National Labor Relations Board v. Noel Canning

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CANNING et al.

certiorari to the united states court of appeals for the district of columbia circuit

No. 12–1281. Argued January 13, 2014—Decided June 26, 2014

Respondent Noel Canning, a Pepsi-Cola distributor, asked the D. C. Circuit to set aside an order of the National Labor Relations Board, claiming that the Board lacked a quorum because three of the fve Board mem- bers had been invalidly appointed. The nominations of the three mem- bers in question were pending in the Senate when it passed a Decem- ber 17, 2011, resolution providing for a series of “pro forma session[s],” with “no business . . . transacted,” every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923. Invoking the Re- cess Appointments Clause—which gives the President the power “to fll up all Vacancies that may happen during the Recess of the Senate,” Art. II, § 2, cl. 3—the President appointed the three members in ques- tion between the January 3 and January 6 pro forma sessions. Noel Canning argued primarily that the appointments were invalid because the 3-day adjournment between those two sessions was not long enough to trigger the Recess Appointments Clause. The D. C. Circuit agreed that the appointments fell outside the scope of the Clause, but on differ- ent grounds. It held that the phrase “the recess,” as used in the Clause, does not include intra-session recesses, and that the phrase “va- cancies that may happen during the recess” applies only to vacancies that frst come into existence during a recess.

1. The Recess Appointments Clause empowers the President to fll

any existing vacancy during any recess—intra-session or inter-session— of suffcient length. Pp. 522–549.

(a) Two background considerations are relevant to the questions here. First, the Recess Appointments Clause is a subsidiary method for appointing offcers of the United States. The Founders intended the norm to be the method of appointment in Article II, § 2, cl. 2, which requires Senate approval of Presidential nominations, at least for princi- pal offcers. The Recess Appointments Clause refects the tension be- tween the President's continuous need for “the assistance of subordi- nates,” Myers v. United States, 272 U. S. 52, 117, and the Senate's early practice of meeting for a single brief session each year. The Clause should be interpreted as granting the President the power to make ap-

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pointments during a recess but not offering the President the authority routinely to avoid the need for Senate confrmation.

Second, in interpreting the Clause, the Court puts signifcant weight upon historical practice. The longstanding “practice of the govern- ment,” McCulloch v. Maryland, 4 Wheat. 316, 401, can inform this Court's determination of “what the law is” in a separation-of-powers case, Marbury v. Madison, 1 Cranch 137, 176. See also, e. g., Mistretta

v. United States, 488 U. S. 361, 401; The Pocket Veto Case, 279 U. S. 655,

689–690. There is a great deal of history to consider here, for Presi- dents have made recess appointments since the beginning of the Re- public. Their frequency suggests that the Senate and President have recognized that such appointments can be both necessary and appropri- ate in certain circumstances. The Court, in interpreting the Clause for the frst time, must hesitate to upset the compromises and working ar- rangements that the elected branches of Government themselves have reached. Pp. 522–526.

(b) The phrase “the recess of the Senate” applies to both inter- session recess (i. e., breaks between formal sessions of the Senate) and intra-session recesses (i. e., breaks in the midst of a formal session) of substantial length. The constitutional text is ambiguous. Founding- era dictionaries and usages show that the phrase “the recess” can en- compass intra-session breaks. And this broader interpretation is de- manded by the purpose of the Clause, which is to allow the President to make appointments so as to ensure the continued functioning of the Government while the Senate is away. The Senate is equally away and unavailable to participate in the appointments process during both an inter-session and an intra-session recess. History offers further sup- port for this interpretation. From the founding until the Great Depres- sion, every time the Senate took a substantial, nonholiday intra-session recess, the President made recess appointments. President Andrew Johnson made the frst documented intra-session recess appointments in 1867 and 1868, and Presidents made similar appointments in 1921 and 1929. Since 1929, and particularly since the end of World War II, Con- gress has shortened its inter-session breaks and taken longer and more frequent intra-session breaks; Presidents accordingly have made more intra-session recess appointments. Meanwhile, the Senate has never taken any formal action to deny the validity of intra-session recess ap- pointments. In 1905 the Senate Judiciary Committee defned “the re- cess” as “the period of time when the Senate” is absent and cannot “participate as a body in making appointments,” S. Rep. No. 4389, 58th Cong., 3d Sess., 2, and that functional defnition encompasses both intra- session and inter-session recesses. A 1940 law regulating the payment of recess appointees has also been interpreted functionally by the Comp-

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troller General (an offcer of the Legislative Branch). In sum, Presi- dents have made intra-session recess appointments for a century and a half, and the Senate has never taken formal action to oppose them.

That practice is long enough to entitle it to “great weight in a proper interpretation” of the constitutional provision. The Pocket Veto Case, supra, at 689.

The Clause does not say how long a recess must be in order to fall within the Clause, but even the Solicitor General concedes that a 3-day recess would be too short. The Adjournments Clause, Art. I, § 5, cl. 4, refects the fact that a 3-day break is not a signifcant interruption of legislative business. A Senate recess that is so short that it does not require the consent of the House under that Clause is not long enough to trigger the President's recess-appointment power. Moreover, the Court has not found a single example of a recess appointment made during an intra-session recess that was shorter than 10 days. There are a few examples of inter-session recess appointments made during recesses of less than 10 days, but these are anomalies. In light of his- torical practice, a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. The word “presump- tively” leaves open the possibility that a very unusual circumstance could demand the exercise of the recess-appointment power during a shorter break. Pp. 526–538.

(c) The phrase “vacancies that may happen during the recess of the Senate,” Art. II, § 2, cl. 3, applies both to vacancies that frst come into existence during a recess and to vacancies that initially occur before a recess but continue to exist during the recess. Again, the text is am- biguous. As Thomas Jefferson observed, the Clause is “certainly sus- ceptible of [two] constructions.” Letter to Wilson Cary Nicholas (Jan.

26, 1802), in 36 Papers of Thomas Jefferson 433. It “may mean `vacan- cies that may happen to be' or `may happen to fall' ” during a recess.

Ibid. And, as Attorney General Wirt wrote in 1821, the broader read- ing is more consonant with the “reason and spirit” of the Clause. 1 Op.

Atty. Gen. 632. The purpose of the Clause is to permit the President, who is always acting to execute the law, to obtain the assistance of subordinate offcers while the Senate, which acts only in intervals, is unavailable to confrm them. If a vacancy arises too late in the session for the President and Senate to have an opportunity to select a replace- ment, the narrower reading could paralyze important functions of the Federal Government, particularly at the time of the founding. The broader interpretation ensures that offces needing to be flled can be flled. It does raise a danger that the President may attempt to use the recess-appointment power to circumvent the Senate's advice and consent role. But the narrower interpretation risks undermining con-

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stitutionally conferred powers more seriously and more often. It would prevent a President from making any recess appointment to fll a va- cancy that arose before a recess, no matter who the offcial, how dire the need, how uncontroversial the appointment, and how late in the session the offce fell vacant.

Historical practice also strongly favors the broader interpretation.

The tradition of applying the Clause to pre-recess vacancies dates at least to President Madison. Nearly every Attorney General to consider the question has approved the practice, and every President since James Buchanan has made recess appointments to pre-existing vacancies. It is a fair inference from the historical data that a large proportion of recess appointments over our Nation's history have flled pre-recess va- cancies. The Senate Judiciary Committee in 1863 did issue a Report disagreeing with the broader interpretation, and Congress passed a law known as the Pay Act prohibiting payment of recess appointments to pre-recess vacancies soon after. However, the Senate subsequently abandoned its hostility. In 1940 the Senate amended the Pay Act to permit payment of recess appointees in circumstances that would be unconstitutional under the narrower interpretation. In short, Presi- dents have made recess appointments to pre-existing vacancies for two centuries, and the Senate as a body has not countered this practice for nearly three-quarters of a century, perhaps longer. The Court is reluc- tant to upset this traditional practice where doing so would seriously shrink the authority that Presidents have believed existed and have exercised for so long. Pp. 538–549.

2. For purposes of the Recess Appointments Clause, the Senate is in

session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.

This standard is consistent with the Constitution's broad delegation of authority to the Senate to determine how and when to conduct its business, as recognized by this Court's precedents. See Art. I, § 5, cl.

2; Marshall Field & Co. v. Clark, 143 U. S. 649, 672; United States v.

Ballin, 144 U. S. 1, 5, 9. Although the Senate's own determination of when it is and is not in session should be given great weight, the Court's deference cannot be absolute. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares.

Under the standard set forth here, the Senate was in session during the pro forma sessions at issue. It said it was in session, and Senate rules make clear that the Senate retained the power to conduct busi- ness. The Senate could have conducted business simply by passing a unanimous consent agreement. In fact, it did so; it passed a bill by unanimous consent during its pro forma session on December 23, 2011.

See 2011 S. J. 924; Pub. L. 112–78. The Court will not, as the Solicitor

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General urges, engage in an in-depth factual appraisal of what the Sen- ate actually did during its pro forma sessions in order to determine whether it was in recess or in session for purposes of the Recess Ap- pointments Clause.

Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess.

Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appoint- ments. Pp. 549–557.

705 F. 3d 490, affrmed.

Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Scalia, J., fled an opin- ion concurring in the judgment, in which Roberts, C. J., and Thomas and Alito, JJ., joined, post, p. 569.

Solicitor General Verrilli argued the cause for petitioner.

With him on the briefs were Assistant Attorney General Delery, Deputy Solicitor General Kneedler, Deputy Assist- ant Attorney General Brinkmann, Curtis E. Gannon, Doug- las N. Letter, Melissa N. Patterson, Benjamin M. Shultz, Lafe E. Solomon, John H. Ferguson, Margery E. Lieber, and Linda Dreeben. James B. Coppess, Bradley T. Raymond, and Laurence Gold fled briefs for International Brotherhood of Teamsters Local 760 in support of petitioner.

Noel J. Francisco argued the cause for respondent Noel Canning. With him on the brief were G. Roger King, Gary

E. Lofand, Lily Fu Claffee, and Rachel L. Brand.

Miguel A. Estrada argued the cause and fled a brief for Senator Mitch McConnell et al. as amici curiae urging affrmance.*

*Briefs of amici curiae urging reversal were fled for the Brennan Cen- ter for Justice by Sidney S. Rosdeitcher, Burt Neuborne, Wendy Weiser, and Diana Kasdan; for the Constitutional Accountability Center by Doug- las T. Kendall, Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans; and for Victor Williams by Mr. Williams, pro se.

Briefs of amici curiae urging affrmance were fled for the State of Alabama et al. by Luther Strange, Attorney General of Alabama, John C.

Neiman, Jr., Solicitor General, Andrew L. Brasher, Deputy Solicitor Gen-

518

Opinion of the Court Justice Breyer delivered the opinion of the Court.

Ordinarily the President must obtain “the Advice and Consent of the Senate” before appointing an “Offce[r] of the

eral, and Megan A. Kirkpatrick, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Thomas C. Horne of Arizona, John W. Suthers of Colorado, Pamela Jo Bondi of Florida, Sam Olens of Georgia, Lawrence G. Wasden of Idaho, Derek Schmidt of Kansas, Bill Schuette of Michigan, Timothy C. Fox of Montana, Jon Brun- ing of Nebraska, Michael DeWine of Ohio, E. Scott Pruitt of Oklahoma, Alan Wilson of South Carolina, Marty J. Jackley of South Dakota, Greg Abbott of Texas, Kenneth T. Cuccinelli II of Virginia, and Patrick Morri- sey of West Virginia; for the American Civil Rights Union by Peter J.

Ferrara; for the Atlantic Legal Foundation et al. by William S. Consovoy, Thomas R. McCarthy, and Martin S. Kaufman; for the Cato Institute by Ilya Shapiro; for Citizens United et al. by William J. Olson, Herbert W.

Titus, John S. Miles, Jeremiah L. Morgan, Michael Boos, and Michael Connelly; for the Coalition for a Democratic Workplace et al. by Mark T.

Stancil, William J. Trunk, and Deborah R. White; for Constitutional Law Scholars by Michael W. McConnell, pro se; for the Council of Labor Law Equality by Arthur B. Smith, Jr., and Christopher C. Murray; for Daycon Products Co., Inc., by Jay P. Krupin, Andrew M. Grossman, and Lee A. Casey; for the Independence Institute by Sean R. Gallagher, Ben- nett L. Cohen, and David B. Kopel; for the International Longshore and Warehouse Union by Robert Remar; for Judicial Watch, Inc., et al. by Paul

J. Orfanedes and Ramona R. Cotca; for the Landmark Legal Foundation

by Richard P. Hutchison; for the Mountain States Legal Foundation by Steven J. Lechner; for the National Federation of Independent Business Small Business Legal Center by Mark E. Solomons, Laura Metcoff Klaus, Justin F. Keith, Karen R. Harned, and Elizabeth Milito; for the National Right to Work Legal Defense and Education Foundation, Inc., et al. by Thomas H. Odom, Glenn M. Taubman, and John N. Raudabaugh; for Originalist Scholars by Michael D. Ramsey; for Political Scientists et al. by Allyson N. Ho, Nelson Lund, and Vanessa R. Brown; for Speaker of the United States House of Representatives John Boehner by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, Jordan A. Sekulow, Cecilia Noland-Heil, and Laura B. Hernandez; for the Southeastern Legal Foun- dation by Shannon Lee Goessling, Gregory B. Robertson, Michael R.

Shebelskie, and Kurt G. Larkin; for the State National Bank of Big Spring et al. by C. Boyden Gray, Adam J. White, Kathryn E. Tarbert, Sam Kaz- man, and Hans Bader; for Brian W. Bulger et al. by Mr. Bulger, pro se; for Robert B. Dove et al. by D. John Sauer; and for Tuan Samahon by Mr. Samahon, pro se.

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United States.” U. S. Const., Art. II, § 2, cl. 2. But the Re- cess Appointments Clause creates an exception. It gives the President alone the power “to fll up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Ses- sion.” Art. II, § 2, cl. 3. We here consider three questions about the application of this Clause.

The frst concerns the scope of the words “recess of the Senate.” Does that phrase refer only to an inter-session re- cess (i. e., a break between formal sessions of Congress), or does it also include an intra-session recess, such as a summer recess in the midst of a session? We conclude that the Clause applies to both kinds of recess.

The second question concerns the scope of the words “va- cancies that may happen.” Does that phrase refer only to vacancies that frst come into existence during a recess, or does it also include vacancies that arise prior to a recess but continue to exist during the recess? We conclude that the Clause applies to both kinds of vacancy.

The third question concerns calculation of the length of a “recess.” The President made the appointments here at issue on January 4, 2012. At that time the Senate was in recess pursuant to a December 17, 2011, resolution providing for a series of brief recesses punctuated by “pro forma ses- sion[s],” with “no business . . . transacted,” every Tuesday and Friday through January 20, 2012. S. J., 112th Cong., 1st Sess., 923 (2011) (hereinafter 2011 S. J.). In calculating the length of a recess are we to ignore the pro forma sessions, thereby treating the series of brief recesses as a single, month-long recess? We conclude that we cannot ignore these pro forma sessions.

Our answer to the third question means that, when the appointments before us took place, the Senate was in the midst of a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause. Thus we con- clude that the President lacked the power to make the recess appointments here at issue.

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The case before us arises out of a labor dispute. The National Labor Relations Board (NLRB or Board) found that a Pepsi-Cola distributor, Noel Canning, had unlawfully refused to reduce to writing and execute a collective- bargaining agreement with a labor union. The Board or- dered the distributor to execute the agreement and to make employees whole for any losses. Noel Canning, 358 N. L.

R. B. No. 4 (2012).

The Pepsi-Cola distributor subsequently asked the Court of Appeals for the District of Columbia Circuit to set the Board's order aside. It claimed that three of the fve Board members had been invalidly appointed, leaving the Board without the three lawfully appointed members necessary for it to act. See 29 U. S. C. § 160(f) (providing for judicial re- view); § 153(a) (providing for a fve-member Board); § 153(b) (providing for a three-member quorum); New Process Steel,

of a lawfully appointed quorum, the Board cannot exercise its powers).

The three members in question were Sharon Block, Rich- ard Griffn, and Terence Flynn. In 2011 the President had nominated each of them to the Board. As of January 2012, Flynn's nomination had been pending in the Senate awaiting confrmation for approximately a year. The nominations of each of the other two had been pending for a few weeks. On January 4, 2012, the President, invoking the Recess Appoint- ments Clause, appointed all three to the Board.

The distributor argued that the Recess Appointments Clause did not authorize those appointments. It pointed out that on December 17, 2011, the Senate, by unanimous con- sent, had adopted a resolution providing that it would take a series of brief recesses beginning the following day. See 2011 S. J. 923. Pursuant to that resolution, the Senate held pro forma sessions every Tuesday and Friday until it re-

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turned for ordinary business on January 23, 2012. Ibid.; 158 Cong. Rec. 1, 3, 9, 16, 26, 133 (2012). The President's Janu- ary 4 appointments were made between the January 3 and January 6 pro forma sessions. In the distributor's view, each pro forma session terminated the immediately preced- ing recess. Accordingly, the appointments were made dur- ing a 3-day adjournment, which is not long enough to trigger the Recess Appointments Clause.

The Court of Appeals agreed that the appointments fell outside the scope of the Clause. But the court set forth dif- ferent reasons. It held that the Clause's words “the recess of the Senate” do not include recesses that occur within a formal session of Congress, i. e., intra-session recesses.

Rather those words apply only to recesses between those for- mal sessions, i. e., inter-session recesses. Since the second session of the 112th Congress began on January 3, 2012, the day before the President's appointments, those appointments occurred during an intra-session recess, and the appoint- ments consequently fell outside the scope of the Clause. 705

F. 3d 490, 499–507 (CADC 2013).

The Court of Appeals added that, in any event, the phrase “vacancies that may happen during the recess” applies only to vacancies that come into existence during a recess. Id., at 507–512. The vacancies that Members Block, Griffn, and Flynn were appointed to fll had arisen before the beginning of the recess during which they were appointed. For this reason too the President's appointments were invalid. And, because the Board lacked a quorum of validly appointed members when it issued its order, the order was invalid. 29

U. S. C. § 153(b); New Process Steel, supra.

We granted the Solicitor General's petition for certiorari.

We asked the parties to address not only the Court of Ap- peals' interpretation of the Clause but also the distributor's initial argument, namely, “[w]hether the President's recess- appointment power may be exercised when the Senate is

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We shall answer all three questions presented. We recog- nize that the President has nominated others to fll the posi- tions once occupied by Members Block, Griffn, and Flynn, and that the Senate has confrmed these successors. But, as the parties recognize, the fact that the Board now unques- tionably has a quorum does not moot the controversy about the validity of the previously entered Board order. And there are pending before us petitions from decisions in other cases involving challenges to the appointment of Board Mem- ber Craig Becker. The President appointed Member Becker during an intra-session recess that was not punctuated by pro forma sessions, and the vacancy Becker flled had come into existence prior to the recess. See Congressional Research Service, H. Hogue, M. Carey, M. Greene, & M.

Bearden, The Noel Canning Decision and Recess Appoint- ments Made From 1981–2013, p. 28 (Feb. 4, 2013) (hereinafter The Noel Canning Decision); NLRB, Members of the NLRB Since 1935, online at http://www.nlrb.gov/who-we-are/ board /members-nlrb-1935 (all Internet materials as visited June 24, 2014, and available in Clerk of Court's case fle). Other cases involving similar challenges are also pending in the Courts of Appeals. E. g., NLRB v. New Vista Nursing & Rehabilitation, No. 11–3440 etc. (CA3). Thus, we believe it is important to answer all three questions that this case presents.

Before turning to the specifc questions presented, we shall mention two background considerations that we fnd relevant to all three. First, the Recess Appointments Clause sets forth a subsidiary, not a primary, method for appointing offcers of the United States. The immediately preceding Clause—Article II, Section 2, Clause 2—provides the primary method of appointment. It says that the Presi- dent “shall nominate, and by and with the Advice and Con-

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sent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Offcers of the United States.”

(Emphasis added.)

The Federalist Papers make clear that the Founders intended this method of appointment, requiring Senate ap- proval, to be the norm (at least for principal offcers). Alex- ander Hamilton wrote that the Constitution vests the power of nomination in the President alone because “one man of discernment is better ftted to analise and estimate the pecu- liar qualities adapted to particular offces, than a body of men of equal, or perhaps even of superior discernment.” The Federalist No. 76, p. 510 (J. Cooke ed. 1961). At the same time, the need to secure Senate approval provides “an excel- lent check upon a spirit of favoritism in the President, and would tend greatly to preventing the appointment of unft characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” Id., at 513. Hamilton further explained that the

“ordinary power of appointment is confded to the Presi- dent and Senate jointly, and can therefore only be exer- cised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of offcers; and as va- cancies might happen in their recess, which it might be necessary for the public service to fll without delay, the succeeding clause is evidently intended to authorise the President singly to make temporary appointments.” Id., No. 67, at 455.

Thus the Recess Appointments Clause refects the tension between, on the one hand, the President's continuous need for “the assistance of subordinates,” Myers v. United States, 272 U. S. 52, 117 (1926), and, on the other, the Senate's prac- tice, particularly during the Republic's early years, of meet- ing for a single brief session each year, see Art. I, § 4, cl. 2; Amdt. 20, § 2 (requiring the Senate to “assemble” only “once

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in every year”); 3 J. Story, Commentaries on the Constitution of the United States § 1551, p. 410 (1833) (hereinafter Story) (it would be “burthensome to the senate, and expensive to the public” to require the Senate to be “perpetually in ses- sion”). We seek to interpret the Clause as granting the President the power to make appointments during a recess but not offering the President the authority routinely to avoid the need for Senate confrmation.

Second, in interpreting the Clause, we put signifcant weight upon historical practice. For one thing, the inter- pretive questions before us concern the allocation of power between two elected branches of Government. Long ago Chief Justice Marshall wrote that

“a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be ad- justed; if not put at rest by the practice of the govern- ment, ought to receive a considerable impression from that practice.” McCulloch v. Maryland, 4 Wheat. 316, 401 (1819).

And we later confrmed that “[l]ong settled and established practice is a consideration of great weight in a proper inter- pretation of constitutional provisions” regulating the rela- tionship between Congress and the President. The Pocket Veto Case, 279 U. S. 655, 689 (1929); see also id., at 690 (“[A] practice of at least twenty years duration `on the part of the executive department, acquiesced in by the legislative department, . . . is entitled to great regard in determining the true construction of a constitutional provision the phra- seology of which is in any respect of doubtful meaning' ” (quoting State v. South Norwalk, 77 Conn. 257, 264, 58 A.

759, 761 (1904))).

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We recognize, of course, that the separation of powers can serve to safeguard individual liberty, Clinton v. City of New York, 524 U. S. 417, 449–450 (1998) (Kennedy, J., concur- ring), and that it is the “duty of the judicial department”— in a separation-of-powers case as in any other—“to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803).

But it is equally true that the longstanding “practice of the government,” McCulloch, supra, at 401, can inform our determination of “what the law is,” Marbury, supra, at 177.

That principle is neither new nor controversial. As James Madison wrote, it “was foreseen at the birth of the Constitu- tion, that diffculties and differences of opinion might occa- sionally arise in expounding terms & phrases necessarily used in such a charter . . . and that it might require a reg- ular course of practice to liquidate & settle the meaning of some of them.” Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 447, 450 (G. Hunt ed. 1908).

And our cases have continually confrmed Madison's view.

E. g., Mistretta v. United States, 488 U. S. 361, 401 (1989);

Dames & Moore v. Regan, 453 U. S. 654, 686 (1981); Youngs- town Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610–611 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, supra, at 689–690; Ex parte Grossman, 267 U. S. 87, 118–119 (1925); United States v. Midwest Oil Co., 236 U. S. 459, 472– 474 (1915); McPherson v. Blacker, 146 U. S. 1, 27 (1892); Mc- Culloch, supra; Stuart v. Laird, 1 Cranch 299 (1803).

These precedents show that this Court has treated prac- tice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era. See Mistretta, supra, at 400– 401 (“While these [practices] spawned spirited discussion and frequent criti- cism, . . . `traditional ways of conducting government . . . give meaning' to the Constitution” (quoting Youngstown, supra, at 610 (Frankfurter, J., concurring))); Regan, supra,

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at 684 (“[E]ven if the pre-1952 [practice] should be disre- garded, congressional acquiescence in [a practice] since that time supports the President's power to act here”); The Pocket Veto Case, supra, at 689–690 (postfounding practice is entitled to “great weight”); Grossman, supra, at 118–119 (postfounding practice “strongly sustains” a “construction” of the Constitution).

There is a great deal of history to consider here. Presi- dents have made recess appointments since the beginning of the Republic. Their frequency suggests that the Senate and President have recognized that recess appointments can be both necessary and appropriate in certain circumstances.

We have not previously interpreted the Clause, and, when doing so for the frst time in more than 200 years, we must hesitate to upset the compromises and working arrange- ments that the elected branches of Government themselves have reached.

The frst question concerns the scope of the phrase “the recess of the Senate.” Art. II, § 2, cl. 3 (emphasis added).

The Constitution provides for congressional elections every two years. And the 2-year life of each elected Congress typically consists of two formal 1-year sessions, each sepa- rated from the next by an “inter-session recess.” Congres-

Frequently Asked Questions 2 (2013). The Senate or the House of Representatives announces an inter-session recess by approving a resolution stating that it will “adjourn sine die,” i. e., without specifying a date to return (in which case Congress will reconvene when the next formal session is scheduled to begin).

The Senate and the House also take breaks in the midst of a session. The Senate or the House announces any such “intra-session recess” by adopting a resolution stating that it will “adjourn” to a fxed date, a few days or weeks or even months later. All agree that the phrase “the recess

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of the Senate” covers inter-session recesses. The question is whether it includes intra-session recesses as well.

In our view, the phrase “the recess” includes an intra- session recess of substantial length. Its words taken literally can refer to both types of recess. Founding-era dic- tionaries defne the word “recess,” much as we do today, sim- ply as “a period of cessation from usual work.” 13 Oxford English Dictionary 322–323 (2d ed. 1989) (hereinafter OED) (citing 18th- and 19th-century sources for that defnition of “recess”); 2 N. Webster, An American Dictionary of the Eng- lish Language (1828) (“[r]emission or suspension of business or procedure”); 2 S. Johnson, A Dictionary of the English Language 1602–1603 (4th ed. 1773) (hereinafter Johnson) (same). The Founders themselves used the word to refer to intra-session, as well as to inter-session, breaks. See, e. g., 3 Records of the Federal Convention of 1787, p. 76 (M. Far- rand rev. 1966) (hereinafter Farrand) (letter from George Washington to John Jay using “the recess” to refer to an intra-session break of the Constitutional Convention); id., at 191 (speech of Luther Martin with a similar usage); 1 T. Jef- ferson, A Manual of Parliamentary Practice § LI, p. 165 (2d ed. 1812) (describing a “recess by adjournment” which did not end a session).

We recognize that the word “the” in “the recess” might suggest that the phrase refers to the single break separat- ing formal sessions of Congress. That is because the word “the” frequently (but not always) indicates “a particu- lar thing.” 2 Johnson 2003. But the word can also refer “to a term used generically or universally.” 17 OED 879.

