Canning v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2012 Decided January 25, 2013
No. 12-1115
NOEL CANNING, A DIVISION OF THE NOEL CORPORATION,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 760,
INTERVENOR
Consolidated with 12-1153
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Noel J. Francisco argued the cause for petitioner. With him
on the briefs were G. Roger King, James M. Burnham, and Gary
E. Lofland.
Miguel A. Estrada argued the cause for amici curiae Senate
Republican Leader Mitch McConnell and 41 other members of
the United States Senate in support of petitioner/cross-
respondent Noel Canning.
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Jay Alan Sekulow was on the brief for amicus curiae The
Speaker of the United States House of Representatives, John
Boehner, in support of petitioner. John N. Raudabaugh entered
an appearance.
Glenn M. Taubman, William L. Messenger, Richard P.
Hutchison, and Mark R. Levin were on the brief for amici curiae
Landmark Legal Foundation, et al. in support of petitioner.
Beth S. Brinkmann, Deputy Assistant Attorney General,
U.S. Department of Justice, and Elizabeth A. Heaney, Attorney,
National Labor Relations Board, argued the causes for
respondent. With them on the brief were Stuart F. Delery,
Acting Assistant Attorney General, Scott R. McIntosh, Sarang
V. Damle, Melissa N. Patterson, and Benjamin M. Shultz,
Attorneys, John H. Ferguson, Associate General Counsel,
National Labor Relations Board, Linda Dreeben, Deputy
Associate General Counsel, and Jill A. Griffin, Attorney.
James B. Coppess argued the cause for intervenor. With
him on the brief were Bradley T. Raymond and Laurence Gold.
Victor Williams, pro se, filed the brief for amicus curiae
Professor Victor Williams.
Before: SENTELLE, Chief Judge, HENDERSON and GRIFFITH,
Circuit Judges.
Opinion for the Court filed by Chief Judge SENTELLE.
Concurring opinion filed by Circuit Judge GRIFFITH.
SENTELLE, Chief Judge: Noel Canning petitions for review
of a National Labor Relations Board (“NLRB” or “the Board”)
decision finding that Noel Canning violated section 8(a)(1) and
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(5) of the National Labor Relations Act (“NLRA”), 29 U.S.C.
§ 158(a)(1), (5), by refusing to reduce to writing and execute a
collective bargaining agreement reached with Teamsters Local
760 (“the Union”). See Noel Canning, A Division of the Noel
Corp., 358 N.L.R.B. No. 4, 2012 WL 402322 (Feb. 8, 2012)
(“Board Decision”). NLRB cross-petitions for enforcement of
its order. On the merits of the NLRB decision, petitioner argues
that the Board did not properly follow applicable contract law in
determining that an agreement had been reached and that
therefore, the finding of unfair labor practice is erroneous. We
determine that the Board issuing the findings and order could
not lawfully act, as it did not have a quorum, for reasons set
forth more fully below.
I. INTRODUCTION
At its inception, this appears to be a routine review of a
decision of the National Labor Relations Board over which we
have jurisdiction under 29 U.S.C. § 160(e) and (f), providing
that petitions for review of Board orders may be filed in this
court. The Board issued its order on February 8, 2012. On
February 24, 2012, the company filed a petition for review in
this court, and the Board filed its cross-application for
enforcement on March 20, 2012. While the posture of the
petition is routine, as it developed, our review is not. In its brief
before us, Noel Canning (along with a movant for status as
intervenor whose motion we will dismiss for reasons set forth
hereinafter) questions the authority of the Board to issue the
order on two constitutional grounds. First, petitioner asserts that
the Board lacked authority to act for want of a quorum, as three
members of the five-member Board were never validly
appointed because they took office under putative recess
appointments which were made when the Senate was not in
recess. Second, it asserts that the vacancies these three members
purportedly filled did not “happen during the Recess of the
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Senate,” as required for recess appointments by the Constitution.
U.S. Const. art. II, § 2, cl. 3. Because the Board must have a
quorum in order to lawfully take action, if petitioner is correct
in either of these assertions, then the order under review is void
ab initio. See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635(2010).
Before we can even consider the constitutional issues,
however, we must first rule on statutory objections to the
Board’s order raised by Noel Canning. It is a well-settled
principle of constitutional adjudication that courts “will not pass
upon a constitutional question although properly presented by
the record, if there is also present some other ground upon which
the case may be disposed of.” Ashwander v. Tenn. Valley Auth.,
297 U.S. 288, 347 (1936) (Brandeis, J., concurring); see also
Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105
(1944); United States v. Waksberg, 112 F.3d 1225, 1227 (D.C.
Cir. 1997). We must therefore decide whether Noel Canning is
entitled to relief on the basis of its nonconstitutional arguments
before addressing the constitutional question. Noel Canning
raises two statutory arguments. First, it contends that the ALJ’s
conclusion that the parties in fact reached an agreement at their
final negotiation session is not supported by substantial
evidence. Second, it argues that even if such an agreement were
reached, it is unenforceable under Washington law. We address
each argument in turn.
A. The Sufficiency of the Evidence
Refusal to execute a written collective bargaining
agreement incorporating terms agreed upon during negotiations
is an unfair labor practice under section 8(a)(1) and (5) of the
NLRA. H. J. Heinz Co. v. NLRB, 311 U.S. 514, 525–26 (1941).
Whether the parties reached an agreement during negotiations
is a question of fact. See NLRB v. Int’l Bhd. of Elec. Workers,
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748 F.2d 348, 350 (8th Cir. 1984); NLRB v. Roll & Hold Div.
Area Transp. Co., 957 F.2d 328, 331 (7th Cir. 1992). We
therefore must affirm the Board’s conclusion that an agreement
was in fact reached if that conclusion is supported by substantial
evidence. 29 U.S.C. § 160(e).
Noel Canning and the Union had in the past enjoyed a
long collective bargaining relationship, but the parties were
unable to reach a new agreement before their most recent one
expired in April 2010. Negotiations began in June 2010. By the
time the parties met for their final negotiation session in
December 2010, all issues save wages and pensions had been
resolved. According to notes taken by Union negotiators at the
parties’ final negotiating session, the parties agreed to present
two alternative contract proposals to the Union membership:
one preferred by Noel Canning management and the other by the
Union. Each proposal included wage and pension increases but
allocated the increases differently. The notes reveal that the
Union proposal put no limit on the membership’s right to decide
how much of the $0.40 per hour pay increase to allocate to its
pension fund. According to the notes and Union witnesses, the
parties agreed that both proposals would be submitted to the
Union membership for a ratification vote and that the parties
would be bound by the outcome of that vote. Union negotiators
testified that after the parties read aloud the terms of the two
proposals, Noel Canning’s president stood and said “let’s do it.”
Deferred Appendix 78. A Noel Canning officer agreed to email
the terms to the Union the next day. After the company agreed
to allow the Union to use a company conference room to hold
the vote, the negotiators shook hands and departed.
The next day, Noel Canning management emailed the
Union the wage and pension terms of the two proposals.
According to the email, however, the Union proposal capped at
$0.10 the amount of the $0.40 pay increase that the membership
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could devote to its pension fund. The email thus conflicted with
the Union negotiators’ notes, which left the allocation question
entirely to the membership. When the chief Union negotiator,
Bob Koerner, called Noel Canning’s president to discuss the
discrepancy, the president responded that since the agreement
was not in writing, it was not binding. The vote took place
anyway, and the membership ratified the Union’s preferred
proposal, which allocated the entire pay increase to the pension
fund. Noel Canning posted a letter informing the Union that the
company considered the ratification vote to be a counteroffer,
which the company rejected, and declared the parties to be at an
impasse. Noel Canning subsequently refused to execute a
written agreement embodying the terms ratified by the Union.
The Union filed an unfair labor practice charge premised
on Noel Canning’s refusal to execute the written agreement.
After a two-day hearing, the ALJ determined that the parties had
in fact achieved consensus ad idem as to the terms of the
Union’s preferred proposal and that Noel Canning’s refusal to
execute the written agreement constituted an unfair labor
practice under section 8(a)(1) and (5) of the NLRA. The ALJ
ordered Noel Canning to sign the collective bargaining
agreement. Noel Canning timely filed exceptions to the ALJ’s
decision, and the Board affirmed.
Unsurprisingly, the parties’ testimony at the ALJ hearing
conflicted over whether the parties in fact agreed to the terms of
the Union proposal. The ALJ’s decision thus rested almost
entirely on his determination of the witnesses’ credibility.
Assessing the conflicting testimony, the ALJ determined that
because the Union witnesses’ testimony was corroborated by
contemporaneous notes taken during the December 2010
negotiation session, the Union’s witnesses were credible. In
contrast, he determined that Noel Canning’s witnesses were not
credible because they neither “produced notes of the meeting
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[n]or explained why no notes were available” and because their
testimony was “abbreviated, conclusionary, nonspecific, and
unconvincing.” Board Decision at 7 (ALJ Op.).
We are loathe to overturn the credibility determinations
of an ALJ unless they are “hopelessly incredible, self-
contradictory, or patently insupportable.” Stephens Media, LLC
v. NLRB, 677 F.3d 1241, 1250 (D.C. Cir. 2012) (internal
quotation marks omitted). Here, the ALJ chose the corroborated
testimony of Union negotiators over the unsupported testimony
of Noel Canning employees. And given undisputed testimony
that at least one Noel Canning representative took notes of the
meeting, the ALJ weighed Noel Canning’s failure to corroborate
its testimony against it. As we noted, the ALJ also found Noel
Canning’s witnesses’ testimony to be unspecific and
abbreviated. In Monmouth Care Center v. NLRB, we found no
reason to set aside a credibility determination where “the ALJ
credited the testimony of the union’s negotiator over that of the
petitioners’ representatives . . . based on a combination of
testimonial demeanor and a lack of specificity and internal
corroboration for the petitioners’ claims.” 672 F.3d 1085, 1091
(D.C. Cir. 2012). The ALJ made a nearly identical
determination here, and we discern no reason to disturb it.
