The D.C. Circuit’s recent decision, Noel Canning v. NLRB, available here, has generated a barrage of commentary by law firms and others.  Much of the interest in the business community has focused on the impact that the decision might have on the Bureau of Consumer Financial Protection (the “CFPB”).  For views and reactions, I consulted three experts at Columbia Law School:  Professors Henry Paul Monaghan, Trevor W. Morrison, and Peter L. Strauss. As described below, each believes that the Supreme Court is likely to take the case, but there is less certainty over how the case might ultimately be resolved.

Professor Monaghan, who is the Harlan Fiske Stone Professor of Constitutional Law, discussed both holdings with me.

“Viewed solely as a matter of 1789 original understanding,” he said, “the first holding of the court of appeals (joined by all 3 judges) that ‘recess’ referred to inter, not intra, session breaks, is quite plausible.”  Monaghan explained, “For constitutional lawyers, the quickness with which the court dismissed the role of intervening governmental practice settling the meaning of the Appointments Clause is important.  It is, therefore, a case of considerable importance when viewed from the perspective of constitutional methodology.  The Supreme Court might avoid that issue, however, by concluding that the Senate was not in recess.”

He was more skeptical about the second holding. “That the vacancy itself must occur when Congress is not in session is far less historically persuasive,” Monaghan said.

Professor Morrison is the Liviu Librescu Professor of Law and a specialized expert on separation of powers, federalism, and executive branch legal interpretation.

The Supreme Court, Morrison said, “is likely to take the case if the Obama Administration seeks certiorari, but there is a serious risk that the Administration will lose before the Court.” He predicted that such a loss would most likely be on “narrower grounds” than those relied upon by the D.C. Circuit.  “The Court typically does not reach out to resolve important questions of constitutional law unless it must,” he said.

One of the narrowest grounds he identifies would be finding “no recess because the break was too short.”  This, he explains, “would require the Court to accept the validity of the Senate’s pro forma sessions and count the relevant break – approximately three days – as the time between them.”  This break is important, he said, because “it was shorter than past breaks during which recess appointments have been made.”

In taking this approach, the Court could avoid drawing a bright line between inter and intra session recesses and forgo deciding whether a vacancy must arise during a recess.  That is, “the Court could accept the government’s arguments that historical practice establishes that the recess appointment power is activated in some intra-session recesses, and that it extends to vacancies that exist during such recesses even if they did not first arise then.”  Alternatively, Morrison said, “the Court could simply assume, without deciding, that the government is right on these issues.”  The problem for the government, he explained, is that “even if the Court were prepared to agree with the government on these points, it would not be enough for the government to win.  There would still be the problem that, assuming the pro forma sessions were enough to disrupt the recess, the appointments here happened during an unprecedentedly short recess.”

Morrison acknowledges, nonetheless, that a loss for the government is not certain.  A majority of the Court might be inclined to favor substance over form by disregarding the pro forma sessions and instead viewing the Senate’s break in this case to be five weeks long, which was the time period during which the Senate agreed not to conduct business.    “That would provide a basis for reversing,” he said.

Professor Strauss, Betts Professor of Law, is a scholar in the field of regulatory and administrative law.

Fairly certain that the Supreme Court will hear the case, he wonders if there is not a yet-unexplored analysis that would allow the Court to avoid endorsing what amounts, in his view, “to a unilateral seizure of control by the Senate over a matter on which it and the President are expected to cooperate.”

“At the time the recess appointment clause was written,” he observes, “the Constitution anticipated that the Senate might not sit until December.  It provides, “The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by law [i.e., with the President’s approval] appoint a different Day.”

Strauss explains that the natural implication of this provision is that “there could readily be more than one recess (“assemble at least once”), and that a recess was as likely to precede as to follow (or both) a period of assembly.  Given the realities of transportation and communication, and the likely need of many Members to be home for planting and harvesting seasons, it must have been anticipated that recess appointments would often be made – and some of them, to positions that had become vacant too late in a congressional sitting for the Senate to have been able to receive, consider, and consent, to a nomination.”

To buttress this claim, Strauss provided me with the following chart, which shows that two of the first five Congresses had more than one intersession recess and that such recesses often lasted many months.

1st Congress–March 4, 1789 to March 3, 1791

First Session: March 4, 1789 to September 29, 1789 (210 days, held in New York)
Second Session: January 4, 1790 to August 12, 1790 (221 days, held in New York)
Third Session: December 6, 1790 to March 3, 1791 (88 days, held in Philadelphia)

2nd Congress–October 24, 1791 to March 2, 1793

First Session: October 24, 1791 to May 8, 1792 (197 days, held in Philadelphia)
Second Session: November 5, 1792 to March 2, 1793 (119 days, held in Philadelphia)

3rd Congress–December 2, 1793 to March 3, 1795

First Session: December 2, 1793 to June 9, 1794 (190 days, held in Philadelphia)
Second Session: November 3, 1794 to March 3, 1795 (121 days, held in Philadelphia)

4th Congress–December 7, 1795 to March 3, 1797

First Session: December 7, 1795 to June 1, 1796 (177 days, held in Philadelphia)
Second Session: December 5, 1796 to March 3, 1797 (89 days, held in Philadelphia)

5th Congress–May 15, 1797 to March 3, 1799

First Special Session: March 4, 1797
First Session: May 15, 1797 to July 10, 1797 (57 days, held in Philadelphia)
Second Session: November 13, 1797 to July 16, 1798 (246 days, held in Philadelphia)
Third Session: December 3, 1798 to March 3, 1799 (91 days, held in Philadelphia)

This was presumably to allow Congressmen and Senators from far away states ample time to go home in between sessions.  Back then, they did not have the luxury of boarding flights to and from Washington. This suggests a reason to believe that the term “recess” should evolve with changing circumstances.

Strauss emphasizes that, “understanding the original constitutional text in terms of the nation’s original circumstances quite destroys both elements of the Canning majority’s formalistic opinion – that “the Recess” is a singular time in relation to a given Congress’ “session,” and that a qualified vacancy must happen during it.”

Strauss also suggests a novel theory that the Senate’s failure to assemble on the first day of the new session – required by the 20^th Amendment to occur on January 3^rd – might have created a new qualifying “recess” that extended until the date when assembly in fact occurred, January 17^th.  “It is transparent from the Congressional Record of January 3, 2012, that the Congress did not ‘assemble’ on that day – or any other day until much later in the month,” Strauss said. “In the constitutional design,” he argues, “this was period during which recess appointments can be made, and it was not subject to control by simple resolutions of the first session.  Uniform practice from the adoption of the 20^th Amendment forward has been to inform the President when Congress is assembled and ready to do business, and this happened in 2012 only on January 17^th.”

Although the Professors would not predict how the case might actually fare in the Supreme Court, their assessments suggest that the Noel Canning decision, at a minimum, would pose a close call.  Especially in light of the politically charged nature surrounding the recess appointments, a 5-4 decision may be in store.

A related post, Why Buckley v. Valeo May Solve the CFPB’s Most Pressing Dilemma, is available here.