Recess Appointments and the Scalia Vacancy

By Professor Aaron Caplan

No semester of Constitutional Law ever goes by without a teaching opportunity taken from the front pages. This post suggests how teachers can connect yesterday's unexpected death of Justice Antonin Scalia to the recess appointments clause of Art. II, sec. 2, cl. 3. That clause was at issue in NLRB v. Noel Canning (2014).

The timeline:

Friday, February 12, 2016: The Senate goes into intra-session recess scheduled to end on Monday February 22. This gives legislators a break for the week containing the President's Day holiday (Monday February 15).

Saturday, February 13: Justice Scalia dies.

Sunday, February 14: Today.

If the President can lawfully make a recess appointment, the new justice would serve until the "end of [the Senate's] next session." At the latest, the session of the Senate will end when the new Congress takes office; according to the 20th Amendment this will occur on January 3, 2017 or another date set by statute. (January 3, 2017 is a Sunday, so perhaps such a statute exists.) At the earliest, the session ends when both Houses of Congress agree to adjourn. According to Art. I, sec. 5, cl. 4, neither house can adjourn for more than three days without the consent of the other.

So is a recess appointment allowed this week? If Justice Scalia's concurrence in Noel Canning had prevailed, the answer would be an easy "no." In his view, a recess appointment is allowed only during a recess that falls between two sessions of Congress, and not during an intra-session recess like this one. Moreover, he believed a recess appointment was possible only if the vacancy begins during such a recess between sessions. Since the vacancy did not occur within the right kind of recess, no recess appointment would be allowed.

The majority would reach the same result through a different route. The majority view in Noel Canning does not require that the vacancy begin during a recess. Nor does it prohibit recess appointments during intra-session recesses. But to be constitutional, a recess appointment may only be made during a recess that is sufficiently long that the Senate's inability to timely confirm the nominee would pose a significant problem for effective governance. The majority believed that such recesses must, as a matter of constitutional requirement, be more than three days long, and that a recess of ten days or less was presumptively not long enough to trigger the recess appointment power, although that presumption could be potentially be overcome. It is hard to see how it could be overcome on these facts, since the Court is capable of operating with eight members for the coming week, after which time the Senate returns and can consider nominations under the usual process.

Thus, under either Noel Canning approach the President would not be able to appoint a new justice this week, since it falls within an intra-session recess of ten days and the vacancy occurs with nine days of recess remaining.

Going forward, either house of Congress can prevent any possible recess appointment by ensuring that no sufficiently long recess occurs. The majority in Noel Canning made clear that the Senate is "in session" when it says it is, even in a pro forma session where no business is conducted. Hence, the Senate could choose to bang the gavel once every two or three days and stave off recess appointments. Or, as happened in Noel Canning itself, the House could refuse to give the Senate permission to adjourn for longer than three days, forcing the Senate once again to bang the gavel.

Because Noel Canning has as a practical matter made recess appointments over the objection of either house of Congress impossible, the courts will not need to puzzle through a question not presented in that case: namely, what does it mean for a recess appointee to finish a term at the "end" of the "next" session? Assume the President actually makes a recess appointment in February 2016. Assume Congress takes a one-month intra-session recess on August 1. It then adjourns the entire session on December 1, 2016, allowing the new Congress to begin its session on January 3, 2017. Does the recess justice's term end on August 1, September 1, December 1, or January 3? Looks like we won't find out.