                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-1514


NATIONAL LABOR RELATIONS BOARD,

                Petitioner,

          v.

ENTERPRISE LEASING COMPANY SOUTHEAST, LLC,

                Respondent.
                          _______________

On Application for Enforcement of an Order of the National Labor
Relations Board. (11-CA-73779)



                              No. 12-2000


HUNTINGTON INGALLS INCORPORATED,

                Petitioner,

          v.

NATIONAL LABOR RELATIONS BOARD,

                Respondent,

INTERNATIONAL   ASSOCIATION    OF   MACHINISTS   AND   AEROSPACE
WORKERS,

                Intervenor.

------------------------------

CHAMBER OF COMMERCE OF THE UNITED STATES OF            AMERICA;
COALITION FOR A DEMOCRATIC WORKPLACE; AMERICAN         HOTEL &
LODGING ASSOCIATION; HR POLICY ASSOCIATION; INTERNATIONAL
FOODSERVICE DISTRIBUTORS ASSOCIATION; NATIONAL ASSOCIATION
OF MANUFACTURERS; NATIONAL ASSOCIATION OF WHOLESALER-
DISTRIBUTORS; SOCIETY FOR HUMAN RESOURCE MANAGEMENT,

                Amici Supporting Petitioner.



                              No. 12-2065


NATIONAL LABOR RELATIONS BOARD,

                Petitioner,

INTERNATIONAL   ASSOCIATION    OF   MACHINISTS   AND   AEROSPACE
WORKERS,

                Intervenor,

           v.

HUNTINGTON INGALLS INCORPORATED,

                Respondent.

-----------------------------

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA;
COALITION FOR A DEMOCRATIC WORKPLACE; AMERICAN HOTEL &
LODGING ASSOCIATION; HR POLICY ASSOCIATION; INTERNATIONAL
FOODSERVICE DISTRIBUTORS ASSOCIATION; NATIONAL ASSOCIATION
OF MANUFACTURERS; NATIONAL ASSOCIATION OF WHOLESALER-
DISTRIBUTORS; SOCIETY FOR HUMAN RESOURCE MANAGEMENT,

                Amici Supporting Respondent.



On Petition for Review and Cross Application for Enforcement of
an Order of the National Labor Relations Board. (5−CA−81306)


Argued:   March 22, 2013                    Decided:   July 17, 2013



                                 - 2 -
Before DUNCAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Enforcement denied by published opinion.    Senior Judge Hamilton
wrote the opinion, in which Judge Duncan joined.     Judge Duncan
wrote a separate concurring opinion.       Judge Diaz wrote an
opinion concurring in part and dissenting in part.



ARGUED: Beth S. Brinkmann, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., David A. Seid, Robert James Englehart,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board;
James B. Coppess, AFL-CIO, Washington, D.C., for International
Association of Machinists and Aerospace Workers.       Daniel R.
Begian, John P. Hasman, THE LOWENBAUM PARTNERSHIP, LLC, Clayton,
Missouri, for Enterprise Leasing Company Southeast, LLC; Gregory
Branch   Robertson,  Michael   Randolph   Shebelskie,   HUNTON  &
WILLIAMS, LLP, Richmond, Virginia, for Huntington Ingalls
Incorporated.    ON BRIEF: Stuart F. Delery, Principal Deputy
Assistant Attorney General, Scott R. McIntosh, Sarang V. Damle,
Melissa N. Patterson, Benjamin M. Shultz, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Lafe E. Solomon, Acting
General Counsel, Celeste J. Mattina, Deputy General Counsel,
John H. Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, Ruth E. Burdick, Supervisory
Attorney, Daniel A. Blitz, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for the Board.        D. Michael Linihan, THE
LOWENBAUM PARTNERSHIP, LLC, Clayton, Missouri, for Enterprise
Leasing Company Southeast, LLC.      Kurt G. Larkin, HUNTON &
WILLIAMS, LLP, Richmond, Virginia, Dean C. Berry, HUNTINGTON
INGALLS INDUSTRIES, INC., Newport News, Virginia, for Huntington
Ingalls Incorporated.     William H. Haller, Associate General
Counsel, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE
WORKERS, Upper Marlboro, Maryland, for International Association
of Machinists and Aerospace Workers.     Mark Theodore, PROSKAUER
ROSE LLP, Los Angeles, California, Ronald E. Meisburg, Lawrence
Z. Lorber, James F. Segroves, PROSKAUER ROSE LLP, Washington,
D.C., for Amici Curiae; Robin S. Conrad, Shane B. Kawka,
NATIONAL CHAMBER LITIGATION CENTER, INC., Washington, D.C., for
Amicus Curiae Chamber of Commerce of the United States; Quentin
Riegel, NATIONAL ASSOCIATION OF MANUFACTURERS, Washington, D.C.,
for Amicus Curiae National Association of Manufacturers.




                              - 3 -
HAMILTON, Senior Circuit Judge:

     Before the court are two cases that we have consolidated.

In the first case, Enterprise Leasing Company − Southeast, LLC

(Enterprise) seeks review of a National Labor Relations Board

(the Board) decision and order finding that Enterprise violated

§§ 8(a)(1)    and   (a)(5)    of    the   National    Labor    Relations    Act

(NLRA), 29 U.S.C. §§ 158(a)(1) and (5), by refusing to bargain

with Local 391 of the International Brotherhood of Teamsters

(Local 391) after the Board certified Local 391 as the exclusive

bargaining representative of a unit of Enterprise’s employees.

The Board has filed an application for enforcement of its order.

     In the second case, Huntington Ingalls, Inc. (Huntington)

petitions for review of a Board decision and order finding that

Huntington violated §§ 8(a)(1) and (a)(5) of the NLRA, id., by

refusing     to   bargain    with   the   International       Association    of

Machinists and Aerospace Workers (Machinists Union) after the

Board certified the Machinists Union as the exclusive bargaining

representative of a unit of Huntington’s employees.                 The Board

has filed an application for enforcement of its order.

     The determinative question in these cases is whether the

Board had a quorum at the time it issued its decisions in 2012.

See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2639-45

(2010)   (holding    that,    following      a   delegation   of   the   NLRB’s

powers to a three-member group, two members cannot continue to

                                     - 4 -
exercise   that     delegated      authority     once   the    group’s     (and    the

Board’s) membership falls to two).               Resolution of this question

turns on whether the three appointments by the President of the

United States to the Board on January 4, 2012 are valid under

the     Recess     Appointments         Clause     of    the     United      States

Constitution,      which    provides     that    the    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.”           U.S. Const. art. II, § 2, cl.3.              If

these appointments are invalid, the parties agree that the Board

could not lawfully act when it issued its decisions in 2012.

For the reasons stated below, we conclude that the President’s

three    January      4,    2012     appointments        to     the    Board       are

constitutionally infirm, because the appointments were not made

during “the Recess of the Senate.”                 Accordingly, we deny the

Board’s applications for enforcement of its orders.



                                          I

      The two cases currently before the court have a similar

procedural       history.       Local     391    prevailed     in     an   election

conducted by the Board.             Before a Board Hearing Officer in a

representation case, Enterprise challenged the election result

on multiple fronts.          Enterprise lost the representation case

before a Board Hearing Officer and lost again on review by the

                                        - 5 -
Board.       Following these losses, Enterprise refused to bargain

with Local 391.            Local 391 initiated an unfair labor practice

proceeding     against       Enterprise,      and,    in   response,      Enterprise

contended, among other things, that the Board lacked a quorum to

issue a decision because the President’s three January 4, 2012

appointments to the Board were invalid under the United States

Constitution.         The    Board     rejected    Enterprise’s     arguments    and

ordered Enterprise to bargain with Local 391.                       The Board now

seeks enforcement of its decision and order.

     The dispute in Huntington’s case centers on the appropriate

bargaining     unit    for     Huntington’s        2,400   technical      employees.

Before   a    Board   Regional       Director     (RD),    the   Machinists    Union

contended      that    a     portion     of   Huntington’s        2,400   technical

employees, namely those in the “E85 RADCON” department, was an

appropriate     bargaining      unit     whereas     Huntington    contended    that

the bargaining unit should consist of all 2,400 of its technical

employees.     The RD agreed with the Machinists Union and issued a

decision     and   direction     of     election     (DDE).       Huntington    then

requested Board review of the DDE.                   On December 30, 2011, the

Board affirmed the RD’s decision.

     In the ensuing election, the Machinists Union prevailed.

The Board subsequently certified the Machinists Union as the

exclusive representative for purposes of collective bargaining.

Following certification, Huntington refused to comply with the

                                         - 6 -
Machinists Union bargaining request, and the Machinists Union

filed    an     unfair   labor     practice     charge.        In    that   proceeding,

Huntington contended, inter alia, that the Board did not have a

quorum     to    issue    a    decision,      because      the      President’s       three

January 4, 2012 appointments to the Board were constitutionally

infirm.        The Board rejected this argument and others, holding

that Huntington’s refusal to bargain was unlawful.                             The Board

seeks enforcement of this decision and order, and Huntington

petitions for review of such decision.

      In their respective briefs, both Enterprise and Huntington

raise constitutional and non-constitutional arguments.                             Before

we   can      address    the   constitutional        arguments,        we   must      first

attempt to resolve these cases on non-constitutional grounds, if

possible.       See Spector Motor Serv., Inc. v. McLaughlin, 323 U.S.

101, 105 (1944) (“If there is one doctrine more deeply rooted

than any other in the process of constitutional adjudication, it

is that we ought not to pass on questions of constitutionality .

. . unless such adjudication is unavoidable.”); Ashwander v.

Tenn.    Valley     Auth.,     297    U.S.   288,    347   (1936)      (Brandeis,       J.,

concurring)       (noting      that    a     court    “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”); see also Noel Canning v. NLRB,

705 F.3d 490, 493 (D.C. Cir.) (pursuant to Spector Motor and

                                           - 7 -
Ashwander, court addressed non-constitutional claims concerning

company’s refusal to bargain before addressing the question of

whether the President’s three January 4, 2012 appointments to

the Board were constitutional), cert. granted, 2013 WL 1774240

(U.S.    June    24,   2013).     In   addressing      the   non-constitutional

arguments advanced by both Enterprise and Huntington, we first

will turn to Enterprise’s case and then to Huntington’s case.