Noel Canning nevertheless claims that Koerner’s
testimony is plagued by inconsistencies. But the inconsistencies
and contradictions it identifies are either irrelevant or merely the
result of the competing testimony of the two parties’ witnesses.
There is nothing in the Union testimony — corroborated by
contemporaneous notes — that hints at hopeless incredibility or
self-contradiction.
Noel Canning thus relies on what it alleges to be an
inconsistency between Koerner’s testimony and his affidavit.
The affidavit, which is not in the record, apparently contained
8
the following sentence, referring to the parties’ tentative
agreement as “TA”: “I was voting the contract on Wednesday
and that I would vote what we TA’d during the December 8th
meeting — noting different than TA’d.” Deferred Appendix 74.
When asked at the ALJ hearing if he saw any errors in his
affidavit, Koerner claimed he saw none but struggled to explain
what the language meant. Noel Canning contends that the
affidavit is an explicit admission that Koerner presented an offer
to the Union that was materially different from the one agreed
upon by the parties and therefore contradicts his testimony. The
ALJ rejected Noel Canning’s interpretation, concluding that the
sentence suffered from a typographical error — “noting” should
have been “nothing” — and that the error accounted for the
witness’s inability to explain the affidavit’s meaning. Board
Decision at 5 n.8 (ALJ Op.).
We conceive of no reason to disagree. As written, the
language of the affidavit is confusing and becomes intelligible
only if the typographical error pointed out by the ALJ is
corrected. Moreover, the ALJ specifically determined that the
witness was confused by the affidavit, not that he was trying to
conceal deception, as Noel Canning contends. We are “ill-
positioned to second-guess” that determination. W.C.
McQuaide, Inc. v. NLRB, 133 F.3d 47, 53 (D.C. Cir. 1998). And
even assuming that Noel Canning’s reading is correct, it does
not support the company’s chief argument before the Board —
that the parties failed to reach any agreement at the December
2010 negotiation session — because even the affidavit evinces
that the parties reached some sort of agreement. Given the
deference we owe to the ALJ’s credibility determinations, the
consistency between the negotiators’ notes and the deal the
membership approved, and the lack of any evidence otherwise
suggesting that Koerner was an incredible witness, this case is
not the rare one in which we will overturn an ALJ’s credibility
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determination. The Board’s decision was therefore supported by
substantial evidence.
B. The Enforceability of the Contract
We also agree with the Board that we lack jurisdiction to
consider Noel Canning’s choice of law argument. Section 10(e)
of the NLRA forbids us from exercising jurisdiction to hear any
“objection that has not been urged before the Board.” 29 U.S.C.
§ 160(e); see also Chevron Mining, Inc. v. NLRB, 684 F.3d
1318, 1329–30 (D.C. Cir. 2012). The ALJ specifically rejected
Noel Canning’s argument that he should apply Washington state
law to decide whether the contract could be enforced. In its
exceptions to the Board, however, Noel Canning did not
mention Washington law. Although Noel Canning contended
that the ALJ incorrectly determined that the parties had in fact
reached consensus ad idem during negotiations, it nowhere
argued that the ALJ made an incorrect choice of law to govern
the contracts issue.
“While we have not required that the ground for the
exception be stated explicitly in the written exceptions filed with
the Board, we have required, at a minimum, that the ground for
the exception be evident by the context in which the exception
is raised.” Trump Plaza Assocs. v. NLRB, 679 F.3d 822, 829
(D.C. Cir. 2012) (internal quotation marks omitted). Nothing in
Noel Canning’s exceptions even hints that it objected to the
application of federal law. On the contrary, it conceded to the
Board that “[i]t is not in dispute that an employer violates [the
NLRA] by refusing to execute a Collective Bargaining
Agreement incorporating all of the terms agreed upon by the
parties during negotiations.” Deferred Appendix 100. We
therefore lack jurisdiction to consider Noel Canning’s state-law
argument because its objections were not “adequate to put the
Board on notice that the issue might be pursued on appeal.”
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Consol. Freightways v. NLRB, 669 F.2d 790, 794 (D.C. Cir.
1981). Having determined that Noel Canning does not prevail
on its statutory challenges, consideration of the constitutional
question is unavoidable, and we proceed to its resolution.
Because we agree that petitioner is correct in both of its
constitutional arguments, we grant the petition of Noel Canning
for review and deny the Board’s petition for enforcement.
II. JURISDICTION
Although no party has questioned our jurisdiction to
decide the constitutional issues raised in this petition, federal
courts, being courts of limited jurisdiction, must assure
themselves of jurisdiction over any controversy they hear,
regardless of the parties’ failure to assert any jurisdictional
question. See Telecomms. Research & Action Ctr. v. FCC, 750
F.2d 70, 75 (D.C. Cir. 1984). We note at the outset that there is
a serious argument to be made against our having jurisdiction
over the constitutional issues. Section 10(e) of the NLRA,
governing judicial review of the Board’s judgments and
petitions for enforcement, provides: “No objection that has not
been urged before the Board . . . shall be considered by the
court, unless the failure or neglect to urge such objection shall
be excused because of extraordinary circumstances.” 29 U.S.C.
§ 160(e). The record reflects no attempt by petitioner to raise
the threshold issues related to the recess appointments before the
Board. Our first question, then, is whether this failure to urge
the objection before the Board comes within the exception for
“extraordinary circumstances.” We hold that it does.
We acknowledge that no governing precedent directly
addresses this question. Nonetheless, there is instructive
precedent from other circumstances and other similar
administrative proceedings under other statutes. First, we note
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that in another administrative agency review, Railroad
Yardmasters of America v. Harris, we held that a challenge to
the authority of the National Mediation Board on the basis that
it had no quorum “present[ed] a question of power or
jurisdiction and is open to the appellee even if not initially
asserted before the Board.” 721 F.2d 1332, 1338 (D.C. Cir.
1983). In Railroad Yardmasters, we relied on the Supreme
Court’s decision in United States v. L. A. Tucker Truck Lines,
Inc. Id. at 1337–38 (discussing United States v. L. A. Tucker
Truck Lines, Inc., 344 U.S. 33 (1952)). In L. A. Tucker Truck
Lines, the Court considered a challenge to the appointment of an
examiner in an Interstate Commerce Commission proceeding.
344 U.S. at 35. Therein the Court stated in dicta that this was
not a defect “which deprives the Commission of power or
jurisdiction, so that even in the absence of timely objection its
order should be set aside as a nullity.” Id. at 38. In L. A. Tucker
Truck Lines, the challenge was not to the Commission’s power
to act, but only its examiner’s. We held in Railroad
Yardmasters that the L. A. Tucker Truck Lines rejection of the
challenge did not govern because in the case before us, “the
appellee contend[ed] that the National Mediation Board had no
power to act at all at a time when there were two vacancies on
the Board.” 721 F.2d at 1338. Because that challenge
“present[ed] a question of power or jurisdiction . . . [it was] open
to the appellee even if not initially asserted before the Board.”
Id.The reasoning of Yardmasters is applicable here. As in
Yardmasters, the objections before us concerning lack of a
quorum raise questions that go to the very power of the Board
to act and implicate fundamental separation of powers concerns.
We hold that they are governed by the “extraordinary
circumstances” exception to the 29 U.S.C. § 160(e) requirement
and therefore are properly before us for review.
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Admittedly, Yardmasters did not implicate our
jurisdiction nor have we ever applied it to a jurisdictional
exhaustion statute. But in Natural Resources Defense Council
v. Thomas, we considered whether to apply Yardmasters to
section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C.
§ 7607(d)(7)(B), a jurisdictional administrative exhaustion
requirement. 805 F.2d 410, 428 & n.29 (D.C. Cir. 1986).
Although we ultimately declined to apply it, we did so because
the facts of the case did not involve the Yardmasters exception,
not because Yardmasters does not apply to a jurisdictional
exhaustion statute. See id. Confronted for the first time with
facts that do trigger the Yardmasters exception in the context of
a jurisdictional exhaustion statute, we hold that we may exercise
jurisdiction under section 10(e) because a constitutional
challenge to the Board’s composition creates “extraordinary
circumstances” excusing failure to raise it below.
In various circumstances, both this court and the
Supreme Court have considered objections to the authority of
the decisionmaker whose decision is under review even when
those objections were not raised below. For example, the
Supreme Court has stated, admittedly in dicta, that “if the Board
has patently traveled outside the orbit of its authority so that
there is, legally speaking, no order to enforce,” a reviewing
court can not enter an order of enforcement, such as the Board
seeks in this case. NLRB v. Cheney California Lumber Co., 327
U.S. 385, 388 (1946). It is true that petitioner’s argument before
us does not raise the Board’s “travel[ing] outside the orbit of its
authority” in precisely the same way as in Cheney. In that case,
the Supreme Court addressed arguments concerning the scope
of the Board’s authority. Here, however, there is “no order to
enforce” because there was no lawfully constituted Board. The
Cheney order was “outside the orbit of authority” by reason of
its scope. The present order is outside the orbit of the authority
of the Board because the Board had no authority to issue any
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order. It had no quorum. See generally New Process Steel, 130
S. Ct. 2635. This, we hold, constitutes an extraordinary
circumstance within the meaning of the NLRA.
