Justice Alito on Monday pressed an important question about the rationale for an inter-session limitation on the II/2/3 recess-appointment power: if the Framers had known that there would be lengthy intra-session breaks, wouldn't they have wanted the President to be able to fill vacancies then as well?
[D]oes your argument depend on the fact that–on the assumption that the–the possibility of a lengthy intra-session break was never even contemplated by those who framed and–and ratified the Constitution? Because if they had thought about that, there's a real chance the Senate may take a two-month break over Christmas. Would there be any reason why they wouldn't have wanted the recess appointment power to apply there as well as at the end of the session? … If the purpose is to permit the president to fill vacancies when the Senate is unavailable to consider nominations and the country would be harmed by having these offices vacant for a period of time, why would that not apply to any lengthy break, whether it's at the end of the session or in the middle of the session?
In response, Noel Francisco pointed to a secondary purpose of preventing an end-run around the usual II/2/2 Senate confirmation requirement. I wanted to amplify one aspect of that issue relating to the length of the recess appointments: "Commissions which shall expire at the End of their next Session." That time limit fits perfectly if we want to avoid giving the President the power of repeated "daisy-chain" recess appointments. Mike Rappaport's paper discusses the repeated-recess-appointments issue at 1508-09 & nn.60-62, 1521 & n.94, and 1543 n.173, chiefly as a reason to prefer the arise-during-the-recess issue, but it is also, given the arise-during-the-recess view, a good functional explanation for the inter-session-recess-only view.
If we adopt the arise-during-the-recess view of the clause, but not the inter-session-recess-only view, then the President would have the power to reappoint recess appointees indefinitely, by arranging that they resign their recess appointments during an intra-session break (at least, as long as there are any sufficiently-lengthy intra-session breaks), because intra-session breaks would be before the "End of their next Session."
If intra-session breaks don't count, though, a recess appointee's commission expires exactly at the point when, if we take the arise-during-the-recess view, the president's II/2/3 power is about to begin again. If we think it's important to allow the President to make only one recess appointment to a particular post, and we think there will likely be a lengthy intra-session break, we have to adopt both the arise-during-the-recess and the inter-session-recesses-only interpretations.
Of course, this functional explanation for the inter-session-recesses-only interpretation is unlikely to be relevant in Noel Canning itself, because it only makes sense if we have already adopted the arise-during-the-recess interpretation, an interpretation which is enough on its own to doom the President's NLRB appointments. It would be an important argument only for vacancies that actually arose during a lengthy intra-session recess, of which I am not sure there have been any.
Posted at 8:53 AM