The Constitution, for example, directs the Senate to choose a President pro tempore “in the Absence of the Vice- President.” Art. I, § 3, cl. 5 (emphasis added). And the Federalist Papers refer to the chief magistrate of an ancient Achaean league who “administered the government in the recess of the Senate.” The Federalist No. 18, at 113 (J. Mad- ison) (emphasis added). Reading “the” generically in this

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way, there is no linguistic problem applying the Clause's phrase to both kinds of recess. And, in fact, the phrase “the recess” was used to refer to intra-session recesses at the time of the founding. See, e. g., 3 Farrand 76 (letter from Washington to Jay); New Jersey Legislative-Council Journal, 5th Sess., 1st Sitting 70, 2d Sitting 9 (1781) (twice referring to a 4-month, intra-session break as “the Recess”); see also Brief for Petitioner 14–16 (listing examples).

The constitutional text is thus ambiguous. And we be- lieve the Clause's purpose demands the broader interpreta- tion. The Clause gives the President authority to make appointments during “the recess of the Senate” so that the President can ensure the continued functioning of the Fed- eral Government when the Senate is away. The Senate is equally away during both an inter-session and an intra- session recess, and its capacity to participate in the appoint- ments process has nothing to do with the words it uses to signal its departure.

History also offers strong support for the broad interpre- tation. We concede that pre-Civil War history is not helpful.

But it shows only that Congress generally took long breaks between sessions, while taking no signifcant intra-session breaks at all (fve times it took a break of a week or so at Christmas). See Appendix A, infra. Obviously, if there are no signifcant intra-session recesses, there will be no intra-session recess appointments. In 1867 and 1868, Con- gress for the frst time took substantial, nonholiday intra- session breaks, and President Andrew Johnson made dozens of recess appointments. The Federal Court of Claims up- held one of those specifc appointments, writing “[w]e have no doubt that a vacancy occurring while the Senate was thus temporarily adjourned” during the “frst session of the Forti- eth Congress” was “legally flled by appointment of the Pres- ident alone.” Gould v. United States, 19 Ct. Cl. 593, 595– 596 (1884) (emphasis added). Attorney General Evarts also issued three opinions concerning the constitutionality of

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President Johnson's appointments, and it apparently did not occur to him that the distinction between intra-session and inter-session recesses was signifcant. See 12 Op. Atty. Gen.

449 (1868); 12 Op. Atty. Gen. 455 (1868); 12 Op. Atty. Gen.

469 (1868). Similarly, though the 40th Congress impeached President Johnson on charges relating to his appointment power, he was not accused of violating the Constitution by making intra-session recess appointments. Hartnett, Re- cess Appointments of Article III Judges: Three Constitu- tional Questions, 26 Cardozo L. Rev. 377, 409 (2005).

In all, between the founding and the Great Depression, Congress took substantial intra-session breaks (other than holiday breaks) in four years: 1867, 1868, 1921, and 1929.

Appendix A, infra. And in each of those years the Presi- dent made intra-session recess appointments. See App. to Brief for Petitioner 1a–11a.

Since 1929, and particularly since the end of World War II, Congress has shortened its inter-session breaks as it has taken longer and more frequent intra-session breaks; Presi- dents have correspondingly made more intra-session recess appointments. Indeed, if we include military appointments, Presidents have made thousands of intra-session recess ap- pointments. Id., at 11a–64a. President Franklin Roose- velt, for example, commissioned Dwight Eisenhower as a permanent Major General during an intra-session recess; President Truman made Dean Acheson Under Secretary of State; and President George H. W. Bush reappointed Alan Greenspan as Chairman of the Federal Reserve Board. Id., at 11a, 12a, 40a. Justice Scalia does not dispute any of these facts.

Not surprisingly, the publicly available opinions of Presi- dential legal advisers that we have found are nearly unan- imous in determining that the Clause authorizes these appointments. In 1921, for example, Attorney General Daugherty advised President Harding that he could make

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“If the President's power of appointment is to be de- feated because the Senate takes an adjournment to a specifed date, the painful and inevitable result will be measurably to prevent the exercise of governmental functions. I can not bring myself to believe that the framers of the Constitution ever intended such a catas- trophe to happen.” 33 Op. Atty. Gen. 20, 23.

We have found memoranda offering similar advice to President Eisenhower and to every President from Carter to the present. See 36 Opinions of Offce of Legal Counsel (Op. OLC) –––, ––– (2012), online at www.justice.gov/fle/ 18326/download; 25 Op. OLC 182 (2001); 20 Op. OLC 124, 161 (1996); 16 Op. OLC 15 (1992); 13 Op. OLC 271 (1989); 6 Op.

OLC 585, 586 (1982); 3 Op. OLC 314, 316 (1979); 41 Op. Atty.

Gen. 463, 466 (1960).

We must note one contrary opinion authored by President Theodore Roosevelt's Attorney General Philander Knox.

Knox advised the President that the Clause did not cover a 19-day intra-session Christmas recess. 23 Op. Atty. Gen.

599 (1901). But in doing so he relied heavily upon the use of the word “the,” a linguistic point that we do not fnd de- terminative. See supra, at 527–528. And Knox all but confessed that his interpretation ran contrary to the basic purpose of the Clause. For it would permit the Senate to adjourn for “several months,” to a fxed date, and thereby “seriously curtail the President's power of making recess ap- pointments.” 23 Op. Atty. Gen., at 603. Moreover, only three days before Knox gave his opinion, the Solicitor of the Treasury came to the opposite conclusion. Reply Brief 7,

n. 5. We therefore do not think Knox's isolated opinion can

disturb the consensus advice within the Executive Branch taking the opposite position.

What about the Senate? Since Presidents began making intra-session recess appointments, individual Senators have taken differing views about the proper defnition of “the re- cess.” See, e. g., 130 Cong. Rec. 23234 (1984) (resolution in-

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troduced by Senator Byrd urging limits on the length of ap- plicable intra-session recesses); Brief for Sen. Mitch McConnell et al. as Amici Curiae 26 (an intra-session ad- journment does not count as “the recess”); Brief for Sen.

Edward M. Kennedy as Amicus Curiae in Franklin v.

United States, O. T. 2004, No. 04–5858, p. 5 (same). But nei- ther the Senate considered as a body nor its committees, de- spite opportunities to express opposition to the practice of intra-session recess appointments, have done so. Rather, to the extent that the Senate or a Senate committee has ex- pressed a view, that view has favored a functional defnition of “recess,” and a functional defnition encompasses intra- session recesses.

Most notably, in 1905 the Senate Committee on the Judi- ciary objected strongly to President Theodore Roosevelt's use of the Clause to make more than 160 recess appointments during a “fctitious” inter-session recess. S. Rep. No. 4389, 58th Cong., 3d Sess., 2 (hereinafter 1905 Senate Report). At noon on December 7, 1903, the Senate President pro tempore had “declare[d]” a formal, “extraordinary session” of the Senate “adjourned without day,” and the next formal Senate session began immediately afterwards. 37 Cong. Rec. 544 (1903). President Roosevelt made over 160 recess appoint- ments during the instantaneous inter-session interval. The Judiciary Committee, when stating its strong objection, de- fned “recess” in functional terms as

“the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Con- gress . . . ; when its members owe no duty of attendance; when its Chamber is empty; when, because of its ab- sence, it can not receive communications from the Presi- dent or participate as a body in making appointments.” 1905 Senate Report, at 2 (emphasis deleted).

That functional defnition encompasses intra-session, as well as inter-session, recesses. Justice Scalia is right that

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the 1905 Report did not specifcally address the distinction between inter-session and intra-session recesses. But the animating principle of the Report—that “recess” should be practically construed to mean a time when the Senate is unavailable to participate in the appointments process—is inconsistent with the formalistic approach that Justice Scalia endorses.

Similarly, in 1940 the Senate helped to enact a law regulat- ing the payment of recess appointees, and the Comptroller General of the United States has interpreted that law func- tionally. An earlier 1863 statute had denied pay to individu- als appointed to fll up vacancies frst arising prior to the beginning of a recess. The Senate Judiciary Committee then believed that those vacancies fell outside the scope of the Clause. See infra, at 548–549. In 1940, however, the Senate amended the law to permit many of those recess ap- pointees to be paid. Act of July 11, 54 Stat. 751. Interpret- ing the amendments in 1948, the Comptroller General—who, unlike the Attorney General, is an “offcer of the Legislative

“I think it is clear that [the Pay Act amendments'] pri- mary purpose was to relieve `recess appointees' of the burden of serving without compensation during periods when the Senate is not actually sitting and is not avail- able to give its advice and consent in respect to the ap- pointment, irrespective of whether the recess of the Sen- ate is attributable to a fnal adjournment sine die or to an adjournment to a specifed date.” 28 Comp. Gen.

30, 37.

We recognize that the Senate cannot easily register oppo- sition as a body to every governmental action that many, perhaps most, Senators oppose. But the Senate has not

A Senate committee did register opposition to President Theodore Roosevelt's use of the Clause, and the Senate as a

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whole has legislated in an effort to discourage certain kinds of recess appointments. And yet we are not aware of any formal action it has taken to call into question the broad and functional defnition of “recess” frst set out in the 1905 Sen- ate Report and followed by the Executive Branch since at least 1921. Nor has Justice Scalia identifed any. All the while, the President has made countless recess appointments during intra-session recesses.

The upshot is that restricting the Clause to inter-session recesses would frustrate its purpose. It would make the President's recess-appointment power dependent on a for- malistic distinction of Senate procedure. Moreover, the President has consistently and frequently interpreted the word “recess” to apply to intra-session recesses, and has acted on that interpretation. The Senate as a body has done nothing to deny the validity of this practice for at least three-quarters of a century. And three-quarters of a cen- tury of settled practice is long enough to entitle a practice to “great weight in a proper interpretation” of the consti- tutional provision. The Pocket Veto Case, 279 U. S., at 689.

We are aware of, but we are not persuaded by, three im- portant arguments to the contrary. First, some argue that the Founders would likely have intended the Clause to apply only to inter-session recesses, for they hardly knew any other. See, e. g., Brief for Originalist Scholars as Amici Cu- riae 27–29. Indeed, from the founding until the Civil War inter-session recesses were the only kind of signifcant re- cesses that Congress took. The problem with this argu- ment, however, is that it does not fully describe the relevant founding intent. 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 re- strict 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 some- what changed circumstances? The Founders knew they

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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. McCul- loch, 4 Wheat., at 415. 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.

Second, some argue that the intra-session interpretation permits the President to make “illogic[ally]” long recess ap- pointments. Brief for Respondent Noel Canning 13; post, at 577–578 (Scalia, J., concurring in judgment). A recess appointment made between Congress' annual sessions would permit the appointee to serve for about a year, i. e., until the “end” of the “next” Senate “session.” Art. II, § 2, cl. 3. But an intra-session appointment made at the beginning or in the middle of a formal session could permit the appointee to serve for 1½ or almost 2 years (until the end of the following formal session).

We agree that the intra-session interpretation permits somewhat longer recess appointments, but we do not agree that this consequence is “illogical.” A President who makes a recess appointment will often also seek to make a regular appointment, nominating the appointee and securing ordi- nary Senate confrmation. And the Clause ensures that the President and Senate always have at least a full session to go through the nomination and confrmation process. That process may take several months. See O'Connell, Vacant Offces: Delays in Staffng Top Agency Positions, 82 S. Cal.

confrmation process took an average of 236 days for noncabi- net agency heads). A recess appointment that lasts some- what longer than a year will ensure the President the contin- ued assistance of subordinates that the Clause permits him to obtain while he and the Senate select a regular appointee.

An appointment should last until the Senate has “an opportu- Cite as: 573 U. S. 513 (2014)

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nity to act on the subject,” 3 Story § 1551, at 410, and the Clause embodies a determination that a full session is needed to select and vet a replacement.

Third, the Court of Appeals believed that application of the Clause to intra-session recesses would introduce “vague- ness” into a Clause that was otherwise clear. 705 F. 3d, at

504. One can fnd problems of uncertainty, however, either

way. In 1867, for example, President Andrew Johnson called a special session of Congress, which took place during a lengthy intra-session recess. Consider the period of time that fell just after the conclusion of that special session. Did that period remain an intra-session recess, or did it become an inter-session recess? Historians disagree about the an- swer. Compare Hartnett, 26 Cardozo L. Rev., at 408–409, with Brief for Constitutional Law Scholars as Amici Curiae 23–24.

Or suppose that Congress adjourns sine die, but it does so conditionally, so that the leadership can call the members back into session when “the public interest shall warrant it.”

E. g., 155 Cong. Rec. 33429 (2009); 152 Cong. Rec. 23731–

23732 (2006); 150 Cong. Rec. 25925–25926 (2004). If the Sen- ate majority leader were to reconvene the Senate, how would we characterize the preceding recess? Is it still inter- session? On the narrower interpretation the label matters; on the broader it does not.

The greater interpretive problem is determining how long a recess must be in order to fall within the Clause. Is a break of a week, or a day, or an hour too short to count as a “recess”? The Clause itself does not say. And Justice Scalia claims that this silence itself shows that the Framers intended the Clause to apply only to an inter-session recess.

Post, at 580.

We disagree. For one thing, the most likely reason the Framers did not place a textual foor underneath the word “recess” is that they did not foresee the need for one. They might have expected that the Senate would meet for a single

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session lasting at most half a year. The Federalist No. 84, at 586 (A. Hamilton). And they might not have anticipated that intra-session recesses would become lengthier and more signifcant than inter-session ones. The Framers' lack of clairvoyance on that point is not dispositive. Unlike Jus- tice Scalia, we think it most consistent with our constitu- tional structure to presume that the Framers would have allowed intra-session recess appointments where there was a long history of such practice.

Moreover, the lack of a textual foor raises a problem that plagues both interpretations—Justice Scalia's and ours.

Today a brief inter-session recess is just as possible as a brief intra-session recess. And though Justice Scalia says that the “notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting,” he must immediately concede (in a footnote) that the President “can make recess appointments during any break between sessions, no matter how short.” Post, at 578, 583, n. 4 (em- phasis added).

Even the Solicitor General, arguing for a broader interpre- tation, acknowledges that there is a lower limit applicable to both kinds of recess. He argues that the lower limit should be three days by analogy to the Adjournments Clause of the Constitution. Tr. of Oral Arg. 11. That Clause says: “Nei- ther House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” Art. I, § 5, cl. 4.

We agree with the Solicitor General that a 3-day recess would be too short.

(Under Senate practice, “Sunday is generally not considered a day,” and so is not counted for purposes of the Adjournments Clause. S. Doc. No. 101–28,

F. Riddick & A. Frumin, Riddick's Senate Procedure: Prece-

dents and Practices 1265 (hereinafter Riddick's).) The Ad- journments Clause refects the fact that a 3-day break is not a signifcant interruption of legislative business. As the So-

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licitor General says, it is constitutionally de minimis. Brief for Petitioner 18. A Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President's recess-appointment power.

That is not to say that the President may make recess appointments during any recess that is “more than three days.” Art. I, § 5, cl. 4. The Recess Appointments Clause seeks to permit the Executive Branch to function smoothly when Congress is unavailable. And though Congress has taken short breaks for almost 200 years, and there have been many thousands of recess appointments in that time, we have not found a single example of a recess appointment made during an intra-session recess that was shorter than 10 days.

Nor has the Solicitor General. Reply Brief 23. Indeed, the Offce of Legal Counsel once informally advised against mak- ing a recess appointment during a 6-day intra-session recess.

3 Op. OLC, at 315–316. The lack of examples suggests that the recess-appointment power is not needed in that context.

(The length of a recess is “ `ordinarily calculated by counting the calendar days running from the day after the recess be- gins and including the day the recess ends.' ” 36 Op. OLC, at –––, n. 1.)

There are a few historical examples of recess appoint- ments made during inter-session recesses shorter than 10 days. We have already discussed President Theodore Roo- sevelt's appointments during the instantaneous, “fctitious” recess. President Truman also made a recess appointment to the Civil Aeronautics Board during a 3-day inter-session recess. Hogue, Recess Appointments: Frequently Asked Questions, at 5–6. President Taft made a few appointments during a 9-day recess following his inauguration, and Presi- dent Lyndon Johnson made several appointments during an 8-day recess several weeks after assuming offce. Hogue, The Law: Recess Appointments to Article III Courts, 34 Presidential Studies Q. 656, 671 (2004); 106 S. Exec. J. 2 (1964); 40 S. Exec. J. 12 (1909). There may be others of

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which we are unaware. But when considered against 200 years of settled practice, we regard these few scattered ex- amples as anomalies. We therefore conclude, in light of his- torical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. We add the word “presumptively” to leave open the possibility that some very unusual circumstance—a national catastrophe, for instance, that renders the Senate unavail- able but calls for an urgent response—could demand the ex- ercise of the recess-appointment power during a shorter (It should go without saying—except that Justice break.

Scalia compels us to say it—that political opposition in the Senate would not qualify as an unusual circumstance.)

In sum, we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, § 5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.

The second question concerns the scope of the phrase “va- cancies that may happen during the recess of the Senate.” Art. II, § 2, cl. 3 (emphasis added). All agree that the phrase applies to vacancies that initially occur during a recess. But does it also apply to vacancies that initially occur before a recess and continue to exist during the recess? In our view the phrase applies to both kinds of vacancy.

We believe that the Clause's language, read literally, per- mits, though it does not naturally favor, our broader inter- pretation. We concede that the most natural meaning of “happens” as applied to a “vacancy” (at least to a modern ear) is that the vacancy “happens” when it initially occurs.

See 1 Johnson 913 (defning “happen” in relevant part as meaning “[t]o fall out; to chance; to come to pass”). But that is not the only possible way to use the word.

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Thomas Jefferson wrote that the Clause is “certainly sus- ceptible of [two] constructions.” Letter to Wilson Cary Nicholas (Jan. 26, 1802), in 36 Papers of Thomas Jefferson 433 (B. Oberg ed. 2009). It “may mean `vacancies that may happen to be' or `may happen to fall' ” during a recess. Ibid.

Jefferson used the phrase in the frst sense when he wrote to a job seeker that a particular position was unavailable, but that he (Jefferson) was “happy that another vacancy happens wherein I can . . . avail the public of your integ- rity & talents,” for “the offce of Treasurer of the US. is vacant by the resignation of mr Meredith.” Letter to Thomas Tudor Tucker (Oct. 31, 1801), in 35 id., at 530 (B.

Oberg ed. 2008) (emphasis added). See also Laws Passed by the Legislature of Florida, No. 31, An Act to Organize and Regulate the Militia of the Territory of Florida § 13, H. R.

Exec. Doc. No. 72, 27th Cong., 3d Sess., 22 (1842) (“[W]hen any vacancy shall take place in the offce of any lieutenant colonel, it shall be the duty of the colonel of the regiment in which such vacancy may happen to order an election to be held at the several precincts in the battalion in which such vacancy may happen” (emphasis added)).

Similarly, when Attorney General William Wirt advised President Monroe to follow the broader interpretation, he wrote that the “expression seems not perfectly clear. It may mean `happen to take place:' that is, `to originate,' ” or it “may mean, also, without violence to the sense, `happen to exist.' ” 1 Op. Atty. Gen. 631, 631–632 (1823). The broader interpretation, he added, is “most accordant with” the Con- stitution's “reason and spirit.” Id., at 632.

We can still understand this earlier use of “happen” if we think of it used together with another word that, like “vacancy,” can refer to a continuing state, say, a fnancial crisis. A statute that gives the President authority to act in respect to “any fnancial crisis that may happen during his term” can easily be interpreted to include crises that arise before, and continue during, that term. Perhaps that

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is why the Oxford English Dictionary defnes “happen” in part as “chance to be,” rather than “chance to occur.” 6 OED 1096 (emphasis added); see also 19 id., at 383 (defning “vacancy” as the “condition of an offce or post being . . . vacant”).

In any event, the linguistic question here is not whether the phrase can be, but whether it must be, read more nar- rowly. The question is whether the Clause is ambiguous.

The Pocket Veto Case, 279 U. S., at 690. And the broader reading, we believe, is at least a permissible reading of a “ `doubtful' ” phrase. Ibid. We consequently go on to con- sider the Clause's purpose and historical practice.

The Clause's purpose strongly supports the broader inter- pretation. That purpose is to permit the President to obtain the assistance of subordinate offcers when the Senate, due to its recess, cannot confrm them. Attorney General Wirt clearly described how the narrower interpretation would un-

“Put the case of a vacancy occurring in an offce, held in a distant part of the country, on the last day of the Sen- ate's session. Before the vacancy is made known to the President, the Senate rises. The offce may be an im- portant one; the vacancy may paralyze a whole line of action in some essential branch of our internal police; the public interests may imperiously demand that it shall be immediately flled. But the vacancy happened to occur during the session of the Senate; and if the President's power is to be limited to such vacancies only as happen to occur during the recess of the Senate, the vacancy in the case put must continue, however ruinous the consequences may be to the public.” 1 Op. Atty.

Gen., at 632.

Examples are not diffcult to imagine: An ambassadorial post falls vacant too soon before the recess begins for the Presi- dent to appoint a replacement; the Senate rejects a Presi-

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Wirt explained that the “substantial purpose of the constitu- tion was to keep these offces flled,” and “if the President shall not have the power to fll a vacancy thus circumstanced, . . . the substance of the constitution will be sacrifced to a dubious construction of its letter.” Ibid. Thus the broader construction, encompassing vacancies that initially occur be- fore the beginning of a recess, is the “only construction of the constitution which is compatible with its spirit, reason, and purposes; while, at the same time, it offers no violence to its language.” Id., at 633.

We do not agree with Justice Scalia's suggestion that the Framers would have accepted the catastrophe envisioned by Wirt because Congress can always provide for acting of- fcers, see 5 U. S. C. § 3345, and the President can always con- vene a special session of Congress, see U. S. Const., Art. II, § 3. Acting offcers may have less authority than Presiden- tial appointments. 6 Op. OLC 119, 121 (1982). Moreover, to rely on acting offcers would lessen the President's ability to staff the Executive Branch with people of his own choos- ing, and thereby limit the President's control and political accountability. Cf. Free Enterprise Fund v. Public Com- pany Accounting Oversight Bd., 561 U. S. 477, 497–498 (2010). Special sessions are burdensome (and would have been especially so at the time of the founding). The point of the Recess Appointments Clause was to avoid reliance on these inadequate expedients.

At the same time, we recognize one important purpose- related consideration that argues in the opposite direction. A broad interpretation might permit a President to avoid Senate confrmations as a matter of course. If the Clause gives the President the power to “fll up all vacancies” that occur before, and continue to exist during, the Senate's re- cess, a President might not submit any nominations to the Senate. He might simply wait for a recess and then provide all potential nominees with recess appointments. He might

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thereby routinely avoid the constitutional need to obtain the Senate's “advice and consent.”

Wirt thought considerations of character and politics would prevent Presidents from abusing the Clause in this way. 1 Op. Atty. Gen., at 634. He might have added that such temptations should not often arise. It is often less de- sirable for a President to make a recess appointment. A recess appointee only serves a limited term. That, com- bined with the lack of Senate approval, may diminish the recess appointee's ability, as a practical matter, to get a controversial job done. And even where the President and Senate are at odds over politically sensitive appointments, compromise is normally possible. Indeed, the 1940 Pay Act amendments represent a general compromise, for they fore- see payment of salaries to recess appointees where vacan- cies occur before the recess began but not too long before (namely, within 30 days before). 5 U. S. C. § 5503(a)(1); see infra, at 549. Moreover, the Senate, like the President, has institutional “resources,” including political resources, “available to protect and assert its interests.” Goldwater v.

Carter, 444 U. S. 996, 1004 (1979) (Rehnquist, J., concurring in judgment to grant certiorari, vacate judgment, and re- mand). In an unusual instance, where a matter is important enough to the Senate, that body can remain in session, pre- venting recess appointments by refusing to take a recess.

See Part V, infra. In any event, the Executive Branch has adhered to the broader interpretation for two centuries, and Senate confrmation has always remained the norm for off- cers that require it.

While we concede that both interpretations carry with them some risk of undesirable consequences, we believe the narrower interpretation risks undermining constitutionally conferred powers more seriously and more often. It would prevent the President from making any recess appointment that arose before a recess, no matter who the offcial, no mat- ter how dire the need, no matter how uncontroversial the

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appointment, and no matter how late in the session the offce fell vacant. Overall, like Attorney General Wirt, we believe the broader interpretation more consistent with the Consti- tution's “reason and spirit.” 1 Op. Atty. Gen., at 632.

Historical practice over the past 200 years strongly favors the broader interpretation. The tradition of applying the Clause to pre-recess vacancies dates at least to President James Madison. There is no undisputed record of Presi- dents George Washington, John Adams, or Thomas Jefferson making such an appointment, though the Solicitor General believes he has found records showing that Presidents Wash- ington and Jefferson did so. We know that Edmund Ran- dolph, Washington's Attorney General, favored a narrow reading of the Clause. Randolph believed that the “Spirit of the Constitution favors the participation of the Senate in all appointments,” though he did not address—let alone an- swer—the powerful purposive and structural arguments subsequently made by Attorney General Wirt. See Ed- mund Randolph's Opinion on Recess Appointments (July 7, 1792), in 24 Papers of Thomas Jefferson 165, 166 (J. Catanzar- iti ed. 1990).

President Adams seemed to endorse the broader view of the Clause in writing, though we are not aware of any ap- pointments he made in keeping with that view. See Letter to J. McHenry (Apr. 16, 1799), in 8 Works of John Adams 632– 633 (C. Adams ed. 1853). His Attorney General, Charles Lee, later informed Jefferson that, in the Adams administra- tion, “whenever an offce became vacant so short a time be- fore Congress rose, as not to give an opportunity of enquir- ing for a proper character, they let it lie always till recess.” 36 Papers of Thomas Jefferson 433. We know that Presi- dent Jefferson thought that the broad interpretation was lin- guistically supportable, though his actual practice is not clear. But the evidence suggests that James Madison—as familiar as anyone with the workings of the Constitutional Convention—appointed Theodore Gaillard to replace a dis-

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trict judge who had left offce before a recess began. Hart- nett, 26 Cardozo L. Rev., at 400–401. It also appears that in 1815 Madison signed a bill that created two new offces prior to a recess which he then flled later during the recess.

See Act of Mar. 3, ch. 95, 3 Stat. 235; S. J. 13th Cong., 3d Sess., 689–690 (1815); 3 S. Exec. J. 19 (1828) (for Monday, Jan. 8, 1816). He also made recess appointments to “terri- torial” United States attorney and marshal positions, both of which had been created when the Senate was in session more than two years before. Act of Feb. 27, 1813, ch. 35, 2 Stat. 806; 3 S. Exec. J. 19. Justice Scalia refers to “writ- ten evidence of Madison's own beliefs,” post, at 604, but in fact we have no direct evidence of what President Madison believed. We only know that he declined to make one appointment to a pre-recess vacancy after his Secretary of War advised him that he lacked the power. On the other hand, he did apparently make at least fve other appoint- ments to pre-recess vacancies, as Justice Scalia does not dispute.

The next President, James Monroe, received and presum- ably acted upon Attorney General Wirt's advice, namely, that “all vacancies which, from any casualty, happen to exist at a time when the Senate cannot be consulted as to flling them, may be temporarily flled by the President.” 1 Op. Atty.

Gen., at 633. Nearly every subsequent Attorney General to consider the question throughout the Nation's history has thought the same. E. g., 2 Op. Atty. Gen. 525, 528 (1832); 7 Op. Atty. Gen. 186, 223 (1855); 10 Op. Atty. Gen. 356, 356–357 (1862); 12 Op. Atty. Gen. 32, 33 (1866); 12 Op. Atty. Gen., at 452; 14 Op. Atty. Gen. 562, 564 (1875); 15 Op. Atty. Gen. 207 (1877); 16 Op. Atty. Gen. 522, 524 (1880); 17 Op. Atty. Gen.