We further find instructive our decision in Carroll
College, Inc. v. NLRB, 558 F.3d 568 (D.C. Cir. 2009). In that
case, we considered an objection to the Board’s authority to
subject a religious institution to the NLRA’s collective
bargaining requirements. Id. at 571. In agreeing with the
petitioner in Carroll College that the Board had erred, we stated,
“[t]he Board thus had no jurisdiction to order the school to
bargain with the union, and we have authority to invalidate the
Board’s order even though the college did not raise its
jurisdictional challenge below.” Id. at 574. Although for
different reasons, the petitioner here, just as in Carroll College,
argues that the Board was without authority to enter the order
under review. Just as in Carroll College, we hold that where the
Board “had no jurisdiction” to enter the order, “we have
authority to invalidate the Board’s order even though the
[petitioner] did not raise its jurisdictional challenge below.” Id.III. THE UNDERLYING PROCEEDINGS
Petitioner is a bottler and distributor of Pepsi-Cola
products and is an employer within the terms of the NLRA. As
discussed, an NLRB administrative law judge concluded that
Noel Canning had violated the NLRA. Board Decision at 8
(ALJ Op.). After Noel Canning filed exceptions to the ALJ’s
findings, a three-member panel of the Board, composed of
Members Hayes, Flynn, and Block, affirmed those findings in
a decision dated February 8, 2012. Id. at 1 (Board Op.).
On that date, the Board purportedly had five members.
Two members, Chairman Mark G. Pearce and Brian Hayes, had
been confirmed by the Senate on June 22, 2010. It is undisputed
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that they remained validly appointed Board members on
February 8, 2012. See 156 Cong. Rec. S5,281 (daily ed. June
22, 2010).
The other three members were all appointed by the
President on January 4, 2012, purportedly pursuant to the Recess
Appointments Clause of the Constitution, U.S. Const. art. II, § 2,
cl. 3. See Ctr. for Soc. Change, Inc., 358 N.L.R.B. No. 24, slip
op. at 1, 2012 WL 1064641 (2012).
The first of these three members, Sharon Block, filled
a seat that became vacant on January 3, 2012, when Board
member Craig Becker’s recess appointment expired. See 158
Cong. Rec. S582–83 (daily ed. Feb. 13, 2012); Part IV.B, infra.
The second of the three members, Terence F. Flynn,
filled a seat that became vacant on August 27, 2010, when Peter
Schaumber’s term expired. See 158 Cong. Rec. S582–83; 152
Cong. Rec. 17,077 (2006). The third, Richard F. Griffin, filled
a seat that became vacant on August 27, 2011, when Wilma B.
Liebman’s term expired. See 158 Cong. Rec. S582–83; 152
Cong. Rec. 17,077.
At the time of the President’s purported recess
appointments of the three Board members, the Senate was
operating pursuant to a unanimous consent agreement, which
provided that the Senate would meet in pro forma sessions every
three business days from December 20, 2011, through January
23, 2012. 157 Cong. Rec. S8,783–84 (daily ed. Dec. 17, 2011).
The agreement stated that “no business [would be] conducted”
during those sessions. Id. at S8,783. During the December 23
pro forma session, the Senate overrode its prior agreement by
unanimous consent and passed a temporary extension to the
payroll tax. Id. at S8,789 (daily ed. Dec. 23, 2011). During the
January 3 pro forma session, the Senate acted to convene the
15
second session of the 112th Congress and to fulfill its
constitutional duty to meet on January 3. 158 Cong. Rec. S1
(daily ed. Jan. 3, 2012); see U.S. Const. amend. XX, § 2 (“The
Congress shall assemble at least once in every year, and such
meeting shall begin at noon on the 3d day of January, unless
they shall by law appoint a different day.”).
Noel Canning asserts that the Board did not have a
quorum for the conduct of business on the operative date,
February 8, 2012. Citing New Process Steel, L.P. v. NLRB, 130
S. Ct. 2635 (2010), which holds that the Board cannot act
without a quorum of three members, Noel Canning asserts that
the Board lacked a quorum on that date. Noel Canning argues
that the purported appointments of the last three members of the
Board were invalid under the Recess Appointments Clause of
the Constitution, Article II, Section 2, Clause 3. Because we
agree that the appointments were constitutionally invalid and the
Board therefore lacked a quorum, we grant the petition for
review and vacate the Board’s order.
IV. ANALYSIS
It is undisputed that the Board must have a quorum of
three in order to take action. It is further undisputed that a
quorum of three did not exist on the date of the order under
review unless the three disputed members (or at least one of
them) were validly appointed. It is further agreed that the
members of the Board are “Officers of the United States” within
the meaning of the Appointments Clause of the Constitution,
which provides that the President “shall nominate, and by and
with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the
supreme Court, and all other Officers of the United States,
whose Appointments are not herein otherwise provided for, and
which shall be established by Law.” U.S. Const. art. II, § 2, cl.
16
2. Finally, it is undisputed that the purported appointments of
the three members were not made “by and with the Advice and
Consent of the Senate.”
This does not, however, end the dispute. The Board
contends that despite the failure of the President to comply with
Article II, Section 2, Clause 2, he nonetheless validly made the
appointments under a provision sometimes referred to as the
“Recess Appointments Clause,” which provides that “[t]he
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.” Id. art. II, § 2, cl. 3. Noel Canning contends that the
putative recess appointments are invalid and the Recess
Appointments Clause is inapplicable because the Senate was not
in the recess at the time of the putative appointments and the
vacancies did not happen during the recess of the Senate. We
consider those issues in turn.
A. The Meaning of “the Recess”
Noel Canning contends that the term “the Recess” in
the Recess Appointments Clause refers to the intersession recess
of the Senate, that is to say, the period between sessions of the
Senate when the Senate is by definition not in session and
therefore unavailable to receive and act upon nominations from
the President. The Board’s position is much less clear. It argues
that the alternative appointment procedure created by that
Clause is available during intrasession “recesses,” or breaks in
the Senate’s business when it is otherwise in a continuing
session. The Board never states how short a break is too short,
under its theory, to serve as a “recess” for purposes of the
Recess Appointments Clause. This merely reflects the Board’s
larger problem: it fails to differentiate between “recesses” and
the actual constitutional language, “the Recess.”
17
It is this difference between the word choice “recess”
and “the Recess” that first draws our attention. When
interpreting a constitutional provision, we must look to the
natural meaning of the text as it would have been understood at
the time of the ratification of the Constitution. District of
Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). Then, as
now, the word “the” was and is a definite article. See 2 Samuel
Johnson, A Dictionary of the English Language 2041 (1755)
(defining “the” as an “article noting a particular thing”
(emphasis added)). Unlike “a” or “an,” that definite article
suggests specificity. As a matter of cold, unadorned logic, it
makes no sense to adopt the Board’s proposition that when the
Framers said “the Recess,” what they really meant was “a
recess.” This is not an insignificant distinction. In the end it
makes all the difference.
Six times the Constitution uses some form of the verb
“adjourn” or the noun “adjournment” to refer to breaks in the
proceedings of one or both Houses of Congress. Twice, it uses
the term “the Recess”: once in the Recess Appointments Clause
and once in the Senate Vacancies Clause, U.S. Const. art. I, § 3,
cl. 2. Not only did the Framers use a different word, but none of
the “adjournment” usages is preceded by the definite article. All
this points to the inescapable conclusion that the Framers
intended something specific by the term “the Recess,” and that
it was something different than a generic break in proceedings.
The structure of the Clause is to the same effect. The
Clause sets a time limit on recess appointments by providing
that those commissions shall expire “at the End of their [the
Senate’s] next Session.” Again, the Framers have created a
dichotomy. The appointment may be made in “the Recess,” but
it ends at the end of the next “Session.” The natural
interpretation of the Clause is that the Constitution is noting a
difference between “the Recess” and the “Session.” Either the
18
Senate is in session, or it is in the recess. If it has broken for
three days within an ongoing session, it is not in “the Recess.”
It is universally accepted that “Session” here refers to
the usually two or sometimes three sessions per Congress.
Therefore, “the Recess” should be taken to mean only times
when the Senate is not in one of those sessions. Cf. Virginia v.
Tennessee, 148 U.S. 503, 519 (1893) (interpreting terms “by
reference to associated words”). Confirming this reciprocal
meaning, the First Congress passed a compensation bill that
provided the Senate’s engrossing clerk “two dollars per day
during the session, with the like compensation to such clerk
while he shall be necessarily employed in the recess.” Act of
Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71.
Not only logic and language, but also constitutional
history supports the interpretation advanced by Noel Canning,
not that of the Board. When the Federalist Papers spoke of
recess appointments, they referred to those commissions as
expiring “at the end of the ensuing session.” The Federalist No.
67, at 408 (Clinton Rossiter ed., 2003). For there to be an
“ensuing session,” it seems likely to the point of near certainty
that recess appointments were being made at a time when the
Senate was not in session — that is, when it was in “the
Recess.” Thus, background documents to the Constitution, in
addition to the language itself, suggest that “the Recess” refers
to the period between sessions that would end with the ensuing
session of the Senate.
