

infancy

intrasession

of

recesses,

our

republic,

instead

the

working

Senate
steadily

rarely

took

while

in

Washington and opting to take lengthy intersession recesses-sometimes lasting six to nine months--to return home to family
and constituents.

See Congressional Directory for the 112th

Congress 522-38 (2011).
both

arduous

and

Travel for those early legislators was
treacherous,

creating

an

additional

disincentive to take additional breaks during a session.

Thus,

“until the Civil War, there were no intrasession recesses longer
than 14 days, and only a handful that even exceeded three days.”
NLRB Supp. Br. 12 (citing Congressional Directory for the 112th
Congress 522-25 (2011)).
The first time that Congress took an extended intrasession
recess--from April 20, 1867 to July 3, 1867--President Andrew
Johnson made the first known intrasession recess appointment.
Edward A. Hartnett, Recess Appointments of Article III Judges:
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Three Constitutional Questions, 26 Cardozo L. Rev. 377, 408-09
(2005).

President

Johnson

made

other

intrasession

recess

appointments during his tenure, including one whose legitimacy
was later challenged in--and upheld by--the Court of Claims. 9
Id.

at

409

(citing

Gould

v.

United

States,

19

Ct.

Cl.

593

(1884)).
As

the

country’s

transportation

infrastructure

improved

substantially in the 20th century, it became easier for Senators
to travel quickly and easily between the Capitol and their home
states; this, in turn, has led to more intrasession breaks at
the

expense

Indeed,

of

the

traditional

intrasession

intersession ones.

recesses

extended
today

intersession

often

last

recess.

longer

than

See Evans, 387 F.3d at 1226 & n.10 (noting

that the Senate has taken “zero-day intersession recesses” as
well as “intrasession recesses lasting months”).

9

The net result

The majority is correct that the Senate took a number of
intrasession recesses--typically around the Christmas holiday-between 1867 and 1947, during which presidents did not make
recess appointments. But the majority points to nothing in the
historical record showing that the reason for this dearth of
appointments was a concern as to the scope of the executive’s
recess appointment power.
It appears, rather, that the record
is silent on the question, although, as Judge Greenaway points
out in his dissent in New Vista, one possible explanation is
that “intersession recesses [during that period] were still
rather lengthy, often spanning several months, which gave the
President ample time to make recess appointments during
intersession recesses, compared to the relatively short duration
of early intrasession recesses.” New Vista, 2013 WL 2099742, at
*46 (Greenaway, J., dissenting).
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is that in modern Senate practice, intrasession recesses account
for more of the Senate’s absences than intersession recesses.
See

Congressional

Directory

for

the

112th

Congress

530-37

(2011).
I therefore attach little, if any, negative constitutional
significance to the historical fact that since 1947, presidents
from both parties have made over 400 intrasession appointments.
See

New

Vista,

dissenting).
the

expense

practices

2013

WL

2099742,

at

*44

(Greenaway,

J.,

Yet the majority’s fixation on bygone history--at
of

the

reality

today--effectively

that
deems

informs
every

recess

single

appointment

one

of

those

appointments to be constitutionally infirm.
I do not suggest that history should be ignored as a tool
of constitutional interpretation.

But one need only read the

fine briefs in these cases to recognize that, given time, savvy
lawyers can excavate historical references to support virtually
any proposition. 10

Compare NLRB Supp. Br. 9 (noting that George

10

The same holds true for any attempt to divine an answer
to the questions before us by relying on dictionary definitions
of the day.
Compare Evans, 387 F.3d at 1226 (citing
dictionaries that define “happen” in the recess appointment
clause as “to happen to be”) with id. at 1230 n.4 (Barkett, J.,
dissenting) (citing dictionaries that define “happen” as “to
occur”).
Indeed, the parties’ resort to historical and
dictionary references here is “the equivalent of entering a
crowded cocktail party and looking over the heads of the guests
for one’s friends.”
Conroy v. Aniskoff, 507 U.S. 511, 519
(1993) (Scalia, J., concurring).
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once

referred

to

Pg: 148 of 167

an

intrasession

break

as

“the

recess” in a letter to John Jay), and NLRB Supp. Br. 9 (arguing
that

the

eighteenth-century

constitutions

supported

Pennsylvania

the

and

“intrasession”

Vermont

state

definition

of

“recess”), with Resp’ts’ Supp. Br. 14-15 (citing Judge Barkett’s
dissent

in

Evans

in

which

she

notes

George

Washington’s

reference to an intersession break as “the recess” in a message
to

Congress)

and

Resp’ts’

Supp.

