As Gerard Magliocca noted in October, he and I are the only commentators who’ve taken the position that the courts ought to defer to the Senate’s view of its own recess in NLRB v. Noel Canning. Given that, I was pleased that the notion of deferring to the Senate received so much attention at oral argument yesterday. I was disappointed, though, that the justices didn’t question the dominant view of the Senate’s wishes. Instead, they appeared to accept at face value the claim by a group of minority-party senators that the Senate, as a body, opposed the appointments.
I’ve argued that the proper body to which the Court should defer, under the Senate’s own rules, is the Senate majority. That’s because Senate rules permit the majority to take whatever type of recess it desires, whenever it desires, without interference by the minority. In this instance, the Senate majority presumptively wished to permit the President to make the appointments, and it would have done so but for the House blocking it, which was probably unconstitutional.
Miguel Estrada, counsel for Senate Minority Leader Mitch McConnell, viewed these points as sufficiently concerning that he went out of his way, without any prompting from the justices, to construct a narrative demonstrating that the Senate majority opposed the recess appointments. (This is on pages 71-73 of the transcript.) In such a significant case, one wishes there were a voice arguing the opposing view.
Elsewhere, Estrada might have done some work for the opposition when arguing about Senate intent. Estrada’s main evidence consists of journal entries from the disputed pro forma sessions reflecting that the Senate “was called to order and adjourned.” (Transcript page 69.) His point is that these entries are the Senate's authoritative word on its proceedings.
The problem for his argument is that these proceedings were governed by a Senate order specifying that “no business” would be conducted during the period. A “no business” order is arguably much more dispositive than journal entries memorializing sessions conducted in compliance with the order.
In fact, Estrada himself seems to think the Senate’s view of whether it’s in business is important:
JUSTICE KAGAN: [I]f the Senate just said, we’re — we’re never in recess for purposes of appointments, would that be permissible?
MR. ESTRADA: If the Senate says, we’re never in recess, and the Senate then is not in recess so that it could exercise the duties of its office as it does here, yes, it would be. If the Senate says, We’re checking out and going to Hawaii, we’ll never again be in Washington, Kona is very nice this time of year, that would not be permissible, . . . And maybe if the Senate has effectively given up, you know, the business of legislating, in that case, maybe the President could say that it is, quote, a “recess.”
When the Senate adopts an order stating that it will engage in “no business” during a certain period — particularly during the holidays when all senators are clearly going home — that sounds equivalent to “checking out and going to Hawaii” or “giv[ing] up, you know, the business of legislating.” It sounds like Estrada might have just conceded that these pro forma sessions counted as a recess.
The challengers’ response to the “no business” order is that the Senate ultimately did conduct some business during the period, but that's a poor response. The recess appointment power can’t turn on unknowable future events. If one thinks the Senate’s representations are decisive, then the President must be able to take the Senate at its word. Appointments can’t retroactively become invalid because the Senate later does something different than what it said.
