NO. 12-1281

IN THESUPREME COURT OF THE UNITED STATES

NATIONAL LABOR RELATIONS BOARD,Petitioner,

v.

NOEL CANNING, A DIVISION OF THE NOEL CORP.,Respondent.

On Writ of Certiorari to the United States Court ofAppeals for the District of Columbia Circuit

BRIEF OF SENATE PARLIAMENTARYEXPERTS ROBERT B. DOVE AND MARTIN B.

GOLD AS AMICI CURIAE IN SUPPORT OFRESPONDENT

D. JOHN SAUERCounsel of Record

SARAH E. PITLYKMARY CATHERINE HODESCLARK & SAUER, LLC7733 Forsyth BoulevardSuite 625St. Louis, Missouri 63105(314) 332-2980jsauer@clarksauer.com

Counsel for Amici Curiae

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................... iv

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF THE ARGUMENT ........................... 3

ARGUMENT .............................................................. 7

I. The Executive’s Discussion of the Senate’sPro Forma Sessions Misapprehends BasicPrinciples of the Senate’s History andConstitutional Role. ............................................. 7

A. The Senate’s Determination of Whetherthe Senate Is in Session Is Entitled toSubstantial Deference. .................................. 7

B. The Use of Parliamentary “Stratagems”and “Devices” To Magnify the Power ofthe Minority Is a Fundamental Attributeof the Senate. ............................................... 11

C. This Court Should Closely ScrutinizeThis Assertion of Executive PowerBecause the Senate and the UnitaryExecutive Are Unequal Competitors InInterbranch Rivalry Over Prerogatives. .... 13

II. Pro Forma Sessions Constitute ValidSessions of the Senate For EveryConstitutional and Parliamentary Purpose. .... 16

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A. The Executive Concedes That, DuringPro Forma Sessions, Legislation May Be“Passed” Within the Meaning of thePresentment Clause. ................................... 17

B. Pro Forma Sessions Constitute ValidSessions of the Senate For Purposes ofthe Assembly Clause. .................................. 18

C. Pro Forma Sessions Constitute ValidSessions of the Senate Under theAdjournment Clause. .................................. 21

D. Pro Forma Sessions Constitute ValidSessions of the Senate Under theAppointments Clause. ................................. 23

E. Pro Forma Sessions Constitute ValidSessions of the Senate For OtherParliamentary Purposes. ............................ 26

III. Every Political Authority To Consider theQuestion Prior To January 2012 UnderstoodThat Pro Forma Sessions Are Valid Sessionsof the Senate. ..................................................... 27

A. The 1876 Floor Debate Presupposed theValidity of Pro Forma Sessions................... 28

B. Pro Forma Sessions Satisfy the CriteriaSet Forth in the 1905 Senate JudiciaryCommittee Report. ...................................... 30

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C. President Reagan and Senator ByrdShared the Understanding That ProForma Sessions Would Block RecessAppointments. ............................................. 33

D. President Bush and Senator Reid AlsoShared the Understanding That ProForma Sessions Would Block RecessAppointments. ............................................. 35

E. The Solicitor General’s 2010 LetterShared the Understanding That ProForma Sessions Would Block RecessAppointments. ............................................. 36

CONCLUSION ......................................................... 39

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TABLE OF AUTHORITIES

Cases:

Boumediene v. Bush, 553 U.S. 723 (2008) ............................................ 16

Chevron U.S.A. Inc. v. Natural Res. Def.Council, Inc., 467 U.S. 837 (1984) .............................................. 9

Christoffel v. United States, 338 U.S. 84 (1949) ................................................ 9

Mistretta v. United States, 488 U.S. 361 (1989) ............................................ 15

New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010) ...................................... 36, 37

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) .......................................... 4, 13

The Pocket Veto Case, 279 U.S. 655 (1929) ...................................... 20, 22

United States v. Ballin, 144 U.S. 1 (1892) ........................................ 8, 9, 21

United States v. Smith, 286 U.S. 6 (1932) ........................................ 8, 9, 10

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Constitutional Provisions:

U.S. CONST., art. I, § 5, cl. 2 ...................................... 10

U.S. CONST., art. I, § 5, cl. 4 ...................................... 21

U.S. CONST., art. I, § 7, cl. 2 ...................................... 17

U.S. CONST., art. II, § 2, cl. 2 .................................... 23

U.S. CONST., amend. XX, § 2 .................................... 18

Other Authorities:

Richard A. Arenberg & Robert B. Dove,Defending the Filibuster: The Soul of theSenate (2012) ...................................................... 12, 13

5 Cong. Rec. 333 (1876) ................................ 28, 29, 30

109 Cong. Rec. 22,941 (1963) ................................... 26

127 Cong. Rec. 263 (1981) ........................................ 26

133 Cong. Rec. 15,445 (1987) ................................... 26

139 Cong. Rec. 3039 (1993) ...................................... 26

145 Cong. Rec. 29,915 (1999) ................................... 34

153 Cong. Rec. S14609 (2007) ................................. 35

154 Cong. Rec. S8907 (daily ed. Sept. 17,2008) ................................................................... 26, 33

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156 Cong. Rec. H2 (daily ed. Jan. 5, 2010) .............. 19

157 Cong. Rec. S5297 (daily ed. Aug. 5, 2011) ........ 17

157 Cong. Rec. S8783 (daily ed. Dec. 17, 2011) ...... 17

157 Cong. Rec. S8789-90 (daily ed. Dec. 23,2011) ....................................................... 17, 26, 27, 33

158 Cong. Rec. H1 (daily ed. Jan. 3, 2012) .............. 19

158 Cong. Rec. S113 (daily ed. Jan. 26, 2012) ........ 24

Christopher M. Davis, Cong. Research Serv.,Memorandum re: Certain Questions Related toPro Forma Sessions of the Senate, 158 Cong.Rec. S5954 (daily ed. Aug. 2, 2012) ......................... 18

Executive Power—Recess Appointments, 33Op. Att’y Gen. 20 (1921) .............................. 10, 14, 15

Martin B. Gold, Senate Procedure and Practice(2d ed. 2008) .......................................... 11, 12, 20, 21

H.R. Con. Res. 232, 96th Cong., 93 Stat. 1438(1979) ........................................................................ 19

Henry B. Hogue, Cong. Research Serv.,RS21308, Recess Appointments: FrequentlyAsked Questions (2013), available athttp://www.senate.gov/CRSReports/crs-publish.cfm?pid=%270DP%2BP%5CW%3B%20P%20%20%0A ................................................... 35, 36

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Henry B. Hogue & Maureen Bearden, Cong.Research Serv., RL33310, RecessAppointments Made by President George W.Bush, January 20, 2001-October 31, 2008(2008), available at http://www.fas.org/-sgp/crs/misc/-RL33310.pdf ................................. 35, 36

Lawfulness of Recess Appointments During aRecess of the Senate Notwithstanding PeriodicPro Forma Sessions, 36 Op. O.L.C. ___ (Jan. 6,2012), available atwww.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf ....................................................... passim

Letter from the Solicitor General to WilliamK. Suter, Clerk, Supreme Court of the UnitedStates (April 26, 2010), New Process Steel,L.P. v. NLRB, 560 U.S. 674 (2010) (No. 08-1457), available athttp://www.scotusblog.com/wp-content/uploads/2010/04/SG-letter-brief-NLRB-4-26-10.pdf .................................................... 37

Pub. L. No. 111-121, 123 Stat. 3479 (2009)............. 19

Elizabeth Rybicki, Cong. Research Serv., RL31980, Senate Consideration of PresidentialNominations: Committee and Floor Procedure(2013) ........................................................................ 33

Elizabeth Rybicki, Cong. Research Serv., 96-452, Voting and Quorum Procedures in theSenate (2013) ............................................................ 32

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S. Doc. No. 28, 101st Cong., 2d Sess., Riddick’sSenate Procedure: Precedents and Practices(1992) ........................................................................ 23

S. Rep. No. 58-4389 (1905) ............... 26, 30, 31, 32, 33

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INTEREST OF AMICI CURIAE1

Amici curiae are a former Parliamentarian of theUnited States Senate and a former parliamentaryadvisor to the Senate Majority Leader who is one ofthe nation’s foremost experts on congressionalprocedure.

