Will President Trump Make Recess Appointments During the "Fictitious" Inter-Session Recess on January 3?

In 1903, "President Roosevelt made over 160 recess appointments during the instantaneous inter-session interval."

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On January 3, 2021, the 116th Congress will come to a close, and moments later, the 117th Congress will begin. There will be, for a fleeting instance, an inter-session recess. During this period, in theory at least, President Trump could make recess appointments. And those appointments would last until the the next session concludes in January 2022. Would such appointments be constitutional?

Noel Canning recounts that in 1903, President Theodore Roosevelt made 160 recess appointments between the end of one Senate session and the beginning of another Senate session:

Most notably, in 1905 the Senate Committee on the Judiciary objected strongly to President Theodore Roosevelt's use of the Clause to make more than 160 recess appointments during a "fictitious" inter-session recess. S.Rep. No. 4389, 58th Cong., 3d Sess., p. 2 (hereinafter 1905 Senate Report). At noon on December 7, 1903, the Senate President pro tempore had "declare[d]" a formal, "extraordinary session" of the Senate "adjourned without day," and the next formal Senate session began immediately afterwards. 37 Cong. Rec. 544 (1903). President Roosevelt made over 160 recess appointments during the instantaneous inter-session interval.

The Senate Judiciary Committee issued a reporting, finding that this instantaneous break was not a "recess of the Senate" for purposes of the Recess Appointments Clause. The report defined "recess" as:

"the period of time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress …; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments."

Were these appointments valid? Later, Justice Breyer's majority opinion flagged TR's appointments:

There are a few historical examples of recess appointments made during inter-session recesses shorter than 10 days. We have already discussed President Theodore Roosevelt's appointments during the instantaneous, "fictitious" recess.

Alas, Justice Breyer did not definitively resolve this issue.

There may be others of which we are unaware. But when considered against 200 years of settled practice, we regard these few scattered examples as anomalies. We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. We add the word "presumptively" to leave open the possibility that some very unusual circumstance — a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response — could demand the exercise of the recess-appointment power during a shorter break. (It should go without saying — except that Justice SCALIA compels us to say it — that political opposition in the Senate would not qualify as an unusual circumstance.)

Again, the Court's opinion does not distinguish between inter-session recesses and intra-session recesses. The three-to-ten day standard would seem to apply to both types of recesses. An instantaneous inter-session appointment would be "presumptively" unconstitutional.

In his concurrence (really a dissent), Justice Scalia uses the TR example for a different purpose: to show that at the turn of the 20th century, even the most aggressive President did not try to make an intra-session recess appointment. Rather, TR tried to squeeze the recess appointments into the fleeting inter-session recess.

That was where things stood when, in 1903, Roosevelt made a number of controversial recess appointments. At noon on December 7, the Senate moved seamlessly from a special session into a regular one scheduled to begin at that hour. See 37 Cong. Rec. 544; 38 Cong. Rec. 1. Roosevelt claimed to have made the appointments in a "constructive" recess between the two sessions. See Special Session Is Merged Into Regular, N.Y. Times, Dec. 8, 1903, p. 1. He and his allies in the Senate justified the appointments on the theory that "at the moment the gavel falls to summon the regular session into being there is an infinitesimal fraction of a second, which is the recess between the two sessions." Extra Session Muddle, N.Y. Times, Dec. 7, 1903, p. 3. In 1905, the Senate Judiciary Committee published a report criticizing the appointments on the ground that "the Constitution means a real recess, not a constructive one." S.Rep. No. 4389, 58th Cong., 3d Sess., p. 4. The report explained that the recess is "the period of time when the Senate is not sitting in regular or extraordinary session… when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments." Id., at 2 (emphasis deleted).

The majority seeks support in this episode, claiming that the Judiciary Committee embraced a "broad and functional definition of `recess'" consistent with the one the majority adopts. Ante, at 2564. On the contrary, the episode powerfully refutes the majority's theory. Roosevelt's legal justification for his appointments was extremely aggressive, but even he recognized that "the Recess of the Senate" could take place only between formal sessions. If the majority's view of the Clause had been considered plausible, Roosevelt could have strengthened his position considerably by making the appointments during an intra-session break of a few days, or at least a few hours. (Just 10 minutes after the new session began on December 7, the Senate took "a recess for one hour." 38 Cong. Rec. 2.) That he instead strained to declare a dubious inter-session recess of an "infinitesimal fraction of a second" is powerful evidence that the majority's view of "the Recess" was not taken seriously even as late as the beginning of the 20th century.

Yet the majority contends that "to the extent that the Senate or a Senate committee has expressed a view, that view has favored a functional definition of `recess' [that] encompasses intra-session recesses." Ante, at 2563. It rests that contention entirely on the 1905 Judiciary Committee Report. This distorts what the committee said when it denied Roosevelt's claim that there had been a recess. If someone avers that a catfish is a cat, and I respond by pointing out that a catfish lives in water and does not have four legs, I have not endorsed the proposition that every land-dwelling quadruped is a cat. Likewise, when the Judiciary Committee explained that an instantaneous transition from one session to another is not a recess because the Senate is never absent, it did not suggest that the Senate's absence is enough to create a recess. To assume otherwise, as the majority does, is to commit the fallacy of the inverse (otherwise known as denying the antecedent): the incorrect assumption that if P implies Q, then not-P implies not-Q. Contrary to that fallacious assumption, the Judiciary Committee surely believed, consistent with the Executive's clear position at the time, that "the Recess" was limited to (actual, not constructive) breaks between sessions.

Scalia doesn't actually say that TR's appointments were invalid. Indeed, under Scalia's reading of "the recess of the Senate," an inter-session recess of any duration would suffice. Though, under the 1905 Senate Report's functional definition of a "Recess," a momentary lapse would not suffice. Here, Scalia's opinion does not provide a clear answer.