Further, the Supreme Court has used analogous state
constitutional provisions to inform its interpretation of the
Constitution. See Heller, 128 S. Ct. at 2802. For example, in
Collins v. Youngblood, the Court considered several early state
constitutions in discerning “the original understanding of the Ex
Post Facto Clause” because “they appear to have been a basis
19
for the Framers’ understanding of the provision.” 497 U.S. 37,
43 (1990). The North Carolina Constitution, which contains the
state constitutional provision most similar to the Recess
Appointments Clause and thus likely served as the Clause’s
model, see Thomas A. Curtis, Note, Recess Appointments to
Article III Courts: The Use of Historical Practice in
Constitutional Interpretation, 84 Colum. L. Rev. 1758, 1770–72
(1984), supports the intersession interpretation. It provides:
That in every case where any officer, the right of
whose appointment is by this Constitution vested in the
General Assembly, shall, during their recess, die, or his
office by other means become vacant, the Governor
shall have power, with the advice of the Council of
State, to fill up such vacancy, by granting a temporary
commission, which shall expire at the end of the next
session of the General Assembly.
N.C. Const. of 1776, art. XX, reprinted in 7 Sources and
Documents of United States Constitutions 406 (1978). This
provision, like the Recess Appointments Clause, describes a
singular recess and does not use the word “adjournment.” And
an 1819 North Carolina Supreme Court case dealing with this
provision implies that the provision was seen as differentiating
between “the session of the General Assembly” and “the recess
of the General Assembly.” Beard v. Cameron, 7 N.C. (3 Mur.)
181 (1819) (opinion of Taylor, C.J.).
The Board argues that “the Company’s view would . . .
upend the established constitutional balance of power between
the Senate and the President with respect to presidential
appointments.” Resp’t. Br. at 13. However, the Board’s view
of “the established constitutional balance” is neither so well
established nor so clear as the Board seems to think. In fact, the
historical role of the Recess Appointments Clause is neither
20
clear nor consistent.
The interpretation of the Clause in the years immediately
following the Constitution’s ratification is the most instructive
historical analysis in discerning the original meaning. Indeed,
such early interpretation is a “critical tool of constitutional
interpretation” because it reflects the “public understanding” of
the text “in the period after its . . . ratification.” Heller, 128 S.
Ct. at 2804–05. With respect to the Recess Appointments
Clause, historical practice strongly supports the intersession
interpretation. The available evidence shows that no President
attempted to make an intrasession recess appointment for 80
years after the Constitution was ratified. Michael A. Carrier,
Note, When is the Senate in Recess for Purposes of the Recess
Appointments Clause?, 92 Mich. L. Rev. 2204, 2211 (1994).
The first intrasession recess appointment probably did not come
until 1867, when President Andrew Johnson apparently
appointed one district court judge during an intrasession
adjournment. See Edward A. Hartnett, Recess Appointments of
Article III Judges: Three Constitutional Questions, 26 Cardozo
L. Rev. 377, 408–09 (2005). It is not even entirely clear that the
Johnson appointment was made during an intrasession recess.
See id. at 409 n.136.
Presidents made only three documented intrasession recess
appointments prior to 1947, with the other two coming during
the presidencies of Calvin Coolidge and Warren Harding. See
Carrier, supra, at 2209–12, 2235; see also Lawfulness of Recess
Appointments During a Recess of the Senate Notwithstanding
Periodic Pro Forma Sessions, 36 Op. O.L.C. 1, 5 (2012),
available at http://www.justice.gov/olc/2012/pro-forma-
sessions-opinion.pdf (“2012 OLC Memo”).
Whatever the precise number of putative intrasession recess
appointments before 1947, it is well established that for at least
21
80 years after the ratification of the Constitution, no President
attempted such an appointment, and for decades thereafter, such
appointments were exceedingly rare. The Supreme Court in
Printz v. United States, exploring the reach of federal power
over the states, deemed it significant that the early Congress had
not attempted to exercise the questioned power. 521 U.S. 898(1997). Paralleling the Supreme Court’s reasoning in Printz, we
conclude that the infrequency of intrasession recess
appointments during the first 150 years of the Republic
“suggests an assumed absence of [the] power” to make such
appointments. Id. at 908. Though it is true that intrasession
recesses of significant length may have been far less common in
those early days than today, see Carrier, supra, at 2211, it is
nonetheless the case that the appointment practices of Presidents
more nearly contemporaneous with the adoption of the
Constitution do not support the propriety of intrasession recess
appointments. Their early understanding of the Constitution is
more probative of its original meaning than anything to be
drawn from administrations of more recent vintage.
While the Board seeks support for its interpretation in the
practices of more recent administrations, we do not find those
practices persuasive. We note that in INS v. Chadha, when the
Supreme Court was considering the constitutionality of a one-
house veto, it considered a similar argument concerning the
increasing frequency of such legislative veto provisions. 462
U.S. 919, 944–45 (1983). In rejecting that argument, the
Chadha Court stated that “our inquiry is sharpened rather than
blunted by the fact that congressional veto provisions are
appearing with increasing frequency . . . .” Id. at 944. Like the
Supreme Court in Chadha, we conclude that practice of a more
recent vintage is less compelling than historical practice dating
back to the era of the Framers.
22
Likewise, in Myers v. United States, the Court considered
a statutory limitation on the President’s power to remove his
appointees. 272 U.S. 52 (1926). In a powerful tribute to the
strength of interpretations from the time of the ratification, Chief
Justice Taft, writing for the Court, gave almost dispositive
weight to the First Congress’s construction of the Constitution
on the question of the President’s removal power. See id. at
174–75. The Court expressly valued the early practice over
recent 1870s legislation inconsistent with the early
understanding.
The Constitution’s overall appointments structure provides
additional confirmation of the intersession interpretation. The
Framers emphasized that the recess appointment power served
only as a stopgap for times when the Senate was unable to
provide advice and consent. Hamilton wrote in Federalist No.
67 that advice and consent “declares the general mode of
appointing officers of the United States,” while the Recess
Appointments Clause serves as “nothing more than a
supplement to the other for the purpose of establishing an
auxiliary method of appointment, in cases to which the general
method was inadequate.” The Federalist No. 67, supra, at 408.
The “general mode” of participation of the Senate through
advice and consent served an important function: “It would be
an excellent check upon a spirit of favoritism in the President,
and would tend greatly to prevent the appointment of unfit
characters from State prejudice, from family connection, from
personal attachment, or from a view to popularity.” The
Federalist No. 76, supra, at 456.
Nonetheless, the Framers recognized that they needed some
temporary method for appointment when the Senate was in the
recess. At the time of the Constitution, intersession recesses
were regularly six to nine months, Michael B. Rappaport, The
Original Meaning of the Recess Appointments Clause, 52 UCLA
23
L. Rev. 1487, 1498 (2005), and senators did not have the luxury
of catching the next flight to Washington. To avoid government
paralysis in those long periods when senators were unable to
provide advice and consent, the Framers established the
“auxiliary” method of recess appointments. But they put strict
limits on this method, requiring that the relevant vacancies
happen during “the Recess.” It would have made little sense to
extend this “auxiliary” method to any intrasession break, for the
“auxiliary” ability to make recess appointments could easily
swallow the “general” route of advice and consent. The
President could simply wait until the Senate took an intrasession
break to make appointments, and thus “advice and consent”
would hardly restrain his appointment choices at all.
To adopt the Board’s proffered intrasession interpretation
of “the Recess” would wholly defeat the purpose of the Framers
in the careful separation of powers structure reflected in the
Appointments Clause. As the Supreme Court observed in
Freytag v. Commissioner of Internal Revenue, “The
manipulation of official appointments had long been one of the
American revolutionary generation’s greatest grievances against
executive power, because the power of appointment to offices
was deemed the most insidious and powerful weapon of
eighteenth century despotism.” 501 U.S. 868, 883 (1991)
(internal quotation marks and citation omitted). In short, the
Constitution’s appointments structure — the general method of
advice and consent modified only by a limited recess
appointments power when the Senate simply cannot provide
advice and consent — makes clear that the Framers used “the
Recess” to refer only to the recess between sessions.
Confirming this understanding of the Recess Appointments
Clause is the lack of a viable alternative interpretation of “the
Recess.” The first alternative interpretation is that “the Recess”
refers to all Senate breaks. But no party presses that
24
interpretation, and for good reason. See Resp’t Br. at 65
(conceding that “a routine adjournment for an evening, a
weekend, or a lunch break occurring during regular working
sessions of the Senate does not constitute a ‘Recess of the
Senate’ under the Recess Appointments Clause”). As discussed
above, the appointments structure would have been turned
upside down if the President could make appointments any time
the Senate so much as broke for lunch. This interpretation also
cannot explain the use of the definite article “the,” the singular
“Recess” in the Clause, or why the Framers used “adjournment”
differently from “Recess.”
The second possible interpretation is that “the Recess” is a
practical term that refers to some substantial passage of time,
such as a ten- or twenty-day break. Attorney General Daugherty
seemed to abandon the intersession interpretation in 1921 and
adopted this functional interpretation, arguing that “[t]o give the
word ‘recess’ a technical and not a practical construction, is to
disregard substance for form.” 33 Op. Att’y Gen. 20, 22 (1921).
Daugherty refused to put an exact time on the length of the
break necessary for a “Recess,” stating that “[i]n the very nature
of things the line of demarcation can not be accurately drawn.”
Id. at 25.
We must reject Attorney General Daugherty’s vague
alternative in favor of the clarity of the intersession
interpretation. As the Supreme Court has observed, when
interpreting “major features” of the Constitution’s separation of
powers, we must “establish[] high walls and clear distinctions
because low walls and vague distinctions will not be judicially
defensible in the heat of interbranch conflict.” Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 239 (1995). Thus, the
inherent vagueness of Daugherty’s interpretation counsels
against it. Given that the appointments structure forms a major
part of the separation of powers in the Constitution, the Framers
25
would not likely have introduced such a flimsy standard.