Amicus Robert B. Dove is one of only six personsto hold the office of Parliamentarian of the UnitedStates Senate since the creation of that office in1937. Mr. Dove joined the Senate Parliamentarian’sOffice as Assistant Parliamentarian in 1966. Heserved the Senate as Parliamentarian from 1981through 1987, and from 1995 through 2001. In hisrole as Parliamentarian, Mr. Dove served as theofficial procedural counselor to the Senate’spresiding officer. He has also served as aparliamentary advisor to Senate Minority LeaderRobert Dole and as a parliamentary consultant to anumber of foreign legislatures, including the StateDuma of Russia, the National Assembly of Bulgaria,the National Assembly of Kuwait, and theParliament of Poland.

1 Pursuant to Supreme Court Rule 37.6, counsel for amicicuriae represent that, in consultation with amici, they authoredthis brief in its entirety and that none of the parties or theircounsel, nor any person or entity other than amici or theircounsel, made a monetary contribution intended to fund thepreparation or submission of this brief. Counsel for amici alsorepresent that all parties have consented to the filing of thisbrief. Counsel for all parties have filed letters with the Clerkgranting blanket consent to the filing of amicus briefs.

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Amicus Martin B. Gold served as Floor Advisorand Counsel to U.S. Senate Majority Leader BillFrist, assisting him with floor procedure andstrategy. He also served as counsel to former SenateMajority Leader Howard Baker and former SenatorMark O. Hatfield, whom he served as Minority StaffDirector and Counsel to the Senate Committee onRules and Administration. One of the nation’sleading experts on congressional procedure, Mr. Goldhas presented hundreds of seminars on Senateprocedures and practices for congressional,governmental, academic, and private sectoraudiences. He has lectured on the parliamentaryprocesses of the U.S. Congress at the RussianFederal Assembly, the Parliament of the Ukraine,and the Beijing Foreign Studies University, amongmany others. He is the author of an authoritativetreatise, Senate Procedure and Practice, which hasbeen through three editions since its publication in2004, and which is cited three times by the Brief forthe Petitioner in this case.

Together, Mr. Dove and Mr. Gold hold a wealthof collective expertise in Senate procedural rules. Inaddition, given their decades of service to the Senate,they have a personal interest in calling for theprotection the Senate’s institutional prerogatives,which are threatened by the Executive in this case.

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SUMMARY OF THE ARGUMENT

When the United States Senate convenes in proforma sessions, it is in session. It is not in recess.And, contrary to the Executive’s argument in thiscase, during a pro forma session, the Senate is notboth in session and in recess at the same time.

The arguments set forth in the Brief for thePetitioner (“Pet. Br.”) and the 2012 Memorandum ofthe Office of Legal Counsel (“OLC Memo”)(collectively, “the Executive”), fail to provide anyconvincing support for the Executive’s claim that theU.S. Senate was in recess on January 4, 2012.

I. The Executive’s discussions of the Senate’spro forma sessions reflect a fundamentalmisunderstanding of the Senate’s history andtraditions, and its role in our constitutionalstructure. First, the Executive misconstrues thedeference that is due to the Senate in determiningwhether the Senate is in session under the Rules ofProceedings Clause. The Executive contends thatthe Legislative Branch is not entitled to anydeference on the quintessentially legislative questionof whether a house of the legislature is in session.Its argument disregards this Court’s longstandingrecognition that the Senate is entitled to substantialdeference on such questions, even when theyimplicate the prerogatives of the President as well asthe Senate.

Second, the Executive contends that the Senate’spro forma sessions constitute a parliamentary“device” or “stratagem” that wrongly elevates form

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over substance. This argument betrays theExecutive’s tin ear to history. Over centuries, theSenate’s traditions have incubated a variety ofprocedural devices that empower the minority tofrustrate the will of the majority and of theExecutive. Such devices promote consensus-buildingbehind the scenes and permit the Senate to serve asthe “cooling saucer” for executive initiatives.

Third, this case arises from a prolonged andrecurring conflict between the Senate and thePresidency over competing prerogatives. This Courthas called for “high walls and clear distinctions” insuch cases. Plaut v. Spendthrift Farm, Inc., 514 U.S.211, 239 (1995). Such “high walls” are particularlyappropriate here, because the politically diverseSenate is an unequal competitor with the unitaryExecutive in such prolonged conflict. The Executivehas a consistent incentive to take an ever-broadening view of executive power. By contrast, atany given time, a significant subset of the Senatetends to side with the Presidency against theSenate’s prerogatives. This dynamic threatens togradually erode the prerogatives of the Senate,which exist not only for that institution’s sake, butas structural checks to guarantee the liberty of allAmericans.

II. The Senate’s pro forma sessions constitutevalid sessions of the Senate for every constitutionaland parliamentary purpose. First, they constitutevalid sessions of the Senate under the PresentmentClause; the Executive concedes that legislation maybe passed under that Clause during pro formasessions. Second, they constitute valid sessions of

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the Senate under the Assembly Clause, as evidencedby decades of Congress’s historical practice. Third,they constitute valid sessions of the Senate underthe Adjournment Clause, in light of an even longertradition. Fourth, they constitute valid sessions ofthe Senate under the Appointments Clause, becausethe Senate may just as easily confirm nominationsby unanimous consent as it may pass legislation.Fifth, they constitute valid sessions of the Senate forother parliamentary purposes, such as permittingcloture votes to ripen, hearing presidentialaddresses, and entering formal messages into theCongressional Record.

The Executive contends that pro forma sessionsare valid sessions of the Senate for purposes of thePresentment Clause and the Appointments Clause,but not for purposes of the Assembly Clause, theAdjournment Clause, or the Recess AppointmentsClause. The Constitution contains no warrant forthis contorted view that pro forma sessions aresimultaneously part session and part recess.

III. Until the 2012 OLC Memo, every authoritywithin the political branches to consider the questioneither presupposed or expressly understood that proforma sessions constitute valid sessions of theSenate. The 1876 Senate floor debate cited by theExecutive actually supports the view that pro formasessions satisfy the Adjournment Clause. Even theSenators who were most scrupulously committed tocompliance with the Adjournment Clause expressedno qualms about the use of pro forma sessions tosatisfy that constitutional requirement. Likewise,pro forma sessions satisfy each of the four criteria

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set forth in the 1905 Senate Judiciary CommitteeReport cited by the Executive. In more recentdecades, Senators and Presidents of both politicalparties have understood that pro forma sessions areeffective to prevent recess appointments. Finally,the current Administration advised this Court on thebasis of that understanding as recently as 2010.