                                        II

                                         A

     Enterprise        operates   an    Alamo    and    National   car     rental

facility    at     the   Raleigh-Durham        International     Airport    (RDU

Airport).       On November 9, 2010, Local 391 filed a petition with

the Board seeking to represent a unit of Enterprise’s employees. 1

Enterprise and Local 391 signed an election agreement, and the

Board conducted an election by secret ballot at Enterprise’s

facility from 7:00 p.m. to 9:00 p.m. on Thursday, December 16,




     1
       The parties agree that the 101 employee bargaining unit
consisted of full and regular part-time greeters, exit booth
agents, counter representatives, rental agents, handler agents,
service agents, customer service representatives, bus drivers,
push/pullers, and mechanics employed by Enterprise.         The
bargaining   unit   excluded   salaried  employees,   technical
employees, office clerical employees, guards, professional
employees, and supervisors.



                                       - 8 -
2010, and from 10:00 a.m. to 12:00 p.m., and again from 3:00

p.m. to 5:00 p.m., on Friday, December 17, 2010.

      At some point before the election, Local 391 mailed a flyer

to all eligible voters which included a photograph of employee

and   eligible     voter    Roberto       Henriquez    without      his   prior

authorization for Local 391 to use his photograph. 2               One side of

the   flyer    contained   the   words,    “Yes.   Everybody     can   make   the

right choice!!         To end Unfair treatment & Unfair pay!!”                The

words were surrounded by the photographs of eight employees of

Enterprise, including Henriquez.            The other side of the flyer

had a note that asked employees to let Local 391 be their voice

for   better    pay,   benefits,   and    treatment.     The     photograph    of

Henriquez was taken by Chafik Omerani, an Enterprise employee

and Local 391 supporter, at a food court in a shopping mall near

the RDU Airport.

      On the first day of the election, December 16, 2010, Wake

County,   North    Carolina,     where    the   RDU    airport    is   located,

experienced inclement weather.            Weather records establish that

between 1/10 and 1/8 of an inch of freezing rain and 1/2 to one

inch of snow fell in Wake County on December 16.                 No additional

      2
       Henriquez did not testify at the hearing before the Board
Hearing Officer.     Accordingly, the record does not reflect
whether Henriquez was or was not a Local 391 supporter.
However, it is clear that his prior authorization was not
obtained and that Local 391 had a general policy of not using
employees’ images without their prior consent.


                                    - 9 -
freezing rain or snow fell on December 17, and there was no snow

accumulation    at    the    RDU   airport     or    Enterprise’s   facility     on

either day.

      As a result of the inclement weather, area schools and some

businesses were closed on December 16.                  The opening of schools

and some government businesses was delayed on December 17.                      The

RDU Airport and Enterprise’s facility at the airport remained

open during regular hours on both December 16 and 17.                   Although

Enterprise’s facility remained open, it received ten employee

“call-outs” on December 16 and four “call-outs” on December 17. 3

No   evidence   was    presented      concerning       Enterprise’s    normal    or

average call-out rate.             There was also no evidence presented

indicating that any eligible Enterprise employee was unable to

vote on account of the weather.              Moreover, neither party sought

to postpone the election on account of the weather.

      On   December    16,    2010,    Local    391     organizer   Steve   Jones

entered    Enterprise’s       facility       approximately     thirty    minutes

before the start of the election.                   He approached the customer

service     counter     where       two      Enterprise     Customer     Service

Representatives, one of whom was Damion Knowles, were seated.

After greeting Knowles, Jones asked him how his interview had


      3
       “Call-out” is a term used to describe an employee who
contacts his or her employer to report that he or she will not
be coming to work.


                                      - 10 -
gone for a management position that Knowles had mentioned in an

earlier conversation between the two.                 Knowles replied that the

interview       went   well    and     that   with   more   experience    he    would

receive his own store in Dallas, Texas.                     Jones noted that the

International Brotherhood of Teamsters had members in the Dallas

area and asked Knowles if he still had Jones’ business card.

After    Knowles       answered      affirmatively,    Jones    stated,      “[w]ell,

keep it, you know, you never know, you might need me sometime.

You never want to burn any bridges.”

      Eighty-seven votes were cast in the election.                      Forty-four

employees voted for Local 391; forty-one against.                        There were

two challenged ballots, an insufficient number to affect the

outcome of the election.

      On December 27, 2010, Enterprise filed six objections to

the election with the RD.              A hearing was ordered before a Board

Hearing Officer.         On February 7, 2011, the Board Hearing Officer

issued     his     Report        and     Recommendation       recommending          that

Enterprise’s objections be overruled and that a Certification of

Representative issue.

      Enterprise        then   filed     exceptions    with    the   Board     to    the

Board Hearing Officer’s Report and Recommendation.                     On December

29,     2011,    the     Board    adopted      the    Board    Hearing    Officer’s

recommendations         to    overrule    Enterprise’s      objections,      and    the



                                         - 11 -
Board      certified         Local     391        as         collective         bargaining

representative of the Enterprise unit employees.

      On January 17, 2012, Local 391 asked Enterprise to bargain

with it, and Enterprise refused.               On February 3, 2012, Local 391

filed an unfair labor practices charge with the Board alleging

that Enterprise violated the NLRA by refusing to bargain with

it.     On February 27, 2012 the Board’s General Counsel issued a

complaint against Enterprise.                 On March 14, 2012, the Board’s

General Counsel filed a motion for summary judgment.

      On April 18, 2012, the Board granted the Board’s General

Counsel’s motion for summary judgment, holding that Enterprise

violated    §§ 8(a)(1)       and     (a)(5)    of      the    NLRA       by    refusing   to

bargain with Local 391.              The Board’s order requires Enterprise

to cease and desist from engaging in the unfair labor practices

found and from in any like or related manner interfering with,

restraining,       or   coercing     employees      in       the    exercise      of   their

rights     under    the   NLRA.        Affirmatively,              the    Board’s      order

requires Enterprise to bargain with Local 391 upon request and

embody any understanding reached in a signed agreement.                                   The

order also requires Enterprise to post a remedial notice and, if

appropriate, distribute copies of the notice electronically.

                                           B

      Section      8(a)(1)    of     the   NLRA     makes      it    an       unfair   labor

practice to “interfere with, restrain, or coerce employees in

                                       - 12 -
the exercise of [their rights under the NLRA],” while § 8(a)(5)

makes it an unfair labor practice for an employer “to refuse to

bargain collectively with the representatives of his employees.”

29 U.S.C. §§ 158(a)(1), (5).                       Enterprise admits that it refused

to bargain with Local 391, but claims that the Board erred in

refusing to set aside the results of the election.

       A    union        may    obtain      certification        in   one    of     two   ways:

through      an    election       or     the      employer’s     voluntary        recognition.

Lincoln Park Zoological Soc. v. NLRB, 116 F.3d 216, 219 (7th

Cir.       1997).             Here,    of      course,     there      was     no       voluntary

recognition.            Thus, we must address whether Local 391 obtained

recognition through a valid election.

       “Congress has entrusted the Board with a wide degree of

discretion          in        establishing         the    procedure         and    safeguards

necessary         to    insure     the      fair    and   free    choice     of    bargaining

representatives by employees.”                      NLRB v. A.J. Tower Co., 329 U.S.

324, 330 (1946).                Consequently, we presume the validity of a

Board-supervised              election      and    will   overturn     such       an    election

only if the Board has clearly abused its discretion.                                    NLRB v.

Media Gen. Operations, Inc., 360 F.3d 434, 441 (4th Cir. 2004);

NLRB v. Flambeau Airmold Corp., 178 F.3d 705, 707 (4th Cir.

1999).

       A party seeking to have an election set aside bears a heavy

burden      and        must    prove     by    specific     evidence        not    only    that

                                               - 13 -
improprieties       occurred,         but     also    that    they     prevented          a   fair

election.       Elizabethtown Gas Co. v. NLRB, 212 F.3d 257, 262 (4th

Cir. 2000).        When evaluating whether a party has met this heavy

burden, we must be “mindful of the real world environment in

which an election takes place.”                     NLRB v. Coca-Cola Bottling Co.,

132    F.3d    1001,     1003    (4th        Cir.    1997).         “Although       the       Board

strives to maintain laboratory conditions in elections, clinical

asepsis is an unattainable goal.                     An election is by its nature a

rough and tumble affair, and a certain amount of exaggerations,

hyperbole, and appeals to emotion are to be expected.”                                         Id.

(citation and internal quotation marks omitted).

       The Board’s “findings of fact are conclusive as long as

they    are     ‘supported       by     substantial        evidence      on     the       record

considered as a whole.’”                Evergreen Am. Corp. v. NLRB, 531 F.3d

321,     326     (4th    Cir.        2008)     (quoting       29     U.S.C.     §     160(e)).

“Substantial evidence is ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’”                                       Id.

(quoting       Richardson       v.    Perales,       402     U.S.    389,     401     (1971)).

“While     the     Board        may     not     base       its      inference        on       pure

speculation[,]          it    may     draw     reasonable          inferences       from        the

evidence.”       Overnite Transp. Co. v. NLRB, 280 F.3d 417, 428 (4th

Cir.     2002)     (en       banc)     (alteration,          ellipsis,        and    internal

quotation marks omitted).

