In a 5-to-4 vote, the U.S. Supreme Court held that Article II’s Recess Appointments Clause empowers presidents to fill vacancies that occur at any time and during any recess—intra-session or intersession—of sufficient length. The Court did invalidate President Obama’s January, 2012, recess appointments of three NLRB members, but only on a narrow two-part rationale. First, a series of pro forma Senate sessions held between December 17, 2011, and January 23, 2012, were effective in dividing this 37-day break into periods of adjournment no longer than three days. Second, periods of intra-session adjournment shorter than 10 days are “presumptively” too short to count as recesses that trigger the president’s recess appointments power. (There is some ambiguity in the majority opinion whether the 10-day rule now applies even to intersession adjournments, which, as far as I know, no party ever argued.) Because of the pro forma sessions – which the D.C. Circuit had not addressed at all – the NLRB owes the Noel Canning Co. a do-over in its unfair labor practice proceeding.
All in all, it was a good day for the legacy of Chief Justice John Marshall. The majority eschewed implausible claims for the supposed clarity of plainly ambiguous constitutional text, in favor of a constitutional reading that was guided by a history of interbranch practice. Marshall would have approved the Court’s framing of the intra- versus inter-session recess problem:
The question is not: Did the Founders at the time think about intra-session recesses? Perhaps they did not. The question is: Did the Founders intend to restrict the scope of the Clause to the form of congressional recess then prevalent, or did they intend a broader scope permitting the Clause to apply, where appropriate, to somewhat changed circumstances? The Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries. After all, a Constitution is “intended to endure for ages to come,” and must adapt itself to a future that can only be “seen dimly,” if at all …We therefore think the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purposes, where doing so is consistent with the Clause’s language.
In short, pragmatism trumped an overconfident textualism.