Br.

15

(arguing

that

the

Massachusetts and North Carolina state constitutions supported
the “intersession” definition).
Rather

than

impute

dubious

meaning

to

sparse

text

or

ascribe consistency to what is, at best, ambiguous historical
practice, I would look to the purpose of the clause as our
lodestar.

To that end, we would do well to remember that

[t]ime works changes, brings into existence new
conditions and purposes. Therefore, a principle to
be vital must be capable of wider application than
the mischief which gave it birth.
This is
peculiarly true of constitutions.
They are not
ephemeral enactments, designed to meet passing
occasions.
They are, to use the words of Chief
Justice
John
Marshall,
‘designed
to
approach
immortality as nearly as human institutions can
approach it.’
The future is their care and
provision for events of good and bad tendencies of
which no prophecy can be made.
In the application
of a constitution, therefore, our contemplation
cannot be only of what has been, but of what may be.
Weems v. United States, 217 U.S. 349, 373 (1910) (quoting Cohens
v. Virginia, 19 U.S. 264, 387 (1821)).

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in

this

practical

Pg: 149 of 167

light,

the

Recess

Appointments

Clause sheds the ambiguity of its text in favor of a meaning
that promotes its core function.

I would therefore hold that

“the Recess” refers to recesses generally, no matter the type,
as long as the Senate is not engaged in its regular business and
is unable to perform its constitutional duty of providing advice
and consent on the President’s nominees.
B.
Admittedly,

a

functional

view

of

the

President’s

recess

appointment power does not fix a minimum length for the Senate’s
break

in

business

to

constitute

“the

Recess.”

But

majority’s own reading of the clause fares no better.

the

Under its

interpretation, “the Recess” authorizing the President to act
occurs

only

when

Congress

breaks

between

sessions,

without

regard to whether the break spans weeks, days, or hours.

Thus,

if Congress takes a one-day break between sessions, the majority
apparently

would

find

no

fault

with

the

President

making

a

recess appointment during that time, despite the fact that the
Senate would have returned to business the next day and been
available to provide its advice and consent on the nominee.
Nor

would

the

majority’s

interpretation

prevent

the

President from making hundreds of recess appointments during a
momentary intersession recess.
that

the

sole

instance

in

Indeed, I note with some irony
which

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a

President

assumed

such

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audacious

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power

occurred

in

Pg: 150 of 167

1903

when

President

Theodore

Roosevelt “used a moment’s intersession recess . . . to make 193
executive branch appointments, literally between two raps of a
gavel.”

Peter

M.

Shane,

Third

Circuit

Further

Fuels

the

Constitutional Conflict Over Recess Appointments, U.S. Law Week,
June 11, 2013.

The majority’s decision today would do nothing

to stop a future President from channeling the Rough Rider.
Certainly, we should not ignore the possibility that the
President
manner
appears

might

abuse

suggested
eager

executive.

by

to

his
the

assume

power

to

appoint
here.

Employers
the

worse

officials
But

from

the

the

in

the

majority

nation’s

chief

I, for one, decline to “imput[e] to the President a

degree

of

turpitude

entirely

which

his

office

implies,

responsibility

and

short

inconsistent
as

tenure

well

with
as

annexed

the

with
to

character
the

that

high

office.”

Allocco, 305 F.2d at 714 (quoting Exec. Auth. to Fill Vacancies,
1 Op. Att’y Gen. 631, 634 (1823)).

After all, “[t]here is

[also] no text limiting the laws a President may veto (or his
reasons for vetoing them), the pardons he may issue, or the
occasions

on

initiative.”

which

he

Shane,

may
Third

convene
Circuit

Congress
Further

on

his

own

Fuels

the

Constitutional Conflict Over Recess Appointments, U.S. Law Week,
June 11, 2013.

We should nonetheless expect some modicum of

good faith in the individual our fellow citizens elect to the
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most powerful office in the world, otherwise his “textual powers
are quite adequate, if asserted irresponsibly, to undermine both
Congress and the judiciary.”
In

any

event,

there

Id.
are

checks

in

our

constitutional

structure, both explicit and implicit, that protect against just
such

abuse.