                                                1

                                             - 14 -
       Enterprise first contends that the results of the election

must    be   set    aside    because       Local    391   used          a    photograph       of

Enterprise        employee     Roberto     Henriquez      on        a       campaign    flyer

without      Henriquez’s     prior    authorization.            In          rejecting       this

contention, the Board found that, at most, Local 391 “implicitly

misrepresented that Henriquez authorized the use of his image in

the flyer.”         Enterprise Leasing Co. — Southeast, LLC, 2011 WL

6853530,     at    *2   (NLRB   2011).        According        to       the    Board,       such

misrepresentation did not warrant setting aside the results of

the election, because there was no evidence that Local 391 in

fact misrepresented Henriquez’s support for Local 391 or that he

objected to Local 391’s use of his photograph on the flyer.                                  The

Board also emphasized that there was no evidence of pervasive

misrepresentations          regarding     Enterprise      employee            authorization

for use of photographs or any claim that eligible Enterprise

employees were unable to recognize the flyer as anything else

than Local 391 propaganda.

       In Midland National Life Insurance Company, 263 NLRB 127

(1982), which was approved by this court in Case Farms of North

Carolina, Incorporated v. NLRB, 128 F.3d 841 (4th Cir. 1997),

the    Board   outlined      the    standard       regarding        misrepresentations

occurring in the context of campaign statements.                               Midland, 263

NLRB   at    129-33.        Under   the    Midland    standard,              the    Board    “no

longer      probe[s]    into    the   truth    or     falsity           of    the    parties’

                                          - 15 -
campaign statements” nor will it “set elections aside on the

basis of misleading campaign statements.”                  Id. at 133; see also

Case Farms, 128 F.3d at 844 (quoting Midland).

       The only exception to the Midland standard concerns forged

documents.      Midland, 263 NLRB at 133.                The premise behind this

particular exception evidences the Board’s central concern that

employee voters not be deceived with respect to the true nature

of the statement in campaign propaganda.                   Id.     In outlining the

Midland standard, the Board displayed its faith in the employee

voters’ ability not to accept what they are told at face value,

but, instead, to weigh it according to its potential for bias.

Accordingly, the Board determined that it would “set an election

aside not because of the substance of the representation, but

because of the deceptive manner in which it was made, a manner

which renders employees unable to evaluate the forgery for what

it     is.”          Id.          The      Board         further       distinguished

misrepresentations, which would not require the election to be

set aside, from other types of campaign misconduct, “such as

threats,      promises,    or   the   like,”     which     if    adequately      proven

would warrant setting aside the results of an election.                       Id.

       In this case, we cannot say that the Board misapplied “the

permissive     Midland     standard.”       Case    Farms,       128   F.3d   at    845.

Even   if,     as   Enterprise    suggests,        the    evidence      proved      that

Henriquez did not authorize the use of his image, such evidence

                                        - 16 -
would still amount to a mere misrepresentation in the campaign

context.       Local 391’s conduct involved no forgery, and there is

nothing in the record to indicate that the eligible Enterprise

employees’ ability to recognize the flyer as campaign propaganda

was     compromised.                Moreover,         the    Board’s      rejection        of

Enterprise’s campaign flyer claim is consistent with its prior

precedent.       See Somerset Valley Rehab. & Nursing Center, 2011 WL

4498270,    at    **1-3       (NLRB      2011)    (overruling        objection     where    a

union falsely quoted union supporters as actually stating that

they would vote for the union); BFI Waste Servs., 343 NLRB 254,

254   n.2   (2004)     (overruling           objection       where    a   union    arguably

misrepresented quotes from two employees); Champaign Residential

Servs.   Inc.,     325       NLRB    687,      687    (1998)    (overruling       objection

where    two     employees      did      not     know    that   their     signatures       in

support of a union would be shared with others on a flyer);

Findlay Indus. Inc., 323 NLRB 766, 766 n.2 (1997) (overruling

objection      where     a    union,        at   most,      misrepresented        that   two

employees would vote for it).

      In support of its position, Enterprise asserts that the

Board    has     established         a   per     se   rule     preventing    unions      and

employers from using the photograph of an employee without the

employee’s prior authorization, citing Brentwood At Hobart v.

NLRB, 675 F.3d 999 (6th Cir. 2012), Sprain Brook Manor Nursing

Home, LLC, 348 NLRB 851 (2006), Allegheny Ludlum Corporation,

                                            - 17 -
333 NLRB 734 (2001), and Sony Corporation of America, 313 NLRB

420 (1993).       However, the Board’s precedent has not established

such a per se rule.

     In     Brentwood      At    Hobart,      the    court   merely       recited     an

unremarkable proposition that unauthorized photos “may taint” an

election,       but   found     that    the   employer    waived       its   claim    by

failing to present it to the Board.                  675 F.3d at 1001, 1005-07.

Thus, the court did not recognize a per se rule.                             In Sprain

Brook, the Board declined to overturn an election because the

union     had    purportedly      photographed        employees        without   their

consent and then used the photographs in its campaign materials.

348 NLRB at 851.         The Board noted that the union had obtained

signed    consent      forms     from    employees       prior    to     using   their

photographs, id., but it did not hold that the use of employee

photographs without such consent is per se objectionable.

     In Allegheny Ludlum, the Board set forth five prerequisites

for permissible employer videotaping of employees for a campaign

video which included assurances that an employee’s participation

was voluntary, 333 NLRB at 743; it also explicitly stated that

it was not creating a per se rule that “employers must obtain

employees’      explicit      consent    before     including    their       images   in

campaign videotapes.”           Id. at 744.         Further, to the extent that

its earlier decision in Sony was being construed as establishing

a per se rule requiring explicit employee consent, the Board in

                                        - 18 -
Allegheny Ludlum said that such a construction was “unintended

and unwarranted.”          Id.

      In sum, we hold that the Board’s determination that the

results of the election should not be set aside because Local

391 used a photograph of Enterprise employee Roberto Henriquez

on a campaign flyer without Henriquez’s prior authorization is

supported by substantial evidence.

                                           2

      Enterprise also contends that the election results should

be set aside because an ice/snow storm on December 16, 2010 in

the   Wake      County,    North   Carolina      area      caused     a    determinative

number     of     eligible    Enterprise       employees      not     to    vote    in    the

election held on December 16 and 17.                   Adopting the reasoning of

the Board Hearing Officer, the Board concluded that Enterprise

failed     to     show   that    the   severity       of   the   weather      conditions

reasonably        denied     eligible    Enterprise          employees      an     adequate

opportunity to vote.

      In     In    re    Baker   Victory   Services,          Inc.,    331       NLRB    1068

(2000), the Board stated that an election “should be set aside

where    severe      weather     conditions      on    the    day     of   the     election

reasonably        denied   eligible     voters    an       adequate       opportunity      to

vote and a determinative number did not vote.”                        Id. at 1070; see

also V.I.P. Limousine, Inc., 274 NLRB 641, 641 (1985) (noting

that an election should be set aside where the inclement weather

                                        - 19 -
“affect[s]       the   electorate          as      a    whole”       and    “[a]       substantial

number of employees did not vote in the election”).                                          Applying

this     standard,      we    find        no       reason     to     disturb         the      Board’s

decision.

       Neither     the       RDU        Airport        nor    Enterprise’s             car    rental

facility closed at any time on December 16 or 17, 2010 because

of the inclement weather.                  Moreover, there is no evidence that

the    weather     conditions           affected       the     ability          of   any     eligible

Enterprise        employee         to     vote,        especially          when      the     weather

improved     on    December         17,        a    day      where    eligible          Enterprise

employees were offered two different time periods in which to

vote.

       Enterprise turns our attention to the testimony of Jill

Trout,    Enterprise’s         Human       Resources          Manager,          that    Enterprise

received about ten “call outs” on December 16, 2010 and four

more on December 17.               However, Enterprise presented no evidence

regarding its normal call-out rate, and, thus, the meaning of

this evidence cannot be discerned.                            Moreover, Trout testified

that she had no personal knowledge of the reason for the call-

outs, nor did she have any knowledge of any eligible Enterprise

employee who did not vote on account of the weather.                                    Under such

circumstances,         Trout’s          testimony         sheds      no    light       on     whether

eligible    Enterprise         employees            were     denied        an    opportunity       to

vote.

                                               - 20 -
       The    Board’s        ruling   on    Enterprise’s        contention      concerning

the inclement weather is consistent with its reasoned decisions.

For example, in V.I.P. Limousine, the Board understandably set

aside an election where twenty inches of snow fell around the

election site in Connecticut during the polling period, “making

navigation of the roads extremely difficult, if not impossible.”

274    NLRB    at     641.      Similarly,           in    Baker   Victory,         the   Board

properly set aside an election where more than four feet of snow

had fallen in the City of Buffalo during the two-week period

preceding       the      election,      and    a      state   of   emergency        had   been

declared for the city during the week of the election.                               331 NLRB

at 1069.

       Unlike the weather conditions in V.I.P. Limousine and Baker

Victory, there is no evidence that weather conditions impacted

the ability of the eligible Enterprise employees to vote.                                   As

noted    above,       Enterprise’s         car       rental   facility    remained        open

throughout the inclement weather on December 16, 2010, and there

is no evidence that weather was a serious issue when the polls

were     open       on       December      17.            Accordingly,        the     Board’s

determination that the results of the election should not be set

aside because of the ice/snow storm on December 16 in the Wake

County,       North       Carolina      area         is   supported      by    substantial

evidence.

                                                 3

                                           - 21 -
      Enterprise contends that the results of the election should

be set aside because union organizer Steve Jones told Enterprise

employee    Damion      Knowles       in    the   presence       of    other    Enterprise

employees     that     “[y]ou     never      want    to   burn    any    bridges.”        In

support of this contention, Enterprise heavily relies on the

subjective      reaction     of    Knowles,         who   says    he    felt    physically

threatened      by     Jones’s        statement.           However,       adopting     the

reasoning of the Board Hearing Officer, the Board concluded that

Jones’s statement failed to establish that the free choice of a

reasonable employee would have been hindered.                          We agree with the

Board.

      First     off,    we     have     recognized        that    the     “‘[s]ubjective

reactions of employees are irrelevant to the question of whether

there    was,    in     fact,      objectionable          conduct.”            Media   Gen.

Operations, 360 F.3d at 442 (quoting Kmart Corp., 322 NLRB 1014,

1015 (1997)).         This is so because the test for coercion is an

objective one.        Id.