Moreover, the text of the Recess Appointments Clause offers no
support for the functional approach. Some undefined but
substantial number of days-break is not a plausible interpretation
of “the Recess.”
A third alternative interpretation of “the Recess” is that it
means any adjournment of more than three days pursuant to the
Adjournments Clause. See U.S. Const. art. I, § 5, cl. 4 (“Neither
House, during the Session of Congress, shall, without the
Consent of the other, adjourn for more than three days . . . .”).
This interpretation lacks any constitutional basis. The Framers
did not use the word “adjournment” in the Recess Appointments
Clause. Instead, they used “the Recess.” The Adjournments
Clause and the Recess Appointments Clause exist in different
contexts and contain no hint that they should be read together.
Nothing in the text of either Clause, the Constitution’s structure,
or its history suggests a link between the Clauses. Without any
evidence indicating that the two Clauses are related, we cannot
read one as governing the other. We will not do violence to the
Constitution by ignoring the Framers’ choice of words.
The fourth and final possible interpretation of “the Recess,”
advocated by the Office of Legal Counsel, is a variation of the
functional interpretation in which the President has discretion to
determine that the Senate is in recess. See 2012 OLC Memo,
supra, at 23 (“[T]he President therefore has discretion to
conclude that the Senate is unavailable to perform its advise-
and-consent function and to exercise his power to make recess
appointments.”). This will not do. Allowing the President to
define the scope of his own appointments power would
eviscerate the Constitution’s separation of powers. The checks
and balances that the Constitution places on each branch of
government serve as “self-executing safeguard[s] against the
encroachment or aggrandizement of one branch at the expense
26
of the other.” Buckley v. Valeo, 424 U.S. 1, 122 (1976). An
interpretation of “the Recess” that permits the President to
decide when the Senate is in recess would demolish the checks
and balances inherent in the advice-and-consent requirement,
giving the President free rein to appoint his desired nominees at
any time he pleases, whether that time be a weekend, lunch, or
even when the Senate is in session and he is merely displeased
with its inaction. This cannot be the law. The intersession
interpretation of “the Recess” is the only one faithful to the
Constitution’s text, structure, and history.
The Board’s arguments supporting the intrasession
interpretation are not convincing. The Board relies on an
Eleventh Circuit opinion holding that “the Recess” includes
intrasession recesses. See Evans v. Stephens, 387 F.3d 1220,
1224 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005). The
Evans court explained that contemporaneous dictionaries
defined “recess” broadly as “remission and suspension of any
procedure.” Id. (quoting 2 Johnson, supra, at 1650). The court
also dismissed the importance of the definite article “the,”
discounted the Constitution’s distinction between “adjournment”
and “Recess” by interpreting “adjournment” as a parliamentary
action, and emphasized the prevalence of intrasession recess
appointments in recent years. See id. at 1225–26.
While we respect our sister circuit, we find the Evans
opinion unconvincing. Initially, we note that the Eleventh
Circuit’s analysis was premised on an incomplete statement of
the Recess Appointments Clause’s purpose: “to enable the
President to fill vacancies to assure the proper functioning of our
government.” Id. at 1226. This statement omits a crucial
element of the Clause, which enables the President to fill
vacancies only when the Senate is unable to provide advice and
consent. See, e.g., 2012 OLC Memo, supra, at 10 (“[T]he recess
appointment power is required to address situations in which the
27
Senate is unable to provide advice and consent on
appointments.”). As we have explained, the Clause deals with
the Senate’s being unable to provide advice and consent only
during “the Recess,” viz., an intersession recess. As written, the
Eleventh Circuit’s statement disregards the full structure of the
Constitution’s appointments provision, which makes clear that
the recess appointments method is secondary to the primary
method of advice and consent. The very existence of the advice
and consent requirement highlights the incompleteness of the
Eleventh Circuit’s broad statement of constitutional purpose.
Nor are we convinced by the Eleventh Circuit’s more
specific arguments. First, the natural meaning of “the Recess”
is more limited than the broad dictionary definition of “recess.”
In context, “the Recess” refers to a specific state of the
legislature, so sources other than general dictionaries are more
helpful in elucidating the term’s original public meaning. See
Virginia, 148 U.S. at 519 (“[T]he meaning of a term may be
enlarged or restrained by reference to the object of the whole
clause in which it is used.”). Indeed, it is telling that even the
Board concedes that “Recess” does not mean all breaks, see
Resp’t Br. at 65, which is the interpretation suggested by the
dictionary definition. See 2 Johnson, supra, at 1650 (defining
“recess” as the “remission and suspension of any procedure”).
Second, the Eleventh Circuit fails to explain the use of the
singular “Recess,” and it underestimates the significance of the
definite article “the” preceding “Recess” by relying on
twentieth-century dictionaries to argue that “the” can come
before a generic term. See Evans, 387 F.3d at 1224–25.
Contemporaneous dictionaries treated “the” as “noting a
particular thing.” 2 Johnson, supra, at 2041 (emphasis added).
Third, as the Eleventh Circuit acknowledged, the Supreme
Court has suggested that the Constitution does not in fact only
28
use “adjournment” to denote parliamentary action. See Evans,
387 F.3d at 1225 (citing Wright v. United States, 302 U.S. 583(1938)).
In fact, the Constitution uses “adjournment” to refer
generally to legislative breaks. It uses “the Recess” differently
and then incorporates the definite article. Thus, the Eleventh
Circuit’s interpretation of “adjournment” fails to distinguish
between “adjournment” and “Recess,” rendering the latter
superfluous and ignoring the Framers’ specific choice of words.
Cf. Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570–71 (1840)
(plurality opinion) (“In expounding the Constitution of the
United States, every word must have its due force, and
appropriate meaning; for it is evident from the whole instrument,
that no word was unnecessarily used, or needlessly added.”);
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) (“It
cannot be presumed that any clause in the constitution is
intended to be without effect . . . .”).
The Board offers as an example of an early interpretation of
“the Recess” consistent with its view the case of a senator
appointed by the governor of New Jersey to fill a vacated seat in
the United States Senate pursuant to Article I, Section 3, Clause
2. Under that clause, “if Vacancies happen by Resignation, or
otherwise, during the Recess of the Legislature of any State, the
Executive thereof may make temporary Appointments until the
next Meeting of the Legislature, which shall then fill such
Vacancies.” U.S. Const. art. I, § 3, cl. 2. In the example relied
upon by the Board, Franklin Davenport was “appointed a
Senator by the Executive of the State of New Jersey, in the
recess of the Legislature” and “took his seat in the Senate.” 8
Annals of Cong. 2197 (1798). The Board then offers evidence
that the New Jersey Legislative Council Journal, 23d Session
20–21 (1798–99), documents an intrasession recess at the
apparent time of Davenport’s appointment. We do not find this
29
persuasive. Nothing in the Annals of Congress establishes that
Congress considered or even knew that the appointment was
made during an intrasession recess of the legislature. The
example offers at most the understanding of one state governor,
not a common understanding of “the Recess” as used in the
Recess Appointments Clause.
Finally, we would make explicit what we have implied
earlier. The dearth of intrasession appointments in the years and
decades following the ratification of the Constitution speaks far
more impressively than the history of recent presidential
exercise of a supposed power to make such appointments.
Recent Presidents are doing no more than interpreting the
Constitution. While we recognize that all branches of
government must of necessity exercise their understanding of
the Constitution in order to perform their duties faithfully
thereto, ultimately it is our role to discern the authoritative
meaning of the supreme law.
As Chief Justice Marshall made clear in Marbury v.
Madison, “[i]t is emphatically the province and duty of the
judicial department to say what the law is. Those who apply the
rule to particular cases, must of necessity expound and interpret
that rule. If two laws conflict with each other, the courts must
decide on the operation of each.” 5 U.S. (1 Cranch) at 177. In
Marbury, the Supreme Court established that if the legislative
branch has acted in contravention of the Constitution, it is the
courts that make that determination. In Youngstown Sheet &
Tube Co. v. Sawyer, the Supreme Court made clear that the
courts must make the same determination if the executive has
acted contrary to the Constitution. 343 U.S. 579 (1952). That
is the case here, and we must strike down the unconstitutional
act.
30
In short, we hold that “the Recess” is limited to intersession
recesses. The Board conceded at oral argument that the
appointments at issue were not made during the intersession
recess: the President made his three appointments to the Board
on January 4, 2012, after Congress began a new session on
January 3 and while that new session continued. 158 Cong. Rec.
S1 (daily ed. Jan. 3, 2012). Considering the text, history, and
structure of the Constitution, these appointments were invalid
from their inception. Because the Board lacked a quorum of
three members when it issued its decision in this case on
February 8, 2012, its decision must be vacated. See 29 U.S.C.
§ 153(b); New Process Steel, 130 S. Ct. at 2644–45.
B. Meaning of “Happen”
Although our holding on the first constitutional argument of
the petitioner is sufficient to compel a decision vacating the
Board’s order, as we suggested above, we also agree that the
petitioner is correct in its understanding of the meaning of the
word “happen” in the Recess Appointments Clause. The Clause
permits only the filling up of “Vacancies that may happen
during the Recess of the Senate.” U.S. Const. art. II, § 2, cl. 3.
Our decision on this issue depends on the meaning of the
constitutional language “that may happen during the Recess.”