To

begin

with,

the

President

may

make

recess

appointments only when the Senate is not in session for regular
business.

If the Senate wishes to give its advice and consent

as to particular nominees, it may remain in regular session for
that

purpose.

appointments

are

Second,
temporary

the

very

restrains

fact
the

that

all

recess

President’s

power.

Third, the President has a substantial interest in obtaining the
Senate’s advice and consent for full terms for the principal
officers he nominates to implement the administration’s agenda,
rather than relying on short-term recess appointees.
Judge

Greenaway

notes

in

his

dissent

in

New

Fourth, as
Vista,

“the

structure of the branches of government, as conceived by the
Constitution, give[s] the President a very strong interest in
maintaining the favor of the Senate and not stoking its ire.”
New Vista, 2013 WL 2099742, at *41. (citing The Federalist No.
77, at 459 (Alexander Hamilton) (C. Rossiter ed., 1961)). 11

11

The

It appears that President Obama has acknowledged and
respected this interest, given that he has made but thirty-two
recess appointments while in office.
In contrast, his two
(Continued)
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President also must consider public opinion, as an executive who
abuses his power will damage his reputation, as well as that of
his party.

See id.

The majority also gives short shrift to the fact that the
President too swears an oath to uphold the Constitution, and
that

when

should

he

be

acts

under

accorded

a

its

express

presumption

of

authority,

his

actions

constitutionality.

See

Evans, 387 F.3d at 1222 (citing United States v. Nixon, 418 U.S.
683

(1974)).

The

Supreme

Court

has

further

underscored

the

necessity of the legislative branch providing some latitude to
the

President

admonishing

in

that

his

use

of

congressional

constitutional
action

is

authority,

invalid

if

it

“undermine[s] the powers of the Executive Branch, or disrupt[s]
the

proper

balance

prevent[ing]

the

between

Executive

the

coordinate

Branch

constitutionally assigned functions.”
U.S.

654,

658

(1988)

(citations

from

branches

accomplishing

[by]
its

Morrison v. Olsen, 487
and

internal

quotations

omitted).
But

the

more

direct

response

to

the

claim

that

the

functional view fails for lack of temporal limits is, so what?
Limiting

principles

are

important

when

courts

engage

in

immediate predecessors made 310 such appointments. Henry Hogue,
Cong. Res. Serv., Recess Appointments:
Frequently Asked
Questions (Jun. 7, 2013).
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constitutional interpretation, but a slavish devotion to them at
the expense of common sense is no virtue.

That the Framers

chose not to draw a bright line delineating the limits of the
President’s recess appointment power is not a flaw, but rather a
part of their grand design in drafting a compact “intended to
endure for ages to come, and consequently to be adapted to the
various crises of human affairs.” McCulloch v. Maryland, 17 U.S.
(4 Wheat.) 316, 415 (1819).
In short, because any fixed time limitation has no basis in
the text of the clause, it would perforce be arbitrary.

See New

Vista, 2013 WL 2099742, at *44 (Greenaway, J., dissenting).

The

proper

the

test

in

assessing

whether

a

“Recess”

triggers

President’s power to appoint is whether the Senate is engaged in
its regular business and thus available to give its advice and
consent: this inquiry operates to exclude the altogether silly
scenario of the President making recess appointments during the
Senate’s breaks for meals or weekends, while including the types
of

weeks-long

intrasession

recesses

that

could

stall

the

functioning of government if an important post is left vacant.
As the majority would have it, the Senate is free to read
out of the Constitution the President’s recess appointment power
by refusing to take intersession recesses, opting instead to
take an extended intrasession break, returning just before the
session ends, and then moving directly into the next session.
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Even though the harm to the country of leaving vital offices
unfilled while the Senate is away and unable to give advice and
consent is no less compelling in this scenario, the President
would be powerless to act.

The Supreme Court has long made

clear, however, that no clause should be interpreted in a manner
that would render it meaningless.

See Marbury v. Madison, 5

U.S. 137, 174 (1803) (“It cannot be presumed that any clause in
the constitution is intended to be without effect . . . .”).
This

concern

is

far

from

hypothetical,

history of vacancies demonstrates.

as

the

NRLB’s

Despite nominations made by

Presidents of both parties, the NLRB has not had a full panel of
Senate-confirmed members since 2003, a problem exacerbated by
the Supreme Court’s decision in New Process Steel LP v. NLRB,
130 S. Ct. 2635 (2010), which held that the Board must have at
least three members in order to constitute a quorum for purposes
of resolving unfair labor practice charges.