      Second, embracing Enterprise’s argument would do harm to

the precedent that recognizes that “election campaigns, by their

nature, are rough and tumble affairs, and they typically involve

elements of pressure or inducement.”                      Id.    A certain amount of

hyperbole and exaggeration is expected in an election campaign,

which is why the responsibility for assessing the relevant facts

and   deciding       whether      the      union’s    conduct     interfered       with   a

                                            - 22 -
reasonable employee’s free and fair choice in a representation

election lies with the Board.            Id.    This case is no different.

      Third and finally, we agree with the Board that, even if

Knowles’ statement could somehow be construed as a threat, the

statement merely implied that Knowles should not forsake a good

relationship with Jones, even if Knowles moved into management,

because no one knows what the future may bring.                    As such, the

statement would not coerce a voter or cause a voter to change

his or her vote.         Cf. id. (holding that a union agent did not

engage   in   coercive    conduct    when       he   told   employees   that   they

should sign a petition stating they would vote for the union to

“‘separate the men from the boys’”).

      In sum, the Board’s determination that the results of the

election should not be set aside because Jones told Knowles that

“[y]ou   never    want     to     burn    any     bridges”    is   supported     by

substantial evidence.



                                         III

                                          A

      Huntington,      formerly          Northrop       Grumman    Shipbuilding,

operates a shipbuilding and dry dock facility in Newport News,

Virginia.     Its principal business is the construction, repair,

and   overhaul    of     United     States       Navy   vessels,    particularly

nuclear-powered aircraft carriers and submarines.

                                     - 23 -
       The construction of an aircraft carrier is a complicated

task.    Its construction requires a carefully planned and highly

integrated design and manufacturing process involving thousands

of employees.        The lifespan of an aircraft carrier construction

project,    from    the   time    the   keel     is   laid   through   completion,

takes between five and six years.                 Submarines are smaller than

aircraft     carriers     but    similarly       challenging     to    design    and

construct.     The process used to build submarines is not unlike

that used for aircraft carriers.

       Huntington      also      performs       considerable     refueling       and

overhaul     work.        Nuclear-powered         aircraft     carriers     require

refueling of their nuclear core after about twenty-five years of

operation.     This intricate process requires over three years to

complete.     During refueling, Huntington also performs a general

overhaul of the ship, updating computer, electronic, and combat

systems.     As with initial construction, refueling and overhaul

involves the integrated work of thousands of employees.

       Huntington employs approximately 18,500 people.                  It divides

its       workforce           into       four         categories—-professional,

administrative, production and maintenance, and technical.                      This

case    concerns      Huntington’s        approximately        2,400      technical




                                        - 24 -
employees. 4     Technical     employees       perform       non-manual      work

requiring some sort of specialized training.                Huntington groups

technical employees into ten job classifications: (1) quality

inspectors; (2) test technicians; (3) designers; (4) engineering

technicians; (5) dimensional control technicians; (6) laboratory

technicians;    (7)      chemical     handlers;       (8)     planners;      (9)

radiological   control    technicians       (RCTs);   and    (10)    calibration

technicians.

     The   technical     employees     in    almost    all     of    these   job

classifications work in various divisions and departments, and

work at various locations throughout the shipyard. 5                The RCTs and


     4
       In addition to the technical employees, Huntington employs
approximately 2,000 professional employees (mostly engineers),
approximately 1,500 administrative employees (mostly office and
clerical staff), approximately 8,500 production and maintenance
employees (electricians, welders, machinists, janitors, and
riggers,   among    others),   approximately   2,500  supervisory
employees   (foremen,   managers,  superintendents,  supervisors,
directors, and vice presidents), and approximately 1,600 other
employees who perform various tasks.         The production and
maintenance employees, the guards, and the firefighters are the
only employees represented by a union.
     5
       Structurally, Huntington is headed by a General Manager,
who oversees six operating divisions.         The six operating
divisions are: (1) Navy Programs Division, which provides
overall management and oversight over aircraft carrier and
submarine construction and aircraft carrier overhaul; (2) the
Operations   and   Manufacturing  Division,  which   handles   the
manufacture of ship components in the first phase of production
for assembly on the ships; (3) the Quality and Process
Excellence Division, which audits and inspects production work
and   provides   record   reviews  and   ensures   that   contract
specifications are met; (4) the Waterfront Nuclear Engineering
(Continued)
                                    - 25 -
calibration       technicians      are     only      assigned      to   one      department

within     Huntington’s         Nuclear     Services         Division         called      “E85

RADCON.”       Technical employees are salaried, have their own labor

and salary grades separate from all other employees and are paid

under the same bi-weekly payroll system.                          They are covered by

the   same     personnel       policies     and      are    eligible       for     the    same

pension,       401(k),    medical,      dental,      insurance,         and    sick      leave

plans    and    other    benefits       programs,      as    are    all      unrepresented

salaried       employees.        They    all    perform      non-manual          work    of   a

technical       nature,        requiring       the     exercise         of     specialized

training,       some     on-the-job       and     others      requiring          additional

extensive        coursework.              Seven        of     the       ten        technical

classifications         have    some    limited      radiation       worker        training.

Aside from the RCTs, who have extensive radiological control

training,       designers,       test     technicians,            quality      inspectors,

laboratory       technicians,      calibration         technicians,          and    chemical

handlers all are given dosimetry training of two to five days

because      their     duties     require       that       they    enter      radiological

controlled areas.         Many employees do not enter such areas.



and Test Services Division (Nuclear Services Division), which
provides oversight of the nuclear aspects of Huntington’s
operations; (5) the Commercial Nuclear Programs Department,
which is involved in the construction of commercial nuclear
plant equipment and systems; and (6) the Department of Energy
Programs Office, which is involved with various programs offered
by the Department of Energy.


                                         - 26 -
       Quality inspectors provide oversight for the construction,

maintenance and overhaul, and refueling of the nuclear vessels.

They use drawings prepared by other technicians to ensure that

all     construction         and   repair     work       is    performed       within      the

specifications of the drawing requirements.

       Test   technicians          perform    a     variety     of    nuclear      and   non-

nuclear mechanical and electrical testing on a ship’s component

systems.      The non-nuclear test technicians work on propulsion

and combat systems while the nuclear test technicians work on

various    nuclear       systems.       Both       nuclear      and    non-nuclear       test

technicians help establish system conditions and execute work

control documents during the shipbuilding process.

       Designers        create     drawings       and    blueprints         that   serve    as

guides     for    the        manufacturing        of    ship    components         and   ship

assembly.        They frequently visit the ships to analyze various

components and systems on which they are working.

       Engineering technicians typically are former Navy personnel

with    aptitude        in    mechanical      and       electrical      systems.         They

interface        with    engineers,        designers,          and     the    construction

workers who build ship systems.                        They also prepare technical

work documents that guide certain work processes.

       Dimension control technicians provide metrology services.

They    use   precision        instruments        to    measure       the    dimensions     of

large     ship     structures        and      machinery        foundations         so    that

                                           - 27 -
components can be constructed to fit together properly.                    They

map these materials with photogrammetric instruments and laser

trackers, which requires extensive training.

     Laboratory     technicians      test     production     materials      and

elements generated by shipbuilding.           They perform environmental

sampling, metals and coating analysis, water chemistry analysis,

and mechanical and metallurgy testing.              They also examine and

test materials generated during nuclear work.

     Chemical Handlers dispose of hazardous materials generated

during shipbuilding and overhaul.             They primarily handle the

radioactive waste generated during nuclear work.

     Planners review ship designs, technical work documents, and

other drawings to determine the proper sequencing of work and

material procurement.        They determine needed materials and when

they need to be delivered.

     RCTs are part of a department within Huntington’s Nuclear

Services Division called “E85 RADCON.”           There are approximately

140 RCTs in the E85 RADCON department.                There are also other

technical employees in the department, namely, twenty laboratory

technicians,   three    calibration        technicians,     and    sixty    RCT

trainees.

     RCTs   essentially      perform   a     safety    function:    providing

independent radiological oversight for nuclear work areas.                 RCTs

track   radiation   levels    and   ensure   that     individual   employees’

                                    - 28 -
exposure remains within safe limits.               They are also responsible

for     ensuring   that     employees      meet    the   radiological      control

standards required for Huntington to maintain its license to

work with nuclear materials.             Huntington’s overall radiological

control philosophy is known as “ALARA” (As Low As Reasonably

Achievable), and RCT independence is the key to that approach.

Under    ALARA,    although      all    nuclear    workers   are    expected     to

minimize both their personal exposure and wider contamination,

RCTs are responsible for maintaining protocols and achieving the

required containment.         Therefore, under the ALARA program, RCTs

are in a separate department from the rest of the work force in

order    to    facilitate     oversight     that    is   independent      of   both

production and quality control.

       RCT    oversight    has    two    prongs:    maintaining     radiological

control areas and performing routine radiological surveys.                     RCTs

set up control areas to restrict access near nuclear reactors,

work sites, components, and materials, both on ships and in the

shops.       They use Technical Work Documents (TWDs) and drawings to

make a map of areas that require controls and then survey to

establish the baseline radiation levels and find “hot spots,”

which are then marked on the maps.                   In monitored controlled

areas, RCTs set up barriers, signs, and employee checkpoints.

In    less    restricted   control      areas,    RCTs   simply   leave   an   area

roped off with signs designating the requirements for entry.

                                        - 29 -
       At   monitored      control     areas    with       established         checkpoints,

RCTs observe and restrict employee traffic.                          Only employees with

radiological safety training can enter, and RCTs question them

about their jobs and the materials and tools they are taking in

with   them.       Then,    RCTs     assign     each       employee      a    dosimeter      to

record the employee’s dose of radiation, and brief employees

about the hot spots before allowing entry.                           As employees leave,

RCTs collect the dosimeters, note employees’ exposure, confirm

that they followed control protocols and screen materials that

they bring out of the area.              When they observe contamination or

irregularity,      they     order    that      work       be   stopped       and    submit    a

radiological deficiency report.