The company contends that “happen” means “arise” or “begin”
or “come into being.” The Board, on the other hand, contends
that the President may fill up any vacancies that “happen to
exist” during “the Recess.” It is our firm conviction that the
appointments did not occur during “the Recess.” We proceed
now to determine whether the appointments are also invalid as
the vacancies did not “happen” during “the Recess.”
In determining the meaning of “happen” in the Recess
Appointments Clause, we begin our analysis as we did in the
first issue by looking to the natural meaning of the text as it
31
would have been understood at the time of the ratification of the
Constitution. See Heller, 128 S. Ct. at 2788. Upon a simple
reading of the language itself, we conclude that the word
“happen” could not logically have encompassed any vacancies
that happened to exist during “the Recess.” If the language were
to be construed as the Board advocates, the operative phrase
“that may happen” would be wholly unnecessary. Under the
Board’s interpretation, the vacancy need merely exist during
“the Recess” to trigger the President’s recess appointment
power. The Board’s interpretation would apply with equal
force, however, irrespective of the phrase “that may happen.”
Its interpretation therefore deprives that phrase of any force. By
effectively reading the phrase out of the Clause, the Board’s
interpretation once again runs afoul of the principle that every
phrase of the Constitution must be given effect. See Marbury,
5 U.S. (1 Cranch) at 174 (“It cannot be presumed that any clause
in the constitution is intended to be without effect . . . .”).
For our logical analysis of the language with respect to the
meaning of “happen” to be controlling, we must establish that it
is consistent with the understanding of the word
contemporaneous with the ratification. Dictionaries at the time
of the Constitution defined “happen” as “[t]o fall out; to chance;
to come to pass.” 1 Johnson, supra, at 965; see also Evans, 387
F.3d at 1230 & n.4 (Barkett, J., dissenting) (surveying a variety
of eighteenth-century dictionaries and concluding that they all
defined “happen” similarly). A vacancy happens, or “come[s]
to pass,” only when it first arises, demonstrating that the Recess
Appointments Clause requires that the relevant vacancy arise
during the recess. The term “happen” connotes an event taking
place — an action — and it would be plainly incorrect to say
that an event happened during some period of time when in fact
it happened before that time.
32
In addition to the logic of the language, there is ample other
support for this conclusion. First, we repair again to
examination of the structure of the Constitution. If we accept
the Board’s construction, we eviscerate the primary mode of
appointments set forth in Article II, Section 2, Clause 2. It
would have made little sense to make the primary method of
appointment the cumbersome advice and consent procedure
contemplated by that Clause if the secondary method would
permit the President to fill up all vacancies regardless of when
the vacancy arose. A President at odds with the Senate over
nominations would never have to submit his nominees for
confirmation. He could simply wait for a “recess” (however
defined) and then fill up all vacancies.
We further note that the “arise” interpretation is consistent
with other usages of “happen” in the Constitution. Article I,
Section 3, Clause 2, the Senate Vacancies Clause, provides for
the filling of vacancies in Senate seats. Though now amended,
at the time of the adoption of the Constitution, that section
stated: “if Vacancies happen by Resignation, or otherwise,
during the Recess of the Legislature of any State, the Executive
thereof may make temporary Appointments until the next
Meeting of the Legislature, which shall then fill such
Vacancies.” U.S. Const. art. I, § 3, cl. 2. That Clause makes
sense if “happen . . . during the Recess” refers to arising or
coming into being during “the Recess.” If it merely means that
the vacancy happens to exist at the time of a recess, it becomes
implausible.
Our construction of “happen” as meaning “arise” in the
Recess Appointments Clause is consistent with the use of the
same wording in the Senate Vacancies Clause. It is well
established that “inconsistency [within the Constitution] is to be
implied only where the context clearly requires it.” Nat’l Mut.
Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 587 (1949).
33
Our understanding of the plain meaning of the Recess
Appointments Clause as requiring that a qualifying vacancy
must have come to pass or arisen “during the Recess” is
consistent with the apparent meaning of the Senate Vacancies
Clause. The interpretation proffered by the Board is not.
As with the first issue, we also find that evidence of the
earliest understanding of the Clause is inconsistent with the
Board’s position. It appears that the first President, who took
office shortly after the ratification, understood the recess
appointments power to extend only to vacancies that arose
during senatorial recess. More specifically, President
Washington followed a practice that strongly suggests that he
understood “happen” to mean “arise.” If not enough time
remained in the session to ask a person to serve in an office,
President Washington would nominate a person without the
nominee’s consent, and the Senate would confirm the individual
before recessing. See Rappaport, supra, at 1522. Then, if the
person declined to serve during the recess, thereby creating a
new vacancy during the recess, President Washington would fill
the position using his recess appointment power. Id. If
President Washington and the early Senate had understood the
word “happen” to mean “happen to exist,” this convoluted
process would have been unnecessary.
In 1792, Edmund Randolph, the first Attorney General,
addressed the issue of an office that had become vacant during
the session when the Secretary of State sought his view.
Edmund Randolph, Opinion on Recess Appointments (July 7,
1792), in 24 The Papers of Thomas Jefferson 165, 165–67 (John
Catanzariti et al. eds., 1990) (“Randolph Opinion”). Addressing
the vacancy, concluding that it did not “happen” during the
recess, and thereby rejecting the “exist” interpretation, Randolph
wrote:
34
But is it a vacancy which has happened during the recess of
the Senate? It is now the same and no other vacancy, than
that, which existed on the 2nd. of April 1792. It commenced
therefore on that day or may be said to have happened on
that day.
Id. at 166.
Alexander Hamilton, similarly, wrote that “[i]t is clear, that
independent of the authority of a special law, the President
cannot fill a vacancy which happens during a session of the
Senate.” Letter from Alexander Hamilton to James McHenry
(May 3, 1799), in 23 The Papers of Alexander Hamilton 94, 94
(Harold C. Syrett ed., 1976); see also The Federalist No. 67,
supra, at 408 (explaining the purpose of the Clause by stating
that “vacancies might happen in their recess” (emphasis in
original)). In March 1814, Senator Christopher Gore argued that
the Clause’s scope is limited to “vacanc[ies] that may happen
during the recess of the Senate”:
If the vacancy happens at another time, it is not the case
described by the Constitution; for that specifies the precise
space of time wherein the vacancy must happen, and the
times which define this period bring it emphatically within
the ancient and well-established maxim: “Expressio unius
est exclusio alterius.”
26 Annals of Cong. 653 (1814); see United States v. Wells
Fargo Bank, 485 U.S. 351, 357 (1988) (defining the interpretive
canon of “expressio unius est exclusio alterius” as “the
expression of one is the exclusion of others” (italics omitted)).
Additional support for the “arise” interpretation comes from
early interpreters who understood that the Clause only applied
to vacancies where the office had previously been occupied, as
35
opposed to vacancies that existed because the office had been
newly created. Justice Joseph Story explained that “[t]he word
‘happen’ had relation to some casualty,” a statement consistent
with the arise interpretation. 3 Joseph Story, Commentaries on
the Constitution § 1553 (1833) (“Story’s Commentaries”),
reprinted in 4 The Founders’ Constitution 122 (Philip B.
Kurland & Ralph Lerner eds., 1987).
We recognize that some circuits have adopted the “exist”
interpretation. See Evans, 387 F.3d at 1226–27; United States
v. Woodley, 751 F.2d 1008, 1012–13 (9th Cir. 1985); United
States v. Allocco, 305 F.2d 704, 709–15 (2d Cir. 1962). Those
courts, however, did not focus their analyses on the original
public meaning of the word “happen.” In arguing that happen
could mean “exist,” the Evans majority used a modern
dictionary to define “happen” as “befall,” and then used the
same modern dictionary to define “befall” as “happen to be.”
See 387 F.3d at 1226 (quoting 6 Oxford English Dictionary 1096
(2d ed. 1989); 2 id. at 62). As the Evans dissent argued, “[t]his
is at best a strained effort to avoid the available dictionary
evidence.” Id. at 1230 n.4 (Barkett, J., dissenting). A modern
cross-reference is not a contemporary definition. The Board has
offered no dictionaries from the time of the ratification that
define “happen” consistently with the proffered definition of
“happen to exist.”
The Evans majority also relied on a handful of recess
appointments supposedly made by Presidents Washington and
Jefferson to offices that became vacant prior to the recess. Id.
at 1226 (majority opinion). Subsequent scholarship, however,
has demonstrated that these appointments were “in fact
examples of the practice of appointing an individual without his
consent and then, if he turns down the appointment during the
recess, making a recess appointment at that time.” Rappaport,
supra, at 1522 n.97. Again, as with the appointments by
36
President Washington referenced above, the use of this
convoluted method of appointment demonstrates that early
interpreters read “happen” as “arise.”
The Evans, Woodley, and Allocco courts all relied on
supposed congressional acquiescence in the practice of making
recess appointments to offices that were vacant prior to the
recess because 5 U.S.C. § 5503 permits payment to such
appointees in some circumstances. See Evans, 387 F.3d at1226–27; Woodley, 751 F.2d at 1013; Allocco, 305 F.2d at 715(referring to § 5503’s predecessor statute); see also 5 U.S.C.
§ 5503 (denying recess appointees payment “if the vacancy
[they filled] existed while the Senate was in session,” subject to
certain exceptions).