Board Member and

Chairman Mark Gaston Pearce’s term will expire in August of this
year, see 29 U.S.C. § 153(a), 12 leaving the Board again without a
quorum

unless

Senate.
appointment
enforcement

the

It

is

President’s
this

vacuum
of

a

precise
(whatever

statute--in

nominees

are

scenario,
its
these

12

confirmed

that

origins)
cases

one

is,

by

where

the
an

impedes

the

designed

“to

Mark Gaston Pearce, NLRB.gov, http://www.nlrb.gov/who-weare/board/mark-gaston-pearce-chairman.
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protect

the

Filed: 07/17/2013

rights

of

collective

bargaining,

labor

management

and

Pg: 155 of 167

employees
and

to

and

employers,

curtail

practices,

which

certain
can

to

encourage

private

harm

the

sector
general

welfare of workers, businesses and the U.S. economy,” 13--that the
President’s recess appointment power was designed to remedy.
To make matters worse, while the majority claims that its
reading simply restores the Senate’s power in the appointments
process, it actually gives the House of Representatives a de
facto

veto

on

presidential

recess

appointments.

The

Adjournments Clause provides that neither House of Congress may
adjourn for more than three days without mutual consent.
U.S. Const. art. I, § 5, cl. 4.

See

Its purpose is to allow the

business of Congress to be conducted by preventing either House
to adjourn for an extended period without the other’s consent.
But these appeals are before us precisely because the House has
wielded

this

power

in

part

to

block

intrasession

recess

appointments by refusing to adjourn, thereby forcing the Senate
to rely on pro forma sessions to allow its members to break for
significant periods of time.

See New Vista, 2013 WL 2099742, at

*32 n.6 (Greenaway, J., dissenting).
Under
gained

a

the

majority’s

check

on

the

holding,

the

President’s

13

House

has

appointment

National
Labor
Relations
Act,
http://www.nlrb.gov/national-labor-relations-act.
- 155 -

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power,

a

NLRB.gov,

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neither

Pg: 156 of 167

contemplated

intended by the Framers.

by

the

Constitution

nor

See id. at *34 (stating that the House

should not “interfere with the appointments process because ‘[a]
body so fluctuating and at the same time so numerous can never
be deemed proper for the exercise of that power’”) (quoting The
Federalist No. 77, at 463 (Alexander Hamilton) (C. Rossiter ed.,
1961))).
The majority contends that the President may override this
House “veto” by invoking his power to force an adjournment of
Congress, thus creating an intersession recess during which he
could make appointments.

See U.S. Const. art. II, § 2, cl. 3;

Todd Garvey et al., Cong. Res. Serv., The Recess Appointment
Power After Noel Canning v. NLRB: Constitutional Implications
(Mar. 27, 2013).

It appears, however, that no President has

ever exercised this power, and it is unclear how it would be
determined that the House and Senate are truly in “disagreement
. . . with respect to the Time of Adjournment.”

In any event, I

confess to some surprise that the majority has taken this tack,
as it runs counter to their view of the President’s authority in
two ways:

First, it would allow the President to decide when

the Senate is in “the Recess,” thereby granting the President
the precise unilateral power of appointment that the majority
finds

objectionable.

Second,

given

the

majority’s

clear

distinction between an “adjournment” and “the Recess,” see Maj.
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Op. at 93-94, even if the President forced an adjournment of
Congress,

presumably

President’s

use

of

the
the

majority

would

not

recess

appointment

claims

that

countenance

power

during

the
the

resulting break.
The

majority

also

interferes

with

the

procedure.

Not

so.

Clause

would

not

Senate’s
My

ability

reading

prevent

the

the

of

Senate

functional

to
the

approach

regulate
Recess

from

its

own

Appointments

engaging

practice, including its use of pro forma sessions.

in

any

Indeed, I

recognize that such practices may be necessary for the Senate to
conform to the requirements of the Adjournments Clause.

But

“[t]he

the

Senate

cannot

be

both

unavailable

and

President to submit to its advice and consent.”

yet

force

New Vista, 2013

WL 2099742, at *42 (Greenaway, J., dissenting).