       RCTs    conduct      routine      radiological            surveys       around     the

shipyard      on   rotations       ranging      from        daily      to     annually,      in

addition      to   performing        surveys         that      are      required      during

particular     tests     and   projects.            For    “contamination           surveys,”

RCTs wipe surfaces to test for contaminants and in “radiation

surveys,” they use a probe to take contact or ambient radiation

readings.      Surveys can take anywhere from fifteen minutes to two

hours, depending on the type of survey required.

       Laboratory      technicians      within        the      E85    RADCON       department

test    the    materials       collected       by     the      RCTs,        help   calibrate

dosimetry      equipment,        and     screen           potentially          contaminated

materials      that     require       laboratory               tests.          E85     RADCON

                                        - 30 -
calibration technicians maintain and calibrate the instruments

used by RCTs.       As a result, they are qualified to operate all of

the instruments that RCTs use.                    They interact with RCTs when

they pick up and replace faulty equipment.

     RCT       trainees     perform     some      of     the    routine         surveys     and

monitor limited control points during their on-the-job training.

They can set up the area and allow certain workers inside.

     Occasionally,           other     technical          employees            perform     work

similar     to    the     surveys     performed          by    RCTs.           Environmental

laboratory       technicians         perform      radiation          and        contamination

surveys    of     drainage    ditches       and    outfalls         to    make     sure    that

various contaminants do not spread to the environment, but it is

unclear    from     the     record    how     often      they       do    this.         Nuclear

chemical        handlers      are      qualified          to        do        radiation     and

contamination surveys on their vehicles, although, again, the

record does not show how often they actually do so.                                There are

no      temporary       transfers       into        or        out        of     E85      RADCON

classifications.          However, there have been permanent transfers.

There     is     evidence     that     RCTs       have    transferred            into     other

technical classifications, but no evidence about how many or how

often this occurs.

     RCTs       receive     highly    specialized         training.              They    attend

orientation at the shipyard for their first month and then leave

for a twenty-two week training course run by the United States

                                        - 31 -
Navy.       This     training    requires       math    and    physical      sciences

aptitude and only half of the RCT trainees graduate.                             After

graduation, Huntington conducts five weeks of training at its

facility and then administers a full-day oral examination.                       RCTs

must     take   requalification        training    every      thirty    months    and

attend “spill drills” to practice responding to emergencies on a

quarterly basis.         Other technical employees receive, at most,

only a few days of radiological safety training.                          Like most

other     employees,     RCTs    are     required       to    possess     government

security clearance of “confidential” or higher.

       RCTs use specialized tools, including approximately twenty-

seven radiation detection instruments.                  They receive orange kit

bags and additional supplies such as “wipes, laws, tweezers,

[and] bags.”        Only RCTs receive the orange bags.                  A few other

technical classifications are qualified to use some of these

tools,     including      environmental         laboratory      technicians        and

nuclear chemical handlers who perform occasional surveys.

       RCTs have daily, work-related contact with all employees

who enter radiological control areas.                  Most of these are trades

employees          (painters,      machinists,           pipefitters,          etc.),

supervisors,       and   other   non-technical         employees.       At    certain

stages during refueling overhauls and during the final months of

new ship construction, RCTs have increased contact at control

points with other technical employees, mostly quality inspectors

                                       - 32 -
and     test    technicians,         but     also     designers             and     engineering

technicians.        Contact with employees at the control points is

brief    and    involves        monitoring        them    as        described       above,    not

working    together        to     perform    technical          or    production-oriented

jobs.     During new construction, there is a period of five or

more years before RCTs are present on the ships. Even during

refueling overhauls, which require radiological oversight from

the   beginning,          RCTs’    contact     with       other       technicians        varies

substantially throughout the period of the ship’s availability

depending      on   the     phase     of    production          and    whether        RCTs    are

assigned to the ship or the shops.

                                              B

      On March 3, 2009, the Machinists Union petitioned the Board

to represent the RCTs in the E85 RADCON department.                                     In the

alternative,        the    Machinists        Union       agreed       to     proceed     to    an

election       in   a     departmental       unit        of    all     of     the     technical

employees in the E85 RADCON department.                         Huntington argued that

the smallest appropriate unit had to include all of its 2,400

technical employees.

      Following a hearing, the RD issued a DDE on May 29, 2009,

finding that a unit consisting of the technical employees in the

E85     RADCON          department      (namely,              the     RCTs,         calibration

technicians,        laboratory       technicians,             and     RCT     trainees)       was

appropriate for purposes of collective bargaining.                                   Huntington

                                            - 33 -
requested      Board      review       of     the     DDE,     contending        that    an

appropriate      unit     must       include    all       of   its     2,400    technical

employees.       On December 30, 2011, the Board affirmed the RD’s

decision.

     In    the       ensuing    Board-conducted            election,     the    technical

employees of the E85 RADCON department voted for representation

by the Machinists Union.               The Board subsequently certified the

Machinists Union as the exclusive representative for purposes of

collective bargaining.

     Following certification, Huntington refused to comply with

the Machinists Union bargaining request in order to contest the

validity of the certification.                  The Machinists Union filed an

unfair labor practices charge, and the Board’s General Counsel

issued     a   complaint        alleging       that       Huntington’s    refusal        was

unlawful.       The General Counsel subsequently filed a motion for

summary judgment, which Huntington opposed.                      Huntington claimed

once again that the bargaining unit must include all 2,400 of

Huntington’s         technical       employees.           Alternatively,       Huntington

argued that the Board lacked a quorum to issue its decision and

order.

     On August 14, 2012, the Board issued a decision and order

granting       the     motion     for       summary        judgment,     finding        that

Huntington’s         refusal    to    bargain       was    unlawful.       The    Board’s

decision and order requires Huntington to cease and desist from

                                            - 34 -
its unlawful conduct and from, in any like or related manner,

interfering     with,    restraining,             or    coercing       employees       in    the

exercise of their rights under the NLRA.                               Affirmatively, the

Board’s decision and order requires Huntington to bargain with

the Machinists Union upon request and embody any understanding

reached in a signed agreement.                         The decision and order also

requires    Huntington       to       post        a     remedial        notice        and,    if

appropriate, distribute copies of the notice electronically.

                                              C

      Section 9(a) of the NLRA provides that a union will be the

exclusive bargaining representative if chosen “by the majority

of    the   employees     in      a     unit          appropriate        for”    collective

bargaining.      29 U.S.C. § 159(a).                    Section 9(b) authorizes the

Board to “decide in each case whether, in order to assure the

employees      the    fullest         freedom          in     exercising        the     rights

guaranteed by [the NLRA], the unit appropriate for the purposes

of collective bargaining shall be the employer unit, craft unit,

plant unit, or subdivision thereof.”                        Id. § 159(b).       The Supreme

Court, in construing § 9(b), has stated that the determination

of an appropriate unit “lies largely within the discretion of

the   Board,    whose    decision,        if       not       final     is   rarely      to   be

disturbed.”      South    Prairie        Constr.            Co.   v.   Operating       Eng’rs,

Local   627,    425   U.S.     800,     805       (1976)      (citation      and      internal

quotation marks omitted).               Further, the Board is possessed of

                                        - 35 -
the widest possible discretion in determining the appropriate

unit.     Sandvik Rock Tools, Inc. v. NLRB, 194 F.3d 531, 534 (4th

Cir. 1999).

      Section 9(b), however, does not direct the Board how it is

to   decide    in     a    given     case   whether    a   particular    grouping     of

employees is appropriate.               Accordingly, the Board’s selection of

an appropriate unit “involves of necessity a large measure of

informed discretion.”                Packard Motor Car Co. v. NLRB, 330 U.S.

485, 491 (1947).

      Nothing in the NLRA requires that the unit for bargaining

be the only appropriate unit, or the ultimate unit, or the most

appropriate      unit;         the   NLRA    only    requires   that    the   unit    be

“appropriate.”            Sandvik Rock, 194 F.3d at 534; see also Overnite

Transp. Co., 322 NLRB 723, 723 (1996) (“The Board, however, does

not compel a petitioner to seek any particular appropriate unit.

The Board’s declared policy is to consider only whether the unit

requested is an appropriate one, even though it may not be the

optimum or most appropriate unit for collective bargaining.”).

As the Supreme Court has stated, “employees may seek to organize

‘a unit’ that is ‘appropriate’−−not necessarily the single most

appropriate unit.”              Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 610

(1991).

      The     focus       of   the    Board’s   determination     begins      with   the

bargaining unit sought by the petitioner, because, under § 9(d)

                                            - 36 -
of the NLRA, “the initiative in selecting an appropriate unit

resides with the employees.”                    Id.     Further, “[i]n many cases,

there is no ‘right unit’ and the Board is faced with alternative

appropriate units.”              Corrie Corp. of Charleston v. NLRB, 375

F.2d       149,   154    (4th    Cir.   1967).          It    is    within    the    Board’s

discretion        to    select    among      different        potential      groupings      of

employees         in    determining     an      appropriate         unit.         Fair    Oaks

Anesthesia Assocs., P.C. v. NLRB, 975 F.2d 1068, 1071 (4th Cir.

1992).

                                                1

       In this case, the RD applied the bargaining unit standard

the Board has applied in cases involving technical employees. 6

Under this standard, a unit consisting of only a subset of an

employer’s         technical       employees          is      appropriate         “when    the

employees in the requested unit possess a sufficiently distinct

community of interest apart from other technicals to warrant

their establishment as a separate appropriate unit.”                                TRW Carr

Div.,       266   NLRB    326,    326     n.4       (1983).        Under    the    TRW    Carr

standard, the burden is on the union seeking representation of

the subset of technical employees to demonstrate the distinct


       6
       Technical employees are those who do not meet the NLRA’s
definition of professional employee, 29 U.S.C. § 152(12), but
whose   work   involves   independent  judgment  and   requires
specialized training. NLRB v. Sweetwater Hosp. Ass’n, 604 F.2d
454, 456 n.2 (6th Cir. 1979).


