The Senate is in Session Even When It Isn't

The transcript of the oral argument in NLRB v. Canning, in which the legitimacy of recess appointments made while the Senate is in pro forma sessions, at which no business is done, is not encouraging for the Obama Administration's position. Or, indeed, for future presidents, as well as the legitimacy of a century of governmental practice. From The Times:

Much of the argument concerned how to reconcile the text of the Constitution with more than a century of tradition.

Solicitor General Donald B. Verrilli Jr., representing the Obama administration, said presidents of both parties have made many appointments in breaks during sessions of Congress. He warned the justices not to “repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington.”

Justice Antonin Scalia responded by indicating that the text of the Constitution was more important than contrary practice.

He added that the practical consequences of a ruling against the administration’s position were unlikely to be significant. “You don’t really think we’re going to go back and rip out every decision made,” Justice Scalia told Mr. Verrilli.

Ah, Scalia. The practice cannot be used to illuminate the intent and the meaning of the text--clarifying the ambiguity between formally declared recesses and recesses in fact but not in name (that would be unprincipled, d'you see!), but the illegitimate decisions made by illegitimate appointees (because they were appointed consistent with the practice all the way back to Washington, and that tells us nothing since Congress can be summoned on a dime now), why, those must stand, because any other outcome would be impractical.

And, yes, we are talking about allowing the Senate to eliminate recess appointments without eliminating actual recesses:

But Justice Ginsburg said that position has far-reaching implications. “Your argument would destroy the recess clause,” she said. “Under your argument, it is totally within the hands of the Senate to abolish any and all recess appointments.”

Mr. Francisco said that was indeed the implication of his position. “The recess appointment power is a contingent one,” he said. “It arises only when the Senate chooses to trigger it by ending its session and beginning its recess. So the Senate always has the power to prevent recess appointments.”

What's interesting is that the Court seems to have a broad consensus on this issue, with Justice Kagan describing the Clause as a "historic relic" and Justice Breyer finding no historical evidence that the owed existed to allow the President to break a logjam. So the Senate can be in perpetual session--even when nobody's home.