Put another

way, we should not allow the Senate to determine the effect of
such actions on a coordinate branch.

Rather, while the Senate

may meet in pro forma sessions when its members see fit, the
President may also choose to use his recess appointment power
during such sessions if the Senate is practically unavailable to
provide its advice and consent for nominees.
Finally, I find no merit to the Employers’ argument that
the Senate was, in fact, available to provide advice and consent
during the relevant period due to its passing the payroll tax
extension

legislation

on

December
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23,

2011.

To

begin

with,

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Congress began a new session on January 3, 2012, and therefore
this

legislative

action

took

place

during

a

different

intrasession recess than the one in which the President made his
appointments.

Thus,

even

assuming

that

the

Senate

had

been

available during the December intrasession recess, that fact has
no bearing on whether it could act on a nomination during a
subsequent

break.

Second,

the

payroll

tax

extension

was

an

extraordinary bill that was part of a broader legislative effort
to avert a national financial catastrophe, and was passed by
unanimous consent, thus not requiring the Senate to return to
Washington.

See 157 Cong. Rec. S 8789-03 (daily ed. Dec. 23,

2011) (statement of Sen. Harry Reid).

By contrast, nominees to

offices like the Board are typically subject to a confirmation
hearing, followed by a vote.

Considering the time and attention

typically given to presidential nominees, it was reasonable for
the President to assume that the Senate could not practically
give

its

advice

and

consent

to

nominations

during

pro

forma

sessions in which (1) a lone senator gaveled the body to order
for sessions lasting no more than a few minutes, (2) the Senate
could not receive messages from the President, (3) no debates
were held, and (4) no speeches were made.

See New Vista, 2013

WL 2099742, at *32 (Greenaway, J., dissenting) (“While courts
have not had occasion to articulate a standard for advice and

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consent, it is clear . . . that provision of advice and consent
cannot be perfunctory.”).
C.
Under
Appointments

a

functional

Clause,

the

interpretation
Senate’s

of

intrasession

January 2012 qualifies as “the Recess.”

the

Recess

break

during

The Senate had adopted

a no-business order, 157 Cong. Rec. S 8783-07 (daily ed. Dec.
17, 2011), instead holding pro forma sessions wherein the Senate
was not engaged in regular business, and thus was unable to
provide

its

advice

and

consent

President may have presented.

on

any

nominations

that

the

Therefore, I would hold that the

intrasession recess from January 3, 2012, to January 23, 2012,
constituted “the Recess” for purposes of the Recess Appointments
Clause.

IV.
Next, I consider the Employers’ contention that a vacancy
must arise during the recess in order for the President to use
his recess appointment power to fill it.

Because it found the

interpretation of “the Recess” to be dispositive, the majority
did not reach this issue.
The Employers argue that the appointments of Members Block,
Flynn, and Griffin are invalid because the relevant vacancies
did not arise during “the Recess of the Senate.”
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the Employers, to be filled by a recess appointment, a position
must be vacated during the recess--that is, the President cannot
use his power during the recess to fill a vacancy that arose
while the Senate was still in session.

For this proposition,

the

opinion,

Employers

court

rely

concluded

on

that

the
the

Noel
plain

Canning
language

and

wherein

history

of

the
the

clause shows that “may happen” means “may arise” and is modified
by “during the Recess of the Senate.”

Noel Canning, 705 F.3d at

507-12).
The Board, on the other hand, claims that the clause places
no such restriction on the President’s power.

In its view, “may

happen” means “may exist,” and therefore the President may use
his authority to make recess appointments to any vacant position
while the Senate is in recess.

Because both the text and the

purpose of the clause support its interpretation, I agree with
the Board.
If “during the Recess of the Senate” modifies “may happen,”
as

the

Employers

assert,

then

the

clause

would

allow

the

President to make recess appointments at any time, even while
the Senate is in session, as long as the vacancy first arose
during a recess.

In effect, one would have to read “during the

Recess of the Senate” twice to give the clause the Employers’
preferred meaning: once to denote when the vacancy must arise,
and once again to limit when the President may exercise his
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recess appointment power.

Pg: 161 of 167

I decline to give the text of the

clause such a convoluted meaning.