521 (1883); 18 Op. Atty. Gen. 29, 29–30 (1884); 19 Op. Atty.

Gen. 261, 262 (1889); 26 Op. Atty. Gen. 234, 235–236 (1907); 30 Op. Atty. Gen. 314, 315 (1914); 41 Op. Atty. Gen., at 465; 3 Op. OLC 314; 6 Op. OLC, at 586; 20 Op. OLC, at 161; 36 Op. OLC –––. Indeed, as early as 1862, Attorney

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General Bates advised President Lincoln that his power to fll pre-recess vacancies was “settled . . . as far . . . as a constitutional question can be settled,” 10 Op. Atty. Gen., at 356, and a century later Acting Attorney General Walsh gave President Eisenhower the same advice “without any doubt,” 41 Op. Atty. Gen., at 466.

This power is important. The Congressional Research Service is “unaware of any offcial source of information tracking the dates of vacancies in federal offces.” The Noel Canning Decision 3, n. 6. Nonetheless, we have enough in- formation to believe that the Presidents since Madison have made many recess appointments flling vacancies that ini- tially occurred prior to a recess. As we have just said, nearly every 19th- and 20th-century Attorney General ex- pressing a view on the matter has agreed with William Wirt, and Presidents tend to follow the legal advice of their chief legal offcers. Moreover, the Solicitor General has compiled a list of 102 (mostly uncontested) recess appointments made by Presidents going back to the founding. App. to Brief for Petitioner 65a–89a. Given the diffculty of fnding accurate information about vacancy dates, that list is undoubtedly far smaller than the actual number. No one disputes that every President since James Buchanan has made recess appoint- ments to pre-existing vacancies.

Common sense also suggests that many recess appointees flled vacancies that arose before the recess began. We have compared the list of intra-session recess appointments in the Solicitor General's brief with the chart of congressional re- cesses. Where a specifc date of appointment can be ascer- tained, more than half of those intra-session appointments were made within two weeks of the beginning of a recess.

That short window strongly suggests that many of the va- cancies initially arose prior to the recess. See App. to Brief for Petitioner 1a–64a; Appendix A, infra. Thus, it is not surprising that the Congressional Research Service, after examining the vacancy dates associated with a random sam-

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ple of 24 inter-session recess appointments since 1981, con- cluded that “[i]n most of the 24 cases, the preponderance of evidence indicated that the vacancy arose prior to the recess during which the appointment was made.” The Noel Can- ning Decision 3. Further, with research assistance from the Supreme Court Library, we have examined a random sample of the recess appointments made by our two most recent Presidents, and have found that almost all of those appoint- ments flled pre-recess vacancies: Of a sample of 21 recess appointments, 18 flled pre-recess vacancies and only 1 flled a vacancy that arose during the recess in which he was ap- pointed. The precise date on which two of the vacancies arose could not be determined. See Appendix B, infra.

Taken together, we think it is a fair inference that a large proportion of the recess appointments in the history of the Nation have flled pre-existing vacancies.

Did the Senate object? Early on, there was some spo- radic disagreement with the broad interpretation. In 1814 Senator Gore said that if “the vacancy happen at another time, it is not the case described by the Constitution.” 26 Annals of Cong. 653. In 1822 a Senate committee, while fo- cusing on the President's power to fll a new vacancy created by statute, used language to the same effect. 38 id., at 489,

certain recess appointments, see post, at 598, a fact that may or may not suggest they accepted the narrower interpreta- tion of the Clause. Most of those statutes—including the one passed by the First Congress—authorized appointments to newly created offces, and may have been addressed to the separate question of whether new offces are vacancies within the meaning of the Clause. See Letter from Alexan- der Hamilton to James McHenry (May 3, 1799), in 23 Papers of Alexander Hamilton 94 (H. Syrett ed. 1976) (“Vacancy is a relative term, and presupposes that the Offce has been once flled”); Reply Brief 17. In any event, by 1862 Attor- ney General Bates could still refer to “the unbroken acquies-

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Opinion of the Court cence of the Senate” in support of the broad interpretation.

10 Op. Atty. Gen., at 356.

Then in 1863 the Senate Judiciary Committee disagreed with the broad interpretation. It issued a report conclud- ing that a vacancy “must have its inceptive point after one session has closed and before another session has begun.”

S. Rep. No. 80, 37th Cong., 3d Sess., 3. And the Senate then

passed the Pay Act, which provided that “no money shall be paid . . . as a salary, to any person appointed during the recess of the Senate, to fll a vacancy . . . which . . . existed while the Senate was in session.” Act of Feb. 9, 1863, § 2, 12 Stat. 646. Relying upon the foor statement of a single Senator, Justice Scalia suggests that the passage of the Pay Act indicates that the Senate as a whole endorsed the position in the 1863 Report. But the circumstances are more equivocal. During the foor debate on the bill, not a single Senator referred to the Report. Cong. Globe, 37th Cong., 3d Sess., 564–565 (1863). Indeed, Senator Trumbull, who introduced the Pay Act, acknowledged that there was disagreement about the underlying constitutional question.

Id., at 565 (“[S]ome other persons think he has that power”).

Further, if a majority of the Senate had believed appoint- ments to pre-recess vacancies were unconstitutional, it could have attempted to do far more than temporarily dock the appointees' pay. Cf. Tenure of Offce Act of 1867, § 5, 14 Stat. 431 (making it a federal crime for “any person” to “accept any appointment” in certain circumstances).

In any event, the Senate subsequently abandoned its hos- tility. In the debate preceding the 1905 Senate Report regarding President Roosevelt's “constructive” recess ap- pointments, Senator Tillman—who chaired the Committee that authored the 1905 Report—brought up the 1863 Report, and another Senator responded: “Whatever that report may have said in 1863, I do not think that has been the view the Senate has taken” of the issue. 38 Cong. Rec. 1606 (1904) (Sen. Platt). Senator Tillman then agreed that “the Senate

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has acquiesced” in the President's “power to fll” pre-recess vacancies. Ibid. And Senator Tillman's 1905 Report de- scribed the Clause's purpose in terms closely echoing Attor- ney General Wirt. 1905 Senate Report, at 2 (“Its sole pur- pose was to render it certain that at all times there should be, whether the Senate was in session or not, an offcer for every offce” (emphasis added)).

In 1916 the Senate debated whether to pay a recess ap- pointee who had flled a pre-recess vacancy and had not sub- sequently been confrmed. Both Senators to address the question—one on each side of the payment debate—agreed that the President had the constitutional power to make the appointment, and the Senate voted to pay the appointee for his service. 53 Cong. Rec. 4291–4299; 39 Stat. 818–819. In 1927 the Comptroller General, a legislative offcer, wrote that “there is no question but that the President has authority to make a recess appointment to fll any vacancy,” including those that “existed while the Senate was in session.” 7 Comp. Gen. 10, 11 (emphasis added). Meanwhile, Presidents continued to make appointments to pre-recess vacancies.

The Solicitor General has identifed 40 between 1863 and 1940, but that number is clearly not comprehensive. See,

e. g., 32 Op. Atty. Gen. 271, 271–272 (1920) (listing fve ap-

pointments that are not in the Solicitor General's appendix); Recess Appointments, Washington Post, July 7, 1880, p. 1 (noting that President Hayes had made “quite a number of appointments” to pre-recess vacancies).

Then in 1940 Congress amended the Pay Act to authorize salary payments (with some exceptions) where (1) the “va- cancy arose within thirty days prior to the termination of the session,” (2) “at the termination of the session” a nomina- tion was “pending,” or (3) a nominee was “rejected by the Senate within thirty days prior to the termination of the session.” Act of July 11, 54 Stat. 751 (codifed, as amended, at 5 U. S. C. § 5503). All three circumstances concern a va- cancy that did not initially occur during a recess but hap-

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pened to exist during that recess. By paying salaries to this kind of recess appointee, the 1940 Senate (and later Senates) in effect supported the President's interpretation of the Clause.

The upshot is that the President has consistently and fre- quently interpreted the Recess Appointments Clause to apply to vacancies that initially occur before, but continue to exist during, a recess of the Senate. The Senate as a body has not countered this practice for nearly three-quarters of a century, perhaps longer. See A. Amar, America's Unwritten Constitution 576–577, n. 16 (2012) (for nearly 200 years “the overwhelming mass of actual practice” supports the Presi- dent's interpretation); Mistretta, 488 U. S., at 401 (a “200- year tradition” can “ `give meaning' to the Constitution” (quoting Youngstown, 343 U. S., at 610 (Frankfurter, J., con- curring))). The tradition is long enough to entitle the prac- tice “to great regard in determining the true construction” of the constitutional provision. The Pocket Veto Case, 279

U. S., at 690. And we are reluctant to upset this traditional

practice where doing so would seriously shrink the authority that Presidents have believed existed and have exercised for so long.

In light of some linguistic ambiguity, the basic purpose of the Clause, and the historical practice we have described, we conclude that the phrase “all vacancies” includes vacancies that come into existence while the Senate is in session.

The third question concerns the calculation of the length of the Senate's “recess.” On December 17, 2011, the Senate by unanimous consent adopted a resolution to convene “pro forma session[s]” only, with “no business . . . trans- acted,” on every Tuesday and Friday from December 20, 2011, through January 20, 2012. 2011 S. J. 923. At the end of each pro forma session, the Senate would “adjourn until” the following pro forma session. Ibid. During that period,

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the Senate convened and adjourned as agreed. It held pro forma sessions on December 20, 23, 27, and 30, and on January 3, 6, 10, 13, 17, and 20; and at the end of each pro forma session, it adjourned until the time and date of the next. Id., at 923–924; 158 Cong. Rec. 1, 3, 9, 16, 26, 133.

The President made the recess appointments before us on January 4, 2012, in between the January 3 and the January 6 pro forma sessions. We must determine the signifcance of these sessions—that is, whether, for purposes of the Clause, we should treat them as periods when the Senate was in session or as periods when it was in recess. If the former, the period between January 3 and January 6 was a 3-day recess, which is too short to trigger the President's recess-appointment power, see supra, at 536–538. If the latter, however, then the 3-day period was part of a much longer recess during which the President did have the power to make recess appointments, see ibid.

The Solicitor General argues that we must treat the pro forma sessions as periods of recess. He says that these “sessions” were sessions in name only because the Senate was in recess as a functional matter. The Senate, he con- tends, remained in a single, unbroken recess from January 3, when the second session of the 112th Congress began by operation of the Twentieth Amendment, until January 23, when the Senate reconvened to do regular business.

In our view, however, the pro forma sessions count as ses- sions, not as periods of recess. We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it re- tains the capacity to transact Senate business. The Senate met that standard here.

The standard we apply is consistent with the Consti- tution's broad delegation of authority to the Senate to determine how and when to conduct its business. The Con- stitution explicitly empowers the Senate to “determine the Rules of its Proceedings.” Art. I, § 5, cl. 2. And we have

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held that “all matters of method are open to the determina- tion” of the Senate, as long as there is “a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained” and the rule does not “ignore constitutional restraints or violate fundamental rights.” United States v. Ballin, 144 U. S. 1, 5 (1892).

In addition, the Constitution provides the Senate with ex- tensive control over its schedule. There are only limited exceptions. See Amdt. 20, § 2 (Congress must meet once a year on January 3, unless it specifes another day by law); Art. II, § 3 (Senate must meet if the President calls it into special session); Art. I, § 5, cl. 4 (neither House may adjourn for more than three days without consent of the other). See also Art. II, § 3 (“[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper”). The Constitution thus gives the Senate wide lati- tude to determine whether and when to have a session, as well as how to conduct the session. This suggests that the Senate's determination about what constitutes a session should merit great respect.

Furthermore, this Court's precedents refect the breadth of the power constitutionally delegated to the Senate. We generally take at face value the Senate's own report of its actions. When, for example, “the presiding offcers” of the House and Senate sign an enrolled bill (and the President “approve[s]” it), “its authentication as a bill that has passed Congress should be deemed complete and unimpeachable.” Marshall Field & Co. v. Clark, 143 U. S. 649, 672 (1892). By the same principle, when the Journal of the Senate indicates that a quorum was present, under a valid Senate rule, at the time the Senate passed a bill, we will not consider an argu- ment that a quorum was not, in fact, present. Ballin, supra, at 9. The Constitution requires the Senate to keep its Journal, Art. I, § 5, cl. 3 (“Each House shall keep a Journal

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of its proceedings . . . ”), and “if reference may be had to” it, “it must be assumed to speak the truth,” Ballin, supra, at 4.

For these reasons, we conclude that we must give great weight to the Senate's own determination of when it is and when it is not in session. But our deference to the Senate cannot be absolute. When the Senate is without the capac- ity to act, under its own rules, it is not in session even if it so declares. See Tr. of Oral Arg. 69 (acknowledgment by counsel for amici Senators that if the Senate had left the Capitol and “effectively given up . . . the business of legislat- ing” then it might be in recess, even if it said it was not).

In that circumstance, the Senate is not simply unlikely or unwilling to act upon nominations of the President. It is unable to do so. The purpose of the Clause is to ensure the continued functioning of the Federal Government while the Senate is unavailable. See supra, at 522–524. This pur- pose would count for little were we to treat the Senate as though it were in session even when it lacks the ability to provide its “Advice and Consent.” Art. II, § 2, cl. 2. Accord- ingly, we conclude that when the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the Clause.

Applying this standard, we fnd that the pro forma ses- sions were sessions for purposes of the Clause. First, the Senate said it was in session. The Journal of the Senate and the Congressional Record indicate that the Senate convened for a series of twice-weekly “sessions” from December 20 through January 20. 2011 S. J. 923–924; 158 Cong. Rec. 1, 3, 9, 16, 26, 133.

(The Journal of the Senate for 2012 has not yet been published.) And these reports of the Senate “must be assumed to speak the truth.” Ballin, supra, at 4.

Second, the Senate's rules make clear that during its pro forma sessions, despite its resolution that it would conduct no business, the Senate retained the power to conduct busi- ness. During any pro forma session, the Senate could have conducted business simply by passing a unanimous consent

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agreement. See Riddick's 1313. The Senate in fact con- ducts much of its business through unanimous consent. Id., at 1311–1312. Senate rules presume that a quorum is pres- ent unless a present Senator questions it. Id., at 1041–1042.

And when the Senate has a quorum, an agreement is unani- mously passed if, upon its proposal, no present Senator ob- jects. Id., at 1329–1330. It is consequently unsurprising that the Senate has enacted legislation during pro forma sessions even when it has said that no business will be trans- acted. Indeed, the Senate passed a bill by unanimous con- sent during the second pro forma session after its December 17 adjournment. 2011 S. J. 924. And that bill quickly be- came law. Pub. L. 112–78, 125 Stat. 1280.

By way of contrast, we do not see how the Senate could conduct business during a recess. It could terminate the recess and then, when in session, pass a bill. But in that case, of course, the Senate would no longer be in recess. It would be in session. And that is the crucial point. Senate rules make clear that, once in session, the Senate can act even if it has earlier said that it would not.

The Solicitor General argues that more is required. He contends that what counts is not the Senate's capacity to conduct business but what the Senate actually does (or here, did) during its pro forma sessions. And he looks for sup- port to the functional defnition of “recess” set forth in the 1905 Report discussed above. See supra, at 531–532. That Report describes a “recess” of the Senate as

“the period of time . . . when its members owe no duty of attendance; when its Chamber is empty; when, be- cause of its absence, it can not receive communications from the President or participate as a body in making appointments.” 1905 Senate Report, at 2.

Even were we, for argument's sake, to accept all of these criteria as authoritative, they would here be met. Taking the last criterion frst, could the Senate, during its pro forma

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sessions, “participate as a body in making appointments”? It could. It could confrm nominees by unanimous consent, just as it passed the bill mentioned above. See Riddick's 1313.

Could the Senate “receive communications from the Presi- dent”? It could. The Congressional Record indicates that the Senate “received” a message from the President on Janu- ary 12, during a 3-day adjournment between two pro forma sessions. See 158 Cong. Rec. 159. If the Senate could re- ceive Presidential messages between two pro forma ses- sions, it could receive them during a pro forma session.

Was the Senate's Chamber “empty”? It was not. By its offcial rules, the Senate operates under the presumption that a quorum is present until a present Senator suggests the absence of a quorum, Riddick's 1041–1042, and nothing in the Journal of the Senate or the Congressional Record refects any such suggestion.

Did Senators “owe [a] duty of attendance”? They did.

The Senate's rules dictate that Senators are under a duty to attend every session. See id., at 214; Standing Rule of the Senate VI(2), S. Doc. No. 112–1, p. 5 (2011) (“No Senator shall absent himself from the service of the Senate without leave”). Nothing excused the Senators from this duty dur- ing the Senate's pro forma sessions. If any present Senator had raised a question as to the presence of a quorum, and by roll call it had become clear that a quorum was missing, the Senators in attendance could have directed the Sergeant at Arms to bring in the missing Senators. Rule VI(4).

The Solicitor General asks us to engage in a more realistic appraisal of what the Senate actually did. He argues that, during the relevant pro forma sessions, business was not in fact conducted; messages from the President could not be received in any meaningful way because they could not be placed before the Senate; the Senate Chamber was, accord- ing to C–SPAN coverage, almost empty; and in practice at- tendance was not required. See Brief for Petitioner 48–49, 54–55.

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We do not believe, however, that engaging in the kind of factual appraisal that the Solicitor General suggests is either legally or practically appropriate. From a legal perspective, this approach would run contrary to precedent instructing us to “respect . . . coequal and independent departments” by, for example, taking the Senate's report of its offcial action at its word. Marshall Field, 143 U. S., at 672; see Ballin, 144 U. S., at 4. From a practical perspective, judges cannot easily determine such matters as who is, and who is not, in fact present on the foor during a particular Senate session.

Judicial efforts to engage in these kinds of inquiries would risk undue judicial interference with the functioning of the Legislative Branch.

Finally, the Solicitor General warns that our holding may “ `disrup[t] the proper balance between the coordinate branches by preventing the Executive Branch from accomp- lishing its constitutionally assigned functions.' ” Brief for Petitioner 64 (quoting Morrison v. Olson, 487 U. S. 654, 695 (1988); alteration in original). We do not see, however, how our holding could signifcantly alter the constitutional bal- ance. Most appointments are not controversial and do not produce friction between the branches. Where political con- troversy is serious, the Senate unquestionably has other methods of preventing recess appointments. As the Solici- tor General concedes, the Senate could preclude the Presi- dent from making recess appointments by holding a series of twice-a-week ordinary (not pro forma) sessions. And the nature of the business conducted at those ordinary ses- sions—whether, for example, Senators must vote on nomina- tions, or may return to their home States to meet with their constituents—is a matter for the Senate to decide. The Constitution also gives the President (if he has enough allies in Congress) a way to force a recess. Art. II, § 3 (“[I]n Case of Disagreement between [the Houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper”). Moreover, the Presi-

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dent and Senators engage with each other in many different ways and have a variety of methods of encouraging each other to accept their points of view.

Regardless, the Recess Appointments Clause is not de- signed to overcome serious institutional friction. It simply provides a subsidiary method for appointing offcials when the Senate is away during a recess. Here, as in other con- texts, friction between the branches is an inevitable conse- quence of our constitutional structure. See Myers, 272

U. S., at 293 (Brandeis, J., dissenting). That structure fore-

sees resolution not only through judicial interpretation and compromise among the branches but also by the ballot box.

The Recess Appointments Clause responds to a structural

The Executive Branch is perpetually in operation, while the Legislature only acts in intervals separated by recesses.

The purpose of the Clause is to allow the Executive to con- tinue operating while the Senate is unavailable. We believe that the Clause's text, standing alone, is ambiguous. It does not resolve whether the President may make appointments during intra-session recesses, or whether he may fll pre- recess vacancies. But the broader reading better serves the Clause's structural function. Moreover, that broader read- ing is reinforced by centuries of history, which we are hesi- tant to disturb. We thus hold that the Constitution empow- ers the President to fll any existing vacancy during any recess—intra-session or inter-session—of suffcient length.

Justice Scalia would render illegitimate thousands of re- cess appointments reaching all the way back to the founding era. More than that: Calling the Clause an “anachronism,” he would basically read it out of the Constitution. Post, at

579. He performs this act of judicial excision in the name

of liberty. We fail to see how excising the Recess Appoint- ments Clause preserves freedom. In fact, Alexander Hamil-

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Appendix A to opinion of the Court

ton observed in the very frst Federalist Paper that “the vi- gour of government is essential to the security of liberty.” The Federalist No. 1, at 5. And the Framers included the Recess Appointments Clause to preserve the “vigour of gov- ernment” at times when an important organ of Government, the United States Senate, is in recess. Justice Scalia's interpretation of the Clause would defeat the power of the Clause to achieve that objective.

The foregoing discussion should refute Justice Scalia's claim that we have “embrace[d]” an “adverse-possession the- ory of executive power.” Post, at 615. Instead, as in all cases, we interpret the Constitution in light of its text, pur- poses, and “our whole experience” as a Nation. Missouri v.

Holland, 252 U. S. 416, 433 (1920). And we look to the ac- tual practice of Government to inform our interpretation.

Given our answer to the last question before us, we con- clude that the Recess Appointments Clause does not give the President the constitutional authority to make the ap- pointments here at issue. Because the Court of Appeals reached the same ultimate conclusion (though for reasons we reject), its judgment is affrmed.

It is so ordered.

The following table contains the dates of all the intra- session and inter-session recesses that Congress has taken since the founding. The information (including the end- notes) is taken from 2011–2012 Offcial Congressional Direc- tory, 112th Cong., 522–539.

SESSIONS OF CONGRESS, 1st–112th CONGRESSES, 1789–2011 Con- gress Ses- sion

Convening Date Adjournment Date 1st

1 2 3

Mar. 4, 1789 Jan. 4, 1790 Dec. 6, 1790

Sept. 29, 1789 Aug. 12, 1790 Mar. 3, 1791 Length in days1

210 221 88

Recesses2 Senate

House of Representatives

558

Appendix A to opinion of the Court Con- gress Ses- sion Convening Date Adjournment Date

Length in days1 Recesses2 Senate House of Representatives 2d 3d 4th 5th

6th 7th 8th 9th 10th 11th 12th 13th 14th 15th 16th 17th 18th 19th 20th

21st 22d 23d 24th 25th 26th 27th 28th 29th 30th 31st

1 2

1 2

1 2

2 3 1 2

1 2

2 1 2

2

1 2 3

2 1 2

1 2

1 2 1 2 1 2 1 2

1 2 1 2

1 2 1 2 1 2 1 2

2 3 1 2

2 3 1 2

1 2 1 2

Mar. 4, 1791 Oct. 24, 1791 Nov. 5, 1792 Mar. 4, 1793 Dec. 2, 1793 Nov. 3, 1794 June 8, 1795 Dec. 7, 1795 Dec. 5, 1796 Mar. 4, 1797 May 15, 1797 July 17, 1798 Nov. 13, 1797 Dec. 3, 1798 Dec. 2, 1799 Nov. 17, 1800 Mar. 4, 1801 Dec. 7, 1801 Dec. 6, 1802 Oct. 17, 1803 Nov. 5, 1804 Dec. 2, 1805 Dec. 1, 1806 Oct. 26, 1807 Nov. 7, 1808 Mar. 4, 1809 May 22, 1809 Nov. 27, 1809 Dec. 3, 1810 Nov. 4, 1811 Nov. 2, 1812 May 24, 1813 Dec. 6, 1813 Sept. 19, 1814 Dec. 4, 1815 Dec. 2, 1816 Mar. 4, 1817 Dec. 1, 1817 Nov. 16, 1818 Dec. 6, 1819 Nov. 13, 1820 Dec. 3, 1821 Dec. 2, 1822 Dec. 1, 1823 Dec. 6, 1824 Mar. 4, 1825 Dec. 5, 1825 Dec. 4, 1826 Dec. 3, 1827 Dec. 1, 1828 Mar. 4, 1829 Dec. 7, 1829 Dec. 6, 1830 Dec. 5, 1831 Dec. 3, 1832 Dec. 2, 1833 Dec. 1, 1834 Dec. 7, 1835 Dec. 5, 1836 Mar. 4, 1837 Sept. 4, 1837 Dec. 4, 1837 Dec. 3, 1838 Dec. 2, 1839 Dec. 7, 1840 Mar. 4, 1841 May 31, 1841 Dec. 6, 1841 Dec. 5, 1842 Dec. 4, 1843 Dec. 2, 1844 Mar. 4, 1845 Dec. 1, 1845 Dec. 7, 1846 Dec. 6, 1847 Dec. 4, 1848 Mar. 5, 1849

Mar. 4, 1791 May 8, 1792 Mar. 2, 1793 Mar. 4, 1793 June 9, 1794 Mar. 3, 1795 June 26, 1795 June 1, 1796 Mar. 3, 1797 Mar. 4, 1797 July 10, 1797 July 19, 1798 July 16, 1798 Mar. 3, 1799 May 14, 1800 Mar. 3, 1801 Mar. 5, 1801 May 3, 1802 Mar. 3, 1803 Mar. 27, 1804 Mar. 3, 1805 Apr. 21, 1806 Mar. 3, 1807 Apr. 25, 1808 Mar. 3, 1809 Mar. 7, 1809 June 28, 1809 May 1, 1810 Mar. 3, 1811 July 6, 1812 Mar. 3, 1813 Aug. 2, 1813 Apr. 18, 1814 Mar. 3, 1815 Apr. 30, 1816 Mar. 3, 1817 Mar. 6, 1817 Apr. 20, 1818 Mar. 3, 1819 May 15, 1820 Mar. 3, 1821 May 8, 1822 Mar. 3, 1823 May 27, 1824 Mar. 3, 1825 Mar. 9, 1825 May 22, 1826 Mar. 3, 1827 May 26, 1828 Mar. 3, 1829 Mar. 17, 1829 May 31, 1830 Mar. 3, 1831 July 16, 1832 Mar. 2, 1833 June 30, 1834 Mar. 3, 1835 July 4, 1836 Mar. 3, 1837 Mar. 10, 1837 Oct. 16, 1837 July 9, 1838 Mar. 3, 1839 July 21, 1840 Mar. 3, 1841 Mar. 15, 1841 Sept. 13, 1841 Aug. 31, 1842 Mar. 3, 1843 June 17, 1844 Mar. 3, 1845 Mar. 20, 1845 Aug. 10, 1846 Mar. 3, 1847 Aug. 14, 1848 Mar. 3, 1849 Mar. 23, 1849

1 197 119 1 190 121 19 177 89 1 57 3 246 91 164

107 Dec. 23–Dec. 30, 1800 Dec. 23–Dec. 30, 1800 Dec. 24–Dec. 29, 1817 Dec. 24–Dec. 29, 1828

2 148 88 163 119 141 93 182 117 4 38 156 91 245 122 71 134 166 148 92 3

141 Dec. 24–Dec. 29, 1817

108 162 111 157 92 178 88 6 169 90 175

93 Dec. 24–Dec. 29, 1828

14 176 88 225 91 211 93 211 89 7 43 218 91 233 87 12 106 269 89 196 92 17 253 87 254 90 19 

Cite as: 573 U. S. 513 (2014)