                                          - 37 -
community      of     interest.       Id.        at   326    n.3    (“Showing   that     some

technical employees perform their duties in another phase of the

Employer’s operation is not enough to establish affirmatively

why    the    segmented       group        of     technical         employees   should    be

represented separately.”); see also Bendix Corp., 150 NLRB 718,

720 (1964) (“But it is not enough for the Petitioner to show

that it is willing to represent all the electronic technicians

at    the    plant;    it    must    also       establish      affirmatively       why   they

should be represented separately.”).

       The RD concluded that Huntington’s RCTs possess a distinct

community of interest from all other technicals outside of the

E85 RADCON department.              The RD noted that the RCTs, inter alia,

possess       unique        skills,        undergo          intensive,     lengthy,      and

specialized         training,       have        distinct      job     functions,    utilize

special tools and equipment, do not temporarily interchange with

other technicals, and have separate supervision.                           The RD further

noted that the level of functional integration and contact with

non-radiological control technicals was not so substantial as to

negate their separate and distinct community of interest.

       With regard to the RCT trainees, calibration technicians,

and laboratory technicians in the E85 RADCON department, the RD

concluded that these employees share a community of interest

with    the    RCTs    sufficient      to        require      their    inclusion    in   the

bargaining unit.            The RD noted that the calibration technicians

                                            - 38 -
and laboratory technicians are in the same department, have job

duties    functionally           related        and   integrated             in     that     all    are

responsible      for        radiological          control         at     the       facility,        are

trained to use the same specialized equipment, work out of the

E85   RADCON    facilities,            and     are    under       the        same       departmental

supervision     hierarchy.               The    RD    also   noted        that       most     of    the

laboratory      technicians            in      the    E85     RADCON          department           have

progressed      from    the        RCT      classification             and     that      laboratory

technicians      generally            do    not      interact          with       the     laboratory

technicians outside of the E85 RADCON department.

        With   regard       to     the     calibration        technicians               in   the    E85

RADCON    department,         the     RD     noted    that,       while       not       required     to

possess the same training or perform the same duties as the

RCTs, these employees work on and operate the instruments and

equipment used by the RCTs and are responsible for ensuring that

these    instruments         and      equipment       are    in    working          order.         With

regard to the RCT trainees, the RD noted that it was undisputed

that these employees received the same training as the RCTs in

order for them to become monitors in the next step of their job

progression.

      Based     on     all       of    this       evidence,        the       RD     held     that     a

departmental         unit     of      technical         employees         (RCTs,         laboratory

technicians, calibration technicians, and RCT trainees) in the

E85 RADCON department constituted a functionally distinct group

                                               - 39 -
with a sufficiently distinct community of interest as to warrant

a   separate     unit    appropriate     for    the   purposes    of   collective

bargaining.

      On review of the RD’s decision, the Board analyzed the case

under both the TRW Carr standard and the “community of interest”

standard, which the Board clarified in Specialty Healthcare &

Rehab.    Ctr.   of     Mobile,   2011   WL    3916077   (NLRB    2011),    a   case

decided after the RD’s decision. 7               Following a line of Board

authority, Specialty Healthcare made clear that the appropriate

bargaining unit determination turns on whether the petitioned-

for   employees       share   a   “community     of   interest.”         Specialty

Healthcare,      2011    WL   3916077,    at    *14   (citation    and     internal

quotation marks omitted). 8          An employer challenging the Board’s


      7
       The Board observed that, “arguably,” it had developed a
different standard for determining whether a unit of technical
employees is appropriate.  Northrop Grumman Shipbuilding, Inc.,
2011 WL 7121890, at *6 (NLRB 2011). The Board further observed
that it need not reach the question of “whether a distinct test
exists for technical employees,” because it would “reach the
same result even under the technical employee line of cases.”
Id. The RD understandably did not cite to Specialty Healthcare
because, as noted above, the case was decided after he issued
his decision.
      8
       The “community of interest” test requires the Board to
examine twelve equally important criteria in determining whether
the employees seeking to be represented by a union share a
sufficient community of interest to form an appropriate
bargaining unit. NLRB v. Lundy Packing Co., 68 F.3d 1577, 1580
(4th Cir. 1995). The twelve factors the Board must examine are
the following:

(Continued)
                                     - 40 -
unit determination under the community of interest standard has

the   burden      to   prove        that    the        bargaining     unit           selected      is

“utterly     inappropriate.”                Sandvik         Rock,     194       F.3d     at     534

(citation and internal quotation marks omitted); see also Blue

Man Vegas, LLC v. NLRB, 529 F.3d 417, 421 (D.C. Cir. 2008)

(noting    that,       if     the    objecting            party    shows     that       excluded

employees “share an overwhelming community of interest” with the

employees in the otherwise appropriate unit, then there is no

legitimate basis to exclude them); Specialty Healthcare, 2011 WL

3916077,     at    *17      (noting         that       “the       Board     will       find     the

petitioned-for         unit    to     be        an   appropriate          unit,       despite      a

contention     that     employees          in    the      unit    could    be    placed       in    a

larger    unit     which      would    also          be    appropriate          or    even    more

appropriate, unless the party so contending demonstrates that




      (1) similarity in the scale and manner of determining
      the earnings; (2) similarity in employment benefits,
      hours of work, and other terms and conditions of
      employment; (3) similarity in the kind of work
      performed; (4) similarity in the qualifications,
      skills and training of the employees; (5) frequency of
      contact or interchange among the employees; (6)
      geographic proximity; (7) continuity or integration of
      production processes; (8) common supervision and
      determination    of    labor-relations   policy;   (9)
      relationship to the administrative organization of the
      employer; (10) history of collective bargaining; (11)
      desires of the affected employees; [and] (12) extent
      of union organization.

Id.


                                            - 41 -
employees in the larger unit share an overwhelming community of

interest with those in the petitioned-for unit”).                      In Specialty

Healthcare, the Board noted that additional employees share an

overwhelming       community       of   interest     with     the     petitioned-for

employees only when there is no legitimate basis upon which to

exclude     the    employees       from    the      larger    unit     because    the

traditional       community    of       interest    factors     “‘overlap      almost

completely.’”       2011 WL 3916077, at *16           (quoting Blue Man Vegas,

529 F.3d at 422). 9

      In analyzing the case under both of these standards, the

Board     first    turned     to    the    Specialty        Healthcare      standard.

Applying this standard, the Board concluded that the E85 RADCON

technical employees shared a community of interest under the

Board’s community of interest criteria.                     The Board noted that

the   E85   RADCON    technical         employees    all     worked    in   the   same

department under common supervision and their work had a shared

      9
       There is obvious tension between the TRW Carr standard and
the community of interest standard clarified in Specialty
Healthcare.   The TRW Carr standard places the burden on the
union, while the community of interest standard clarified in
Specialty Healthcare places the burden on the employer.
Moreover, the overwhelming community of interest component of
the community of interest standard may run afoul of our decision
in Lundy Packing. See 68 F.3d at 1581 (“By presuming the union-
proposed unit proper unless there is an overwhelming community
of interest with excluded employees, the Board effectively
accorded controlling weight to the extent of union organization.
This is because “the union will propose the unit it has
organized.”) (citation and internal quotation marks omitted).
These are tensions, however, which we need not resolve here.


                                        - 42 -
purpose   and    was    functionally      integrated.         The   Board   further

noted that the RCTs monitor employees and collect samples when

appropriate; they rely on laboratory technicians to analyze the

samples they collect; and calibration technicians keep the RCTs’

instruments in proper working order.             The Board noted that RCT

trainees assist RCTs and operate limited control checkpoints as

they learn the job, and that many of the E85 RADCON laboratory

technicians used to be RCTs.

       The Board rejected Huntington’s argument that the technical

employees     outside    of   the    E85    RADCON    department       shared       an

overwhelming community of interest with the E85 RADCON technical

employees.      The Board noted that all of the facts relied upon by

Huntington (namely, that all of Huntington’s technicians operate

under the same salary structure and personnel policies, share

break facilities, and enjoy the same benefits) were outweighed

by the facts distinguishing the E85 RADCON technicians from the

other technicians.        In so noting, the Board emphasized that the

RCTs’ job function was to ensure workplace safety and control

radioactive contamination at the shipyard, a task distinct from

the production-oriented jobs of technical employees outside of

the E85 RADCON department.             Consequently, the Board concluded

that    the   RCTs     are    not    functionally       integrated       into      the

production      work   flow   of    the   shipyard,     but    instead      have   an

independent oversight role, and often their role conflicted with

                                     - 43 -
the    production      and     quality    control       goals    of   other      technical

employees.

       The Board also emphasized that, in keeping with the RCTs’

independent oversight role, Huntington had placed all the RCTs

in a separate department, under separate supervision from its

production employees.             In addition, work contacts between the

RCTs and other technical employees were brief and limited to the

same radioactive screening at safety checkpoints that thousands

of trades employees receive, with only a few exceptions during

particular projects.            The Board further emphasized that the RCTs

receive extensive and highly-specialized radiological training

and    use    numerous       radiation    detection       instruments       specific    to

their job; as a result, they possess unique skills.                              Based on

this evidence, the Board concluded that the technical employees

in    the    E85    RADCON    department       shared    a     community    of    interest

sufficiently         distinct     from      Huntington’s          production-oriented

technical employees at the shipyard.

       The Board then turned to the standard set forth in TRW

Carr.        The    Board    agreed   with      the     RD’s    extensive     reasoning,

discussed above, supporting his conclusion that, under the TRW

Carr    standard,       the     technical       employees       in    the   E85     RADCON

department shared a community of interest distinct from that

which       they     share     with      the     production-oriented             technical

employees      in    Huntington’s        shipyard.           Accordingly,     the    Board

                                         - 44 -
concluded that, under the TRW Carr standard, a unit of all of

the   technical        employees       in     the   E85     RADCON    department          was    an

appropriate unit for collective bargaining.