See Woodley, 751 F.2d at 1012

(noting that the “may arise” interpretation “conflicts with a
common

sense

reading

of

the

word

happen,

as

well

as

the

construction given to this word by the three branches of our
government”).
The Board’s interpretation, by contrast, flows from a plain
reading of the text.

Reading “may happen” to mean “happen to

exist,” one need only read “during the Recess of the Senate”
once in order to reach the traditional understanding of when the
President may make recess appointments.
The

D.C.

Circuit

in

Noel

Canning

disagrees

with

this

reading, concluding that it renders “the operative phrase ‘that
may happen’ wholly unnecessary.”
incorrect.

705 F.3d at 507.

That is

Were the clause to read “[t]he President shall have

Power to fill up all Vacancies during the Recess of the Senate,”
it would imply a much broader power than the Framers intended,
suggesting that the recess appointment power was on equal par
with that given in the Appointments Clause.

The inclusion of

“that may happen” makes clear that the power is not intended to
be the default method of appointment, but is rather an auxiliary
to be used when vacant positions could not, for some reason, be
filled during the session.

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Nor

is

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the

clause’s

Pg: 162 of 167

purpose

served

by

limiting

the

President’s appointment authority to those vacancies that arise
during

a

recess.

It

bears

repeating

that

the

Recess

Appointments Clause serves to maintain a functioning government
at times when the Senate is unavailable to provide its advice
and

consent

vacancy

for

arises,

a
the

nominee.

As

President

a

and

practical
his

matter,

advisors

may

when

a

take

a

significant amount of time to select and vet a candidate before
officially presenting the nominee to the Senate.

At times, this

period may be longer than that which remains before the Senate’s
recess.
Such was the case in Allocco, 305 F.2d 704, when a judicial
vacancy arose on July 31, 1955, and the President was unable to
fill the position before the Senate adjourned three days later.
The court there held that the President’s recess power extended
to all vacancies, regardless of when they arose, relying in part
on “a long and continuous line of opinions” by the AttorneysGeneral of the United States, beginning in 1823, advising the
President “the recess power extends to vacancies which arise
while the Senate is in session.”
But
could

not

under

the

Employers’

temporarily

appoint

Id. at 713.
interpretation,
an

official

to

the

President

an

important

government post, even if the vacancy arose the day prior to the
Senate’s recess, and even if the recess were expected to last
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for weeks or months.
the

Constitution

Pg: 163 of 167

“It is inconceivable that the drafters of

intended

undesirable situation.”

to

create

such

a

Allocco, 305 F.2d at 710.

manifestly
Rather, the

public interest lies in maintaining a functioning government,
and the Board’s interpretation of the clause effects that very
purpose.

See

Evans,

387

F.3d

at

1227

(“[I]nterpreting

the

phrase to prohibit the President from filling a vacancy that
comes into being on the last day of a Session but to empower the
President to fill a vacancy that arises immediately thereafter
(on the first day of recess) contradicts what we understand to
be

the

purpose

of

the

Recess

Appointments

Clause:

to

keep

important offices filled and the government functioning.”). 14
This understanding of the recess appointment power has been
espoused by every Attorney General confronted with the question
since 1823, when Attorney General William Wirt advised President
Monroe

that

the

clause

extended

to

14

all

vacancies

that

exist

Congress has effectively acquiesced in the Board’s
reading of the clause.
The Pay Act, originally enacted during
the Civil War and currently codified as 5 U.S.C. § 5503,
provides for the payment of salaries to recess appointees who
fill vacancies that first arise while the Senate is in session.
Although the act originally postponed salaries to these
appointees, Act of Feb. 9, 1863, ch. 25 § 2, 12 Stat. 642, 646,
Congress subsequently amended it to permit them to be paid under
certain conditions, see Act of July 11, 1940, 54 Stat. 751. In
passing a law that regulated the salaries of these appointees-even if its terms display an aversion to the practice--Congress
acknowledged that it was within the President’s constitutional
authority to make recess appointments to pre-existing vacancies.

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during a recess, including those that arose beforehand.
e.g.,

Exec.

Auth.

to

Fill

Vacancies,

1

Op.

Att’y

Gen.

See,
631

(1823); President’s Power to Fill Vacancies in Recess of the
Senate, 12 Op. Att’y Gen. 32 (1866); Appointments Made During
the

Recess

Furthermore,

of

the

until

Senate,
this

16

year,

Op.