559

Appendix A to opinion of the Court Con- gress Ses- sion Convening Date Adjournment Date

Length in days1 Recesses2 Senate House of Representatives 32d 33d 34th

35th 36th 37th 38th 39th 40th 41st 42d 43d 44th 45th

1 2

1 2

1 2 1

3

1

2

1

2

2 3

1 2

1 2 1

2 3 1

2 3 1

2 3

1 2

1

Dec. 3, 1849 Dec. 2, 1850 Mar. 4, 1851 Dec. 1, 1851 Dec. 6, 1852 Mar. 4, 1853 Dec. 5, 1853 Dec. 4, 1854 Dec. 3, 1855 Aug. 21, 1856 Dec. 1, 1856 Mar. 4, 1857 Dec. 7, 1857

Sept. 30, 1850 Mar. 3, 1851 Mar. 13, 1851 Aug. 31, 1852 Mar. 3, 1853 Apr. 11, 1853 Aug. 7, 1854 Mar. 3, 1855 Aug. 18, 1856 Aug. 30, 1856 Mar. 3, 1857 Mar. 14, 1857 June 14, 1858

June 15, 1858 Dec. 6, 1858 June 16, 1858 Mar. 3, 1859

Mar. 4, 1859 Dec. 5, 1859 June 26, 1860 Dec. 3, 1860 Mar. 4, 1861 July 4, 1861 Dec. 2, 1861 Dec. 1, 1862

Mar. 10, 1859 June 25, 1860 June 28, 1860 Mar. 3, 1861 Mar. 28, 1861 Aug. 6, 1861 July 17, 1862 Mar. 3, 1863

302 92 10 275 88 39 246 90 260 10 93 11

189 Dec. 23, 1857– Jan. 4,

1858 2

88 Dec. 23, 1858– Jan. 4,

1859 7 202 3 93 25 34 228

93 Dec. 23, 1862– Jan. 5,

1863

Mar. 4, 1863 Dec. 7, 1863 Mar. 14, 1863 July 4, 1864

11

209 Dec. 23, 1863– Jan. 5,

Dec. 5, 1864 Mar. 3, 1865 Mar. 4, 1865 Dec. 4, 1865 Mar. 11, 1865 July 28, 1866

1864

89 Dec. 22, 1864– Jan. 5,

1865 8

237 Dec. 6–Dec. 11, 1865 Dec. 21, 1865– Jan. 5,

1866

Dec. 3, 1866 Mar. 3, 1867 91 Dec. 20, 1866– Jan. 3, Mar. 4, 1867 Dec. 1, 1867

Apr. 1, 1867 Dec. 2, 1867 Apr. 20, 1867 Nov. 10, 1868

1867

273 Mar. 30– July 3, 1867 July 20–Nov. 21, 1867

20

345 Dec. 20, 1867– Jan. 6,

1868

July 27–Sept. 21, 1868 Sept. 21–Oct. 16, 1868 Oct. 16–Nov. 10, 1868

Dec. 7, 1868 Mar. 3, 1869 87 Dec. 21, 1868– Jan. 5, Mar. 4, 1869 Apr. 12, 1869 Dec. 6, 1869

Apr. 10, 1869 Apr. 22, 1869 July 15, 1870

1869 38 11

222 Dec. 22, 1869– Jan. 10,

1870

Dec. 5, 1870

Mar. 3, 1871 89 Dec. 23, 1870– Jan. 4, Mar. 4, 1871 May 10, 1871 Dec. 4, 1871

Apr. 20, 1871 May 27, 1871 June 10, 1872

1871 48 18

190 Dec. 21, 1871– Jan. 8,

1872

Dec. 2, 1872

Mar. 3, 1873 92 Dec. 20, 1872– Jan. 6,

1873

Mar. 4, 1873 Dec. 1, 1873 Mar. 26, 1873 June 23, 1874

23

204 Dec. 19, 1873– Jan. 5,

1874

Dec. 7, 1874 Mar. 3, 1875 87 Dec. 23, 1874– Jan. 5,

1875

Mar. 5, 1875 Dec. 6, 1875 Mar. 24, 1875 Aug. 15, 1876

20

254 Dec. 20, 1875– Jan. 5,

2

2

Dec. 4, 1876 Mar. 5, 1877 Oct. 15, 1877 Dec. 3, 1877 Mar. 3, 1877 Mar. 17, 1877 Dec. 3, 1877 June 20, 1878

3

Dec. 2, 1878 Mar. 3, 1879

1876 90 13 50

200 Dec. 15, 1877– Jan. 10,

1878

92 Dec. 20, 1878– Jan. 7,

1879

46th

2

Mar. 18, 1879 Dec. 1, 1879 July 1, 1879 June 16, 1880

106

199 Dec. 19, 1879– Jan. 6,

1880

Dec. 23, 1857– Jan. 4,

1858

Dec. 23, 1858– Jan. 4,

1859

Dec. 23, 1862– Jan. 5,

1863

Dec. 23, 1863– Jan. 5,

1864

Dec. 22, 1864– Jan. 5,

1865

Dec. 6–Dec. 11, 1865 Dec. 21, 1865– Jan. 5,

1866

Dec. 20, 1866– Jan. 3,

1867

Mar. 30– July 3, 1867 July 20–Nov. 21, 1867

Dec. 20, 1867– Jan. 6,

1868

July 27–Sept. 21, 1868 Sept. 21–Oct. 16, 1868 Oct. 16–Nov. 10, 1868 Dec. 21, 1868– Jan. 5,

1869

Dec. 22, 1869– Jan. 10,

1870

Dec. 22, 1870– Jan. 4,

1871

Dec. 21, 1871– Jan. 8,

1872

Dec. 20, 1872– Jan. 6,

1873

Dec. 19, 1873– Jan. 5,

1874

Dec. 23, 1874– Jan. 5,

1875

Dec. 21, 1875– Jan. 5,

1876

Dec. 15, 1877– Jan. 10,

1878

Dec. 20, 1878– Jan. 7,

1879

Dec. 19, 1879– Jan. 6,

1880 3

Dec. 6, 1880 Mar. 3, 1881 88 Dec. 23, 1880– Jan. 5, Dec. 23, 1880– Jan. 5,

560

Appendix A to opinion of the Court Con- gress Ses- sion Convening Date Adjournment Date

Length in days1 Recesses2 Senate House of Representatives

1881 1881

47th 48th 49th

50th 51st 52d 53d 54th 55th 56th 57th 58th 59th 60th 61st

1 2 1 2

1 2 1 2

1 2 1 2

2 3 1 2

Mar. 4, 1881 Oct. 10, 1881 Dec. 5, 1881 May 20, 1881 Oct. 29, 1881 Aug. 8, 1882

78 20

247 Dec. 22, 1881– Jan. 5,

1882

Dec. 4, 1882 Dec. 3, 1883 Mar. 3, 1883 July 7, 1884

90

218 Dec. 24, 1883– Jan. 7,

1884

Dec. 1, 1884 Mar. 3, 1885 93 Dec. 24, 1884– Jan. 5,

1885

Mar. 4, 1885 Dec. 7, 1885 Apr. 2, 1885 Aug. 5, 1886

30

242 Dec. 21, 1885– Jan. 5,

1886

Dec. 6, 1886 Mar. 3, 1887 88 Dec. 22, 1886– Jan. 4,

1887

Dec. 5, 1887 Oct. 20, 1888

321 Dec. 22, 1887– Jan. 4,

1888

Dec. 3, 1888 Mar. 3, 1889 91 Dec. 21, 1888– Jan. 2,

1889

Mar. 4, 1889 Dec. 2, 1889 Apr. 2, 1889 Oct. 1, 1890

30

304 Dec. 21, 1889– Jan. 6,

Dec. 1, 1890 Dec. 7, 1891 Dec. 5, 1892 Mar. 4, 1893 Aug. 7, 1893 Dec. 4, 1893

Mar. 3, 1891 Aug. 5, 1892 Mar. 3, 1893 Apr. 15, 1893 Nov. 3, 1893 Aug. 28, 1894

Dec. 3, 1894 Mar. 3, 1895

1890 93 251

89 Dec. 22, 1892– Jan. 4,

1893 43 89 268 97

Dec. 2, 1895 Dec. 7, 1896

June 11, 1896 Mar. 3, 1897

193

87 Dec. 22, 1896– Jan. 5,

2

Mar. 4, 1897 Mar. 15, 1897 Dec. 6, 1897 Mar. 10, 1897 July 24, 1897 July 8, 1898

1897 11 131

215 Dec. 18, 1897– Jan. 5,

1898 3 1 2

1 2

Dec. 5, 1898 Mar. 3, 1899 89 Dec. 21, 1898– Jan. 4,

1899

Dec. 4, 1899 June 7, 1900

186 Dec. 20, 1899– Jan. 3,

1900

Dec. 3, 1900 Mar. 3, 1901 91 Dec. 20, 1900– Jan. 3,

Mar. 4, 1901 Dec. 2, 1901 Mar. 9, 1901 July 1, 1902

1901 6

212 Dec. 19, 1901– Jan. 6,

1902

Dec. 1, 1902 Mar. 3, 1903 93 Dec. 20, 1902– Jan. 5,

2

Mar. 5, 1903 Nov. 9, 1903 Dec. 7, 1903 Mar. 19, 1903 Dec. 7, 1903 Apr. 28, 1904

1903 15 29

144 Dec. 19, 1903– Jan. 4,

1904 3

1 2 1 2

Dec. 5, 1904 Mar. 3, 1905 89 Dec. 21, 1904– Jan. 4,

1905

Mar. 4, 1905 Dec. 4, 1905

Mar. 18, 1905 June 30, 1906

15

209 Dec. 21, 1905– Jan. 4,

1906

Dec. 3, 1906 Mar. 3, 1907

91 Dec. 20, 1906– Jan. 3,

1907

Dec. 2, 1907 May 30, 1908 181 Dec. 21, 1907– Jan. 6,

1908

Dec. 7, 1908 Mar. 3, 1909 87 Dec. 19, 1908– Jan. 4,

2

Mar. 4, 1909 Mar. 15, 1909 Dec. 6, 1909 Mar. 6, 1909 Aug. 5, 1909 June 25, 1910

1909 3 144

202 Dec. 21, 1909– Jan. 4,

1910 3

Dec. 5, 1910 Mar. 3, 1911 89 Dec. 21, 1910– Jan. 5,

1911

62d

2

Apr. 4, 1911 .

Dec. 4, 1911 Aug. 22, 1911 Aug. 26, 1912

141

267 Dec. 21, 1911– Jan. 3,

1912 3

Dec. 2, 1912

Mar. 3, 1913 92 Dec. 19, 1912– Jan. 2,

1913

63d

Mar. 4, 1913 Apr. 7, 1913 Mar. 17, 1913 Dec. 1, 1913

14 239

Dec. 22, 1881– Jan. 5,

1882

Dec. 24, 1883– Jan. 7,

1884

Dec. 24, 1884– Jan. 5,

1885

Dec. 21, 1885– Jan. 5,

1886

Dec. 22, 1886– Jan. 4,

1887

Dec. 22, 1887– Jan. 4,

1888

Dec. 21, 1888– Jan. 2,

1889

Dec. 21, 1889– Jan. 6,

1890

Dec. 22, 1892– Jan. 4,

1893

Dec. 21, 1893– Jan. 3,

1894

Dec. 23, 1894– Jan. 3,

1895

Dec. 22, 1896– Jan. 5,

1897

Dec. 18, 1897– Jan. 5,

1898

Dec. 21, 1898– Jan. 4,

1899

Dec. 20, 1899– Jan. 3,

1900

Dec. 21, 1900– Jan. 3,

1901

Dec. 19, 1901– Jan. 6,

1902

Dec. 20, 1902– Jan. 5,

1903

Dec. 19, 1903– Jan. 4,

1904

Dec. 21, 1904– Jan. 4,

1905

Dec. 21, 1905– Jan. 4,

1906

Dec. 20, 1906– Jan. 3,

1907

Dec. 21, 1907– Jan. 6,

1908

Dec. 19, 1908– Jan. 4,

1909

Dec. 21, 1909– Jan. 4,

1910

Dec. 21, 1910– Jan. 5,

1911

Dec. 21, 1911– Jan. 3,

1912

Dec. 19, 1912– Jan. 2,

1913 

Cite as: 573 U. S. 513 (2014)

561

Appendix A to opinion of the Court Con- gress

Ses- sion Convening Date Adjournment Date Length in days1 Senate Recesses2

2 3 1 2

2 3

2 3

2

4 1 2

1 2 1 2

Dec. 1, 1913 Oct. 24, 1914 328 Dec. 23, 1913– Jan. 12,

1914

Dec. 7, 1914 Dec. 6, 1915

Mar. 3, 1915 Sept. 8, 1916 87 Dec. 23–Dec. 28, 1914 278 Dec. 17, 1915– Jan. 4,

1916

Dec. 4, 1916 Mar. 3, 1917 90 Dec. 22, 1916– Jan. 2, Mar. 5, 1917 Apr. 2, 1917 Dec. 3, 1917

Dec. 2, 1918 May 19, 1919 Dec. 1, 1919 Dec. 6, 1920 Mar. 4, 1921 Apr. 11, 1921 Dec. 5, 1921

Nov. 20, 1922 Dec. 4, 1922 Dec. 3, 1923 Dec. 1, 1924 Mar. 4, 1925 Dec. 7, 1925

Mar. 16, 1917 Oct. 6, 1917 Nov. 21, 1918 Mar. 3, 1919 Nov. 19, 1919 June 5, 1920

Mar. 3, 1921 Mar. 15, 1921 Nov. 23, 1921 Sept. 22, 1922 Dec. 4, 1922 Mar. 3, 1923 June 7, 1924

Mar. 3, 1925 Mar. 18, 1925 July 3, 1926

1917 12 188

354 Dec. 18, 1917– Jan. 3,

1918 92 185

July 1– July 8, 1919 188 Dec. 20, 1919– Jan. 5,

1920 88 12

227 Aug. 24–Sept. 21, 1921 292 Dec. 22, 1921– Jan. 3,

1922 15 90

188 Dec. 20, 1923– Jan. 3,

1924

93 Dec. 20–Dec. 29, 1924

15

209 Dec. 22, 1925– Jan. 4,

1926

Dec. 6, 1926 Mar. 4, 1927

88 Dec. 22, 1926– Jan. 3, Dec. 5, 1927 May 29, 1928

1927

177 Dec. 21, 1927– Jan. 4,

1928

Dec. 3, 1928 Mar. 3, 1929 91 Dec. 22, 1928– Jan. 3,

2

Mar. 4, 1929 Apr. 15, 1929 Dec. 2, 1929 Mar. 5, 1929 Nov. 22, 1929 July 3, 1930

1929 2 222

214 Dec. 21, 1929– Jan. 6, June 19–Aug. 19, 1929

1930

July 7, 1930 Dec. 1, 1930

July 21, 1930 Mar. 3, 1931

15

93 Dec. 20, 1930– Jan. 5,

1931

Dec. 7, 1931 July 16, 1932

223 Dec. 22, 1931– Jan. 4,

1932

Dec. 5, 1932 Mar. 4, 1933 Mar. 9, 1933 Jan. 3, 1934 Jan. 3, 1935 Jan. 3, 1936 Jan. 5, 1937 Nov. 15, 1937 Jan. 3, 1938 Jan. 3, 1939 Sept. 21, 1939 Jan. 3, 1940 Jan. 3, 1941 Jan. 5, 1942 Jan. 6, 1943 Jan. 10, 1944

Mar. 3, 1933 Mar. 6, 1933 June 15, 1933 June 18, 1934 Aug. 26, 1935 June 20, 1936 Aug. 21, 1937 Dec. 21, 1937 June 16, 1938 Aug. 5, 1939 Nov. 3, 1939 Jan. 3, 1941 Jan. 2, 1942 Dec. 16, 1942 Dec. 21, 1943 Dec. 19, 1944

Jan. 3, 1945 Jan. 14, 1946 Jan. 3, 1947 Jan. 6, 1948 Dec. 21, 1945 Aug. 2, 1946 Dec. 19, 1947 Dec. 31, 1948

June 8– June 15, 1936

89 3 99 167 236 170 229 37 165 215 44 366 365 346 350

July 8–Sept. 14, 1943 345 Apr. 1–Apr. 12, 1944 June 23–Aug. 1, 1944 Sept. 21–Nov. 14, 1944

July 11– July 22, 1940 353 Aug. 1–Sept. 5, 1945

201 351 361

July 27–Nov. 17, 1947 June 20– July 26, 1948 Aug. 7–Dec. 31, 1948

House of Representatives Dec. 23, 1913– Jan. 12,

1914

Dec. 23–Dec. 28, 1914 Dec. 17, 1915– Jan. 4,

1916

Dec. 22, 1916– Jan. 2,

1917

Dec. 18, 1917– Jan. 3,

1918

July 1– July 8, 1919 Dec. 20, 1919– Jan. 5,

1920

Aug. 24–Sept. 21, 1921 Dec. 22, 1921– Jan. 3,

1922

Dec. 20, 1923– Jan. 3,

1924

Dec. 20–Dec. 29, 1924

Dec. 22, 1925– Jan. 4,

1926

Dec. 22, 1926– Jan. 3,

1927

Dec. 21, 1927– Jan. 4,

1928

Dec. 22, 1928– Jan. 3,

1929

June 19–Sept. 23, 1929 Dec. 21, 1929– Jan. 6,

1930

Dec. 20, 1930– Jan. 5,

1931

Dec. 22, 1931– Jan. 4,

1932

June 8– June 15, 1936 July 11– July 22, 1940

July 8–Sept. 14, 1943 Apr. 1–Apr. 12, 1944 June 23–Aug. 1, 1944 Sept. 21–Nov. 14, 1944 July 21–Sept. 5, 1945 Apr. 18–Apr. 30, 1946 July 27–Nov. 17, 1947 June 20– July 26, 1948 Aug. 7–Dec. 31, 1948

Jan. 3, 1949 Jan. 3, 1950 Oct. 19, 1949 Jan. 2, 1951

290

365 Sept. 23–Nov. 27, 1950 p Apr. 6–Apr. 18, 1950

Jan. 3, 1951 Oct. 20, 1951

291

Jan. 8, 1952 Jan. 3, 1953 Jan. 6, 1954 July 7, 1952 Aug. 3, 1953 Dec. 2, 1954

182 213

331 Aug. 20–Nov. 8, 1954 Nov. 18–Nov. 29, 1954 Jan. 5, 1955 Jan. 3, 1956

Aug. 2, 1955 July 27, 1956 210 Apr. 4–Apr. 13, 1955 207 Mar. 29–Apr. 9, 1956

Sept. 23–Nov. 27, 1950 Mar. 22–Apr. 2, 1951 Aug. 23–Sept. 12, 1951 Apr. 10–Apr. 22, 1952 Apr. 2–Apr. 13, 1953 Apr. 15–Apr. 22, 1954 Adjourned sine die Aug. 20, 1954 Apr. 4–Apr. 13, 1955 Mar. 29–Apr. 9, 1956

3 1 2

2 1 2 1

3 1

3 1 2 1 2 1 2 1 2 1 2 1 2 1 2 1 2

64th 65th 66th 67th 68th 69th 70th 71st 72d 73d 74th 75th 76th 77th 78th

79th 80th 81st 82d 83d 84th

562

Appendix A to opinion of the Court Con- gress Ses- sion Convening Date Adjournment Date

Length in days1 Senate Recesses2 Jan. 3, 1957 Jan. 7, 1958 Jan. 7, 1959 Jan. 6, 1960

Aug. 30, 1957 Aug. 24, 1958 Sept. 15, 1959 Sept. 1, 1960

239 Apr. 18–Apr. 29, 1957 230 Apr. 3–Apr. 14, 1958 252 Mar. 26–Apr. 7, 1959 240 Apr. 14–Apr. 18, 1960 May 27–May 31, 1960 July 3–Aug. 8, 1960

Jan. 3, 1961 Jan. 10, 1962 Jan. 9, 1963 Jan. 7, 1964 Sept. 27, 1961 Oct. 13, 1962 Dec. 30, 1963 Oct. 3, 1964

268 277 356 270

July 10– July 20, 1964 Aug. 21–Aug. 31, 1964 85th 86th 87th 88th 89th 90th

1 2 1 2 1 2 1 2 1 2 1 2

Jan. 4, 1965 Jan. 10, 1966 Oct. 23, 1965 Oct. 22, 1966 Jan. 10, 1967 Dec. 15, 1967

Jan. 15, 1968 Oct. 14, 1968 91st

1

Jan. 3, 1969 Dec. 23, 1969

2

Jan. 19, 1970

Jan. 2, 1971 92d

1

Jan. 21, 1971 Dec. 17, 1971

2

Jan. 18, 1972 Oct. 18, 1972

93d

1

Jan. 3, 1973 Dec. 22, 1973

2

Jan. 21, 1974 Dec. 20, 1974 94th

1

Jan. 14, 1975

Dec. 19, 1975

2

Jan. 19, 1976 Oct. 1, 1976 95th

1

Jan. 4, 1977 Dec. 15, 1977

House of Representatives Apr. 18–Apr. 29, 1957 Apr. 3–Apr. 14, 1958 Mar. 26–Apr. 7, 1959 Apr. 14–Apr. 18, 1960 May 27–May 31, 1960 July 3–Aug. 15, 1960 Mar. 30–Apr. 10, 1961 Apr. 19–Apr. 30, 1962 Apr. 11–Apr. 22, 1963 Mar. 26–Apr. 6, 1964 July 2– July 20, 1964 Aug. 21–Aug. 31, 1964

Apr. 7–Apr. 18, 1966 June 30– July 11, 1966 Mar. 23–Apr. 3, 1967 June 29– July 10, 1967 Aug. 31–Sept. 11, 1967 Nov. 22–Nov. 27, 1967 Apr. 11–Apr. 22, 1968 May 29– June 3, 1968 June 3– July 8, 1968 Aug. 2–Sept. 4, 1968 Feb. 7–Feb. 17, 1969 Apr. 3–Apr. 14, 1969 May 28– June 2, 1969 July 2– July 7, 1969 Aug. 13–Sept. 3, 1969 Nov. 6–Nov. 12, 1969 Nov. 26–Dec. 1, 1969 Feb. 10–Feb. 16, 1970 Mar. 26–Mar. 31, 1970 May 27– June 1, 1970 July 1– July 6, 1970 Aug. 14–Sept. 9, 1970 Oct. 14–Nov. 16, 1970 Nov. 25–Nov. 30, 1970 Dec. 22–Dec. 29, 1970 Feb. 10–Feb. 17, 1971 Apr. 7–Apr. 19, 1971 May 27– June 1, 1971 July 1– July 6, 1971 Aug. 6–Sept. 8, 1971 Oct. 7–Oct. 12, 1971 Oct. 21–Oct. 26, 1971 Nov. 19–Nov. 29, 1971 Feb. 9–Feb. 16, 1972 Mar. 29–Apr. 10, 1972 May 24–May 30, 1972 June 30– July 17, 1972 Aug. 18–Sept. 5, 1972 Feb. 8–Feb. 19, 1973 Apr. 19–Apr. 30, 1973 May 24–May 29, 1973 June 30– July 10, 1973 Aug. 3–Sept. 5, 1973 Oct. 4–Oct. 9, 1973 Oct. 18–Oct. 23, 1973 Nov. 15–Nov. 26, 1973 Feb. 7–Feb. 13, 1974 Apr. 11–Apr. 22, 1974 May 23–May 28, 1974 Aug. 22–Sept. 11, 1974 Oct. 17–Nov. 18, 1974 Nov. 26–Dec. 3, 1974

Mar. 26–Apr. 7, 1975 May 22– June 2, 1975 June 26– July 8, 1975 Aug. 1–Sept. 3, 1975 Oct. 9–Oct. 20, 1975 Oct. 23–Oct. 28, 1975 Nov. 20–Dec. 1, 1975 Feb. 11–Feb. 16, 1976 Apr. 14–Apr. 26, 1976 May 27– June 1, 1976 July 2– July 19, 1976 Aug. 10–Aug. 23, 1976 Sept. 2–Sept. 8, 1976 Feb. 9–Feb. 16, 1977

293

286 Apr. 7–Apr. 13, 1966 June 30– July 11, 1966 340 Mar. 23–Apr. 3, 1967

June 29– July 10, 1967 Aug. 31–Sept. 11, 1967 Nov. 22–Nov. 27, 1967 274 Apr. 11–Apr. 17, 1968 May 29– June 3, 1968 June 3– July 8, 1968 Aug. 2–Sept. 4, 1968 355 Feb. 7–Feb. 17, 1969 Apr. 3–Apr. 14, 1969 July 2– July 7, 1969 Aug. 13–Sept. 3, 1969 Nov. 26–Dec. 1, 1969

349 Feb. 10–Feb. 16, 1970 Mar. 26–Mar. 31, 1970 Sept. 2–Sept. 8, 1970 Oct. 14–Nov. 16, 1970 Nov. 25–Nov. 30, 1970 Dec. 22–Dec. 28, 1970

331 Feb. 11–Feb. 17, 1971 Apr. 7–Apr. 14, 1971 May 26– June 1, 1971 June 30– July 6, 1971 Aug. 6–Sept. 8, 1971 Oct. 21–Oct. 26, 1971 Nov. 24–Nov. 29, 1971

275 Feb. 9–Feb. 14, 1972 Mar. 30–Apr. 4, 1972 May 25–May 30, 1972 June 30– July 17, 1972 Aug. 18–Sept. 5, 1972

354 Feb. 8–Feb. 15, 1973

Apr. 18–Apr. 30, 1973 May 23–May 29, 1973 June 30– July 9, 1973 Aug. 3–Sept. 5, 1973 Oct. 18–Oct. 23, 1973 Nov. 21–Nov. 26, 1973

334 Feb. 8–Feb. 18, 1974

Mar. 13–Mar. 19, 1974 Apr. 11–Apr. 22, 1974 May 23–May 28, 1974 Aug. 22–Sept. 4, 1974 Oct. 17–Nov. 18, 1974 Nov. 26–Dec. 2, 1974 340 Mar. 26–Apr. 7, 1975 May 22– June 2, 1975 June 27– July 7, 1975 Aug. 1–Sept. 3, 1975 Oct. 9–Oct. 20, 1975 Oct. 23–Oct. 28, 1975 Nov. 20–Dec. 1, 1975 257 Feb. 6–Feb. 16, 1976

Apr. 14–Apr. 26, 1976 May 28– June 2, 1976 July 2– July 19, 1976 Aug. 10–Aug. 23, 1976 Sept. 1–Sept. 7, 1976 346 Feb. 11–Feb. 21, 1977

Cite as: 573 U. S. 513 (2014)

563

Appendix A to opinion of the Court Con- gress

Ses- sion Convening Date Adjournment Date Length in days1 Recesses2 Senate

Apr. 7–Apr. 18, 1977 May 27– June 6, 1977 July 1– July 11, 1977 Aug. 6–Sept. 7, 1977