                                                2

      Huntington attacks the Specialty Healthcare standard on a

variety    of        fronts.     For       example,    Huntington          argues       that    the

Board’s     Specialty          Healthcare           standard,        in    particular           the

overwhelming          community       of    interest      portion     of    that        standard,

improperly       gives     controlling         weight       to   a   union’s          extent    [of

organization] in the workplace and, thus, offends § 9(c)(5) of

the     NLRA,     which       provides       that     the    Board,        in        making    unit

determinations, shall ensure that “the extent of organization

shall not be controlling.”                   29 U.S.C. § 159(c)(5).                    Huntington

also argues that the Specialty Healthcare standard usurps the

well-settled standard for technical employees set forth in TRW

Carr.     According to Huntington, the TRW Carr standard applies

here, and the Board erred when it concluded under that standard

that all of the technical employees in the E85 RADCON department

was an appropriate unit for collective bargaining.

      We need not decide whether the Board erred in applying the

standard        set    forth     in        Specialty      Healthcare,           as     Huntington

submits,        or     even    address        whether       Specialty        Healthcare          is

consistent with the NLRA or our decision in Lundy Packing.                                     This



                                             - 45 -
is so because the Board’s decision under the TRW Carr standard

is supported by substantial evidence.

       Under the TRW Carr standard, when technical employees work

in     similar       jobs     and     have       similar     working       conditions     and

benefits, the smallest appropriate unit for a group of technical

employees          must     include       all     technical         employees        similarly

employed.          See Western Electric, 268 NLRB 351, 352 (1983) (“In

general, the smallest appropriate unit of technical employees

working       in    similar    jobs       with    similar        working   conditions     and

benefits comprises all such technical employees.); TRW Carr, 266

NLRB at 326 (“When technical employees work in similar jobs and

have        similar       working        conditions        and     benefits,     the     only

appropriate unit for a group of technicals must include all such

employees       similarly      employed.”).           Thus,        while   the   Board    has

found units of some, but not all, similarly situated technical

employees to be inappropriate, it has also found a smaller unit

to     be     appropriate       when       the     petitioned-for          technical     unit

possesses a sufficiently distinct community of interest apart

from other technical units to warrant their establishment as a

separate appropriate unit.                   See Western Electric, 268 NLRB at

352 (“Although a unit of less than all professional employees

may     be     appropriate          if    that     unit     consists       of    a    readily

identifiable group with distinct skills and functions, the Board

will not certify an arbitrarily defined segment of an employer’s

                                             - 46 -
similarly situated professionals.”); TRW Carr, 266 NLRB at 326

n.4 (“[I]t is the Board’s policy to grant a unit including some,

but not all, technical employees only when the employees in the

requested    unit    possess     a    sufficiently      distinct    community     of

interest     apart    from       other      technicals     to      warrant      their

establishment as a separate appropriate unit.”).

     In this case, it was within the discretion of the Board to

find that the technical employees in the E85 RADCON department

possessed a sufficiently distinct community of interest apart

from other technical employees at the shipyard to warrant their

establishment as a separate bargaining unit.                     First, the RCTs

perform--with the integrated support of calibration technicians,

laboratory    technicians,       and     RCT    trainees   in    the     E85   RADCON

department--the       unique         function    of     providing        independent

radiological oversight at the shipyard.                 No employees outside of

the E85 RADCON department perform that task.                      The E85 RADCON

technical    employees     are       also   distinct     from    other    technical

employees because they possess unique skills, have distinct job

functions, are qualified to use specialized tools and equipment,

have separate supervision, and do not temporarily interchange

with other technical employees.

     The    E85   RADCON     technical      employees’     work    contacts     with

other   technical     employees,         and    their    level     of    functional

integration, is not so substantial as to negate their separate

                                       - 47 -
and distinct community of interest.                       The RCTs’ work contacts

with technical employees outside the E85 RADCON department are

limited to subjecting them to the same radiological screening

that    other     employees        receive.           Employees         in      technical

classifications        outside    of     the   E85   RADCON       department      perform

tasks that are directly related to production, as opposed to

radiological safety, and the E85 RADCON technical employees are

not part of the production work flow.                       In sum, the technical

employees in the E85 RADCON department perform a radiological

safety function that is sufficiently distinct from all other

employees at the shipyard to warrant their having a separate

bargaining unit.

       In    support   of   its    contention        that    the   only      appropriate

bargaining      unit    must     include       all   of     Huntington’s        technical

employees, Huntington heavily relies on two cases in which the

Board   found    that    units     not    including        all    of   the     employer’s

technical employees were not appropriate.                        Both cases involved

RCTs    at    Westinghouse        Electric      Corporation’s          Naval     Reactors

Facility (NRF) at the National Reactor Testing Station in Idaho

Falls, Idaho.          Westinghouse Elec. Corp., 137 NLRB 332 (1962)

(Westinghouse I), and Westinghouse Elec. Corp., 300 NLRB 834

(1990) (Westinghouse II).              According to Huntington, our case is

controlled by the Westinghouse cases because Huntington’s RCTs



                                         - 48 -
perform similar, if not identical, duties at its facility as did

the employees at issue in the Westinghouse cases.

       In Westinghouse I, the union sought to establish two units

of technical employees, excluding industrial hygiene technicians

among others.           137 NLRB at 332. 10              The Board found that the

petitioned-for          units        were      not     “functionally        distinct    or

homogenous        groups        of     employees,         [or]     administrative       or

departmental units.”             Id. at 337.             In so finding, the Board

explained that NRF was “one big scientific laboratory for the

development       and    simulation           of   scientific      problems,    and    the

analysis and discovery of answers to those problems.”                             Id. at

334.        Consequently,            the     Board     found     that   the    “technical

functions of NRF [were] thoroughly integrated,” that the skills

of   all    the    technical          employees       were     “quite    similar,”     that

technical employees all “receive the same training course,” and

that    the   petitioned-for               employees    were     not    a   “departmental

unit.”      Id. at 337.         The Board concluded that all of the NRF’s

technical employees “must be taken together as constituting an

appropriate unit.”         Id.

       In Westinghouse II, the RD found a bargaining unit of RCTs

and chemistry technicians, excluding other technical employees,


       10
        The industrial hygiene technicians in Westinghouse I
performed a radiological control function similar to the RCTs at
Huntington’s shipyard. 137 NLRB at 336.


                                             - 49 -
to be appropriate.            300 NLRB at 834.       On review, the Board found

that that unit was not appropriate.                      Id. at 835.         The Board

heavily      relied      on    its   earlier      decision     in    Westinghouse         I

concerning         the    functional        integration       of     the     technical

employees.      Id.      Thus, the Board found that radiological control

was not a task “discrete from the [e]mployer’s major service” of

handling and processing nuclear material and operating reactors.

Id.     According to the Board, this control function required RCTs

to    have   “close      contact     with   other       technical    employees”          and

provide them with “direct support services.”                         Id.     The Board

further noted that the record concerning the working conditions

of RCTs and other technical employees was “strikingly similar”

to the facts presented in Westinghouse I.                      Id.        Consequently,

the    Board    found     no    grounds     for    departing    from       its    earlier

holding      and    concluded        that   only    a     comprehensive          unit    of

technical employees was appropriate at the NRF.                     Id.

       The     Board     distinguished        the    Westinghouse          cases        from

Huntington’s case.              The Board noted that, although all three

cases     involved       RCTs     who   performed        similar     functions,         the

similarity between Huntington’s case and the Westinghouse cases

ended there.        The Board observed that the overall technical work

force at Huntington and Westinghouse is quite different, due in

large measure to the substantial differences between running a

nuclear research and training lab, as in the Westinghouse cases,

                                        - 50 -
and operating a shipyard that builds and refurbishes aircraft

carriers    and       submarines,       as    in    Huntington’s          case.         In   the

Westinghouse cases, the RCTs provided radiological safety for a

relatively small complement of technical employees, all working

near     nuclear       reactors       and     materials.             In       contrast,       in

Huntington’s case, a large proportion of its shipyard is engaged

in     non-nuclear      construction,          so     hundreds       of       its     technical

employees       require        no     radiological          oversight,         and      it   is

undisputed that many employees are not even qualified to enter

nuclear work areas.

       Moreover,        the     Board        observed        that       the         amount    of

radiological         oversight       that    is    required       varies       substantially

over the course of work on any given ship at the Huntington

shipyard,       and    there     is    a     period    of     several         years    at    the

beginning       of    new     ship    construction          where       no    oversight      is

necessary at all.              In contrast, the Board explained, in the

Westinghouse cases, the RCTs’ “presence is an absolute necessity

at all stages of some functions of [the] facilities.”                                 Northrop

Grumman Shipbuilding, Inc., 2011 WL 7121890, at *7 (citation and

internal    quotation         marks    omitted).            Unlike      the    RCTs     in   the

Westinghouse         cases,    Huntington’s          RCTs    do    not       provide     direct

support    to    or    have     close       contact    with       the     other       technical

classifications.         To the contrary, the Board noted, Huntington’s



                                            - 51 -
RCTs have little or no regular working contact with a majority

of the other technical employees.

     The Board also observed that the absence of even temporary

interchange between RCTs and other technical classifications at

the Huntington shipyard further distinguished this case from the

Westinghouse cases, where there was such temporary interchange.

In light of all the meaningful distinctions between Huntington’s

case and the Westinghouse cases, the Board concluded that the

Westinghouse cases were not controlling.

     We agree with the Board that the Westinghouse cases are

distinguishable from our case, for the reasons persuasively set

forth   by   the   Board.        Accordingly,     we   hold    that    the    Board’s

decision, that under the standard set forth in TRW Carr, the

technical     employees     in    the    E85     RADCON   department         share    a

community     of   interest      sufficiently      distinct     from    the     other

technical employees at Huntington’s shipyard, is supported by

substantial evidence.