Section 5503 was passed in 1966. Act of Sept. 6, 1966,
Pub. L. No. 89-554, 80 Stat. 378, 475. Its similar predecessor
statute was passed in 1940. Act of July 11, 1940, ch. 580, 54
Stat. 751. The enactment of statutes in 1940 and 1966 sheds no
light on the original understanding of the Constitution. This is
particularly true as prior statutes refused payments of salaries to
all recess appointees whose vacancies arose during the session.
See Act of Feb. 9, 1863, ch. 25, § 2, 12 Stat. 642, 646 (stating
that no “money [shall] be paid out of the Treasury, as salary, to
any person appointed during the recess of the Senate, to fill a
vacancy in any existing office, which vacancy existed while the
Senate was in session and is by law required to be filled by and
with the advice and consent of the Senate, until such appointee
shall have been confirmed by the Senate”); 5 U.S.C. § 56(1934). We doubt that our sister circuits are correct in
construing this legislation as acquiescent. The Framers placed
the power of the purse in the Congress in large part because the
British experience taught that the appropriations power was a
tool with which the legislature could resist “the overgrown
prerogatives of the other branches of government.” The
37
Federalist No. 58, supra, at 357. The 1863 Act constitutes
precisely that: resistance to executive aggrandizement. In any
event, if the Constitution does not empower the President to
make the appointments, “[n]either Congress nor the Executive
can agree to waive . . . structural protection[s]” in the
Appointments Clause. Freytag, 501 U.S. at 880; cf. Chadha,
462 U.S. at 942 n.13 (“The assent of the Executive to a bill
which contains a provision contrary to the Constitution does not
shield it from judicial review.”).
As we recalled in our analysis of the first issue, “[i]t is
emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular
cases, must of necessity expound and interpret that rule.”
Marbury, 5 U.S. (1 Cranch) at 177. The Senate’s desires do not
determine the Constitution’s meaning. The Constitution’s
separation of powers features, of which the Appointments
Clause is one, do not simply protect one branch from another.
See Freytag, 501 U.S. at 878. These structural provisions serve
to protect the people, for it is ultimately the people’s rights that
suffer when one branch encroaches on another. As Madison
explained in Federalist No. 51, the division of power between
the branches forms part of the “security [that] arises to the rights
of the people.” The Federalist No. 51, supra, at 320. Or as the
Supreme Court held in Freytag, “The structural interests
protected by the Appointments Clause are not those of any one
branch of Government but of the entire Republic.” 501 U.S. at
880. In short, nothing in 5 U.S.C. § 5503 changes our view that
the original meaning of “happen” is “arise.”
Our sister circuits and the Board contend that the “arise”
interpretation fosters inefficiencies and leaves open the
possibility of just what is occurring here — that is, a Board that
cannot act for want for a quorum. The Board also suggests more
dire consequences, arguing that failure to accept the “exist”
38
interpretation will leave the President unable to fulfill his chief
constitutional obligation to “take Care that the Laws be
faithfully executed,” U.S. Const. art. II, § 3, and even suggests
that the interpretation we adopt today could pose national
security risks. See Noel Canning v. NLRB, No. 12-1115, Oral
Argument Tr. at 52 (D.C. Cir. Dec. 5, 2012). But if Congress
wished to alleviate such problems, it could certainly create
Board members whose service extended until the qualification
of a successor, or provide for action by less than the current
quorum, or deal with any inefficiencies in some other fashion.
And our suggestion that Congress can address this issue is no
mere hypothesis. The two branches have repeatedly, and
thoroughly, addressed the problems of vacancies in the
executive branch. Congress has provided for the temporary
filling of a vacancy in a particular executive office by an
“acting” officer authorized to perform all of the duties and
exercise all of the powers of that office, see, e.g., 28 U.S.C.
§ 508 (Attorney General); 29 U.S.C. § 552 (Secretary of Labor),
including key national security positions. See, e.g., 10 U.S.C.
§ 132(b) (Secretary of Defense); id. § 154(d), (e) (Chairman,
Joint Chiefs of Staff); 50 U.S.C. § 403-3a(a) (Director of
National Intelligence); id. § 403-4c(b)(2) (Director of Central
Intelligence Agency); see also S. Rep. No. 105-250, at 16–17
(1998) (listing other provisions). Moreover, Congress
statutorily addressed the filling of vacancies in the executive
branch not otherwise provided for. See 5 U.S.C.
§§ 3345–3349d.
Congress has also addressed the problem of vacancies on
various multimember agencies, providing that members may
continue to serve for some period past the expiration of their
commissions until successors are nominated and confirmed.
See, e.g., 7 U.S.C. § 2(a)(2)(A) (Commodities Futures Trading
Commission); 15 U.S.C. § 78d(a) (Securities and Exchange
Commission); 42 U.S.C. § 7171(b)(1) (Federal Energy
39
Regulatory Commission); 47 U.S.C. § 154(c) (Federal
Communications Commission). And we have cited only a
fraction of the multimember boards for which Congress has
provided such potential extensions.
Admittedly, Congress has chosen not to provide for acting
NLRB members. See 5 U.S.C. § 3349c(1)(A). But that choice
cannot support the Board’s interpretation of the Clause. We
cannot accept an interpretation of the Constitution completely
divorced from its original meaning in order to resolve exigencies
created by — and equally remediable by — the executive and
legislative branches. And as the Supreme Court expressly noted
in New Process Steel, in the context of the Board, “[i]f Congress
wishes to allow the Board to decide cases with only two
members, it can easily do so.” 130 S. Ct. at 2645.
In any event, if some administrative inefficiency results
from our construction of the original meaning of the
Constitution, that does not empower us to change what the
Constitution commands. As the Supreme Court observed in INS
v. Chadha, “the fact that a given law or procedure is efficient,
convenient, and useful in facilitating functions of government,
standing alone, will not save it if it is contrary to the
Constitution.” 462 U.S. at 944. It bears emphasis that
“[c]onvenience and efficiency are not the primary objectives —
or the hallmarks — of democratic government.” Id.The power of a written constitution lies in its words. It is
those words that were adopted by the people. When those words
speak clearly, it is not up to us to depart from their meaning in
favor of our own concept of efficiency, convenience, or
facilitation of the functions of government. In light of the
extensive evidence that the original public meaning of “happen”
was “arise,” we hold that the President may only make recess
appointments to fill vacancies that arise during the recess.
40
Applying this rule to the case before us, we further hold that
the relevant vacancies did not arise during the intersession
recess of the Senate. The three Board seats that the President
attempted to fill on January 4, 2012, had become vacant on
August 27, 2010, August 27, 2011, and January 3, 2012,
respectively. See Part III, supra (showing the dates for
Chairman Liebman and Members Schaumber and Becker’s
departures). On August 27, 2010, the Senate was in the midst of
an intrasession recess, so the vacancy that arose on that date did
not arise during “the Recess” for purposes of the Recess
Appointments Clause. See Congressional Directory for the
112th Congress 538 (2011). Similarly, the Senate was in an
intrasession recess on August 27, 2011, so the vacancy that
arose on that date also did not qualify for a recess appointment.
See id.
The seat formerly occupied by Member Becker became
vacant at the “End” of the Senate’s session on January 3, 2012
— it did not “happen during the Recess of the Senate.” First,
this vacancy could not have arisen during an intersession recess
because the Senate did not take an intersession recess between
the first and second sessions of the 112th Congress.
It has long been the practice of the Senate, dating back to
the First Congress, to conclude its sessions and enter “the
Recess” with an adjournment sine die.1 The Senate has followed
1
See Congressional Directory for the 112th Congress, supra,
at 522–38 (listing all of the Senate’s intersession recesses prior to
2012); see, e.g., 156 Cong. Rec. S11,070 (daily ed. Dec. 22, 2010)
(concluding Second Session of 111th Congress with adjournment sine
die); 147 Cong. Rec. 27,953 (2001) (concluding First Session of 107th
Congress with adjournment sine die); 139 Cong. Rec. 32,433 (1993)
(concluding First Session of 103d Congress with adjournment sine
die); 128 Cong. Rec. 33,629 (1982) (concluding Second Session of the
41
this practice even for relatively brief intersession recesses.2
97th Congress with adjournment sine die); 125 Cong. Rec. 37,605
(1979) (concluding First Session of 96th Congress with adjournment
sine die); 117 Cong. Rec. 47,658 (1971) (concluding First Session of
the 92d Congress with adjournment sine die); 105 Cong. Rec. 19,688
(1959) (concluding First Session of 86th Congress with adjournment
sine die); 91 Cong. Rec. 12,525 (1945) (concluding First Session of
79th Congress with adjournment sine die); 65 Cong. Rec. 11,202
(1924) (concluding First Session of 68th Congress with adjournment
sine die); 45 Cong. Rec. 9,080 (1910) (concluding Second Session of
61st Congress with adjournment sine die); 23 Cong. Rec. 7,081 (1892)
(concluding First Session of 52d Congress with adjournment sine die);
Cong. Globe, 42d Cong., 2d Sess. 4,504 (1872) (concluding Second
Session of 42d Congress with adjournment sine die); Cong. Globe,
23d Cong., 1st Sess. 480 (1834) (concluding First Session of 23d
Congress with adjournment sine die); 29 Annals of Cong. 372 (1816)
(concluding First Session of 14th Congress with adjournment sine
die); 3 Annals of Cong. 668 (1793) (concluding Second Session of 2d
Congress with adjournment sine die); 2 Annals of Cong. 1786 (1791)
(concluding Third Session of 1st Congress with adjournment sine die).