2

Jan. 19, 1978 Oct. 15, 1978 96th

1

Jan. 15, 1979 Jan. 3, 1980

2

Jan. 3, 1980

Dec. 16, 1980 97th

1

Jan. 5, 1981 Dec. 16, 1981

2

Jan. 25, 1982 Dec. 23, 1982

98th

1

Jan. 3, 1983 Nov. 18, 1983

2

Jan. 23, 1984 Oct. 12, 1984 99th

1

Jan. 3, 1985

Dec. 20, 1985

2

Jan. 21, 1986 Oct. 18, 1986 100th

1

Jan. 6, 1987 Dec. 22, 1987

270 Feb. 10–Feb. 20, 1978 Mar. 23–Apr. 3, 1978 May 26– June 5, 1978 June 29– July 10, 1978 Aug. 25–Sept. 6, 1978

354 Feb. 9–Feb. 19, 1979

Apr. 10–Apr. 23, 1979 May 24– June 4, 1979 June 27– July 9, 1979 Aug. 3–Sept. 5, 1979 Nov. 20–Nov. 26, 1979 Adjourned sine die, Dec. 20, 1979 349 Apr. 3–Apr. 15, 1980 May 22–May 28, 1980 July 2– July 21, 1980 Aug. 6–Aug. 18, 1980 Aug. 27–Sept. 3, 1980 Oct. 1–Nov. 12, 1980 Nov. 25–Dec. 1, 1980

347 Feb. 6–Feb. 16, 1981

Apr. 10–Apr. 27, 1981 June 25– July 8, 1981 Aug. 3–Sept. 9, 1981 Oct. 7–Oct. 14, 1981 Nov. 24–Nov. 30, 1981 333 Feb. 11–Feb. 22, 1982 Apr. 1–Apr. 13, 1982 May 27– June 8, 1982 July 1– July 12, 1982 Aug. 20–Sept. 8, 1982 Oct. 1–Nov. 29, 1982 Jan. 3– Jan. 25, 1983 Feb. 3–Feb. 14, 1983 Mar. 24–Apr. 5, 1983 May 26– June 6, 1983 June 29– July 11, 1983 Aug. 4–Sept. 12, 1983 Oct. 7–Oct. 17, 1983 264 Feb. 9–Feb. 20, 1984

320 352

Apr. 12–Apr. 24, 1984 May 24–May 31, 1984 June 29– July 23, 1984 Aug. 10–Sept. 5, 1984 Jan. 7– Jan. 21, 1985 Feb. 7–Feb. 18, 1985 Apr. 4–Apr. 15, 1985 May 9–May 14, 1985 May 24– June 3, 1985 June 27– July 8, 1985 Aug. 1–Sept. 9, 1985 Nov. 23–Dec. 2, 1985 278 Feb. 7–Feb. 17, 1986 Mar. 27–Apr. 8, 1986 May 21– June 2, 1986 June 26– July 7, 1986 Aug. 15–Sept. 8, 1986 Jan. 6– Jan. 12, 1987 Feb. 5–Feb. 16, 1987 Apr. 10–Apr. 21, 1987 May 21–May 27, 1987 July 1– July 7, 1987 Aug. 7–Sept. 9, 1987 Nov. 20–Nov. 30, 1987

351 2

Jan. 25, 1988 Oct. 22, 1988

272 Feb. 4–Feb. 15, 1988 Mar. 4–Mar. 14, 1988 Mar. 31–Apr. 11, 1988 Apr. 29–May 9, 1988 May 27– June 6, 1988 June 29– July 6, 1988 July 14– July 25, 1988 Aug. 11–Sept. 7, 1988

House of Representatives Apr. 6–Apr. 18, 1977 May 26– June 1, 1977 June 30– July 11, 1977 Aug. 5–Sept. 7, 1977 Oct. 6–Oct. 11, 1977 Feb. 9–Feb. 14, 1978 Mar. 22–Apr. 3, 1978 May 25–May 31, 1978 June 29– July 10, 1978 Aug. 17–Sept. 6, 1978 Feb. 8–Feb. 13, 1979 Apr. 10–Apr. 23, 1979 May 24–May 30, 1979 June 29– July 9, 1979 Aug. 2–Sept. 5, 1979 Nov. 20–Nov. 26, 1979

Feb. 13–Feb. 19, 1980 Apr. 2–Apr. 15, 1980 May 22–May 28, 1980 July 2– July 21, 1980 Aug. 1–Aug. 18, 1980 Aug. 28–Sept. 3, 1980 Oct. 2–Nov. 12, 1980 Nov. 21–Dec. 1, 1980 Feb. 6–Feb. 17, 1981 Apr. 10–Apr. 27, 1981 June 26– July 8, 1981 Aug. 4–Sept. 9, 1981 Oct. 7–Oct. 13, 1981 Nov. 23–Nov. 30, 1981 Feb. 10–Feb. 22, 1982 Apr. 6–Apr. 20, 1982 May 27– June 2, 1982 July 1– July 12, 1982 Aug. 20–Sept. 8, 1982 Oct. 1–Nov. 29, 1982 Jan. 6– Jan. 25, 1983 Feb. 17–Feb. 22, 1983 Mar. 24–Apr. 5, 1983 May 26– June 1, 1983 June 30– July 11, 1983 Aug. 4–Sept. 12, 1983 Oct. 6–Oct. 17, 1983 Feb. 9–Feb. 21, 1984 Apr. 12–Apr. 24, 1984 May 24–May 30, 1984 June 29– July 23, 1984 Aug. 10–Sept. 5, 1984 Jan. 3– Jan. 21, 1985 Feb. 7–Feb. 19, 1985 Mar. 7–Mar. 19, 1985 Apr. 4–Apr. 15, 1985 May 23– June 3, 1985 June 27– July 8, 1985 Aug. 1–Sept. 4, 1985 Nov. 21–Dec. 2, 1985 Feb. 6–Feb. 18, 1986 Mar. 25–Apr. 8, 1986 May 22– June 3, 1986 June 26– July 14, 1986 Aug. 16–Sept. 8, 1986 Jan. 8– Jan. 20, 1987 Feb. 11–Feb. 18, 1987 Apr. 9–Apr. 21, 1987 May 21–May 27, 1987 July 1– July 7, 1987 July 15– July 20, 1987 Aug. 7–Sept. 9, 1987 Nov. 10–Nov. 16, 1987 Nov. 20–Nov. 30, 1987 Feb. 9–Feb. 16, 1988 Mar. 31–Apr. 11, 1988 May 26– June 1, 1988 June 30– July 7, 1988 July 14– July 26, 1988 Aug. 11–Sept. 7, 1988

564

Appendix A to opinion of the Court Con- gress Ses- sion Convening Date Adjournment Date

Length in days1 Senate Recesses2 101st

1

Jan. 3, 1989 Nov. 22, 1989

2

Jan. 23, 1990

Oct. 28, 1990 102d

1

Jan. 3, 1991 Jan. 3, 1992

2

Jan. 3, 1992 Oct. 9, 1992

103d

1

Jan. 5, 1993 Nov. 26, 1993

324

Jan. 4– Jan. 20, 1989 Jan. 20– Jan. 25, 1989 Feb. 9–Feb. 21, 1989 Mar. 17–Apr. 4, 1989 Apr. 19–May 1, 1989 May 18–May 31, 1989 June 23– July 11, 1989 Aug. 4–Sept. 6, 1989 260 Feb. 8–Feb. 20, 1990 Mar. 9–Mar. 20, 1990 Apr. 5–Apr. 18, 1990 May 24– June 5, 1990 June 28– July 10, 1990 Aug. 4–Sept. 10, 1990

281

366 Feb. 7–Feb. 19, 1991 Mar. 22–Apr. 9, 1991 Apr. 25–May 6, 1991 May 24– June 3, 1991 June 28– July 8, 1991 Aug. 2–Sept. 10, 1991 Nov. 27, 1991– Jan. 3,

1992

Jan. 3– Jan. 21, 1992 Feb. 7–Feb. 18, 1992 p Apr. 10–Apr. 28, 1992 May 21– June 1, 1992 July 2– July 20, 1992 Aug. 12–Sept. 8, 1992 Jan. 7– Jan. 20, 1993 Feb. 4–Feb. 16, 1993 Feb. 18–Feb. 24, 1993 p Apr. 7–Apr. 19, 1993 May 28– June 7, 1993 July 1– July 13, 1993 Aug. 7–Sept. 7, 1993 Oct. 7–Oct. 13, 1993 Nov. 11–Nov. 16, 1993

326 2

Jan. 25, 1994 Dec. 1, 1994

311 Feb. 11–Feb. 22, 1994 Mar. 26–Apr. 11, 1994 May 25– June 7, 1994 July 1– July 11, 1994 Aug. 25–Sept. 12, 1994 Oct. 8–Nov. 30, 1994

104th

1

Jan. 4, 1995 Jan. 3, 1996 365 Feb. 16–Feb. 22, 1995

2

Jan. 3, 1996

Oct. 4, 1996

276

105th

1

Jan. 7, 1997 Nov. 13, 1997

311

Apr. 7–Apr. 24, 1995 May 26– June 5, 1995 June 30– July 10, 1995 Aug. 11–Sept. 5, 1995 Sept. 29–Oct. 10, 1995 Nov. 20–Nov. 27, 1995

Jan. 10– Jan. 22, 1996 Feb. 1–Feb. 6, 1996 p Feb. 7–Feb. 20, 1996 p Feb. 29–Mar. 5, 1996 p Mar. 29–Apr. 15, 1996 May 24– June 3, 1996 June 28– July 8, 1996 Aug. 2–Sept. 3, 1996 Jan. 9– Jan. 21, 1997 Feb. 13–Feb. 24, 1997 Mar. 21–Apr. 7, 1997 May 23– June 2, 1997 p June 27– July 7, 1997 July 31–Sept. 2, 1997 Oct. 9–Oct. 20, 1997

2

Jan. 27, 1998 Dec. 19, 1998 106th

1

Jan. 6, 1999 Nov. 22, 1999

327 Feb. 13–Feb. 23, 1998 Apr. 3–Apr. 20, 1998 May 22– June 1, 1998 June 26– July 6, 1998 July 31–Aug. 31, 1998 Adjourned sine die, Oct. 21, 1998.

321 Feb. 12–Feb. 22, 1999 Mar. 25–Apr. 12, 1999 May 27– June 7, 1999

House of Representatives Jan. 4– Jan. 19, 1989 Feb. 9–Feb. 21, 1989 Mar. 23–Apr. 3, 1989 Apr. 18–Apr. 25, 1989 May 25–May 31, 1989 June 29– July 10, 1989 Aug. 5–Sept. 6, 1989

Feb. 7–Feb. 20, 1990 Apr. 4–Apr. 18, 1990 May 25– June 5, 1990 June 28– July 10, 1990 Aug. 4–Sept. 5, 1990

Feb. 6–Feb. 19, 1991 Mar. 22–Apr. 9, 1991 May 23–May 29, 1991 June 27– July 9, 1991 Aug. 2–Sept. 11, 1991 Nov. 27, 1991– Jan. 3,

1992

Jan. 3– Jan. 22, 1992 Apr. 10–Apr. 28, 1992 May 21–May 26, 1992 July 2– July 7, 1992 July 9– July 21, 1992 Aug. 12–Sept. 9, 1992 Jan. 6– Jan. 20, 1993 Jan. 27–Feb. 2, 1993 Feb. 4–Feb. 16, 1993 Apr. 7–Apr. 19, 1993 May 27– June 8, 1993 July 1– July 13, 1993 Aug. 6–Sept. 8, 1993 Sept. 15–Sept. 21, 1993 Oct. 7–Oct. 12, 1993 Nov. 10–Nov. 15, 1993 Jan. 26–Feb. 1, 1994 Feb. 11–Feb. 22, 1994 Mar. 24–Apr. 12, 1994 May 26– June 8, 1994 June 30– July 12, 1994 Aug. 26–Sept. 12, 1994 Oct. 8–Nov. 29, 1994 Feb. 16–Feb. 21, 1995 Mar. 16–Mar. 21, 1995 Apr. 7–May 1, 1995 May 3–May 9, 1995 May 25– June 6, 1995 June 30– July 10, 1995 Aug. 4–Sept. 6, 1995 Sept. 29–Oct. 6, 1995 Nov. 20–Nov. 28, 1995 Jan. 9– Jan. 22, 1996 Feb. 1–Feb. 27, 1996 p Mar. 29–Apr. 15, 1996 May 23–May 29, 1996 June 28– July 8, 1996 Aug. 2–Sept. 4, 1996

Jan. 9– Jan. 20, 1997 Jan. 21–Feb. 4, 1997 Feb. 13–Feb. 25, 1997 Mar. 21–Apr. 8, 1997 June 26– July 8, 1997 Aug. 1–Sept. 3, 1997 Oct. 9–Oct. 21, 1997 Jan. 28–Feb. 3, 1998 Feb. 5–Feb. 11, 1998 Feb. 12–Feb. 24, 1998 Apr. 1–Apr. 21, 1998 May 22– June 3, 1998 June 25– July 14, 1998 Aug. 7–Sept. 9, 1998 Oct. 21–Dec. 17, 1998 Jan. 6– Jan. 19, 1999 Jan. 19–Feb. 2, 1999 Feb. 12–Feb. 23, 1999

Cite as: 573 U. S. 513 (2014)

565

Appendix A to opinion of the Court Con- gress

Ses- sion Convening Date Adjournment Date Length in days1 Recesses2 Senate

July 1– July 12, 1999 Aug. 5–Sept. 8, 1999

2

Jan. 24, 2000 Dec. 15, 2000

107th

1

Jan. 3, 2001 Dec. 20, 2001

326 Feb. 10–Feb. 22, 2000 Mar. 9–Mar. 20, 2000 Apr. 13–Apr. 25, 2000 May 25– June 6, 2000 June 30– July 10, 2000 July 27–Sept. 5, 2000 Nov. 2–Nov. 14, 2000 Nov. 14–Dec. 5, 2000 Jan. 8– Jan. 20, 2001 Feb. 15–Feb. 26, 2001 Apr. 6–Apr. 23, 2001 May 26– June 5, 2001 June 29– July 9, 2001 Aug. 3–Sept. 4, 2001 Oct. 18–Oct. 23, 2001 Nov. 16–Nov. 27, 2001

352 2

Jan. 23, 2002 Nov. 22, 2002

304

Jan. 29–Feb. 4, 2002 Feb. 15–Feb. 25, 2002 Mar. 22–Apr. 8, 2002 May 23– June 3, 2002 June 28– July 8, 2002 Aug. 1–Sept. 3, 2002 Oct. 17–Nov. 12, 2002 p

108th

1

Jan. 7, 2003 Dec. 9, 2003

2

Jan. 20, 2004 Dec. 8, 2004 109th

1

Jan. 4, 2005

Dec. 22, 2005

2

Jan. 3, 2006 Dec. 9, 2006

353

337 Feb. 14–Feb. 24, 2003 Apr. 11–Apr. 28, 2003 May 23– June 2, 2003 June 27– July 7, 2003 Aug. 1–Sept. 2, 2003 Oct. 3–Oct. 14, 2003 Nov. 25–Dec. 9, 2003 324 Feb. 12–Feb. 23, 2004 Mar. 12–Mar. 22, 2004 Apr. 8–Apr. 19, 2004 May 21– June 1, 2004 June 9– June 14, 2004 June 25– July 6, 2004 July 22–Sept. 7, 2004 Oct. 11–Nov. 16, 2004 Nov. 24–Dec. 7, 2004 Jan. 6– Jan. 20, 2005 Jan. 26– Jan. 31, 2005 Feb. 18–Feb. 28, 2005 Mar. 20–Apr. 4, 2005 Apr. 29–May 9, 2005 May 26– June 6, 2005 July 1– July 11, 2005 July 29–Sept. 1, 2005 Sept. 1–Sept. 6, 2005 Oct. 7–Oct. 17, 2005 Nov. 18–Dec. 12, 2005 Jan. 3– Jan. 18, 2006 Feb. 17–Feb. 27, 2006 Mar. 16–Mar. 27, 2006 Apr. 7–Apr. 24, 2006 May 26– June 5, 2006 June 29– July 10, 2006 Aug. 4–Sept. 5, 2006 Sept. 30–Nov. 9, 2006 Nov. 16–Dec. 4, 2006

341

110th

1

Jan. 4, 2007 Dec. 31, 2007

2

Jan. 3, 2008 Jan. 3, 2009

362 Feb. 17–Feb. 26, 2007 Mar. 29–Apr. 10, 2007 May 25– June 4, 2007 June 29– July 9, 2007 Aug. 3–Sept. 4, 2007 Oct. 5–Oct. 15, 2007 Nov. 16–Dec. 3, 2007 p Dec. 19–Dec. 31, 2007 p Jan. 3– Jan. 22, 2008 p Feb. 14–Feb. 26, 2008 p Mar. 13–Mar. 31, 2008 p May 22– June 2, 2008 p June 27– July 7, 2008

367

House of Representatives Mar. 25–Apr. 12, 1999 May 27– June 7, 1999 July 1– July 12, 1999 Aug. 6–Sept. 8, 1999 Feb. 16–Feb. 29, 2000 Apr. 13–May 2, 2000 May 25– June 6, 2000 June 30– July 10, 2000 July 27–Sept. 6, 2000 Nov. 3–Nov. 13, 2000 Nov. 14–Dec. 4, 2000

Jan. 6– Jan. 20, 2001 Jan. 20– Jan. 30, 2001 Jan. 31–Feb. 6, 2001 Feb. 14–Feb. 26, 2001 Apr. 4–Apr. 24, 2001 May 26– June 5, 2001 June 28– July 10, 2001 Aug. 2–Sept. 5, 2001 Oct. 17–Oct. 23, 2001 Nov. 19–Nov. 27, 2001 Jan. 29–Feb. 4, 2002 Feb. 14–Feb. 26, 2002 Mar. 20–Apr. 9, 2002 May 24– June 4, 2002 June 28– July 8, 2002 July 27–Sept. 4, 2002

Jan. 8– Jan. 27, 2003 Feb. 13–Feb. 25, 2003 Apr. 12–Apr. 29, 2003 May 23– June 2, 2003 June 27– July 7, 2003 July 29–Sept. 3, 2003 Nov. 25–Dec. 8, 2003 Feb. 11–Feb. 24, 2004 Apr. 2–Apr. 20, 2004 May 20– June 1, 2004 June 9– June 14, 2004 June 25– July 6, 2004 July 22–Sept. 7, 2004 Oct. 9–Nov. 16, 2004 Nov. 24–Dec. 6, 2004

Jan. 6– Jan. 20, 2005 Jan. 20– Jan. 25, 2005 Jan. 26–Feb. 1, 2005 Feb. 2–Feb. 8, 2005 Feb. 17–Mar. 1, 2005 Mar. 21–Apr. 5, 2005 May 26– June 7, 2005 July 1– July 11, 2005 July 29–Sept. 2, 2005 Oct. 7–Oct. 17, 2005 Nov. 18–Dec. 6, 2005 Jan. 3– Jan. 31, 2006 Feb. 1–Feb. 7, 2006 Feb. 8–Feb. 14, 2006 Feb. 16–Feb. 28, 2006 Mar. 16–Mar. 28, 2006 Apr. 6–Apr. 25, 2006 May 25– June 6, 2006 June 29– July 10, 2006 Aug. 2–Sept. 6, 2006 Sept. 30–Nov. 9, 2006 Nov. 15–Dec. 5, 2006 Jan. 24– Jan. 29, 2007 Feb. 16–Feb. 27, 2007 Mar. 30–Apr. 16, 2007 May 24– June 5, 2007 June 28– July 10, 2007 Aug. 4–Sept. 4, 2007 Nov. 15–Dec. 4, 2007

Jan. 3– Jan. 15, 2008 Mar. 14–Mar. 31, 2008 May 22– June 3, 2008 June 26– July 8, 2008 Aug. 1–Sept. 8, 2008

566

Appendix B to opinion of the Court Con- gress Ses- sion Convening Date Adjournment Date

Length in days1 Recesses2 Senate

Aug. 1–Sept. 8, 2008 p Oct. 2–Nov. 17, 2008 p Nov. 20–Dec. 8, 2008 p Dec. 11, 2008– Jan. 2, 2009 p

111th

1

Jan. 6, 2009 Dec. 24, 2009 353 Feb. 13–Feb. 23, 2009 p 112th

2 1

Jan. 5, 2010 Jan. 5, 2011

Dec. 22, 2010

352

Apr. 2–Apr. 20, 2009 May 21– June 1, 2009 June 25– July 6, 2009 Aug. 7–Sept. 8, 2009 p Oct. 8–Oct. 13, 2009 p Nov. 10–Nov. 16, 2009 Nov. 21–Nov. 30, 2009 Jan. 5– Jan. 20, 2010 p Feb. 11–Feb. 23, 2010 Mar. 26–Apr. 12, 2010 May 28– June 7, 2010 June 30– July 12, 2010 Aug. 5–Aug. 12, 2010 Aug. 12–Sept. 13, 2010 Sept. 29–Nov. 15, 2010 p Nov. 19–Nov. 29, 2010 Jan. 5– Jan. 25, 2011 Feb. 17–Feb. 28, 2011 Mar. 17–Mar. 28, 2011 Apr. 14–May 2, 2011 May 26– June 6, 2011 p Aug. 2–Sept. 6, 2011 p

House of Representatives Oct. 3–Nov. 19, 2008 Nov. 20–Dec. 9, 2008 Dec. 10, 2008– Jan. 3,

2009

Feb. 13–Feb. 23, 2009 Apr. 2–Apr. 21, 2009 May 21– June 2, 2009 June 26– July 7, 2009 July 31–Sept. 8, 2009 Nov. 6–Nov. 16, 2009 Nov. 19–Dec. 1, 2009

Jan. 5– Jan. 12, 2010 Feb. 9–Feb. 22, 2010 Mar. 25–Apr. 13, 2010 May 28– June 8, 2010 July 1– July 13, 2010 July 30–Aug. 9, 2010 Aug. 10–Sept. 14, 2010 Sept. 29–Nov. 15, 2010 Nov. 18–Nov. 29, 2010 Jan. 26–Feb. 8, 2011 Feb. 18–Feb. 28, 2011 Mar. 17–Mar. 29, 2011 Apr. 15–May 2, 2011 May 13–May 23, 2011 June 24– July 5, 2011 p Aug. 1–Sept. 6, 2011 p

1For the purposes of this table, a session's ``length in days'' is defned as the total number of calendar days from the convening date to the adjournment date, inclusive. It does not mean the actual number of days that Congress met during that session.

2For the purposes of this table, a ``recess'' is defned as a break in House or Senate proceedings of three or more days, excluding Sundays. According to Article I, section 5 of the U. S. Constitution, neither house may adjourn for more than three days without the consent of the other. On occasion, both chambers have held one or more pro forma sessions because of this constitutional obligation or for other purposes. Treated here as recesses, usually no business is conducted during these time periods. On this table, beginning in the 1990s, such pro forma sessions are indicated with a P.

The following table shows the proportion of recent ap- pointments that have flled pre-recess vacancies. It was compiled with research assistance from the Supreme Court Library. It contains a random sample of the recess appoint- ments by President George W. Bush and President Barack Obama. The last column indicates whether the vacancy arose during the recess in which it was flled. “A” indicates a vacancy that arose during the recess, “P” indicates a va- cancy that arose before the recess, and “U” indicates that the vacancy date could not be ascertained.

Name1 Position Date of Recess Appointment Date the Position Became Vacant

Status of Vacancy Peter J.

Hurtgen Member (designated Chair), NLRB 8/31/01 8/27/20012

Cite as: 573 U. S. 513 (2014)

567

Appendix B to opinion of the Court Name1

Position Date of Recess Appointment Date the Position Became Vacant Status of Vacancy

Dennis L.

Schornack Comm'r on the Part of the US, Int'l Joint Comm'n, US and Canada

3/29/02 Unknown3

Tony Hammond Comm'r, Postal Rate Comm'n 8/06/02 2/20014

R. Bruce

Matthews Ephraim Batambuze Bradley D.

Belt Ronald E.

Meisburg Charles Johnson Jack E.

McGregor James R.

Kunder Member, Defense Nuclear Facilities Safety Bd.

Bd. Member, African Dev.

Found.

Member, Social Security Advisory Bd. (SSAB) 4/22/03 5/2002 5 8/22/03 2/10/2002 6

12/23/03 9/2002 7 Member, NLRB 12/23/03 8/21/03 8 Chief Financial Offcer,

Member, Advisory Bd., St. Lawrence Seaway Dev.

Corp.

Assistant Adm'r, Bureau for Asia and the Near East,

5/28/04 2003 9 7/02/04 Unknown10

8/02/04 1/200411 Susan J. Grant Chief Financial Offcer, Dept. of Energy

8/02/04 200312 Anthony J.

Principi

Member (designated Chair), Defense Base Closure and Realignment Comm'n

4/01/05 3/2005 (new position)13 John R. Bolton US Representative to the

8/01/05 1/200514 Ellen R.

Sauerbrey Ronald E.

Meisburg John L.

Palmer Assistant Sec'y, Population, Refugees, and Migration, Dept. of State

1/04/06 by 7/200515 General Counsel, NLRB 1/04/06 6/03/200516

Member, Bd. of Trustees, Fed. Old-Age and Survivors Ins. Trust Fund and the Fed. Disability Ins. Trust Fund

4/19/06 10/200417 Richard E.

Stickler Assistant Sec'y, Mine, Safety, and Health Admin.

10/19/06 11/19/200418

568

Appendix B to opinion of the Court Name1 Position Date of Recess Appointment

Date the Position Became Vacant Status of Vacancy Susan E.

Dudley Mark G.

Pearce Mari C.

Aponte Richard Griffn Jr.

Adm'r, OIRA, OMB 4/04/07 2/200619 Member, NLRB 3/27/10 1/200820 Chief of Mission, El Salvador, Dept. of State

8/19/10 1/17/09 21 Member, NLRB 1/04/12 8/27/1122

1 The name, position, and date of each recess appointment were taken from The Noel Canning Decision 21–

29. The sample was generated by selecting every 10th appointment from a chronological list of all recess

appointments made during the Presidencies of George W. Bush and Barack Obama.

2 See White House Press Release: President Bush Announces Hurtgen To Stay on as Member and Chairman of the NLRB, Aug. 31, 2001, online at http://georgewbush-whitehouse.archives.gov/news/releases/2001/08/ 20010831-14.html.

3 Schornack was preceded by Thomas L. Baldini. 147 Cong. Rec. 12592 (2001). We could not fnd a specifc date for Baldini's departure. See Lane, Engler Advisers Tapped for Water Jobs, Crain's Detroit Business, June 18, 2001, p. 6 (Schornack “would replace Marquette's Thomas Baldini, former President Bill Clinton's appointee”); Finley, Senate Often Turns Its Role of Advise and Consent Into Object and Obstruct, Detroit News, Feb. 10, 2002, p. 13A, col. 1. (“The International Joint Commission post is still held by Clinton appointee Tom Baldini, also of Michigan”).

4 Hammond was preceded by Edward Jay Gleiman, 148 Cong. Rec. 4472 (2002), who retired in February 2001, see Campanelli, PRC Chairman Gleiman Retires, Direct Marketing News, Feb. 6, 2001, online at http:// www.dmnews.com/prc-chairman-gleiman-retires/article/70877.

5 Matthews was preceded by Joseph J. DiNunno, 38 Weekly Comp. of Pres. Doc. 804 (2002), who retired in May 2002, see DNFSB Member Biography, online at http://www.dnfsb.gov/about/ board-members/joseph- j-dinunno.

6 Batambuze was preceded by Henry McKoy, 149 Cong. Rec. 4875 (2003), whose term expired on February

9, 2002, see 32 Weekly Comp. of Pres. Doc. 363 (1996).