For all these reasons, as well as those stated inthe Brief of Respondent, this Court should reject theExecutive’s position regarding pro forma sessionsand affirm the judgment of the court below.

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ARGUMENT

I. The Executive’s Discussion of the Senate’sPro Forma Sessions Misapprehends BasicPrinciples of the Senate’s History andConstitutional Role.

The Executive’s argument regarding the Senate’spro forma sessions misapprehends basic principles ofthe Senate’s history and procedure and its role in ourconstitutional framework.

A. The Senate’s Determination of Whetherthe Senate Is in Session Is Entitled toSubstantial Deference.

First, the Executive misconstrues the deferencethat is due to the Senate in regulating its ownproceedings. In both the OLC Memo and itsOpening Brief, the Executive contends that, whilethe Senate may be entitled to “some leeway” on“internal matters,” Pet. Br. 60, such deference “hasno proper bearing” when “the President . . . has adirect interest” in determining whether the Senate isin session, id. at 62. See also Lawfulness of RecessAppointments During a Recess of the SenateNotwithstanding Periodic Pro Forma Sessions, 36Op. O.L.C. ___ (Jan. 6, 2012), available atwww.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf (all Internet materials last visited Nov.23, 2013) (“OLC Memo”), at 20-21.

The Executive cites no judicial authority for itsno-deference theory, and it has no support in thisCourt’s jurisprudence. Rather, this Court’s cases

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establish that (1) on internal legislative matters,disputes about Congress’s rules and proceduresconstitute non-justiciable political questions, while(2) on matters implicating the rights of third parties,including the President’s prerogatives, the questionsare justiciable but the Legislative Branch is stillentitled to very substantial deference. In UnitedStates v. Ballin, this Court expounded this rule asfollows:

The Constitution empowers each house todetermine its rules of proceedings. It may not byits rules ignore constitutional restraints orviolate fundamental rights, and there should be areasonable relation between the mode or methodof proceeding established by the rule and theresult which is sought to be attained. But withinthese limitations all matters of method are opento the determination of the house, and it is noimpeachment of the rule to say that some otherway would be better, more accurate or even morejust…. The power to make rules … is acontinuous power, always subject to be exercisedby the house, and within the limitationssuggested, absolute and beyond the challenge ofany other body or tribunal.

144 U.S. 1, 5 (1892) (emphasis added); see also id.(“Neither do the advantages or disadvantages, thewisdom or folly, of such a rule present any mattersfor judicial consideration.”).

This Court has consistently adhered to thisinterpretation. For example, in United States v.Smith, 286 U.S. 6 (1932), considering the validity of

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a presidential appointment to the Federal PowerCommission, this Court emphasized that “[i]ndeciding the issue, the Court must give great weightto the Senate’s present construction of its own rules.”Id. at 33 (quoting Ballin, 144 U.S. at 5); see alsoChristoffel v. United States, 338 U.S. 84, 88 (1949)(“Congressional practice in the transaction ofordinary legislative business is of course none of ourconcern....”). Addressing a dispute between thePresident and the Senate over an appointment, thisCourt in Smith required “compelling” reasons tooverrule the Senate’s interpretation of its own rules.286 U.S. at 48. The Court stated:

To place upon the standing rules of the Senatea construction different from that adopted bythe Senate itself when the present case wasunder debate is a serious and delicate exerciseof judicial power. The Constitution commitsto the Senate the power to make its own rules;and it is not the function of the Court to saythat another rule would be better.

Id. Notably absent from Smith is any statementthat the President, rather than the Senate, isentitled to deference in such cases.

Without invoking this Court’s cases, theExecutive contends that the President’sdetermination whether the Senate is in session isentitled to something like Chevron deference. SeeChevron U.S.A. Inc. v. Natural Res. Def. Council,Inc., 467 U.S. 837, 842-43 (1984). The Executiveargues that “the President is necessarily vested witha large, although not unlimited, discretion to

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determine when there is a real and genuine recess,”and that “[e]very presumption is to be indulged infavor of the validity of whatever action [thePresident] may take.” OLC Memo, at 5 (quotingExecutive Power—Recess Appointments, 33 Op. Att’yGen. 20, 25 (1921) (“Daugherty Opinion”)) (bracketsadded by OLC Memo). The assertion of deference tothe President’s determination whether the Senate isin session is a constant refrain of the Executive’sanalysis. See OLC Memo, at 1, 5, 9, 13, 14, 15, 17,21, 23.

The notion that the President, rather than theSenate, should command deference in this context isan innovation unique to the Executive. The onlysupport cited by the Executive for thiscounterintuitive proposition consists of a series ofprior Executive opinions interpreting the scope ofthe Executive’s own power. See id. at 5. Theultimate source of this theory is a dictum in the 1921opinion of Attorney General Daugherty, added as anafterthought, which cites nothing at all on this point.See OLC Memo, at 14 (quoting Daugherty Opinion,33 Op. Att’y Gen. at 25). For the reasons statedabove, this principle is inconsistent both with thisCourt’s cases and with the Rules of ProceedingsClause. U.S. Const. art. I, § 5, cl. 2. Though theRecess Appointments Clause implicates theprerogatives of both the Senate and the President,the question whether the Senate is in session is oneof uniquely legislative competence, which theConstitution vests (quite naturally) in theLegislature. See Smith, 286 U.S. at 48.

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B. The Use of Parliamentary “Stratagems”and “Devices” To Magnify the Power ofthe Minority Is a Fundamental Attributeof the Senate.

Second, the Executive repeatedly complains thatthe use of pro forma sessions to prevent a recess ofthe Senate rewards parliamentary maneuvering andelevates form over substance. For example, theExecutive’s brief contends that pro forma sessionsconstitute a parliamentary “stratagem,” Pet. Br. 9,10, 12, 50; that they “were being held merely as amatter of form,” id. at 10; that they are a “legalfiction,” id. at 11, 62; that they constitute “shirking,”id. at 45; that they were “a stratagem to paper overwhat was in substance a continuous Senate recess,”id. at 50; that they are a procedural “device,” id. at55; and that they constitute a “gambit,” id. at 56.

Such arguments turn a blind eye to the actualhistory and practice of the Senate. The use ofparliamentary maneuvering in the Senate, and theelevation of parliamentary form over substance, arenot constitutionally suspect novelties. Rather, theyare fundamental attributes of Senate procedure andpractice, established over centuries of parliamentarytradition. In fact, the use of such maneuvers tomagnify the power of minority voices, and encourageconsensus-building behind the scenes, is perhaps themost distinctive historical attribute of the Senate:

Unlike the House, the Senate is not amajoritarian institution. … In the Senate, theminority has a distinct voice, and the majorityoften struggles to govern at all….

12The Senate is a place where politicalminorities and individual members hold greatpower, resting on authority drawn fromSenate rules and more than two hundredyears of related precedents and traditions.