2
See, e.g., 154 Cong. Rec. 24,808 (2009) (concluding Second
Session of 110th Congress and entering three-day intersession recess
with adjournment sine die); 141 Cong. Rec. 38,608 (1996)
(concluding First Session of 104th Congress and entering momentary
intersession recess with adjournment sine die); 137 Cong. Rec. 36,364
(1992) (concluding First Session of 102d Congress with adjournment
sine die at the same time that the Second Session began); 109 Cong.
Rec. 25,674 (1963) (concluding First Session of 88th Congress and
entering eight-day intersession recess with adjournment sine die); 96
Cong. Rec. 17,121 (1951) (concluding Second Session of 81st
Congress and entering one-day intersession recess with adjournment
sine die); 94 Cong. Rec. 10,264 (1948) (concluding Second Session
of 80th Congress and entering three-day intersession recess with
adjournment sine die); 87 Cong. Rec. 10,143 (1942) (concluding First
Session of 77th Congress and entering three-day intersession recess
with adjournment sine die); 76 Cong. Rec. 5,656 (1933) (concluding
Second Session of 72d Congress and entering one-day intersession
42
Indeed, various acts of Congress refer to the adjournment
sine die as the conclusion of the session. See, e.g., 2 U.S.C.
§ 682(5) (for purpose of congressional budget consideration,
“continuity of a session of the Congress shall be considered as
broken only by an adjournment of the Congress sine die”); 5
U.S.C. § 906(b)(1) (for purpose of agency reorganization plans,
“continuity of session is broken only by an adjournment of
Congress sine die”).
We find a recent example of this longstanding practice,
with dates nearly identical to those in this case, to be particularly
instructive. On December 31, 2007, the Senate met in pro forma
session and concluded the First Session of the 110th Congress,
and entered “the Recess,” with an adjournment sine die. See
Congressional Directory for the 112th Congress, supra, at 537
(confirming that the First Session of the 110th Congress ended
on December 31, 2007); 153 Cong. Rec. 36,508 (2007)
(adjourning Senate sine die). It then convened the Second
Session of the 110th Congress with a pro forma session on
January 3, 2008. See Congressional Directory for the 112th
Congress, supra, at 537 (confirming that the Second Session of
the 110th Congress began on January 3, 2008); 154 Cong. Rec.
2 (2008) (convening Second Session).
Because, in this case, the Senate declined to adjourn sine
die on December 30, 2011, it did not enter an intersession
recess, and the First Session of the 112th Congress expired
simultaneously with the beginning of the Second Session. See,
e.g., 86 Cong. Rec. 14,059 (1941) (noting that, in the absence of
an adjournment sine die on January 3, 1941, “[t]he third session
of the Seventy-sixth Congress expired automatically, under
constitutional limitation, when the hour of 12 o’clock arrived”).
recess with adjournment sine die).
43
Although the December 17, 2011, scheduling order
specifically provided that the Second Session of the 112th
Congress would convene on January 3, 2012, see 157 Cong.
Rec. S8,783 (daily ed. Dec. 17, 2011), it did not specify when
the First Session would conclude. And, at the last pro forma
session before the January 3, 2012, session, the Senate
adjourned to a date certain: January 3, 2012. See 157 Cong.
Rec. S8,793 (daily ed. Dec. 30, 2011). Because the Senate did
not adjourn sine die, it did not enter “the Recess” between the
First and Second Sessions of the 112th Congress. Becker’s
appointment therefore expired at the end of the First Session on
January 3, 2012, and the vacancy in that seat could not have
“happen[ed]” during “the Recess” of the Senate.
Second, in any event, the Clause states that a recess
appointment expires “at the End of [the Senate’s] next Session,”
U.S. Const. art. II, § 2, cl. 3, not “at the beginning of the
Senate’s next Recess.” Likewise, the structure of Article II,
Section 2 supports this reading, for “it makes little sense to
allow a second consecutive recess appointment for the same
position, because the President and the Senate would have had
an entire Senate session during the first recess appointment to
nominate and confirm a permanent appointee.” Rappaport,
supra, at 1509. The January 3, 2012, vacancy thus did not arise
during the recess, depriving the President of power to make an
appointment under the Recess Appointments Clause. Because
none of the three appointments were valid, the Board lacked a
quorum and its decision must be vacated. See 29 U.S.C.
§ 153(b); New Process Steel, 130 S. Ct. at 2644–45.
Even if the “End” of the session were “during the
Recess,” meaning that the January 3, 2012, vacancy arose during
some imaginary recess, we hold that the appointment to that seat
is invalid because the President must make the recess
appointment during the same intersession recess when the
44
vacancy for that office arose. The Clause provides that a recess
appointee’s commission expires at “the End of [the Senate’s]
next Session,” which the Framers understood as “the end of the
ensuing session.” The Federalist No. 67, supra, at 408
(emphasis added).
Consistent with the structure of the Appointments Clause
and the Recess Appointments Clause exception to it, the filling
up of a vacancy that happens during a recess must be done
during the same recess in which the vacancy arose. There is no
reason the Framers would have permitted the President to wait
until some future intersession recess to make a recess
appointment, for the Senate would have been sitting in session
during the intervening period and available to consider
nominations. The earliest authoritative commentary on the
Constitution explains that the purpose of the Recess
Appointments Clause was to give the President authorization “to
make temporary appointments during the recess, which should
expire, when the senate should have had an opportunity to act on
the subject.” Story’s Commentaries, supra, § 1551, reprinted in
4 The Founders’ Constitution, supra, at 122; see also Evans, 387
F.3d at 1233 (Barkett, J., dissenting).
As with the first issue, we hold that the petitioner’s
understanding of the constitutional provision is correct, and the
Board’s is wrong. The Board had no quorum, and its order is
void.
V. THE MOTION FOR INTERVENTION
As we referenced early in this opinion, we have before
us a motion for intervention. The Chamber of Commerce and
the Coalition for a Democratic Workplace seek to intervene. It
is the law of this circuit that litigants seeking to intervene in
cases involving direct review of administrative actions must
45
establish Article III standing. See Rio Grande Pipeline Co. v.
FERC, 178 F.3d 533, 538–39 (D.C. Cir. 1999). Our judicial
power is limited to “Cases” or “Controversies,” U.S. Const. art.
III, § 2, cl. 1, meaning that litigants must show “(1) an injury in
fact, (2) a causal relationship between the injury and the
challenged conduct, and (3) a likelihood that the injury will be
redressed by a favorable decision.” United Food & Commercial
Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544,
551 (1996).
The movants claim to have “associational standing.” In
that context, the Supreme Court has explained that “an
association has standing to bring suit on behalf of its members
when: (a) its members would otherwise have standing to sue in
their own right; (b) the interests it seeks to protect are germane
to the organization’s purpose; and (c) neither the claim asserted
nor the relief requested requires the participation of individual
members in the lawsuit.” Hunt v. Washington State Apple
Adver. Comm’n, 432 U.S. 333, 343 (1977).
We need not decide the question of the movants’
standing. Our precedent is clear: “[I]f one party has standing in
an action, a court need not reach the issue of the standing of
other parties when it makes no difference to the merits of the
case.” Ry. Labor Execs.’ Ass’n v. United States, 987 F.2d 806,
810 (D.C. Cir. 1993) (per curiam); see also Doe v. Bolton, 410
U.S. 179, 189 (1973) (“We conclude that we need not pass upon
the status of these additional appellants in this suit, for the issues
are sufficiently and adequately presented by [the original
appellants], and nothing is gained or lost by the presence or
absence of [the additional appellants].”).
Noel Canning has standing. The case, like other
petitions for review of administrative adjudications, proceeded
between the party to the administrative adjudication and the
46
agency. We reached our decision. The motion is now moot, and
we order it dismissed. The Chamber could have had its say by
filing as an amicus, but for reasons satisfactory to itself, chose
to attempt a strained claim of intervenor status.
CONCLUSION
For the reasons set forth above, we grant the petition of
Noel Canning and vacate the Board’s order. We deny the cross-
petition of the Board for enforcement of its invalid order.
So ordered.
GRIFFITH, Circuit Judge, concurring in the opinion except
as to Part IV.B and concurring in the judgment:
The majority acknowledges that our holding on
intrasession recess appointments is sufficient to vacate the
Board’s order, see supra slip op. at 30, and I would stop our
constitutional analysis there. If we need not take up a
constitutional issue, we should not. See, e.g., Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (noting
the “deeply rooted commitment not to pass on questions of
constitutionality unless adjudication of the constitutional issue
is necessary” (internal quotation marks omitted)); Dames &
Moore v. Regan, 453 U.S. 654, 660-61 (1981) (highlighting
the Court’s “attempt to confine the opinion to the very
questions necessary to decision of the case”); Ashwander v.
Tenn. Valley Auth., 297 U.S. 288, 346-47 (1936) (Brandeis, J.,
concurring) (“The Court will not ‘formulate a rule of
constitutional law broader than is required by the precise facts
to which it is to be applied.’” (quoting Liverpool, N.Y. &
Phila. S.S. Co. v. Comm’rs of Emigration, 113 U.S. 33, 39
(1885))). I agree that the Executive’s view that the President
can fill vacancies that “happen to exist” during “the Recess”
is suspect, but that position dates back to at least the 1820s,
see Exec. Auth. To Fill Vacancies, 1 Op. Att’y Gen. 631, 633-
34 (1823), making it more venerable than the much more
recent practice of intrasession recess appointments. See
Mistretta v. United States, 488 U.S. 361, 399-400 (1989); INS
v. Chadha, 462 U.S. 919, 944-45 (1983). We should not
dismiss another branch’s longstanding interpretation of the
Constitution when the case before us does not demand it.