7 Belt was preceded by Stanford G. Ross, 149 Cong. Rec. 20993 (2003), whose term on the SSAB expired in

September 2002, see SSAB Member List, online at http://www.ssab.gov/AbouttheBoard/Members.aspx.

8 See N. L. R. B. Bulletin, Ronald Meisburg Receives Recess Appointment From President Bush To Be NLRB Member (Dec. 29, 2003), online at http://mynlrb.nlrb.gov/link/document.aspx/09031d45800d5d75.

9 Johnson was preceded by Linda Morrison Combs, 150 Cong. Rec. 236 (2004), who apparently left in 2003, see Hearings on S. 113 before the Committee on Homeland Security and Governmental Affairs, 109th Cong., 1st Sess., 2 (2005) (“Combs served as [CFO] of the [EPA] from 2001 to 2003”); see also 149 Cong. Rec. 31985 (2003) (nomination of Linda Morrison Combs to be Assistant Secretary of Transportation); 150 Cong. Rec.

10973 (2004) (confrmation of Combs to be Assistant Secretary of Transportation).

10 McGregor was preceded by Vincent J. Sorrentino. 149 Cong. Rec. 31985 (2003). We have located no

further information about Sorrentino's departure date.

11 Kunder was preceded by Wendy J. Chamberlin, 150 Cong. Rec. 8983 (2004), who accepted a new appoint- ment as of January 2004, see United Nations Refugee Agency Press Release, Wendy Chamberlin Appointed Deputy High Commissioner, Dec. 12, 2003, online at http://www.unhcr.org/news/NEWS/3fda0f584.html.

12 Grant was preceded by Bruce M. Carnes, 149 Cong. Rec. 24527 (2003), who resigned during 2003, see Bush Nominee to Energy Department CFO Post OK'd by Committee, Environment and Energy Daily, Mar.

11, 2004; see also 39 Weekly Comp. of Pres. Doc. 308 (2003).

13 Principi was nominated for this newly created position on March 4, 2005. 151 Cong. Rec. 3543 (2005).

The position was created by statute in 2001. 115 Stat. 1343–1344.

14 See Hoge, Diplomats at U. N. Surprised by Danforth's Resignation, N. Y. Times, Dec. 3, 2004, p. A6.

15 Sauerbrey was preceded by Arthur Dewey. 151 Cong. Rec. 19554 (2005); see also Weekly Review of Developments in Human Rights and Democracy, Dow Jones Factiva, June 30, 2005; Arthur E. Dewey, Dept. of State Biography, online at http://2001-2009.state. gov/outofdate/ bios/d/7988.htm.

16 Meisburg was preceded by Arthur F. Rosenfeld, whose term expired on June 3, 2005, see NLRB General

Counsels Since 1935, online at http://www.nlrb.gov/who-we-are/general-counsel/general-counsels-1935.

17 Palmer was nominated as a reappointment on November 7, 2005. 151 Cong. Rec. 25016 (2005). The

Senate confrmed Palmer to his previous 4-year term on October 24, 2000. 146 Cong. Rec. 23920 (2000).

Cite as: 573 U. S. 513 (2014)

569

Scalia, J., concurring in judgment

18 Stickler was preceded by David D. Lauriski, 152 Cong. Rec. 17151 (2006), who resigned on November 19,

2004, see Dept. of Labor, News Release, U. S. Assistant Secretary of Labor for Mine Safety and Health Dave

D. Lauriski Announces His Plans for Departure, Nov. 12, 2004.

19 Dudley was preceded by John D. Graham, 152 Cong. Rec. 16707 (2006), who left the offce in February

2006, see J. R. Pegg, Bush Bypasses Senate To Appoint Controversial Regulatory Chief, 35 Pesticide & Toxic Chemical News, No. 24, pp. 13–14 (Apr. 9, 2007).

20 Pearce was preceded by Peter N. Kirsanow, whose term had ended by January 2008, see Members of the

NLRB Since 1935, online at http://www.nlrb.gov/who-we-are/ board/members-nlrb-1935.

21 Aponte was preceded by Charles Glazer, who left his post on January 17, 2009, see Dept. of State, Offce

of the Historian, Chiefs of Mission for El Salvador, online at http://history.state. gov/departmenthistory/ people/glazer-charles-l.

22 See App. to Brief for Petitioner 89a.

Justice Scalia, with whom The Chief Justice, Jus- tice Thomas, and Justice Alito join, concurring in the judgment.

Except where the Constitution or a valid federal law pro- vides otherwise, all “Offcers of the United States” must be appointed by the President “by and with the Advice and Consent of the Senate.” U. S. Const., Art. II, § 2, cl. 2. That general rule is subject to an exception: “The President shall have Power to fll 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.” Id., § 2, cl. 3. This case requires us to decide whether the Recess Appointments Clause authorized three appointments made by President Obama to the National Labor Relations Board in January 2012 without the Sen- ate's consent.

To prevent the President's recess-appointment power from nullifying the Senate's role in the appointment process, the Constitution cabins that power in two signifcant ways.

First, it may be exercised only in “the Recess of the Senate,” that is, the intermission between two formal legislative ses- sions. Second, it may be used to fll only those vacancies that “happen during the Recess,” that is, offces that become vacant during that intermission. Both conditions are clear from the Constitution's text and structure, and both were well understood at the founding. The Court of Appeals cor- rectly held that the appointments here at issue are invalid because they did not meet either condition.

570

Scalia, J., concurring in judgment

Today's Court agrees that the appointments were invalid, but for the far narrower reason that they were made during a 3-day break in the Senate's session. On its way to that result, the majority sweeps away the key textual limitations on the recess-appointment power. It holds, frst, that the President can make appointments without the Senate's par- ticipation even during short breaks in the middle of the Sen- ate's session, and second, that those appointments can fll of- fces that became vacant long before the break in which they were flled. The majority justifes those atextual results on an adverse-possession theory of executive authority: Presi- dents have long claimed the powers in question, and the Sen- ate has not disputed those claims with suffcient vigor, so the Court should not “upset the compromises and working arrangements that the elected branches of Government themselves have reached.” Ante, at 526.

The Court's decision transforms the recess-appointment power from a tool carefully designed to fll a narrow and specifc need into a weapon to be wielded by future Presi- dents against future Senates. To reach that result, the ma- jority casts aside the plain, original meaning of the constitu- tional text in deference to late-arising historical practices that are ambiguous at best. The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear confict with our precedent and fore- bodes a diminution of this Court's role in controversies involving the separation of powers and the structure of gov- ernment. I concur in the judgment only.

Today's majority disregards two overarching principles that ought to guide our consideration of the questions pre- sented here.

First, the Constitution's core, government-structuring provisions are no less critical to preserving liberty than are the later adopted provisions of the Bill of Rights. Indeed,

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“[s]o convinced were the Framers that liberty of the person inheres in structure that at frst they did not consider a Bill of Rights necessary.” Clinton v. City of New York, 524

U. S. 417, 450 (1998) (Kennedy, J., concurring). Those

structural provisions refect the founding generation's deep conviction that “checks and balances were the foundation of a structure of government that would protect liberty.” Bowsher v. Synar, 478 U. S. 714, 722 (1986). It is for that reason that “the claims of individuals—not of Government departments—have been the principal source of judicial deci- sions concerning separation of powers and checks and bal- ances.” Bond v. United States, 564 U. S. 211, 222 (2011); see,

e. g., Free Enterprise Fund v. Public Company Accounting

Oversight Bd., 561 U. S. 477 (2010); Clinton, supra; Plaut v.

Spendthrift Farm, Inc., 514 U. S. 211 (1995); Bowsher, supra; INS v. Chadha, 462 U. S. 919 (1983); Northern Pipeline Con- str. Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982).

Those decisions all rest on the bedrock principle that “the constitutional structure of our Government” is designed frst and foremost not to look after the interests of the respective branches, but to “protec[t] individual liberty.” Bond, supra, at 223.

Second and relatedly, when questions involving the Consti- tution's government-structuring provisions are presented in a justiciable case, it is the solemn responsibility of the Judi- cial Branch “ `to say what the law is.' ” Zivotofsky v. Clin- ton, 566 U. S. 189, 196 (2012) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). This Court does not defer to the other branches' resolution of such controversies; as Justice Kennedy has previously written, our role is in no way “les- sened” because it might be said that “the two political branches are adjusting their own powers between them- selves.” Clinton, supra, at 449 (concurring opinion). Since the separation of powers exists for the protection of indi- vidual liberty, its vitality “does not depend” on “whether `the encroached-upon branch approves the encroachment.' ”

572

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United States, 505 U. S. 144, 182 (1992)); see also Freytag v.

Commissioner, 501 U. S. 868, 879–880 (1991); Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 276–277 (1991).

Rather, policing the “enduring structure” of constitutional government when the political branches fail to do so is “one of the most vital functions of this Court.” Public Citizen v.

Department of Justice, 491 U. S. 440, 468 (1989) (Kennedy, J., concurring in judgment).

Our decision in Chadha illustrates that principle. There, we held that a statutory provision authorizing one House of Congress to cancel an executive action taken pursuant to statutory authority—a so-called “legislative veto”—ex- ceeded the bounds of Congress's authority under the Consti- tution. 462 U. S., at 957–959. We did not hesitate to hold the legislative veto unconstitutional even though Congress had enacted, and the President had signed, nearly 300 similar provisions over the course of 50 years. Id., at 944–945.

Just the opposite: We said the other branches' enthusiasm for the legislative veto “sharpened rather than blunted” our review. Id., at 944. Likewise, when the charge is made that a practice “enhances the President's powers beyond” what the Constitution permits, “[i]t is no answer . . . to say that Congress surrendered its authority by its own hand.” Clinton, 524 U. S., at 451 (Kennedy, J., concurring). “[O]ne Congress cannot yield up its own powers, much less those of other Congresses to follow. Abdication of responsibility is not part of the constitutional design.” Id., at 452 (citations omitted).

Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision. See, e. g., Alden v.

Maine, 527 U. S. 706, 743–744 (1999); Bowsher, supra, at 723–724; Myers v. United States, 272 U. S. 52, 174–175 (1926);

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579, 610 (1952) (Frankfurter, J., concurring) (arguing that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before ques- tioned” should inform interpretation of the “Executive Power” vested in the President); Rutan v. Republican Party of Ill., 497 U. S. 62, 95, and n. 1 (1990) (Scalia, J., dissenting). But “ `[p]ast practice does not, by itself, create power.' ” Medellín v. Texas, 552 U. S. 491, 532 (2008) (quot- ing Dames & Moore v. Regan, 453 U. S. 654, 686 (1981)).

That is a necessary corollary of the principle that the politi- cal branches cannot by agreement alter the constitutional structure. Plainly, then, a self-aggrandizing practice adopted by one branch well after the founding, often chal- lenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding.

Ignoring our more recent precedent in this area, which is extensive, the majority relies on The Pocket Veto Case, 279

U. S. 655, 689 (1929), for the proposition that when interpret-

ing a constitutional provision “regulating the relationship be- tween Congress and the President,” we must defer to the settled practice of the political branches if the provision is “ ` “in any respect of doubtful meaning.” ' ” Ante, at 524; see ante, at 526, 533, 540, 549. The language the majority quotes from that case was pure dictum. The Pocket Veto Court had to decide whether a bill passed by the House and Senate and presented to the President less than 10 days before the adjournment of the frst session of a particular Congress, but neither signed nor vetoed by the President, became a law.

Most of the opinion analyzed that issue like any other legal question and concluded that treating the bill as a law would have been inconsistent with the text and structure of the Constitution. Only near the end of the opinion did the

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Court add that its conclusion was “confrmed” by longstand- ing Presidential practice in which Congress appeared to have acquiesced. 279 U. S., at 688–689. We did not suggest that the case would have come out differently had the longstand- ing practice been otherwise.1

1 The other cases cited by the majority in which we have afforded sig- nifcant weight to historical practice, ante, at 525, are consistent with the principles described above. Nearly all involved venerable and unchal- lenged practices, and constitutional provisions that were either deeply am- biguous or plainly supportive of the practice. See Dames & Moore v.

Regan, 453 U. S. 654, 679–681, and n. 8, 686 (1981) (citing Presidential practice dating from 1799 and never questioned by Congress to inform meaning of “Executive Power”); Ex parte Grossman, 267 U. S. 87, 118– 119 (1925) (citing unchallenged Presidential practice dating from 1841 as support for a construction of the pardon power based on the “common law,” the “history of the clause in the Convention,” and “the ordinary meaning of its words”); United States v. Midwest Oil Co., 236 U. S. 459, 469–471, 474 (1915) (citing Presidential practice dating from “an early pe- riod in the history of the government,” “uniformly and repeatedly acqui- esced in” by Congress and previously upheld by this Court, to establish “a recognized administrative power of the Executive in the management of the public lands”); McPherson v. Blacker, 146 U. S. 1, 25–35 (1892) (cit- ing method of choosing Presidential electors prevalent among the States “from the formation of the government until now,” as to the constitutional- ity of which “ `no question ha[d] ever arisen,' ” in support of construction consistent with the constitutional text and its drafting history); McCulloch

v. Maryland, 4 Wheat. 316, 401–402 (1819) (citing power “exercised by the

frst Congress elected under the present constitution,” “recognized by many successive legislatures, and . . . acted upon by the judicial depart- ment,” in support of the conclusion that the Necessary and Proper Clause allowed Congress to incorporate a bank); Stuart v. Laird, 1 Cranch 299, 309 (1803) (citing practice that “commence[d] with the organization of the judicial system” in rejecting challenge to Supreme Court Justices' riding circuit). Even Mistretta v. United States, 488 U. S. 361 (1989), which con- cluded that the constitutional text did not prohibit judges from undertak- ing extrajudicial duties and found “additional evidence” for that conclusion in a longstanding practice that it acknowledged had been “controversial,” emphasized that it was relying on “contemporaneous practice by the Founders themselves” that had been “frequent and continuing” since rati- fcation. Id., at 397–400.

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The frst question presented is whether “the Recess of the Senate,” during which the President's recess-appointment power is active, is (a) the period between two of the Senate's formal sessions, or (b) any break in the Senate's proceedings. I would hold that “the Recess” is the gap between sessions and that the appointments at issue here are invalid because they undisputedly were made during the Senate's session.

The Court's contrary conclusion—that “the Recess” includes “breaks in the midst of a session,” ante, at 526—is inconsist- ent with the Constitution's text and structure, and it re- quires judicial fabrication of vague, unadministrable limits on the recess-appointment power (thus defned) that over- step the judicial role. And although the majority relies heavily on “historical practice,” no practice worthy of our deference supports the majority's conclusion on this issue.

A. Plain Meaning

A sensible interpretation of the Recess Appointments Clause should start by recognizing that the Clause uses the term “Recess” in contradistinction to the term “Session.” As Alexander Hamilton wrote: “The time within which the power is to operate `during the recess of the Senate' and the duration of the appointments `to the end of the next session' of that body, conspire to elucidate the sense of the provision.” The Federalist No. 67, p. 455 (J. Cooke ed. 1961).

In the founding era, the terms “recess” and “session” had well-understood meanings in the marking-out of legislative time. The life of each elected Congress typically consisted (as it still does) of two or more formal sessions separated by adjournments “sine die,” that is, without a specifed re- turn date. See GPO, Congressional Directory, 113th Cong., pp. 524–542 (2013–2014) (hereinafter Congressional Direc- tory) (listing sessions of Congress from 1789 through 2013); 705 F. 3d 490, 512, and nn. 1–2 (CADC 2013) (case below);

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ante, at 526. The period between two sessions was known as “the recess.” See 26 Annals of Cong. 748 (1814) (Sen.

their session and their recess”). As one scholar has thor- oughly demonstrated, “in government practice the phrase `the Recess' always referred to the gap between sessions.” Natelson, The Origins and Meaning of “Vacancies that May Happen During the Recess” in the Constitution's Recess Ap- pointments Clause, 37 Harv. J. L. & Pub. Pol'y 199, 213 (2014) (hereinafter Natelson); see id., at 214–227 (providing dozens of examples). By contrast, other provisions of the Constitu- tion use the verb “adjourn” rather than “recess” to refer to the commencement of breaks during a formal legislative ses- sion. See, e. g., Art. I, § 5, cl. 1; id., § 5, cl. 4.2

To be sure, in colloquial usage both words, “recess” and “session,” could take on alternative, less precise meanings. A session could include any short period when a legislature's members were “assembled for business,” and a recess could refer to any brief “suspension” of legislative “business.” 2

N. Webster, American Dictionary of the English Language

(1828). So the Continental Congress could complain of the noise from passing carriages disrupting its “daily Session,”

2 The majority claims that “the phrase `the recess' was used to refer to intra-session recesses at the time of the founding,” ante, at 528, but it offers strikingly little support for that assertion. It frst cites a letter from George Washington that is quite obviously an example of imprecise, colloquial usage. See 3 Records of the Federal Convention of 1787, p. 76 (M. Farrand rev. 1966) (“I had put my carriage in the hands of a workman to be repaired and had not the means of mooving [sic] during the recess”).

It next cites an example from the New Jersey Legislature that simply refects that body's practice of dividing its time not only into “sessions” but also into distinct, formal “sittings” within each session, with “the recess” denoting the period between sittings. See Brief for Respondent Noel Canning 23; see also Natelson 207. Finally, the majority cites three pages from the Solicitor General's brief without acknowledging the arguments offered in response to the Solicitor General's few supposed counterexam- ples. See, e. g., Brief for Respondent Noel Canning 21–24; Natelson 222,

n. 120.

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29 Journals of the Continental Congress 1774–1789, p. 561 (1785) (J. Fitzpatrick ed. 1933), and the House could “take a recess” from 4 o'clock to 6 o'clock, Journal of the House of Representatives, 17th Cong., 2d Sess., p. 259 (1823). But as even the majority acknowledges, the Constitution's use of “the word `the' in `the [R]ecess' ” tends to suggest “that the phrase refers to the single break separating formal ses- sions.” Ante, at 527.

More importantly, neither the Solicitor General nor the majority argues that the Clause uses “session” in its loose, colloquial sense. And if “the next Session” denotes a for- mal session, then “the Recess” must mean the break between formal sessions. As every commentator on the Clause until the 20th century seems to have understood, the “Recess” and the “Session” to which the Clause refers are mutually exclu- sive, alternating states. See, e. g., The Federalist No. 67, at 455 (explaining that appointments would require Senatorial consent “during the session of the Senate” and would be made by the President alone “in their recess”); 1 Op. Atty.

Gen. 631 (1823) (contrasting vacancies occurring “during the recess of the Senate” with those occurring “during the ses- sion of the Senate”); 2 Op. Atty. Gen. 525, 527 (1832) (dis- cussing a vacancy that “took place while the Senate was in session, and not during the recess”). It is linguistically implausible to suppose—as the majority does—that the Clause uses one of those terms (“Recess”) informally and the other (“Session”) formally in a single sentence, with the re- sult that an event can occur during both the “Recess” and the “Session.”

Besides being linguistically unsound, the majority's read- ing yields the strange result that an appointment made dur- ing a short break near the beginning of one offcial session will not terminate until the end of the following offcial ses- sion, enabling the appointment to last for up to two years.

The majority justifes that result by observing that the proc- ess of confrming a nominee “may take several months.”

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Ante, at 534. But the average duration of the confrmation process is irrelevant. The Clause's self-evident design is to have the President's unilateral appointment last only until the Senate has “had an opportunity to act on the subject.” 3 J. Story, Commentaries on the Constitution of the United States § 1551, p. 410 (1833) (emphasis added).

One way to avoid the linguistic incongruity of the majori- ty's reading would be to read both “the Recess” and “the next Session” colloquially, so that the recess-appointment power would be activated during any temporary suspension of Senate proceedings, but appointments made pursuant to that power would last only until the beginning of the next suspension (which would end the next colloquial session).

See, e. g., Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1569 (2005) (hereinafter Rappaport, Original Meaning). That approach would be more linguistically defensible than the majority's.

But it would not cure the most fundamental problem with giving “Recess” its colloquial, rather than its formal, mean- ing: Doing so leaves the recess-appointment power without a textually grounded principle limiting the time of its exercise.

The dictionary defnitions of “recess” on which the major- ity relies provide no such principle. On the contrary, they make clear that in colloquial usage, a recess could include any suspension of legislative business, no matter how short.

See 2 S. Johnson, A Dictionary of the English Language 1602

“[T]he house of representatives had a recess of half an hour.”

2 Webster, supra. The notion that the Constitution empow-

ers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting. But that, in the majority's view, is what the text authorizes.

The boundlessness of the colloquial reading of “the Re- cess” thus refutes the majority's assertion that the Clause's “purpose” of “ensur[ing] the continued functioning of the

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Federal Government” demands that it apply to intra-session breaks as well as inter-session recesses. Ante, at 528. The majority disregards another self-evident purpose of the Clause: to preserve the Senate's role in the appointment process—which the founding generation regarded as a criti- cal protection against “ `despotism,' ” Freytag, 501 U. S., at 883—by clearly delineating the times when the President can appoint offcers without the Senate's consent. Today's decision seriously undercuts that purpose. In doing so, it demonstrates the folly of interpreting constitutional provi- sions designed to establish “a structure of government that would protect liberty,” Bowsher, 478 U. S., at 722, on the narrow-minded assumption that their only purpose is to make the government run as effciently as possible. “Con- venience and effciency,” we have repeatedly recognized, “are not the primary objectives” of our constitutional framework.

Free Enterprise Fund, 561 U. S., at 499 (internal quotation marks omitted).

Relatedly, the majority contends that the Clause's sup- posed purpose of keeping the wheels of government turning demands that we interpret the Clause to maintain its rele- vance in light of the “new circumstance” of the Senate's tak- ing an increasing number of intra-session breaks that exceed three days. Ante, at 534. Even if I accepted the canard that courts can alter the Constitution's meaning to accommo- date changed circumstances, I would be hard pressed to see the relevance of that notion here. The rise of intra-session adjournments has occurred in tandem with the development of modern forms of communication and transportation that mean the Senate “is always available” to consider nomina- tions, even when its Members are temporarily dispersed for an intra-session break. Tr. of Oral Arg. 21 (Ginsburg, J.).

The Recess Appointments Clause therefore is, or rather, should be, an anachronism—“essentially an historic relic, something whose original purpose has disappeared.” Id., at

19 (Kagan, J.). The need it was designed to fll no longer

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exists, and its only remaining use is the ignoble one of en- abling the President to circumvent the Senate's role in the appointment process. That does not justify “read[ing] it out of the Constitution” and, contra the majority, ante, at 556, I would not do so; but neither would I distort the Clause's original meaning, as the majority does, to ensure a promi- nent role for the recess-appointment power in an era when its infuence is far more pernicious than benefcial.

To avoid the absurd results that follow from its colloquial reading of “the Recess,” the majority is forced to declare that some intra-session breaks—though undisputedly within the phrase's colloquial meaning—are simply “too short to trigger the Recess Appointments Clause.” Ante, at 538.

But it identifes no textual basis whatsoever for limiting the length of “the Recess,” nor does it point to any clear stand- ard for determining how short is too short. It is inconceiv- able that the Framers would have left the circumstances in which the President could exercise such a signifcant and po- tentially dangerous power so utterly indeterminate. Other structural provisions of the Constitution that turn on dura- tion are quite specifc: Neither House can adjourn “for more than three days” without the other's consent. Art. I, § 5, cl. 4. The President must return a passed bill to Congress “within ten Days (Sundays excepted),” lest it become a law.

Id., § 7, cl. 2. Yet on the majority's view, when the frst Sen- ate considered taking a 1-month break, a 3-day weekend, or a half-hour siesta, it had no way of knowing whether the President would be constitutionally authorized to appoint of- fcers in its absence. And any offcers appointed in those circumstances would have served under a cloud, unable to determine with any degree of confdence whether their ap- pointments were valid.3

3 The majority insists that “the most likely reason the Framers did not place a textual foor underneath the word `recess' is that they did not foresee the need for one” because they did not anticipate that intra-session breaks “would become lengthier and more signifcant than inter-session

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Fumbling for some textually grounded standard, the ma- jority seizes on the Adjournments Clause, which bars either House from adjourning for more than three days without the other's consent. Id., § 5, cl. 4. According to the majority, that Clause establishes that a 3-day break is always “too short” to trigger the Recess Appointments Clause. Ante, at

536. It goes without saying that nothing in the constitu-

tional text supports that disposition. If (as the majority concludes) “the Recess” means a recess in the colloquial sense, then it necessarily includes breaks shorter than three days. And the fact that the Constitution includes a 3-day limit in one clause but omits it from the other weighs strongly against fnding such a limit to be implicit in the clause in which it does not appear. In all events, the dra- matically different contexts in which the two clauses operate make importing the 3-day limit from the Adjournments Clause into the Recess Appointments Clause “both arbitrary and mistaken.” Rappaport, Original Meaning 1556.

And what about breaks longer than three days? The majority says that a break of four to nine days is “presump- tively too short” but that the presumption may be rebutted in an “unusual circumstance,” such as a “national catastrophe . . . that renders the Senate unavailable but calls for an ur- gent response.” Ante, at 538. The majority must hope that the in terrorem effect of its “presumptively too short” pronouncement will deter future Presidents from making any recess appointments during 4-to-9-day breaks and thus save us from the absurd spectacle of unelected judges evalu- ating (after an evidentiary hearing?) whether an alleged “ca-

ones.” Ante, at 535–536. The majority's logic escapes me. The Framers' supposed failure to anticipate “length[y]” intra-session breaks might explain why (as I maintain) they did not bother to authorize recess appointments during intra-session breaks at all; but it cannot explain why (as the major- ity holds) they would have enacted a text that authorizes appointments during all intra-session breaks—even the short ones the majority says they did anticipate—without placing a temporal limitation on that power.

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tastrophe” was suffciently “urgent” to trigger the recess- appointment power. The majority also says that “political opposition in the Senate would not qualify as an unusual cir- cumstance.” Ibid. So if the Senate should refuse to con- frm a nominee whom the President considers highly quali- fed; or even if it should refuse to confrm any nominee for an offce, thinking the offce better left vacant for the time being; the President's power would not be triggered during a 4-to-9-day break, no matter how “urgent” the President's perceived need for the offcer's assistance.

(The majority protests that this “should go without saying—except that Justice Scalia compels us to say it,” ibid., seemingly for- getting that the appointments at issue in this very case were justifed on those grounds and that the Solicitor General has asked us to view the recess-appointment power as a “safety valve” against Senatorial “intransigence. ” Tr. of Oral Arg. 21.)

As for breaks of 10 or more days: We are presumably to infer that such breaks do not trigger any “presumpt[ion]” against recess appointments, but does that mean the Presi- dent has an utterly free hand? Or can litigants seek invali- dation of an appointment made during a 10-day break by pointing to an absence of “unusual” or “urgent” circum- stances necessitating an immediate appointment, albeit with- out the aid of a “presumpt[ion]” in their favor? Or, to put the question as it will present itself to lawyers in the Execu- tive Branch: Can the President make an appointment during a 10-day break simply to overcome “political opposition in the Senate” despite the absence of any “national catastro- phe,” even though it “go[es] without saying” that he cannot do so during a 9-day break? Who knows? The majority does not say, and neither does the Constitution.4

4 The majority erroneously suggests that the “lack of a textual foor raises a problem that plagues” both interpretations of “the Recess.” Ante, at 536. Not so. If the Clause is given its plain meaning, the Presi-

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Even if the many questions raised by the majority's failure to articulate a standard could be answered, a larger question would remain: If the Constitution's text empowers the Presi- dent to make appointments during any break in the Senate's proceedings, by what right does the majority subject the President's exercise of that power to vague, court-crafted limitations with no textual basis? The majority claims its temporal guideposts are informed by executive practice, but a President's self-restraint cannot “bind his successors by di- minishing their powers.” Free Enterprise Fund, 561 U. S., at 497; cf. Clinton v. Jones, 520 U. S. 681, 718 (1997) (Breyer, J., concurring in judgment) (“voluntary actions” by past Presi- dents “tel[l] us little about what the Constitution commands”).