Martin B. Gold, Senate Procedure and Practice xii(2d ed. 2008); see also Richard A. Arenberg & RobertB. Dove, Defending the Filibuster: The Soul of theSenate 10-18 (2012). “[I]n the end, it is the privilegeof debate and amendment that protects the minority,encourages consensus, and establishes the Senate asthe stabilizing force in our national politics.”Arenberg & Dove, supra, at 177. One example(among many) of this principle is the tradition of anindividual senator imposing a “hold” on legislation,which is cited by the Executive in this case. See Pet.Br. 54 n.53. “A senator’s power to impose andenforce a hold is grounded in his right to debate andhis unilateral ability to object to unanimous consentrequests.” Gold, supra, at 84. The power to imposeholds greatly amplifies the power of a single senator,often to the frustration of majority blocs and theExecutive.

This case involves the use of a parliamentaryprocedure (the pro forma session) by a determinedminority of Senators to frustrate the objectives of amajority of Senators and the Executive. Exactly thesame dynamic is at work in other well-known Senatepractices that routinely permit Senate minorities tothwart the aims of the majority and the Executive.See Arenberg & Dove, supra, at 18 (explaining thefunction of various Senate parliamentary tactics as

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“protecting minority rights” and “encourag[ing] asearch for consensus in the Senate”). Such devicesimplement the Framers’ vision that the Senateshould operate by supermajority or consensus andthus serve as a powerful check on the Executive, asreflected in the oft-repeated but “probablyapocryphal story of George Washington explaining toThomas Jefferson … that the Senate was included inthe federal design to serve the same function as thesaucer into which he poured his hot tea to cool.” Id.at 2-3.

C. This Court Should Closely ScrutinizeThis Assertion of Executive PowerBecause the Senate and the UnitaryExecutive Are Unequal Competitors InInterbranch Rivalry Over Prerogatives.

In Plaut v. Spendthrift Farm, Inc., this Courtstated:

[T]he doctrine of separation of powers is astructural safeguard rather than a remedy to beapplied only when specific harm, or risk ofspecific harm, can be identified. In its majorfeatures … it is a prophylactic device,establishing high walls and clear distinctionsbecause low walls and vague distinctions will notbe judicially defensible in the heat of interbranchconflict.

514 U.S. 211, 239 (1995). This observation applieswith special force in this case. “[I]n the heat ofinterbranch conflict,” id., the unitary nature of thePresidency gives it a structural advantage over the

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politically diverse Senate. Regardless of which partyholds the Presidency, the Executive has a consistentincentive to take a broad view of executive power.By contrast, at any given time, either the majority ora significant minority of the Senate typically sideswith the President, as partisan loyalty tends totrump institutional loyalty in these cases. Thus,over decades and centuries, the Executive speakswith a unified voice in favor of executive power,while the Senate seldom, if ever, speaks with aunified voice in defense of threatened Senateprerogatives.

This case vividly illustrates this structuraldynamic. The OLC Memo that sparked thiscontroversy has two notable features: (1) itsextensive reliance on authorities from within theExecutive to support its key contentions; and (2) itsreflection of the Executive’s steadily broadening viewof its own power. For example, the dictum in the1921 opinion of Attorney General Daugherty, onwhich the Executive principally relies for itserroneous theory of deference to the President, wasactually intended to disavow the claim that anadjournment of five or ten days could constitute a“recess”:

And looking at the matter from a practicalstandpoint, no one, I venture to say, would fora moment contend that the Senate is not insession when an adjournment of the durationjust mentioned [i.e., less than three days] istaken. Nor do I think an adjournment for 5 oreven 10 days can be said to constitute therecess intended by the Constitution.

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Daugherty Opinion, 33 Op. Att’y Gen. at 25(concluding that a 28-day intrasession adjournmentconstituted a “recess”). Nine decades later, theExecutive has made at least one recess appointmentduring a ten-day adjournment, while recessappointments during 11-day, 12-day, and 13-dayadjournments have become commonplace. See OLCMemo, at 7 n.9. Moreover, in contrast to theDaugherty Opinion, the recent OLC Memo declinesto concede even that the three-day adjournmentauthorized by the Adjournment Clause is not a“recess.” See id. at 9 n.13; but see Pet. Br. 18.

By contrast, there is no comparable tradition inthe politically diverse Senate of taking a consistentlybroadening view of the Senate’s authority againstthe President. On the contrary, at any given time, asignificant subset of the Senate—those Senators ofthe President’s political party—typically aligns withthe President on such questions.

Over time, the Executive’s structural advantagein an interbranch rivalry of this nature leads to agradual encroachment upon the prerogatives of theSenate. Moreover, the structural safeguards of theseparation of powers do not exist solely, or evenprincipally, for the sake of the Senate as aninstitution. Rather, as this Court has frequentlyobserved, “the separation of governmental powersinto three coordinate Branches is essential to thepreservation of liberty.” Mistretta v. United States,488 U.S. 361, 380 (1989). Indeed, “[t]he Framers’inherent distrust of governmental power was thedriving force behind the constitutional plan that

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allocated powers among three independent branches.This design serves not only to make governmentaccountable but also to secure individual liberty.”Boumediene v. Bush, 553 U.S. 723, 742 (2008). ThisCourt, therefore, should scrutinize the Executive’sassertion of power in this context with particularcare, giving due consideration to the Senate’s uniquerole in our constitutional structure as a check uponthe power of the President.

II. Pro Forma Sessions Constitute ValidSessions of the Senate For EveryConstitutional and Parliamentary Purpose.

On the Executive’s view, when the Senate meetsin pro forma session, the Senate is in session forpurposes of the Presentment Clause and theAppointments Clause, but in recess for purposes ofthe Recess Appointments Clause, the AssemblyClause, and the Adjournment Clause. The commonthread of the Executive’s position is that the Senateis in session when its being in session will result inan increase in the authority of the Executive;otherwise, it is in recess. Contrary to the Executive’sargument, this is not the “better view.” Pet. Br. 59.The “better view,” id., is that the Senate is simplyand unqualifiedly in session when it meets in proforma sessions.

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A. The Executive Concedes That, DuringPro Forma Sessions, Legislation May Be“Passed” Within the Meaning of thePresentment Clause.

First, the Executive does not dispute that a billmay be “passed” by the Senate during a pro formasession under the Presentment Clause. U.S. Const.art. I, § 7, cl. 2. That clause provides:

Every Bill which shall have passed the Houseof Representatives and the Senate, shall,before it become a Law, be presented to thePresident of the United States: If he approvehe shall sign it, but if not he shall return it,with his Objections to that House in which itshall have originated….

Id. On December 23, 2011, during a pro formasession, the Senate passed H.R. 3765, the TemporaryPayroll Tax Cut Continuation Act of 2011. 157Cong. Rec. S8789 (daily ed. Dec. 23, 2011). This billwas passed by unanimous consent, notwithstandingthe Senate’s previous order of December 17, 2011,stating that there would be “no business conducted”during this pro forma session. 157 Cong. Rec. S8783(daily ed. Dec. 17, 2011). On August 5, 2011, duringa pro forma session, the Senate passed the Airportand Airway Extension Act of 2011. 157 Cong. Rec.S5297 (daily ed. Aug. 5, 2011). The President“approve[d]” both bills and signed them into law.U.S. Const. art. I, § 7, cl. 2; see also Resp. Br. 53-54.Moreover, the OLC Memo acknowledges that“[t]wice in 2011, the Senate passed legislation duringpro forma sessions by unanimous consent, evidenced

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by the lack of objection from any member who mighthave been present at the time.” OLC Memo, at 21.

