This is a legal playground. Photographer: Win McNamee/Getty Images
This is a legal playground. Photographer: Win McNamee/Getty Images

Executive power lost the battle but won its war with the Senate over recess appointments in an important case decided today by the U.S. Supreme Court. The court held that the president may make recess appointments during both breaks within sessions and breaks between sections, for offices that come open either before or during these recesses. This part was the win for executive power. It also said that breaks within sessions of between three and 10 days are presumptively not recesses -- and therefore canceled the National Labor Relations Board appointments that Barack Obama had made and that were challenged in this case. This was the battle at hand, and the administration lost it.

The margin of victory was paper thin. Five justices, the liberals plus Justice Anthony Kennedy, constitute the majority. The four conservatives, led by Justice Antonin Scalia, would have restricted recess appointments to breaks between sessions and to offices that come open only during those breaks. This would have represented a much stricter interpretation of the Constitution, giving much less latitude to the executive. Because both sides agreed that the three-day breaks during which Obama made the NLRB appointments were too short, the conservatives’ opinion counted as a concurrence. In substance, however, it was very much a dissent. Scalia read a fair bit of it from the bench, signaling his displeasure with the result.

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The majority opinion was written by Justice Stephen Breyer, whose pragmatism has over the last two weeks won several important battles over Scalia’s formalism. In this case, the question wasn’t the interpretation of statute, as it has frequently been this Supreme Court term. It was the interpretation of a truly ambiguous clause in the Constitution.

The Constitution says that “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Unfortunately it doesn’t define “recess.” To make matters worse, as Thomas Jefferson noticed while he was president in 1802, it leaves unclear whether the vacancies need to arise only during the recess or may be vacancies that existed previously and continue to exist during the recess.

Breyer’s opinion focused on past practices to try to make sense of the issue. In essence, Breyer was acknowledging that, as a practical matter, the dispute between the two other coordinate branches of government shouldn’t be resolved by the court simply declaring that it knows the meaning of the Constitution, especially when that meaning is uncertain.

Tracking the history of the clause’s operation, Breyer adopted a fairly permissive interpretation. Because appointments have traditionally been made during intersession recesses as well as recesses occurring within a session, the court held that either counted as a recess for purposes of the clause. Because vacancies had been filled that arose both before and during breaks, the majority concluded that either was fine.

That left a need for a functional definition of recess -- and again, Breyer opted for a pragmatic, functional one. He wrote for the court that a recess exists when the Senate cannot, by its own rules, conduct business.

Then, in a still more frankly pragmatic part of the holding, Breyer stated that short breaks of three to 10 days should presumptively be considered not to be recesses at all. Of course, the numbers three to 10 don’t appear anywhere in the Constitution. It’s a hallmark of pragmatism to add numbers for practicability even where the Constitution is silent. That, for example, is what Justice Sandra Day O’Connor did in her affirmative action opinion in 2003, when she famously said that she expected affirmative action to sunset within 25 years.

Ever the policy wonk, Breyer appended a list of every single Senate session and recess since 1789.

Needless to say, Scalia found all this pragmatism repellent --and he said so in his usual demure fashion, from the bench accusing the majority of “judicial adventurism.” In the opinion, he insisted that the recess appointments clause isn’t unclear at all: It’s restricted to formal recesses -- that is the recesses between sessions, not during them; and it’s restricted to vacancies that arise or “happen” during the recess itself.

According to Scalia, there was no reason to abuse constitutional liberalism to preserve the recess appointment power, because recess appointments are in any case a product of a bygone past in which it took months for the Senate to reconvene and when the presidential administration was so thin in numbers that it couldn’t function without Senate-confirmed officers. The majority had turned recess appointments into “a weapon to be wielded by future presidents against future Senates.”

In practice, the Congress now knows how to block recess appointments. So long as the Senate’s breaks are shorter than 10 days and so long as business can actually be done, even during so-called pro forma sessions, the appointments power will be blocked. Otherwise, presidents will be able to make the appointments they want during breaks. The ghost of Chief Justice Earl Warren is smiling. He was a recess appointment in 1953, just in time to help the court reach unanimity in Brown v. Board of Education.

To contact the writer of this article: Noah Feldman at noah_feldman@harvard.edu.

To contact the editor responsible for this article: Stacey Shick at sshick@bloomberg.net.