An interpretation that calls for this kind of judicial adven- turism cannot be correct. Indeed, if the Clause really did use “Recess” in its colloquial sense, then there would be no “judicially discoverable and manageable standar[d] for resolving” whether a particular break was long enough to trigger the recess-appointment power, making that a non- justiciable political question. Zivotofsky, 566 U. S., at 195 (internal quotation marks omitted).

dent cannot make recess appointments during the session but can make recess appointments during any break between sessions, no matter how short. Contra the majority, that is not a “problem.” True, the recess- appointment power applies even during very short inter-session breaks.

But inter-session breaks typically occur at most a few times a year, and the recess-appointment power is of limited utility during very short inter- session breaks since, as explained below, the President can fll only those vacancies that arise during the break. See Part III, infra. Of course, as the Senate Judiciary Committee has argued, the break must be actual and not “constructive”; the Senate must adjourn for some measurable pe- riod of time between the two sessions. See infra, at 587–589. But the requirement that there actually be a recess does not involve anywhere near the level of indeterminacy entailed by the majority's requirement that the recess be long enough (or the circumstances unusual enough), as determined by a court, to trigger the recess-appointment power.

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B. Historical Practice

For the foregoing reasons, the Constitution's text and structure unambiguously refute the majority's freewheeling interpretation of “the Recess.” It is not plausible that the Constitution uses that term in a sense that authorizes the President to make unilateral appointments during any break in Senate proceedings, subject only to hazy, atextual limits crafted by this Court centuries after ratifcation. The ma- jority, however, insists that history “offers strong support” for its interpretation. Ante, at 528. The historical practice of the political branches is, of course, irrelevant when the Constitution is clear. But even if the Constitution were thought ambiguous on this point, history does not support the majority's interpretation.

1. 1789 to 1866

To begin, the majority dismisses the 78 years of history from the founding through 1866 as “not helpful” because dur- ing that time Congress took hardly any “signifcant” intra- session breaks, by which the majority evidently means breaks longer than three days. Ibid. (citing table in Appen- dix A, which does not include breaks of three or fewer days).

In fact, Congress took 11 intra-session breaks of more than three days during that time, see Congressional Directory 524–527, and it appears Presidents made recess appoint- ments during none of them.

More importantly, during those eight decades, Congress must have taken thousands of breaks that were three days or shorter. On the majority's reading, every one of those breaks would have been within the Clause's text—the major- ity's newly minted limitation not yet having been announced.

Yet there is no record of anyone, ever, having so much as mentioned the possibility that the recess-appointment power was activated during those breaks. That would be surprising indeed if the text meant what the majority thinks

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it means. Cf. Printz v. United States, 521 U. S. 898, 907– 908 (1997).

2. 1867 and 1868

The frst intra-session recess appointments in our history almost certainly were made by President Andrew Johnson in 1867 and 1868.5 That was, of course, a period of dramatic confict between the Executive and Congress that saw the frst-ever impeachment of a sitting President. The Solicitor General counts 57 intra-session recess appointments during those two years. App. to Brief for Petitioner 1a–9a. But the precise nature and historical understanding of many of those appointments is subject to debate. See, e. g., Brief for Constitutional Law Scholars as Amici Curiae 23–24; Rappa- port, Nonoriginalism 27–33. It seems likely that at least 36 of the 57 appointments were made with the understanding that they took place during a recess between sessions. See id., at 27–31.

As for the remainder, the historical record reveals nothing about how they were justifed, if at all. There is no indica- tion that Johnson's Attorney General or anyone else consid- ered at the time whether those appointments were made be- tween or during formal legislative sessions or, if the latter, how they could be squared with the constitutional text. The majority drives that point home by citing a judicial opinion

5 The majority does not contend otherwise. The Solicitor General claims that President Lincoln appointed a handful of brigadier generals during intra-session breaks in 1862 and 1863, but he does not include those appointments in his list of known intra-session recess appointments.

Compare Brief for Petitioner 22 with App. to Brief for Petitioner 1a.

Noel Canning convincingly argues that the generals were not given recess appointments but only unoffcial “acting appointments” for which they re- ceived no commissions. Brief for Respondent Noel Canning 25; see Rap- paport, Why Nonoriginalism Does Not Justify Departing from the Origi- nal Meaning of the Recess Appointments Clause (manuscript, at 27, n. 79) (hereinafter Rappaport, Nonoriginalism), online at http://papers.ssrn.com /sol3/papers.cfm?abstract_id=2374563 (all Internet materials as visited June 24, 2014, and available in the Clerk of Court's case fle).

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that upheld one of the appointments nearly two decades later with no analysis of the question presented here. See ante, at 528 (citing Gould v. United States, 19 Ct. Cl. 593 (1884)).

Johnson's intra-session appointments were disavowed by the frst Attorney General to address that question, see infra, at 587, and were not followed as precedent by the Executive Branch for more than 50 years, see infra, at 588. Thus, the relevance of those appointments to our constitutional inquiry is severely limited. Cf. Brief for Political Scientists and His- torians as Amici Curiae 21 (Johnson's appointments “should be viewed as anomalies” that were “sui generis in the frst 130 years of the Republic”).

3. 1869 to 1920

More than half a century went by before any other Presi- dent made an intra-session recess appointment, and there is strong reason to think that during that period neither the Executive nor the Senate believed such a power existed.

For one thing, the Senate adjourned for more than 3 days 45 times during that period, and 43 of those adjournments exceeded 10 days (and thus would not even be subject to the majority's “presumption” against the availability of re- cess appointments). See Congressional Directory 527–529.

Yet there is no evidence that a single appointment was made during any of those adjournments or that any Presi- dent before the 20th century even considered making such appointments.

In 1901 Philander Knox, the frst Attorney General known to have opined on the question, explicitly stated that the recess-appointment power was limited to the period between formal sessions. 23 Op. Atty. Gen. 599. Knox advised President Theodore Roosevelt that he could not appoint an appraiser of merchandise during an intra-session adjourn-

“[T]he Constitution and laws make it clear that in our legislative practice an adjournment during a session of

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Congress means a merely temporary suspension of busi- ness from day to day . . . whereas the recess means the period after the fnal adjournment of Congress for the session, and before the next session begins. . . . It is this period following the fnal adjournment for the session which is the recess during which the President has power to fll vacancies . . . . Any intermediate tempo- rary adjournment is not such recess, although it may be a recess in the general and ordinary use of that term.” Id., at 601.6

Knox went on to observe that none of the “many elaborate opinions” of previous Attorneys General concerning the recess-appointment power had asserted that the power could be exercised “during a temporary adjournment of the Sen- ate,” rather than “during the recess of the Senate between two sessions of Congress.” Id., at 602. He acknowledged the contrary example furnished by Johnson's appointments in 1867 and 1868, but noted (with perhaps too much tact) that “[t]he public circumstances producing this state of affairs were unusual and involved results which should not be viewed as precedents.” Id., at 603.

That was where things stood when, in 1903, Roosevelt made a number of controversial recess appointments. At noon on December 7, the Senate moved seamlessly from a special session into a regular one scheduled to begin at that hour. See 37 Cong. Rec. 544; 38 Cong. Rec. 1. Roosevelt claimed to have made the appointments in a “constructive” recess between the two sessions. See Special Session Is Merged Into Regular, N. Y. Times, Dec. 8, 1903, p. 1. He and his allies in the Senate justifed the appointments on the theory that “at the moment the gavel falls to summon the

6 The majority dismisses Knox's opinion as overly formalistic because it “relied heavily upon the use of the word `the' ” in the phrase “the Recess.” Ante, at 530. It did not. As the passage quoted above makes clear, Knox was relying on the common understanding of what “the Recess” meant in the context of marking out legislative time.

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regular session into being there is an infnitesimal fraction of a second, which is the recess between the two sessions.” Extra Session Muddle, N. Y. Times, Dec. 7, 1903, p. 3. In 1905, the Senate Judiciary Committee published a report criticizing the appointments on the ground that “the Consti- tution means a real recess, not a constructive one.” S. Rep.

No. 4389, 58th Cong., 3d Sess., p. 4. The report explained that the recess is “the period of time when the Senate is not sitting in regular or extraordinary session . . . when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive com- munications from the President or participate as a body in making appointments.” Id., at 2 (emphasis deleted).

The majority seeks support in this episode, claiming that the Judiciary Committee embraced a “broad and functional defnition of `recess' ” consistent with the one the majority adopts. Ante, at 533. On the contrary, the episode power- fully refutes the majority's theory. Roosevelt's legal justif- cation for his appointments was extremely aggressive, but even he recognized that “the Recess of the Senate” could take place only between formal sessions. If the majority's view of the Clause had been considered plausible, Roosevelt could have strengthened his position considerably by making the appointments during an intra-session break of a few (Just 10 minutes after the days, or at least a few hours. new session began on December 7, the Senate took “a recess for one hour.” 38 Cong. Rec. 2.) That he instead strained to declare a dubious inter-session recess of an “infnitesimal fraction of a second” is powerful evidence that the majority's view of “the Recess” was not taken seriously even as late as the beginning of the 20th century.

Yet the majority contends that “to the extent that the Sen- ate or a Senate committee has expressed a view, that view has favored a functional defnition of `recess' [that] encom- passes intra-session recesses.” Ante, at 531. It rests that contention entirely on the 1905 Judiciary Committee Report.

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This distorts what the Committee said when it denied Roose- velt's claim that there had been a recess. If someone avers that a catfsh is a cat, and I respond by pointing out that a catfsh lives in water and does not have four legs, I have not endorsed the proposition that every land-dwelling quadru- ped is a cat. Likewise, when the Judiciary Committee ex- plained that an instantaneous transition from one session to another is not a recess because the Senate is never absent, it did not suggest that the Senate's absence is enough to cre- ate a recess. To assume otherwise, as the majority does, is to commit the fallacy of the inverse (otherwise known as de- nying the antecedent): the incorrect assumption that if P im- plies Q, then not-P implies not-Q. Contrary to that falla- cious assumption, the Judiciary Committee surely believed, consistent with the Executive's clear position at the time, that “the Recess” was limited to (actual, not constructive) breaks between sessions.

4. 1921 to the Present

It is necessary to skip over the frst 13 decades of our Nation's history in order to fnd a Presidential legal adviser arguably embracing the majority's interpretation of “the Re- cess. ” In 1921 President Harding 's Attorney General, Harry Daugherty, advised Harding that he could make re- cess appointments while the Senate stood adjourned for 28 days during the session because “the term `recess' must be given a practical construction.” 33 Op. Atty. Gen. 20, 25.

Daugherty acknowledged Knox's 1901 opinion to the con- trary, id., at 21, but he (committing the same fallacy as to- day's majority) thought the 1905 Judiciary Committee Re- port had come to the opposite conclusion, id., at 23–24. He

that it would be impossible to “accurately dra[w]” a line be- tween intra-session breaks that constitute “the Recess” and those that do not. Id., at 25. But he thought the absence of a standard gave the President “discretion to determine

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when there is a real and genuine recess.” Ibid. While a “palpable abuse of discretion might subject his appointment to review,” Daugherty thought that “[e]very presumption [should] be indulged in favor of the validity of whatever ac- tion he may take.” Ibid.7

Only after Daugherty's opinion did the fow of intra- session recess appointments start, and for several years it was little more than a trickle. The Solicitor General has identifed 22 such appointments made by Presidents Harding, Coolidge, Hoover, and Franklin Roosevelt between 1921 and

recess appointments experienced a brief heyday after World War II, with President Truman making about 150 such ap- pointments to civilian positions and several thousand to mili- tary posts from 1945 through 1950. Id., at 12a–27a.

(The majority's impressive-sounding claim that “Presidents have made thousands of intra-session recess appointments,” ante, at 529, depends entirely on post-war military appointments that Truman made in just two years, 1947 and 1948.) Presi- dent Eisenhower made only 43 intra-session recess appoint- ments, App. to Brief for Petitioner 27a–30a, after which the practice sank back into relative obscurity. Presidents Ken- nedy, Lyndon Johnson, and Ford made none, while Nixon made just 7. Id., at 30a–31a. The practice rose again in the last decades of the 20th century: President Carter made 17 intra-session recess appointments, Reagan 72, George H.

W. Bush 37, Clinton 53, and George W. Bush 135. Id., at

31a–61a. When the Solicitor General fled his brief, Presi- dent Obama had made 26. Id., at 62a–64a. Even excluding Truman's military appointments, roughly 90 percent of all

7 I say Daugherty “arguably” embraced the majority's view because he may have been endorsing, not the majority's position, but the intermediate view that reads both “the Recess” and “the next Session” in functional terms, so that intra-session appointments would last only until the next intra-session break. See supra, at 578; Rappaport, Nonoriginalism 34–35.

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the intra-session recess appointments in our history have been made since 1945.

Legal advisers in the Executive Branch during this period typically endorsed the President's authority to make intra- session recess appointments by citing Daugherty's opinion with little or no additional analysis. See, e. g., 20 Opinions of Offce of Legal Counsel (Op. OLC) 124, 161 (1996) (fnding the question to have been “settled within the executive branch” by Daugherty's “often-cited opinion”). The majori- ty's contention that “opinions of Presidential legal advisers . . . are nearly unanimous in determining that the Clause authorizes [intra-session recess] appointments,” ante, at 529, is thus true but misleading: No Presidential legal adviser approved that practice before 1921, and subsequent approv- als have rested more on precedent than on independent examination.

The majority is correct that during this period, the Senate “as a body” did not formally repudiate the emerging execu- tive practice. Ante, at 531. And on one occasion, Comp- troller General Lindsay Warren cited Daugherty's opinion as representing “the accepted view” on the question, 28 Comp.

Gen. 30, 34 (1948), although there is no evidence he consulted any Senators or that his statement refected their views.

But the rise of intra-session recess appointments in the lat- ter half of the 20th century drew sharp criticism from a num- ber of Senators on both sides of the aisle. At frst, their objections focused on the length of the intra-session breaks at issue. See, e. g., 130 Cong. Rec. 22774–22776 (1984) (Sen.

Sarbanes) (decrying recess appointment during a 3-week intra-session adjournment as “a circumvention of the Senate confrmation power”); id., at 23235 (resolution offered by Sen. Byrd, with 39 cosponsors, urging that no recess appoint- ments occur during intra-session breaks of fewer than 30 days).

Later, many Senators sought to end intra-session recess appointments altogether. In 1993, the Senate Legal Coun-

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sel prepared a brief to be fled on behalf of the Senate in Mackie v. Clinton, 827 F. Supp. 56 (DC 1993), vacated in part as moot, 1994 WL 163761 (CADC 1994) (per curiam), but “Republican opposition” blocked the fling. 139 Cong.

Rec. 15266–15267. The brief argued that “the recess- [appointment] power is limited to Congress' annual recess between sessions,” that no contrary executive practice “of any appreciable magnitude” had existed before “the past ffty years,” and that the Senate had not “acquiesced in this steady expansion of presidential power.” Id., at 15268, 15270. It explained that some Senators had limited their objections to shorter intra-session breaks out of a desire “to coexist with the Executive” but that “the Executive's subsequent, steady chipping away at the length of recess suf- fcient for making recess appointments ha[d] demonstrated the need to return to the Framers' original intent and limit the power to intersession adjournments.” Id., at 15267, 15272. Senator Kennedy reiterated that position in a brief to this Court in 2004. Brief for Sen. Kennedy as Amicus Curiae in Franklin v. United States, O. T. 2004, No. 04–5858,

p. 5. Today the partisan tables are turned, and that position

is urged on us by the Senate's RepublicanMembers. See Brief for Sen. McConnell et al. as AmiciCuriae 26.

* * *

What does all this amount to? In short: Intra-session recess appointments were virtually unheard of for the frst 130 years of the Republic, were deemed unconstitutional by the frst Attorney General to address them, were not openly defended by the Executive until 1921, were not made in signifcant numbers until after World War II, and have been repeatedly criticized as unconstitutional by Senators of both parties. It is astonishing for the majority to assert that this history lends “strong support,” ante, at 528, to its interpretation of the Recess Appointments Clause. And the majority's contention that recent executive practice

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in this area merits deference because the Senate has not done more to oppose it is utterly divorced from our prec- edent. “The structural interests protected by the Ap- pointments Clause are not those of any one branch of Government but of the entire Republic,” Freytag, 501

U. S., at 880, and the Senate could not give away those

protections even if it wanted to. See Chadha, 462 U. S., at 957–958; Clinton, 524 U. S., at 451–452 (Kennedy, J., concurring).

Moreover, the majority's insistence that the Senate gain- say an executive practice “as a body” in order to prevent the Executive from acquiring power by adverse possession, ante, at 531, will systematically favor the expansion of executive power at the expense of Congress. In any controversy be- tween the political branches over a separation-of-powers question, staking out a position and defending it over time is far easier for the Executive Branch than for the Legislative Branch. See generally Bradley and Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 439–447 (2012). All Presidents have a high interest in ex- panding the powers of their offce, since the more power the President can wield, the more effectively he can implement his political agenda; whereas individual Senators may have little interest in opposing Presidential encroachment on leg- islative prerogatives, especially when the encroacher is a President who is the leader of their own party.

(The major- ity would not be able to point to a lack of “formal action” by the Senate “as a body” challenging intra-session recess appointments, ante, at 533, had the appointing President's party in the Senate not blocked such action on multiple occa- sions.) And when the President wants to assert a power and establish a precedent, he faces neither the collective- action problems nor the procedural inertia inherent in the legislative process. The majority's methodology thus all but guarantees the continuing aggrandizement of the Executive Branch.

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The second question presented is whether vacancies that “happen during the Recess of the Senate,” which the Presi- dent is empowered to fll with recess appointments, are (a) vacancies that arise during the recess, or (b) all vacancies that exist during the recess, regardless of when they arose. I would hold that the recess-appointment power is limited to vacancies that arise during the recess in which they are flled, and I would hold that the appointments at issue here— which undisputedly flled pre-recess vacancies—are invalid for that reason as well as for the reason that they were made during the session. The Court's contrary conclusion is in- consistent with the Constitution's text and structure, and it further undermines the balance the Framers struck between Presidential and Senatorial power. Historical practice also fails to support the majority's conclusion on this issue.

A. Plain Meaning

As the majority concedes, “the most natural meaning of `happens' as applied to a `vacancy' . . . is that the vacancy `happens' when it initially occurs.” Ante, at 538. The ma- jority adds that this meaning is most natural “to a modern ear,” ibid., but it fails to show that founding-era ears heard it differently. “Happen” meant then, as it does now, “[t]o fall out; to chance; to come to pass.” 1 Johnson, Dictionary of the English Language 913. Thus, a vacancy that happened during the recess was most reasonably understood as one that arose during the recess. It was, of course, possible in certain contexts for the word “happen” to mean “happen to be” rather than “happen to occur,” as in the idiom “it so happens.” But that meaning is not at all natural when the subject is a vacancy, a state of affairs that comes into exist- ence at a particular moment in time.8

8 Despite initially admitting that the text “does not naturally favor” its interpretation, the majority halfheartedly suggests that the “ `happen to be' ” reading may be admissible when the subject, like “vacancy,” denotes

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In any event, no reasonable reader would have understood the Recess Appointments Clause to use the word “happen” in the majority's “happen to be” sense, and thus to empower the President to fll all vacancies that might exist during a recess, regardless of when they arose. For one thing, the Clause's language would have been a surpassingly odd way of giving the President that power. The Clause easily could have been written to convey that meaning clearly: It could have referred to “all Vacancies that may exist during the Recess,” or it could have omitted the qualifying phrase en- tirely and simply authorized the President to “fll up all Va- cancies during the Recess.” Given those readily available alternative phrasings, the reasonable reader might have wondered, why would any intelligent drafter intending the majority's reading have inserted the words “that may hap- pen”—words that, as the majority admits, make the majori- ty's desired reading awkward and unnatural, and that must be effectively read out of the Clause to achieve that reading?

For another thing, the majority's reading not only strains the Clause's language but distorts its constitutional role, which was meant to be subordinate. As Hamilton ex- plained, appointment with the advice and consent of the Sen- ate was to be “the general mode of appointing offcers of the United States.” The Federalist No. 67, at 455. The Sen- ate's check on the President's appointment power was seen as vital because “ `manipulation of offcial appointments' had long been one of the American revolutionary generation's greatest grievances against executive power.” Freytag, 501

U. S., at 883. The unilateral power conferred on the Presi-

dent by the Recess Appointments Clause was therefore un-

a “continuing state.” Ante, at 538–539. That suggestion distorts ordi- nary English usage. It is indeed natural to say that an ongoing activity or event, like a war, a parade, or a fnancial crisis, is “happening” for as long as it continues. But the same is not true when the subject is a set- tled state of affairs, like death, marriage, or vacancy, all of which “happen” when they come into being.

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derstood to be “nothing more than a supplement” to the “general method” of advice and consent. The Federalist No. 67, at 455.

If, however, the Clause had allowed the President to fll all pre-existing vacancies during the recess by granting com- missions that would last throughout the following session, it would have been impossible to regard it—as the Framers plainly did—as a mere codicil to the Constitution's principal, power-sharing scheme for flling federal offces. On the ma- jority's reading, the President would have had no need ever

Whenever there was a fair prospect of the Senate's rejecting his preferred nominee, the President could have appointed that individual unilaterally during the recess, allowed the appointment to expire at the end of the next session, re- newed the appointment the following day, and so on ad inf- (Circumvention would have been especially easy if, nitum. as the majority also concludes, the President was authorized to make such appointments during any intra-session break of more than a few days.) It is unthinkable that such an obvious means for the Executive to expand its power would have been overlooked during the ratifcation debates.9

The original understanding of the Clause was consistent with what the majority concedes is the text's “most natural meaning.” Ante, at 538. In 1792, Attorney General Ed- mund Randolph, who had been a leading member of the Con- stitutional Convention, provided the Executive Branch's frst formal interpretation of the Clause. He advised President

9 The majority insists that “character and politics” will ordinarily pre- vent the President from circumventing the Senate, and that the Senate has “political resources” to respond to attempts at circumvention. Ante, at 542. Neither character nor politics prevented Theodore Roosevelt from proclaiming a fctitious recess lasting an “infnitesimal fraction of a second.” In any event, the Constitution does not entrust the Senate's role in the appointments process to the vagaries of character and politics.

See, e. g., Freytag v. Commissioner, 501 U. S. 868, 879–880 (1991).

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Washington that the Constitution did not authorize a recess appointment to fll the offce of Chief Coiner of the United States Mint, which had been created by Congress on

“[I]s it a vacancy which has happened during the recess of the Senate? It is now the same and no other vacancy, than that, which existed on the 2nd. of April 1792. It commenced therefore on that day or may be said to have happened on that day.” Opinion on Recess Appointments (July 7, 1792), in 24 Papers of Thomas Jefferson 165–166 (J. Catanzariti ed.

1990). Randolph added that his interpretation was the most congruent with the Constitution's structure, which made the recess-appointment power “an exception to the general par- ticipation of the Senate.” Ibid. (footnote omitted).

President John Adams' Attorney General, Charles Lee, was in agreement. See Letter to George Washington (July 7, 1796) (the President may “fll for a limited time an old offce become vacant during [the] recess” (emphasis added)), online at http://founders.archives.gov/documents/Washington /99-01-02-00702; Letter from James McHenry to John Adams (May 7, 1799) (hereinafter 1799 McHenry Letter) (conveying Lee's advice that certain offces were “ `vacanc[ies] happen- ing during the session, which the President cannot fll, dur- ing the recess, by the powers vested in him by the constitu- tion' ”), online at http://wardepartmentpapers.org/document .php?id=31766.10 One of the most prominent early academic

10 The majority does not deny that Lee took those positions, but it claims he also “later informed [Thomas] Jefferson that, in the Adams administra- tion, `whenever an offce became vacant, so short a time before Congress rose, as not to give an opportunity of enquiring for a proper character, they let it lie always till recess.' ” Ante, at 543 (quoting Letter from Jef- ferson to Wilson Cary Nicholas (Jan. 26, 1802), in 36 Papers of Thomas Jefferson 433 (B. Oberg ed. 2009) (hereinafter 1802 Jefferson Letter)).

Assuming Lee in fact made the statement attributed to him by Jefferson, and further assuming that Lee endorsed the constitutionality of the prac- tice described in that statement (which Jefferson does not say), that prac- tice could only have been regarded as a pragmatic exception to the general

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commenters on the Constitution read the Clause the same way. See 1 St. George Tucker, Blackstone's Commentaries, App. 342–343 (1803) (assuming the President could appoint during the recess only if “the offce became vacant during the recess”).

Early Congresses seem to have shared Randolph's and Lee's view. A statute passed by the First Congress author- ized the President to appoint customs inspectors “with the advice and consent of the Senate” and provided that “if the appointment . . . shall not be made during the present session of Congress, the President . . . is hereby empowered to make such appointments during the recess of the Senate, by grant- ing commissions which shall expire at the end of their next session.” Act of Mar. 3, 1791, § 4, 1 Stat. 200. That authori- zation would have been superfuous if the Recess Appoint- ments Clause had been understood to apply to pre-existing vacancies. We have recognized that an action taken by the First Congress “provides `contemporaneous and weighty evi- dence' of the Constitution's meaning.” Bowsher, 478 U. S., at 723–724. And other statutes passed in the early years of the Republic contained similar authorizations. See App. to Brief for Respondent Noel Canning 1a–17a.11

view of the Clause that Lee, like Randolph, espoused. And the practice must not have been extensive, since the Solicitor General has been unable to identify even a single appointment made by Adams that flled a pre- recess vacancy. See infra, at 602–603.

11 The majority suggests that these statutes may have refected, not a belief that the recess-appointment power was limited to vacancies arising during the recess, but a “separate” belief that the power could not be used for “new offces” created by Congress and not previously flled. Ante, at 546. But the latter view (which the majority does not endorse) was inseparably linked with the former (which the majority rejects), as is made clear by the very source the majority cites. See Letter from Alexander Hamilton to James McHenry (May 3, 1799), in 23 Papers of Alexander Hamilton 94 (H. Syrett ed. 1976) (“[T]he power to fll the Vacancy is not the power to make an original appointment. The phrase `Which may have hap- pened' serves to confrm this construction. . . . [I]ndependent of the author- ity of a special law, the President cannot fll a vacancy which happens

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Also illuminating is the way the Third Congress inter- preted the Constitution's Senate Vacancies Clause, which uses language similar to that of the Recess Appointments Clause. Before the passage of the Seventeenth Amend- ment, the Constitution provided that “if Vacancies [in the Senate] happen by Resignation, or otherwise, during the Re- cess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature.” Art. I, § 3, cl. 2. Senator George Read of Delaware resigned in December 1793; the state legislature met in January and February 1794; and the Governor ap- pointed Kensey Johns to fll the seat in March 1794. The Senate refused to seat Johns, resolving that he was “not enti- tled to a seat in the Senate of the United States; a session of the Legislature of the said State having intervened, between the resignation . . . and the appointment.” 4 Annals of Cong. 77–78 (1794). It is thus clear that the phrase “happen . . . during the Recess” in the Senate Vacancies Clause was understood to refer to vacancies that arose, not merely ex- isted, during the recess in which the appointment was made.