In this case, the Executive does not contend thatthe Temporary Payroll Tax Cut Continuation Act of2011 and the Airport and Airway Extension Act of2011, both of which the President signed into law,are constitutionally invalid. The Executive’sconcession that these pieces of legislation werevalidly “passed” under the Presentment Clause isdeeply damaging to its litigation position. It isdifficult to see how a pro forma session may bedismissed as a mere “legal fiction,” Pet. Br. 11, 62,when the Senate exercised one of its mostconsequential functions—passing legislation—during such a session.

B. Pro Forma Sessions Constitute ValidSessions of the Senate For Purposes ofthe Assembly Clause.

Section Two of the Twentieth Amendmentrequires that “Congress shall assemble at least oncein every year, and such meeting shall begin at noonon the 3d day of January, unless they shall by lawappoint a different day.” U.S. Const. amend. XX, § 2.The Senate has satisfied its constitutional obligationto assemble at noon on the third of January with apro forma session at least six times over more thanthree decades. Christopher M. Davis, Cong.Research Serv., Memorandum re: Certain QuestionsRelated to Pro Forma Sessions of the Senate, 158Cong. Rec. S5954, 5955 (daily ed. Aug. 2, 2012); seealso Resp. C.A. Br. 43-44. The House ofRepresentatives has likewise fulfilled its obligation

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under the Assembly Clause with pro forma sessions.See, e.g., 158 Cong. Rec. H1 (daily ed. Jan. 3, 2012)(“This being the day fixed pursuant to the 20thAmendment to the Constitution for the meeting ofthe second session of the 112th Congress, the Housemet at noon and was called to order by the Speakerpro tempore…. Pursuant to section 4(a) of HouseResolution 493, no organizational or legislativebusiness will be conducted on this day.”); Pub. L. No.111-121, 123 Stat. 3479 (2009) (providing that thenext congressional session would begin at noon onJanuary 5, 2010); 156 Cong. Rec. H2 (daily ed. Jan.5, 2010) (“[N]o organizational or legislative businesswill be conducted on this day.”); H.R. Con. Res. 232,96th Cong., 93 Stat. 1438 (1979) (“[W]hen theCongress convenes on January 3, 1980, … neitherthe House nor the Senate shall conductorganizational or legislative business until Tuesday,January 22, 1980, [unless convened sooner by Houseor Senate leadership].”). See also Resp. C.A. Br. 43-44 & n.24.

Prior to this case, the validity of this practicehad never been questioned by the Executive or anyother agency. Even the OLC Memo concedes thatpro forma sessions satisfy the Assembly Clause.OLC Memo, at 18 & n.22 (conceding that “in othercontexts … a pro forma session may have the samelegal effect as any other session and thus may fulfillcertain constitutional requirements,” including thoseof the Assembly Clause and the AdjournmentClause). During this litigation, however, theExecutive has shifted its position to contend that thepractice of satisfying the Assembly Clause throughpro forma sessions is constitutionally suspect. See

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Pet. Br. 61 n.60. This argument has no merit. First,it is inconsistent with the Executive’s position in thisvery case, because the Executive repeatedly contendsthat the putative “recess” at issue consisted of “the20-day period” between January 3 and January 23,2013, thus presuming that the Senate validlyassembled on January 3, 2013. See, e.g., Pet. Br. 45,50, 51, 60. Second, it runs afoul of the Executive’sown standards for historical legitimization, set forthin Section I of its Opening Brief: “[A] practice of atleast twenty years duration ... is entitled to greatregard in determining the true construction of aconstitutional provision the phraseology of which isin any respect of doubtful meaning.” Pet. Br. 27-28(quoting The Pocket Veto Case, 279 U.S. 655, 690(1929)). Third, it cannot be squared with thedeference due to the Senate’s determination ofwhether and when it is in session under the Rules ofProceedings Clause. See supra Part I.A.

The Executive also suggests that the Senate doesnot “assemble” within the meaning of the TwentiethAmendment through a pro forma session attendedby only one Member. Pet. Br. 61 n.60. Thiscontention is meritless in light of longstandingSenate procedural traditions. “In daily practice, theSenate operates on the principle of a presumptivequorum, which means that the presence of a quorumis assumed unless its absence is suggested.” Gold,supra, at 37. Thus, a quorum of the Senate ispresumed to be present at a pro forma session,unless an attending senator raises a point of noquorum. As noted above, this presumptive-quorumrule is just the sort of internal legislative procedural

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rule that is “absolute and beyond the challenge ofany other body or tribunal.” Ballin, 144 U.S. at 5.

C. Pro Forma Sessions Constitute ValidSessions of the Senate Under theAdjournment Clause.

Article I, section 5, clause 4 of the Constitutionprovides that “Neither House, during the Session ofCongress, shall, without the Consent of the other,adjourn for more than three days....” U.S. Const. art.1, § 5, cl. 4. It is undisputed that both Houses ofCongress have used pro forma sessions to satisfytheir obligations under the Adjournment Clause forthe better part of a century, without objection fromthe Executive. See OLC Memo, at 19 n.25 (detailing13 documented examples of the use of pro formasessions to satisfy the Adjournment Clause,occurring in 1929, 1950, 1980, and 1981); Resp. C.A.Br. 42 n.23 (citing 21 examples in the CongressionalRecord of the Senate’s use of pro forma sessions tosatisfy the Adjournment Clause, dating to 1949); seealso Gold, supra, at 30 (“In the absence of anadjournment resolution, the Senate and/or Housemay meet in pro forma sessions in order to haveconvened frequently enough to meet constitutionalrequirements.”). In fact, the Senate first used proforma sessions to satisfy the Adjournment Clause in1854. Resp. Br. 51.

The OLC Memo does not question the validity ofusing pro forma sessions to satisfy the AdjournmentClause. OLC Memo, at 18. Yet, here again, theExecutive has shifted its position in this litigationand belatedly questions the use of pro forma sessions

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to satisfy the Adjournment Clause, contending that“the better view is that pro-forma sessions do notcomply with the Adjournment Clause.” Pet. Br. 59-60. This argument suffers from the same defects asafflict the Executive’s objection to the Senate’s use ofpro forma sessions to satisfy the Assembly Clause.See supra Part II.B. Because both Houses ofCongress have used pro forma sessions to satisfy theAdjournment Clause numerous times dating back to1854, the Executive’s position contradicts its owncontention that “a practice of at least twenty yearsduration ... is entitled to great regard in determiningthe true construction of a constitutional provisionthe phraseology of which is in any respect of doubtfulmeaning.” Pet. Br. 27-28 (quoting The Pocket VetoCase, 279 U.S. at 690). Moreover, once again,Congress is owed substantial deference in itsdetermination of whether and when it is sessionunder the Rules of Proceedings Clause. See supraPart I.A.