Att’y

every

Gen.

circuit

522
court

(1880). 15
to

have

considered this issue has endorsed that interpretation.

See

Evans, 387 F.3d at 1226-27 (en banc); Woodley, 751 F.2d at 101213 (en banc); Allocco, 305 F.2d at 709-15.
The sole outlier is Noel Canning.

But the D.C. Circuit’s

reasoning, in addition to running counter to nearly two hundred
years of precedent and distorting the text of the clause, is
squarely at odds with the clause’s purpose.

As one scholar

aptly notes, “[i]f the [P]resident needs to make an appointment,

15

One earlier opinion, from Attorney General Edmund
Randolph, endorses the “happen to arise” interpretation.
See
Edmund Randolph, Opinion on Recess Appointments (July 7, 1792),
in 24 The Papers of Thomas Jefferson 165, 165-67 (John
Catanzariti ed., 1990).
However, as the Board points out, not
only has that reading been repudiated by the long line of
subsequent Attorneys-General opinions, but it is not clear that
any President found it persuasive.
Even George Washington, to
whom the opinion was addressed, appeared to reject the
interpretation when he appointed William Clarke to be U.S.
Attorney for Kentucky and Robert Scot to be the first Engraver
of the Mint--both to vacancies that arose prior to the Senate’s
recess.
See S. Exec. J., 4th Cong., 2d Sess. 217 (1796);
Tachau, Federal Courts in the Early Republic: Kentucky 17891816, at 65-73 (1979); 27 The Papers of Thomas Jefferson 192
(John Catanzariti, ed. 1990); S. Exec. J., 3d Cong., 1st Sess.,
142-43 (1793).
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and the Senate is not around, when the vacancy arose hardly
matters; the point is that it must be filled now.”
Herz,

Abandoning

Recess

Appointments?:

A

Comment

Michael

on

Hartnett

(and Others), 26 Cardozo L. Rev. 443, 445-46 (2005) (emphasis
added).
Finding

that

both

text

and

purpose

support

the

Board’s

view, I conclude that “may happen” means “may exist” in the
context

of

the

Recess

Appointments

Clause.

Therefore,

the

President’s recess appointments to the NLRB are valid, despite
the fact that the vacancies first arose prior to the recess of
the Senate.

V.
The constitutional questions before us are vexing ones, and
I respect deeply my colleagues’ good faith effort to resolve
them.

The majority’s interpretation of the Recess Appointments

Clause

attempts

a

literal

reading

of

the

text,

which

it

endeavors to bolster by reviewing the manner in which it claims
the power was exercised during the first half of our democracy.
But I can divine no textual clarity in the words of the clause,
and the history of its use is muddled at best.
The
practices

majority’s
of

the

view

Senate,

also

ignores

wherein

the

intrasession

modern

recess

recesses

have

become the norm, and does violence to the fundamental purpose of
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the recess appointment power--to allow the President to fill up
important offices and keep the government functioning.

Worse,

it grants the House a veto over recess appointments, a power
nowhere to be found in the Constitution, and grants the Senate-through the use of a procedural artifice unworthy of the world’s
greatest

deliberative

body--unfettered

power

to

prevent

the

President from making recess appointments to fill up important
offices.

Indeed,

constitutional

the

majority’s

separation

of

powers

reading
far

out

tilts
of

our

balance,

according excessive leverage to the Congress in the appointment
of

government

officials,

at

the

expense

of

the

President’s

constitutional prerogative to choose those he or she deems best
fit to aid in taking care that the laws be faithfully executed.
It is a reading contrary to the Framers’ intent.
Under
Appointments
January

3

the

functional

Clause
to

that

January

notwithstanding--“the

interpretation

I

propose,

23,

2012,

Recess”

for

the

of

Senate’s

was--pro
the

the

break

forma

purposes

Recess
from

sessions
of

the

President’s recess appointment power because the Senate was not
then available to give its advice and consent.

In my view, the

plain language of the clause and its fundamental purpose allow
the President--as he has done here--to fill up all vacancies
then-existing during the Recess.

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On this reasoning, I would uphold the President’s appointments
of

Members

Block,

Flynn,

and

Griffin

to

the

NLRB

and

would

affirm the Board’s decisions in these appeals.
I respectfully dissent from parts IV and V of the majority
opinion.

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