It is not apparent why the nearly identical language of the Recess Appointments Clause would have been understood differently.

The majority, however, relies heavily on a contrary ac- count of the Clause given by Attorney General William Wirt in 1823. See 1 Op. Atty. Gen. 631. Wirt notably began—as does the majority—by acknowledging that his predecessors' reading was “most accordant with the letter of the constitu-

during a session of the Senate”); see also 2 Op. Atty. Gen., at 334 (“If the vacancy exist during the session of the Senate, as in the frst creation of an offce by law, it has been held that the President cannot appoint during the recess, unless he is specially authorized so to do by law”); W. Rawle, A View of the Constitution of the United States of America 163 (2d ed.

1829) (reprint 2009) (“It has been held by [the Senate], that if new offces are created by congress, the president cannot, after the adjournment of the senate, make appointments to fll them. The vacancies do not happen during the recess of the senate”).

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tion.” Id., at 632. But he thought the “most natural” read- ing had to be rejected because it would interfere with the “substantial purpose of the constitution,” namely, “keep[ing] . . . offces flled.” Id., at 631–632. He was chiefy con- cerned that giving the Clause its plain meaning would produce “embarrassing inconveniences” if a distant offce were to become vacant during the Senate's session, but news of the vacancy were not to reach the President until the re- cess. Id., at 632, 634. The majority fully embraces Wirt's reasoning. Ante, at 539–541.

Wirt's argument is doubly fawed. To begin, the Constitu- tion provides ample means, short of rewriting its text, for dealing with the hypothetical dilemma Wirt posed. Con- gress can authorize “acting” offcers to perform the duties associated with a temporarily vacant offce—and has done that, in one form or another, since 1792. See 5 U. S. C. § 3345; Act of May 8, 1792, ch. 37, § 8, 1 Stat. 281; 705 F. 3d, at 511; Rappaport, Original Meaning 1514–1517. And on “extraordinary Occasions” the President can call the Senate back into session to consider a nomination. Art. II, § 3. If the Framers had thought those options insuffcient and pre- ferred to authorize the President to make recess appoint- ments to fll vacancies arising late in the session, they would have known how to do so. Massachusetts, for example, had authorized its Governor to make certain recess appointments “in case a vacancy shall happen . . . in the recess of the Gen- eral Court [i. e., the state legislature], or at so late a period in any session of the same Court, that the vacancy . . . shall not be supplied in the same session thereof.” 1783 Mass.

Acts ch. 12, in Acts and Laws of the Commonwealth of Mas- sachusetts 523 (1890) (emphasis added).

The majority protests that acting appointments, unlike recess appointments, are an “inadequate” solution to Wirt's hypothetical dilemma because acting offcers “may have less authority than Presidential appointments.” Ante, at 541.

It cites an OLC opinion which states that “an acting of- Cite as: 573 U. S. 513 (2014)

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fcer . . . is frequently considered merely a caretaker without a mandate to take far-reaching measures.” 6 Op. OLC 119, 121 (1982). But just a few lines later, the majority says that “the lack of Senate approval . . . may diminish the recess appointee's ability, as a practical matter, to get a controver- sial job done.” Ante, at 542. The majority does not explain why an acting offcer would have less authority “as a practi- cal matter” than a recess appointee. The majority also ob- jects that requiring the President to rely on acting offcers would “lessen the President's ability to staff the Executive Branch with people of his own choosing,” ante, at 541—a surprising charge, since that is the very purpose of the Con- stitution's advice-and-consent requirement. As for special sessions, the majority thinks it a suffcient answer to say that they are “burdensome,” ibid., an observation that fails to distinguish them from many procedures required by our structural Constitution.

More fundamentally, Wirt and the majority are mistaken to say that the Constitution's “ `substantial purpose' ” is to “ `keep . . . offces flled.' ” Ibid. (quoting 1 Op. Atty. Gen., at 632). The Constitution is not a road map for maximally effcient government, but a system of “carefully crafted re- straints” designed to “protect the people from the improvi- dent exercise of power.” Chadha, 462 U. S., at 957, 959.

Wirt's and the majority's argumentum ab inconvenienti thus proves far too much. There are many circumstances other than a vacancy that can produce similar inconveniences if they arise late in the session: For example, a natural disas- ter might occur to which the Executive cannot respond effec- tively without a supplemental appropriation. But in those circumstances, the Constitution would not permit the Presi- dent to appropriate funds himself. See Art. I, § 9, cl. 7.

Congress must either anticipate such eventualities or be pre- pared to be haled back into session. The troublesome need to do so is not a bug to be fxed by this Court, but a calcu- lated feature of the constitutional framework. As we have

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recognized, while the Constitution's government-structuring provisions can seem “clumsy” and “ineffcient,” they refect “hard choices . . . consciously made by men who had lived under a form of government that permitted arbitrary gov- ernmental acts to go unchecked.” Chadha, supra, at 959.

B. Historical Practice

For the reasons just given, it is clear that the Constitution authorizes the President to fll unilaterally only those vacan- cies that arise during a recess, not every vacancy that hap- pens to exist during a recess. Again, however, the majority says “[h]istorical practice” requires the broader interpreta- tion. Ante, at 543. And again the majority is mistaken.

Even if the Constitution were wrongly thought to be ambigu- ous on this point, a fair recounting of the relevant history does not support the majority's interpretation.

1. 1789 to 1822

The majority correctly admits that there is “no undisputed record of Presidents George Washington, John Adams, or Thomas Jefferson” using a recess appointment to fll a pre- recess vacancy. Ibid. That is not surprising in light of Randolph's early conclusion that doing so would be unconsti- tutional. Adams on one occasion contemplated flling pre- recess vacancies but was dissuaded by, among others, Attor- ney General Lee, who said the Constitution did not permit him to do so. See 1799 McHenry Letter.12 And the Solici-

12 See also Letter from Adams to James McHenry (April 16, 1799), in 8 Works of John Adams 632 (C. Adams ed. 1853) (proposing the appoint- ments); Letter from Adams to McHenry (May 16, 1799), in id., at 647 (agreeing to “suspend [the appointments] for the present, perhaps till the meeting of the Senate”). Before advising Adams, McHenry also consulted Alexander Hamilton, who agreed that the appointments would be unlaw- ful. See Letter from McHenry to Hamilton (Apr. 26, 1799), in 23 Papers of Alexander Hamilton, at 69, 70 (“It would seem that, under this Constitu- tional power, the President cannot alone . . . fll up vacancies that may happen during a session of the senate”); Letter from Hamilton to McHenry

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tor General does not allege that even a single appointment made by Adams flled a pre-recess vacancy. Jefferson, too, at one point thought the Clause “susceptible of ” the majori- ty's reading, 1802 Jefferson Letter, but his administration, like Adams', appears never to have adopted that reading.

James Madison's administration seems to have rejected the majority's reading as well. In 1814, Madison wanted to appoint Andrew Jackson to a vacant major-generalship in the Army during the Senate's recess, but he accepted, with- out contradiction or reservation, his Secretary of War's ad- vice that he lacked the power to do so because the post's previous occupant had resigned before the recess. He therefore ordered that Jackson be given a “brevet of Major General,” i. e., a warrant conferring the nominal rank with- out the salary thereof. Letter from John Armstrong to Madison (May 14, 1814); Letter from Madison to Armstrong (May 17, 1814). In conveying the brevet, Madison's Secre- tary of War explained to Jackson that “ `[t]he vacancy produced by Gen. Hampton's resignation, not having been flled during the late session of the Senate, cannot be sup- plied constitutionally, during the recess.' ” Letter from Armstrong to Jackson (May 22, 1814). A week later, when Madison learned that a different major general had resigned during the recess, he thought that development would en- able him to appoint Jackson “at once.” Letter from Madison to Armstrong (May 24, 1814); see Letter from Armstrong to Madison (May 20, 1814) (reporting the resignation).13

The majority discounts that evidence of an occasion when Madison and his advisers actually considered the precise con- stitutional question presented here. It does so apparently

(May 3, 1799), in id., at 94 (“It is clear, that independent of the authority of a special law, the President cannot fll a vacancy which happens during a session of the Senate”).

13 All the letters cited in this paragraph are available online courtesy of the Library of Congress. See James Madison Papers, http://memory.loc .gov/ammem/collections/madison_papers.

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because Madison, in acting on the advice he was given with- out questioning the interpretation of the recess-appointment power that was offered as the reason for that advice, did not explicitly say “I agree.” The majority prefers to focus on fve appointments by Madison, unremarked by anyone at the time, that “the evidence suggests” flled pre-recess vacan- cies. Ante, at 543. Even if the majority is correct about those appointments, there is no indication that any thought was given to their constitutionality, either within or outside the Executive Branch. A handful of appointments that ap- pear to contravene the written opinions of Attorneys Gen- eral Randolph and Lee and the written evidence of Madison's own beliefs about what the Constitution authorized, and that lack any contemporaneous explanation, are not convincing evidence of the Constitution's original meaning.14

If Madison or his predecessors made any appointments in reliance on the broader reading, those appointments must have escaped general notice. In 1822, the Senate Commit- tee on Military Affairs declared that the President had “no power to make [appointments] in the recess” where “the va- cancies did not happen in the recess.” 38 Annals of Cong.

“heretofore observed” and that “no instance ha[d] before oc- curred . . . where the President ha[d] felt himself authorized to fll such vacancies, without special authority by law.” Ibid.; see also T. Sergeant, Constitutional Law 373 (2d ed.

1830) (“[I]t seemed distinctly understood to be the sense of the senate, that [it] is only in offces that become vacant dur-

14 The same can be said of the Solicitor General's claim to have found two recess appointments by Washington and four by Jefferson that flled pre-existing vacancies. Noel Canning disputes that claim, pointing out that Washington told the Senate the offces in question had “ `fallen vacant during the recess' ” and arguing that Jefferson may have removed the incumbent offcers during the recess. Brief for Respondent Noel Canning

44. Suffce it to say that if either Washington or Jefferson had adopted

the broader reading, against the written advice of Attorneys General Ran- dolph and Lee, one would expect a good deal more evidence of that fact.

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ing the recess, that the president is authorised to exercise the right of appointing”).

2. 1823 to 1862

The Executive Branch did not openly depart from Ran- dolph's and Lee's interpretation until 1823, when Wirt issued the opinion discussed earlier. Even within that branch, Wirt's view was hotly contested: William Crawford, Monroe's Treasury Secretary, argued “with great pertinacity” that the Clause authorized the President to fll only “vacancies which happen during the recess” and not those “which happen while Congress are in session.” 5 Memoirs of John Quincy Adams 486–487 (C. Adams ed. 1875). Wirt's analysis none- theless gained ground in the Executive Branch over the next four decades; but it did so slowly and ftfully.

In 1830, Attorney General Berrien disagreed with Wirt when he wrote that “[i]f the vacancy exist during the session of the Senate, . . . the President cannot appoint during the recess.” 2 Op. Atty. Gen. 333, 334. Two years later, Attor- ney General Taney endorsed Wirt's view although doing so was, as he acknowledged, unnecessary to resolve the issue before him: whether the President could, during the recess, fll a vacancy resulting from the expiration of a prior recess appointment at the end of the Senate's session. 2 Op. Atty.

Gen. 525, 528 (1832). Addressing the same issue in 1841, Attorney General Legaré appeared to believe the dispositive question was whether the offce could be said to have “be- com[e] vacant” during the recess. 3 Op. Atty. Gen. 673, 674.

And in 1845, Attorney General Mason thought it “well estab- lished” that “[i]f vacancies are known to exist during the ses- sion of the Senate, and nominations are not then made, they cannot be flled by executive appointments in the recess.” 4 Op. Atty. Gen. 361, 363.15

15 A year later Mason, like Taney and Legaré before him, concluded that when a recess appointment expired at the end of the Senate's session, the President could fll the resulting vacancy during the ensuing recess. In

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The tide seemed to turn—as far as the Executive Branch was concerned—in the mid-19th century: Attorney General Cushing in 1855 and Attorney General Bates in 1862 both treated Wirt's position as settled without subjecting it to ad- ditional analysis. 7 Op. Atty. Gen. 186, 223; 10 Op. Atty. Gen.

validity. Ibid. And as one 19th-century court shrewdly ob- served in rejecting Wirt's interpretation, the frequency with which Attorneys General during this period were called upon to opine on the question likely “indicate[s] that no set- tled administrative usage had been . . . established.” In re District Attorney of United States, 7 F. Cas. 731, 738 (No. 3,924) (DC Pa. 1868). The Solicitor General identifes only 10 recess appointments made between 1823 and 1863 that flled pre-recess vacancies—about one every four years.

App. to Brief for Petitioner 68a–71a. That is hardly an im- pressive number, and most of the appointments were to minor offces (like Deputy Postmaster for Janesville, Wiscon- sin, id., at 70a) unlikely to have gotten the Senate's attention.

But the Senate did notice when, in 1862, President Lincoln recess-appointed David Davis to fll a seat on this Court that had become vacant before the recess, id., at 71a—and it re- acted with vigor.

3. 1863 to 1939

Two months after Lincoln's recess appointment of Davis, the Senate directed the Judiciary Committee “to inquire whether the practice . . . of appointing offcers to fll vacan- cies which have not occurred during the recess of Congress, but which existed at the preceding session of Congress, is in accordance with the Constitution; and if not, what remedy shall be applied.” Cong. Globe, 37th Cong., 3d Sess., 100

reaching that conclusion, Mason reiterated that the recess-appointment power “depends on the happening of vacancies when the Senate is not in session” and said the vacancy at issue was “within the meaning of ” the Clause because the happening of the vacancy and the termination of the session had “occurred eo instanti.” 4 Op. Atty. Gen. 523, 526–527 (1846).

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(1862). The Committee responded with a report denouncing Wirt's interpretation of the Clause as “artifcial,” “forced and unnatural,” “unfounded,” and a “perversion of language.”

S. Rep. No. 80, 37th Cong., 3d Sess., pp. 4–6 (1863). Because

the majority all but ignores this evidence of the Senate's views, it is worth quoting the report at some length:

“When must the vacancy . . . accrue or spring into existence? May it begin during the session of the Sen- ate, or must it have its beginning during the recess?

We think the language too clear to admit of reasonable doubt, and that, upon principles of just construction, this period must have its inceptive point after one session has closed and before another session has begun. . . .

.

.

.

.

.

“We . . . dissent from the construction implied by the substituted reading, `happened to exist,' for the word `happen' in the clause. . . . [I]f a vacancy once exists, it has in law happened; for it is in itself an instantaneous event. It implies no continuance of the act that pro- duces it, but takes effect, and is complete and perfect at an indivisible point of time, like the beginning or end of a recess. Once in existence, it has happened, and the mere continuance of the condition of things which the occurrence produces, cannot, without confounding the most obvious distinctions, be taken or treated as the oc- currence itself, as Mr. Wirt seems to have done. . . .

“Again, we see no propriety in forcing the language from its popular meaning in order to meet and fulfl one confessedly great purpose, (the keeping the offce flled,) while there is plainly another purpose of equal magni- tude and importance (ftting qualifcations) attached to and inseparable from the former.” Id., at 3–6.

The Committee acknowledged that the broad reading “ha[d] been, from time to time, sanctioned by Attorneys General . . . and that the Executive ha[d], from time to time, practiced

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upon it,” but it said the Executive's practice was entitled to no weight because the Constitution's text was “too plain to admit of a doubt or to need interpretation.” Id., at 7.

On the same day the Committee published its scathing re- port, its chairman, Senator Trumbull, proposed a law barring the payment of any offcer appointed during the recess to fll a pre-recess vacancy. Cong. Globe, 37th Cong., 3d Sess., 564.

“It ought to be understood distinctly, that when an of- fcer does not come within the rules of law, and is appointed in that way in defance of the wishes of the Senate, he shall not be paid. It may not be in our power to prevent the appointment, but it is in our power to prevent the payment; and when payment is prevented, I think that will probably put an end to the habit of making such appointments.” Id., at 565.

The amendment was adopted by the Senate, ibid., and after passing the House became the Pay Act, which provided that “no money shall be paid . . . out of the Treasury, as salary, to any person appointed during the recess of the Senate, to fll a vacancy . . . which . . . existed while the Senate was in session.” Act of Feb. 9, 1863, § 2, 12 Stat. 646 (codifed at Rev. Stat. § 1761; subsequently codifed as amended at 5

U. S. C. § 56 (1925–1926 ed.)).

The Pay Act would remain in force without signifcant modification for nearly eight decades. The Executive Branch, however, refused to acknowledge that the Act em- bodied the Senate's rejection of the broad reading of “hap- pen.” Several Attorneys General continued to treat Wirt's interpretation as settled without so much as mentioning the Act. See 12 Op. Atty. Gen. 32 (1866); 12 Op. Atty. Gen. 449 (1868); 14 Op. Atty. Gen. 562 (1875); 15 Op. Atty. Gen. 207 (1877). And when, 17 years after its passage, Attorney Gen- eral Devens deigned to acknowledge the Act, he preposter-

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ously described it as “conced[ing]” the President's power to make the appointments for which the Act barred payment.

16 Op. Atty. Gen. 522, 531 (1880).

The majority is not that bold. Instead, it relegates the 1863 Judiciary Committee Report to a pair of anodyne sen- tences in which it says only that the Committee “disagreed with” Wirt's interpretation. Ante, at 547.

(With like un- derstatement, one could say that Shakespeare's Mark An- tony “disagreed with” Caesar's detractors.) Even more re- markably, the majority goes on to claim that the Senate's passage of the Pay Act on the same day the Committee is- sued its report was not a strong enough statement to impede the constitutionalization-by-adverse-possession of the power asserted by the Executive. Why not? Because, the major- ity says, some Senators may have disagreed with the report, and because the Senate did not go so far as to make accept- ance of a recess appointment that flled a pre-recess vacancy “a federal crime.” Ibid. That reasoning starkly illustrates the excessive burden the majority places on the Legislative Branch in contests with the Executive over the separation of powers. See supra, at 593.

Despite its minimization by subsequent Attorneys General and by today's majority, there is no reason to doubt that the Pay Act had a deterrent effect. The Solicitor General has identifed just 40 recess appointments that flled pre-recess vacancies during the nearly eight decades between the Act's passage in 1863 and its amendment in 1940. App. to Brief for Petitioner 71a–79a.16

16 In the early 20th century, some Senators acceded to the majority's reading of the Clause, as the majority is eager to point out, ante, at 547–

548. In 1904, Senator Tillman allowed that “the Senate ha[d] acquiesced”

in the President's use of the recess-appointment power to fll pre-existing vacancies, 38 Cong. Rec. 1606, though he also quoted at length from the 1863 Judiciary Committee Report and said he did “not see how anybody can fnd any argument to controvert the position [the report] takes,” id., at 1608. And in 1916, Senators Robinson and Sutherland accepted the

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4. 1940 to the Present

The majority fnds it highly signifcant that in 1940, Con- gress created a few carefully limited exceptions to the Pay Act's prohibition on paying recess appointees who flled pre- recess vacancies. See Act of July 11, 1940, ch. 580, 54 Stat. 751, now codifed with nonsubstantive amendments at

5 U. S. C. § 5503. Under the current version of the Act,

“[p]ayment for services may not be made from the Treasury of the United States to an individual appointed during a re- cess of the Senate to fll a vacancy” that “existed while the Senate was in session” unless either the vacancy arose, or a different individual's nomination to fll the vacancy was re- jected, “within 30 days before the end of the session”; or a nomination was pending before the Senate at the end of the session, and the individual nominated was not himself a re- cess appointee. § 5503(a)(1)–(3). And if the President flls a pre-recess vacancy under one of the circumstances speci- fed in the Act, the law requires that he submit a nomination for that offce to the Senate “not later than 40 days after the beginning of the next session.” § 5503(b).

The majority says that by allowing salaries to be paid to recess appointees in these narrow circumstances, “the 1940 Senate (and later Senates) in effect supported” the majority's interpretation of the Clause. Ante, at 549. Nonsense.

Even as amended, the Act strictly regulates payment to re- cess appointees who fll pre-recess vacancies, and it still for- bids payment to many offcers whose appointments are con- stitutional under the majority's interpretation. As amici Senators observe, the 1940 amendments “refect at most a desire not to punish public servants caught in the crossfre” of interbranch confict. Brief for Sen. McConnell et al. as Amici Curiae 30. Surely that inference is more reasonable

majority's reading without analysis. 53 Cong. Rec. 4298. The reader can decide whether those statements by three Senators justify the assertion that the Senate “abandoned its hostility” to the broad reading, ante, at 547.

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than the majority's supposition that Congress, by permitting some of the appointees covered by the Act to be paid, meant to signal that it now believed all of the covered appointments were valid.

Moreover, given the majority's interpretation of the Re- cess Appointments Clause, it is fairly debatable whether the current version of the Pay Act is constitutional (and a forti- ori, whether the pre-1940 version was constitutional). Even as amended, the Act seeks to limit and channel the Presi- dent's exercise of the recess-appointment power by forbid- ding payment to offcers whose appointments are (per the majority) within the President's sole constitutional authority if those appointments do not comply with conditions imposed by Congress, and by requiring the President to submit a nominee to the Senate in the frst 40 days of the ensuing session. There is a colorable argument—which is routinely made by lawyers in the Executive Branch—that Congress “ `cannot use the appropriations power to control a Presi- dential power that is beyond its direct control.' ” 33 Op.

OLC –––, ––– (2009), online at http://www.justice.gov/olc /opiniondocs/section7054.pdf (quoting 20 Op. OLC 253, 267 (1996)). Consistent with that view, the Offce of Legal Counsel has maintained that Congress could not “condition . . . the funding of an offcer's salary on being allowed to appoint the offcer.” 13 Op. OLC 258, 261 (1989).

If that is correct, then the Pay Act's attempt to control the President's exercise of the recess-appointment power at least raises a substantial constitutional question under the majori- ty's reading of the Recess Appointments Clause. See Rap- paport, Original Meaning 1544–1546. The Executive has not challenged the Act's constitutionality in this case, and I express no opinion on whether such a challenge would suc- ceed. I simply point out that it is impossible to regard the amended Pay Act as evidence of Senatorial acquiescence in the majority's reading when that reading has the potential to invalidate the Act.

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Since the Pay Act was amended, individual Senators have continued to maintain that recess appointments may not con- stitutionally be used to fll pre-recess vacancies. See, e. g., 130 Cong. Rec. 22780 (statement of seven Senators that a recess appointment to the Federal Reserve Board in 1984 was unconstitutional because the vacancy “did not happen during the recess”); Brief for Sen. McConnell et al. as Amici Curiae 26 (45 Senators taking that view of the Clause).

And there is no evidence that the watering-down of the Pay Act produced an immediate food of recess appointments fll- ing pre-recess vacancies. The Solicitor General has pointed us to only 40 such appointments between 1940 and the pres- ent. App. to Brief for Petitioner 79a–89a.

The majority, however, fnds it signifcant that in two small “random sample[s]” of contemporary recess appointments— 24 since 1981 and 21 since 2000—the bulk of the appoint- ments appear to have flled pre-existing vacancies. Ante, at

546. Based on that evidence, the majority thinks it “a fair

inference that a large proportion of the recess appointments in the history of the Nation have flled pre-existing vacan- cies.” Ibid. The extrapolation of that sweeping conclusion from a small set of recent data does not bear even the slight- est scrutiny. The majority ignores two salient facts: First, from the founding until the mid-19th century, the President's authority to make such appointments was far from settled even within the Executive Branch. Second, from 1863 until 1940, it was illegal to pay any recess appointee who flled a pre-recess vacancy, which surely discouraged Presidents from making, and nominees from accepting, such appoint- ments. Consequently, there is no reason to assume that the majority's sampling—even if it accurately refects practices during the last three decades—is at all typical of practices that prevailed throughout “the history of the Nation.” 17

17 The majority also notes that many of the intra-session recess appoint- ments identifed by the Solicitor General were made “within two weeks of the beginning of the recess,” which, according to the majority, “strongly

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In sum: Washington's and Adams' Attorneys General read the Constitution to restrict recess appointments to vacancies arising during the recess, and there is no evidence that any of the frst four Presidents consciously departed from that reading. The contrary reading was frst defended by an ex- ecutive offcial in 1823, was vehemently rejected by the Sen- ate in 1863, was vigorously resisted by legislation in place from 1863 until 1940, and is arguably inconsistent with legis- lation in place from 1940 to the present. The Solicitor Gen- eral has identifed only about 100 appointments that have ever been made under the broader reading, and while it seems likely that a good deal more have been made in the last few decades, there is good reason to doubt that many were made before 1940 (since the appointees could not have been compensated). I can conceive of no sane constitutional theory under which this evidence of “historical practice”— which is actually evidence of a long-simmering inter-branch confict—would require us to defer to the views of the Exec- utive Branch.

What the majority needs to sustain its judgment is an ambiguous text and a clear historical practice. What it has is a clear text and an at-best-ambiguous historical practice.

Even if the Executive could accumulate power through ad- verse possession by engaging in a consistent and unchal-

suggests that many of the vacancies initially arose prior to the recess.” Ante, at 545. The inference is unwarranted, since there are many circum- stances other than random chance that could cause a vacancy to arise early in the recess: For example, the prior offceholder may have been another recess appointee whose commission expired at the end of the Senate's session, or he may have waited until the recess to resign so that his succes- sor could be compensated without violating the Pay Act. In any event, the overwhelming majority of the intra-session recess appointments on the Solicitor General's list occurred after 1945 and do not shed light on earlier practices.

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lenged practice over a long period of time, the oft-disputed practices at issue here would not meet that standard. Nor have those practices created any justifable expectations that could be disappointed by enforcing the Constitution's origi- nal meaning. There is thus no ground for the majority's def- erence to the unconstitutional recess-appointment practices of the Executive Branch.

The majority replaces the Constitution's text with a new set of judge-made rules to govern recess appointments.

Henceforth, the Senate can avoid triggering the President's now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without hold- ing a pro forma session at which it is understood that no business will be conducted. Ante, at 549–550. How this new regime will work in practice remains to be seen. Per- haps it will reduce the prevalence of recess appointments.

But perhaps not: Members of the President's party in Con- gress may be able to prevent the Senate from holding pro forma sessions with the necessary frequency, and if the House and Senate disagree, the President may be able to adjourn both “to such Time as he shall think proper.” U. S.

Const., Art. II, § 3. In any event, the limitation upon the President's appointment power is there not for the beneft of the Senate, but for the protection of the people; it should not be dependent on Senate action for its existence.

The real tragedy of today's decision is not simply the aboli- tion of the Constitution's limits on the recess-appointment power and the substitution of a novel framework invented by this Court. It is the damage done to our separation-of- powers jurisprudence more generally. It is not every day that we encounter a proper case or controversy requiring interpretation of the Constitution's structural provisions.

Most of the time, the interpretation of those provisions is left to the political branches—which, in deciding how much respect to afford the constitutional text, often take their cues from this Court. We should therefore take every opportu-

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nity to affrm the primacy of the Constitution's enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand. Sad, but true: The Court's embrace of the adverse- possession theory of executive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the sepa- ration of powers.

I concur in the judgment only.