The Executive argues in the alternative that thelegitimacy of Congress’s use of pro forma sessions tosatisfy the Assembly and Adjournment Clauses doesnot translate to the Recess Appointments Clause,because the former clauses serve mere“housekeeping purposes,” “affect the operations ofonly the House in question,” or in any case “affectthe Legislative Branch alone.” OLC Memo, at 19(emphasis in original); see also Pet. Br. 60 (arguingthat the Adjournment Clause is “principally relatedto internal matters”); id. at 61-62 (characterizing theHouse and Senate’s Adjournment Clause obligationsas “obligations to one another” in which “thePresident has no direct interest”). This argument

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rests on the erroneous premise that the LegislativeBranch is not entitled to deference on matters ofpeculiarly legislative competence that implicate theprerogatives of the Executive; this premise has nomerit for the reasons discussed above. See supraPart I.A. Moreover, the constitutional requirementsthat the Houses of Congress meet regularly and inconjunction with one another are not mere“housekeeping” requirements; they ensure that thefederal legislature is available and able to conductthe affairs of the nation.

D. Pro Forma Sessions Constitute ValidSessions of the Senate Under theAppointments Clause.

Furthermore, the Executive concedes that proforma sessions constitute valid sessions of theSenate under the Appointments Clause. Article II,section 2, clause 2 of the Constitution provides thatthe President “shall nominate, and by and with theAdvice and Consent of the Senate, shall appointAmbassadors, other public Ministers and Consuls,Judges of the supreme Court, and all other Officersof the United States....” U.S. Const. art II, § 2, cl. 2.It is beyond dispute that the most common methodfor the Senate to exercise its authority of “Adviceand Consent” is by unanimous consent. See, e.g., S.Doc. No. 28, 101st Cong., 2d Sess., Riddick’s SenateProcedure: Precedents and Practices 942 (1992) (“Byunanimous consent the Senate could go intoexecutive session for the consideration of a specificnomination regardless of its location on theCalendar.”). And the Executive does not disputethat the Senate may pass legislation by unanimous

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consent at pro forma sessions. By parity ofreasoning, it is indisputable that the Senate mayconfirm presidential appointments by unanimousconsent during pro forma sessions. Indeed, the OLCMemo expressly acknowledges this possibility; afternoting that the Senate has validly passed legislationand engaged in other actions at pro forma sessions,the OLC Memo concedes that “[c]onceivably, theSenate might provide advice and consent on pendingnominations during a pro forma session in the samemanner.” OLC Memo, at 21; see also 158 Cong. Rec.S113 (daily ed. Jan. 26, 2012) (Sen. Lee) (“During theSenate’s pro forma sessions, including its session onJanuary 6, 2012, the Senate was manifestly capableof exercising its constitutional function of advice andconsent.”).

This concession is perhaps the most damaging ofall to the Executive’s position in this case. TheAppointments Clause immediately precedes theRecess Appointments Clause in Article II. TheExecutive recognizes that two are so conceptuallyinterrelated that they should be viewed as a singleprovision governing presidential appointments. SeeOLC Memo, at 9-10. In essence, the Executiveclaims that, when the Senate meets pro forma, it isavailable to provide advice and consent onpresidential appointments under the AppointmentsClause at the very same time that it is unavailableto provide advice and consent on presidentialappointments under the Recess AppointmentsClause. This simply will not do.

In attempt to explain this contradiction, theExecutive contends that the Senate’s December 17,

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2011, order stating that there would be “no businessconducted” at the pro forma sessions rendered theSenate “unavailable” to provide advice and consenton presidential nominations. See Pet. Br. 48(quoting Pet. App. 91a); see also OLC Memo, at 21-22. This explanation has no merit. The Executivecontends that “the December 17 order barred theSenate as a body from conducting any business—including providing advice and consent onPresidential nominations—for the entire 20-dayperiod between the start of the Second Session of the112th Congress at noon on January 3 and theSenate’s next regular session on January 23.” Pet.Br. 48 (emphasis added). But, on the very samepage, the Executive concedes that “the Senate didpass legislation … on a day when it had beenscheduled to hold a pro-forma session” pursuant tothe very same December 17 order stating that “nobusiness” would be “conducted.” Id. at 48 n.47.Thus, it is perfectly plain that the Senate was not“barred” from considering presidential nominationsduring the pro forma sessions by the December 17order, any more than it was “barred” from passinglegislation during the pro forma sessions, as it wenton to do. The Senate was in session and available toconsider the President’s nominations; it simply failedto act on them. While this inaction may be a sourceof great frustration to the Executive, suchfrustration is both commonplace and inherent in theconstitutional role of the Senate as a check onexecutive power.

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E. Pro Forma Sessions Constitute ValidSessions of the Senate For OtherParliamentary Purposes.

Pro forma sessions also constitute valid sessionsof the Senate for many other parliamentarypurposes. Among other things, the Senate has usedpro forma sessions to enable Senate committees tomeet, see, e.g., 154 Cong. Rec. S8907 (daily ed. Sept.17, 2008); to permit a cloture vote to ripen, see, e.g.,133 Cong. Rec. 15,445 (1987); to hear a presidentialaddress, see, e.g., 139 Cong. Rec. 3039 (1993); toenter formal messages into the CongressionalRecord, see, e.g., 157 Cong. Rec. S8789-90 (daily ed.Dec. 23, 2011); to revise its schedule by unanimousconsent, see, e.g., 127 Cong. Rec. 263 (1981); and toauthorize its “Presiding Officer . . . to sign bills andjoint resolutions passed by the two Houses and foundtruly enrolled,” 109 Cong. Rec. 22,941 (1963). Suchactivities belie the Executive’s attempt tocharacterize pro forma sessions as empty formalities.

This history also demonstrates that pro formasessions satisfy even the Executive’s chosenstandard for a legitimate Senate session. Forexample, one part of the Executive’s argument isthat, “for Recess-Appointments-Clause purposes, a‘recess’ exists during ‘the period of time . . . when,because of its absence, [the Senate] cannot receivecommunications from the President....” Pet. Br. 45(quoting S. Rep. No. 58-4389, at 2 (1905) (“1905Senate Report”)). By this standard, the Executiveargues, the Senate must have been in “recess”between January 3 and January 23, 2012, becausetwo messages from the President and the House that

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“arrived” during that period were not “formally laidbefore the Senate” until January 23rd. Pet. Br. 49;see also OLC Memo, at 14. But it is undisputed thatthe Senate has entered formal messages into theCongressional Record at a pro forma session. SeeOLC Memo, at 21 (citing 157 Cong. Rec. S8789-90(daily ed. Dec. 23, 2011)). The Senate could havedone likewise with the messages received betweenJanuary 3 and January 23, 2012. Thus, theExecutive cannot claim that it was in recess on thosegrounds. See also infra Part III.B.

In sum, on the Executive’s view, a pro formasession is neither fish nor fowl—or if it is fowl, it isan odd duck indeed. It is sufficiently robust to allowthe Senate to fulfill even the most consequential offunctions—such as passing legislation—but, at thesame time, it is sufficiently flimsy and fictitious as torender the Senate unavailable to consider executivenominations by unanimous consent. This contortedview is not “the better view.” Pet. Br. 59. The betterview is that the Senate is simply in session during apro forma session.

III. Every Political Authority To Consider theQuestion Prior To January 2012Understood That Pro Forma Sessions AreValid Sessions of the Senate.

Notably, the OLC Memo was the first authoritywithin the political branches to opine that pro formasessions do not constitute valid sessions of theSenate for purposes of the Recess AppointmentsClause. See OLC Memo, at 4 (“The question is anovel one....”). In fact, every authority within the

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political branches to consider the question prior toJanuary 2012 either presupposed or expresslyunderstood that periodic pro forma sessions preventa “recess” of the Senate within the meaning of theRecess Appointments Clause.

A. The 1876 Floor Debate Presupposed theValidity of Pro Forma Sessions.

The Executive contends that, in an 1876 floordebate, “the Senate appears to have concluded” thatpro forma sessions were not valid sessions of theSenate for purposes of the Adjournment Clause. Pet.Br. 60-61 (citing 5 Cong. Rec. 333 (1876)). In fact,the 1876 Senate floor debate demonstrates the exactopposite: Even the Senators who were mostscrupulously committed to compliance with theAdjournment Clause expressed no qualms about theuse of pro forma sessions to satisfy thatconstitutional requirement.

The 1876 Senate floor debate considered how toeffect a nine-day holiday break without runningafoul of the Adjournment Clause. The House ofRepresentatives had just adopted a “formalresolution” stating it would “adjourn over for theconstitutional period [i.e., three days], to meet eachday of adjournment and adjourn again, and so onuntil Wednesday, the 3d of January.” 5 Cong. Rec.333 (1876) (Sen. Anthony). The Senate wasconsidering a parallel resolution, but certainSenators objected that adopting such a resolutionwould be tantamount to planning a nine-day recesswithout House approval, in violation of theAdjournment Clause. Id. at 334 (Sen. Bayard); id. at

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334-35 (Sen. Conkling). In response to theseobjections, another Senator proposed that the Senateproceed with a resolution providing for only theinitial three-day adjournment, with a “generalunderstanding” that it would take two subsequentthree-day adjournments, “[w]ithout the transactionof any business in the mean time.” Id. at 333 (Sen.Anthony). That proposal carried the day. Id. at 338.

The transcript of the 1876 debate underminesseveral of the Executive’s claims in this case. Mostnotably, at the debate’s conclusion, the Senatedecided (in the form of a “general understanding”) tomeet in three pro forma sessions interrupted bythree-day recesses over the course of nine days,apparently satisfied that doing so would not runafoul of the Adjournment Clause. Id. That hardlyqualifies as having “concluded” that pro formasessions do not satisfy the Adjournment Clause.Moreover, in the course of the debate, it wassuggested (1) that taking serial three-dayadjournments would not be a novel course of action,see id. at 334 (Sen. Anthony) (“Therefore I suggestedthat there be an informal understanding thattomorrow we shall adjourn for three days, and thenfor three days, and then for three days again, whichhas been frequently done here, and it is done now bythe House.”) (emphasis added); and (2) that oneadvantage of holding pro forma sessions was that theSenate would remain available to conduct businessas necessary. Id. (Sen. Anthony) (noting that theproposal “leaves it in the power of the Senate, if anyexigency should occur, to take any action that mightbe deemed necessary”).

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Furthermore, even the two Senators whoobjected to the originally proposed resolution did notobject that holding only pro forma sessions over anine-day period would violate the AdjournmentClause. Rather, their objections were purelyprocedural: that formalizing a plan for threesuccessive adjournments in advance might violatethe Adjournment Clause, and that it would not bepossible for the Senate to vote on subsequentadjournments in the absence of a quorum, and so theSenate might have to adjourn from day-to-day,rather than for three-day periods. See id. at 334(Sen. Conkling and Sen. Bayard). Neither of theseobjections comes close to an argument that pro formasessions fail to satisfy the Adjournment Clause.

B. Pro Forma Sessions Satisfy the CriteriaSet Forth in the 1905 Senate JudiciaryCommittee Report.

The Senate Judiciary Committee Report of 1905,upon which the Executive heavily relies, likewisesupports the validity of pro forma sessions. See S.Rep. No. 58-4389 (1905) (“1905 Senate Report”). In1903, President Theodore Roosevelt had attemptedto make recess appointments between two sessionsof Congress with no temporal break at all betweenthem—i.e., one session had ended at the verymoment that the next began. In response, theSenate Judiciary Committee wrote an opinionstressing that “a recess of the Senate” had to be“something real, not something imaginary;something actual, not something fictitious.” Id. at 1-2. The Committee stated that a “recess” is

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the period of time when the Senate is notsitting in regular or extraordinary session as abranch of the Congress, or in extraordinarysession for the discharge of executive functions;when its members owe no duty of attendance;when its Chamber is empty; when, because ofits absence, it can not receive communicationsfrom the President or participate as a body inmaking appointments.

Id. at 2 (emphasis in original). The Executiveinterprets the 1905 Senate Report as supporting a“functional standard” for a recess, permitting thePresident to determine that the Senate is effectivelyin “recess” for the purpose of the RecessAppointments Clause, even when it is meetingregularly in pro forma sessions. See Pet. Br. 45-49;OLC Memo, at 12-14. But the Senate report arguedquite the opposite. It argued that the Presidentcould not simply deem the Senate to be in recesswhenever it suited his purposes; the Senate had tobe genuinely unavailable in order for the RecessAppointments Clause to be triggered:

The framers of the Constitution wereproviding against a real danger to the publicinterest, not an imaginary one. They had inmind a period of time during which it would beharmful if an office were not filled; not aconstructive, inferred, or imputed recess, asopposed to an actual one.

1905 Senate Report, at 3 (emphases in original).

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Moreover, pro forma sessions satisfy each of thecriteria enumerated in the 1905 Senate Report.First, pro forma sessions consist of “sitting in regular... session as a branch of Congress,” id. at 2. TheExecutive’s contention to the contrary is entirelyquestion-begging. In fact, pro forma sessionsroutinely occur while the Senate is sitting in regularsession. See Pet. Br. 48 (noting that noon onJanuary 3, 2012, marked the beginning of theSecond Session of the 112th Congress). Second, allmembers of the Senate have the same duty ofattendance at pro forma sessions as at any othersession of the Senate. See Resp. Br. 61-63.

Third, during pro forma sessions, the Senate’s“Chamber” is not “empty.” 1905 Senate Report, at 2.Rather, certain Senators are in attendance at eachsession; even the Executive does not contend thatthe chamber is “empty.” See Pet. Br. 48 (noting that,“on January 6, 2012, a virtually empty chamber wasgaveled into pro-forma session by Senator Webb”);see also Resp. Br. 58-60 (noting the difficulty ofascertaining how many Senators were in fact inattendance at any pro forma session). Moreover, thenumber of members physically in attendance is not,by itself, a good indicator of the Senate’s level ofactivity. See Elizabeth Rybicki, Cong. ResearchServ., 96-452, Voting and Quorum Procedures in theSenate 1 (2013) (“As any observer of the Senate soonnotices, typically only a handful of Senators arepresent during floor debates. It is unusual for asmany as 51 Senators to be present on the floor at thesame time....”). And even with very few Senators inattendance, the Senate can conduct vital business,including passing legislation and approving

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presidential nominations. See supra Part II; OLCMemo, at 13 n.17, 21; Resp. Br. 58-60; see alsoElizabeth Rybicki, Cong. Research Serv., RL 31980,Senate Consideration of Presidential Nominations:Committee and Floor Procedure 9 (2013) (“Mostnominations are brought up by unanimous consentand approved without objection....”).

Finally, the Senate is fully capable of bothreceiving communications from the President and“participat[ing] as a body in making appointments”during pro forma sessions. 1905 Senate Report, at 2.There is no doubt that the Senate can enter formalmessages into the Congressional Record at a proforma session. See OLC Memo, at 21 (citing 157Cong. Rec. S8789-90 (daily ed. Dec. 23, 2011)). TheSenate can also convene committee meetings forconsideration of presidential nominees during proforma sessions. See 154 Cong. Rec. S8907 (daily ed.Sept. 17, 2008) (“We will be in pro forma session socommittees can still meet....”). And the Executiveitself has acknowledged that the Senate could“provide advice and consent on pending nominationsduring a pro forma session . . . .” OLC Memo, at 21.See also supra Parts II.D., II.E. Thus, the Senate’spro forma sessions satisfy all of the 1905 SenateReport’s criteria for a valid Senate session.

C. President Reagan and Senator ByrdShared the Understanding That ProForma Sessions Would Block RecessAppointments.

Senator Inhofe’s account of negotiations betweenthe Senate and the White House during the Reagan

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Administration also indicates that pro formasessions were regarded as valid sessions of theSenate under the Recess Appointments Clause.According to Senator Inhofe’s comments inNovember 1999, Senator Robert Byrd wrote a letterto the White House in 1985 urging the President todesist making recess appointments. According toSenator Inhofe, Senator Byrd asked PresidentReagan

to give the list to the majority leader insufficient time in advance that [the Senate]could prepare for it either by agreeing inadvance to the confirmation of thatappointment or by not going into recess andstaying in pro forma so the recessappointments could not take place.

145 Cong. Rec. 29,915 (1999) (Sen. Inhofe) (emphasisadded). In response, President Reagan evidentlyagreed to notify the Senate of any contemplatedrecess appointments in advance. Id. Notably,Senator Inhofe’s comments were made long beforethe Executive first contemplated the “novel”question, OLC Memo, at 4, of disregarding pro formasessions for the purpose of making recessappointments.

The Executive has tried to explain this evidenceby suggesting that Senator Inhofe misunderstood thenature of the agreement between Senator Byrd andPresident Reagan. Pet. Br. 57. Even if that weretrue, it would be beside the point. Whether SenatorInhofe’s recollection of 1985 was accurate or not, hismatter-of-fact description of those events is itself

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powerful evidence that it was commonly understoodin the 1980s and 1990s that pro forma sessions couldblock recess appointments. Nothing in hisdescription suggests that Senator Byrd’s threat touse pro forma sessions to block recess appointmentswas novel or in any other way remarkable. See alsoHenry B. Hogue, Cong. Research Serv., RS21308,Recess Appointments: Frequently Asked Questions11 n.44 (2013) (discussing evidence that “thispractice was considered, but not implemented,during the 1980s and 1990s”), available athttp://www.senate.gov/CRSReports/crs-publish.cfm?pid=%270DP%2BP%5CW%3B%20P%20%20%0A. In short, Senator Inhofe’s commentsafford substantial evidence that, up until January2012, it was widely accepted by both branches thatpro forma sessions prevent a “recess” within themeaning of the Recess Appointments Clause.

D. President Bush and Senator Reid AlsoShared the Understanding That ProForma Sessions Would Block RecessAppointments.

Both the Legislative and the Executive Brancheshave continued to regard pro forma sessions as validsessions in recent years, and both political partieshave used them for that purpose. In 2007, SenateMajority Leader Harry Reid introduced the practiceat issue in this case by causing the Senate to “com[e]in for pro forma sessions during the Thanksgivingholiday to prevent recess appointments.” 153 Cong.Rec. S14609 (2007) (Sen. Reid); see also Henry B.Hogue & Maureen Bearden, Cong. Research Serv.,RL33310, Recess Appointments Made by President

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George W. Bush, January 20, 2001-October 31, 20086-7 (2008), available athttp://www.fas.org/sgp/crs/misc/-RL33310.pdf (listingthis and subsequent similar declarations by SenatorReid). Senator Reid’s statements on this issue areparticularly telling, because they provide the mostcontemporaneous expression of the effect of proforma sessions by the person most clearlyempowered by office to make this determination—namely, the Senate Majority Leader. PresidentGeorge W. Bush acknowledged the validity of proforma sessions for this purpose, refraining frommaking any further recess appointments for theremainder of his term, despite an active history ofmaking recess appointments prior to Senator Reid’schange in Senate procedure. See id. at 6-7; Hogue,Recess Appointments: Frequently Asked Questions,supra, at 11, available at http://www.senate.gov/-CRSReports/crs-publish.cfm?pid=%270DP%2BP%5-CW%3B%20P%20%20%0A.

E. The Solicitor General’s 2010 LetterShared the Understanding That ProForma Sessions Would Block RecessAppointments.

Most recently, the Solicitor Generalacknowledged the efficacy of pro forma sessions inblocking recess appointments, in a letter to the Clerkof the Supreme Court in the case of New ProcessSteel, L.P. v. NLRB, 560 U.S. 674 (2010). That caseaddressed the validity of an NLRB determinationduring a period in which the Board had only twomembers; subsequently, several vacancies werefilled by recess appointments. New Process Steel,

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560 U.S at 674. Because two vacancies on the NLRBhad since been filled by recess appointment, theCourt requested letter briefing addressing the effect,if any, of the later appointments on the disposition ofthe case before it. In the course of advising theCourt on that question, the Solicitor General pointedout the likelihood that prolonged vacancies on theNLRB would recur, given the Senate’s use offrequent pro forma sessions to prevent the Presidentfrom making recess appointments:

[G]iven the complexities and potentiallength of the Senate confirmationprocess, multiple vacancies [on theNLRB] could arise again in the future.Although a President may fill suchvacancies through the use of his recessappointment power, as the Presidentdid on March 27 of this year, the Senatemay act to foreclose this option bydeclining to recess for more than two orthree days at a time over a lengthyperiod.

Letter from the Solicitor General to William K.Suter, Clerk, Supreme Court of the United States at3 (April 26, 2010), New Process Steel, L.P. v. NLRB,560 U.S. 674 (2010) (No. 08-1457), available athttp://www.scotusblog.com/wp-content/uploads/2010/04/SG-letter-brief-NLRB-4-26-10.pdf (emphasis added). To be sure, as the OLCMemo points out, the Solicitor General did notpurport in this letter to give this Court an opinion ofthe constitutional status of pro forma sessions. SeeOLC Memo, at 23. But it remains significant that

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the Solicitor General, consistent with every otherhistorical source, understood that pro forma sessionswere indeed effective in disabling the President’spower to make recess appointments, and advisedthis Court on the basis of that understanding.

***

In sum, the Senate’s pro forma sessionsconstitute valid sessions of the Senate. When theSenate was meeting in pro forma sessions betweenDecember 17, 2011, and January 23, 2012, it was notin “recess” under the Recess Appointments Clause orany other Clause of the Constitution. Rather, theSenate was in session, and the President had nopower to make recess appointments.

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CONCLUSION

For the foregoing reasons, amici curiaerespectfully request that this Court affirm thejudgment of the court below.

Respectfully submitted,

D. JOHN SAUERCounsel of Record

SARAH E. PITLYKMARY CATHERINE HODESCLARK & SAUER, LLC7733 Forsyth BoulevardSuite 625St. Louis, Missouri 63105(314) 332-2980jsauer@clarksauer.com

Counsel for Amici Curiae

November 25, 2013