                                          IV

     Having    determined        that   Enterprise     and    Huntington      do     not

prevail on their statutory challenges under the NLRA, we must

proceed to the constitutional question presented: Whether the

President’s three appointments to the Board on January 4, 2012



                                        - 52 -
are valid under the Recess Appointments Clause of the United

States Constitution.

                                       A

     Section 3(b) of the NLRA provides in relevant part:

     The Board is authorized to delegate to any group of
     three or more members any or all of the powers which
     it may itself exercise. . . . A vacancy in the Board
     shall not impair the right of the remaining members to
     exercise all of the powers of the Board, and three
     members of the Board shall, at all times, constitute a
     quorum of the Board, except that two members shall
     constitute a quorum of any group designated pursuant
     to the first sentence hereof.

29 U.S.C. § 153(b).            In New Process Steel, the Supreme Court

addressed the question of whether, under § 3(b), following a

delegation of the Board’s powers to a three-member group, two

members may continue to exercise that delegated authority once

the group’s (and the Board’s) membership falls to two.                130 S.

Ct. at 2638.         The Supreme Court held that the two remaining

Board members could not exercise such authority.           Id.    The Court

identified three reasons supporting its reading of § 3(b).

     First, the Court noted that reading the first sentence of

§ 3(b)     to    require   “the   Board’s    delegated   power   be   vested

continuously in a group of three members [was] the only way to

harmonize and give meaningful effect to all of the provisions in

§ 3(b).”        Id. at 2640.    Second, the Court noted that,

     if Congress had intended to authorize two members
     alone to act for the Board on an ongoing basis, it
     could have said so in straightforward language.

                                    - 53 -
     Congress instead imposed the requirement that the
     Board delegate authority to no fewer than three
     members, and that it have three participating members
     to constitute a quorum. Those provisions are at best
     an unlikely way of conveying congressional approval of
     a two-member Board.

Id. at 2641.       Third, the Court noted that its interpretation of

§ 3(b)    was    consistent     with    the   longstanding       practice    of    the

Board.     Id. at 2641-42.

     At the time it issued its 2012 decisions in the unfair

labor practices cases currently before us, 11 the Board had two

properly seated members, namely, Mark Gaston Pearce and Brian

Hayes, both of whom were confirmed by the Senate on June 22,

2010.     Its third member, Craig Becker, had been appointed to a

recess term that ended on January 3, 2012.                 As of that date, the

Board     lost   its   quorum.         The    President,    purportedly      acting

pursuant    to   the   Recess    Appointments      Clause,       appointed   Sharon

Block, Richard Griffin, Jr., and Terence Flynn (who has since

resigned his seat) to the Board the next day, January 4, 2012. 12

     The lawfulness of the Board’s 2012 unfair labor practices

decisions in both the Enterprise and Huntington cases turns on


     11
        April 2012       in     Enterprise’s      case,    and    August    2012   in
Huntington’s case.
     12
        Block replaced Becker on the Board.     Flynn filled the
seat which became vacant on August 27, 2010 when Peter
Schaumber’s term expired.   Griffin filled Wilma Leibman’s seat,
which became vacant when her term expired on August 27, 2011.



                                       - 54 -
whether     the   President’s    appointments    pursuant        to    the   Recess

Appointments      Clause   are    valid. 13     If   the    appointments         are

invalid, the Board’s quorum requirement was not met at the time

it issued the 2012 decisions.              Both Enterprise and Huntington

challenge    these   Presidential        appointments;     the   Board       asserts

that the President validly exercised his delegated authority.

We   begin    our    discussion     by     setting   forth       the    governing

interpretative law and the relevant constitutional provisions at

issue. 14


      13
         Understandably,  neither   Enterprise   nor  Huntington
challenge the validity of Becker’s appointment to the Board
under the Recess Appointments Clause.     In NLRB v. New Vista
Nursing and Rehabilitation, LLC., 2013 WL 2099742, at **11-30
(3d Cir. May 16, 2013), the court held that Becker’s appointment
was invalid under the Recess Appointments Clause. The validity
of Becker’s appointment is not before us because direct judicial
review of Board representation decisions is unavailable; rather,
only indirect review of such decisions is available, and this is
obtained through a refusal to bargain and the filing of an
unfair labor practices charge.    NLRB v. Kentucky River Cmty.
Care Inc., 532 U.S. 706, 709 (2001); AFL v. NLRB, 308 U.S. 401,
409–11 (1940).    Thus, the only Board decisions under direct
review in these cases are the ones issued in the unfair labor
practices cases in 2012.
      14
        Neither Enterprise nor Huntington argue that § 3(b)’s
three-member-composition requirement deprives us of jurisdiction
to review the Board’s 2012 unfair labor practices decisions in
the cases before us. However, as a federal appellate court, we
have   an   obligation  to  satisfy   ourselves  that  we   have
jurisdiction to review these decisions.          See Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)
(observing that “every federal appellate court has a special
obligation to satisfy itself not only of its own jurisdiction,
but also that of the lower courts in a cause under review, even
though the parties are prepared to concede it”) (citation and
(Continued)
                                    - 55 -
                                B

    When interpreting the text of the Constitution, we begin

with the presumption that every word in the Constitution has

independent meaning, “that no word was unnecessarily used, or

needlessly added.”   Wright v. United States, 302 U.S. 583, 588

(1938).   Moreover, we must bear in mind in our evaluation of the

constitutional provisions at issue that “‘[t]he Constitution was

written to be understood by the voters; its words and phrases

were used in their normal and ordinary as distinguished from




internal quotation marks omitted).      In Arbaugh v. Y & H
Corporation, 546 U.S. 500 (2006), the Supreme Court set forth a
“readily administrable bright line” jurisdictional standard.
Id. at 516. “If the Legislature clearly states that a threshold
limitation on a statute’s scope shall count as jurisdictional,
then courts and litigants will be duly instructed and will not
be left to wrestle with the issue.”     Id. at 515–16.    In New
Process Steel, the Supreme Court held that § 3(b)’s three-
member-composition requirement mandated that a delegee group
maintain a membership of three in order to exercise the
delegated authority of the Board. 130 S. Ct. at 2639-42. Such
a requirement is a threshold limitation on the scope of the
Board’s delegated power under the NLRA, and, therefore, we are
satisfied that we have jurisdiction to determine whether there
is any reason for which the delegee group consists of fewer than
three members, including whether one member is invalidly
appointed under the Recess Appointments Clause.    See New Vista
Nursing, at *5 (“By explaining that three members are required
in order to exercise the delegated authority of the Board, . . .
the Supreme Court has in essence declared that the three-member-
composition requirement goes directly to the board’s power to
hear a case, which is exactly what jurisdictional questions
relate to”) (citations and internal quotation marks omitted);
Noel Canning, 705 F.3d at 497 (“[T]he objections before us
concerning lack of a quorum raise questions that go to the very
power of the Board to act.”).


                              - 56 -
technical meaning.’”              District of Columbia v. Heller, 554 U.S.

570, 576 (2008) (quoting United States v. Sprague, 282 U.S. 716,

731 (1931)).             The “[n]ormal meaning may of course include an

idiomatic meaning, but it excludes secret or technical meanings

that    would      not    have    been    known   to    ordinary   citizens          in   the

founding generation.”             Id. at 576–77.

       The Appointments Clause of the Constitution 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 [S]upreme Court, and all

other Officers of the United States . . . .”                       U.S. Const. art.

II, § 2, cl.2. 15          The shared responsibility between the President

and the Senate was created to act as a “check upon a spirit of

favoritism in the President,” and to prevent the appointment of

“unfit characters.”               The Federalist No. 76, at 392 (Alexander

Hamilton) (Carey and McClellan ed., 1990).

       The Recess Appointments Clause was created to supplement

the    Appointments         Clause.        The      Federalist     No.    67,        at   350

(Alexander         Hamilton).       The    clause      states   that     the    President

“shall      have    Power    to    fill    up   all    Vacancies   that        may    happen

during the Recess of the Senate, by granting Commissions which


       15
        The parties agree that members of the Board are “Officers
of the United States” within the meaning of the Appointments
Clause.


                                           - 57 -
shall expire at the End of their next Session.”                   U.S. Const.

art. II, § 2, cl.3.       “Recesses can generally be classified into

two categories: intersession recesses--or, recesses that occur

between two sessions of Congress--and intrasession recesses--or

recesses that occur within one particular session of Congress.”

Alexander    Wolf,     Taking    Back      What’s     Theirs:    The    Recess

Appointments Clause, Pro Forma Sessions and A Political Tug-of-

War, 81 Fordham L. Rev. 2055, 2062 (2013) (footnotes omitted).

Stated differently, an intersession break of the Senate refers

to the period of time between an adjournment sine die and the

start of the Senate’s next session, while an intrasession break

refers to the period of time between a non-sine die adjournment

and the time the Senate reconvenes.

     The Recess Appointments Clause has two important features

relevant    here.     First,    it   was   designed    to    ensure   that   the

government    would    remain   in   operation      during   times    when   the

Senate would be unable to advise and consent to a nomination.

Id. at 2062-63.       When the Constitution was written, intersession

recesses regularly lasted between six and nine months.                 Michael

B. Rappaport, The Original Meaning of the Recess Appointments

Clause, 52 UCLA L. Rev. 1487, 1498 (2005).             Consequently, in the

absence of a recess appointments provision, there was a genuine

possibility that an important government position, for example,

a cabinet post, would remain vacant for a long period of time,

                                     - 58 -
because recalling the Senate, U.S. Const. art. II, § 3, was not

an easy task considering the slow transportation of the late

1700s.   Rappaport, 52 UCLA L. Rev. at 1498.                 Second, and more

importantly,    the   Recess     Appointments      Clause    was   designed   to

prevent the President from unilaterally exercising appointment

power, thereby preserving the separation of the powers between

the Legislative and Executive Branches.               Id. at 1511 n.68; cf.

Freytag v. C.I.R., 501 U.S. 868, 884 (U.S. 1991) (“The Framers

understood,    however,   that    by    limiting     the   appointment    power,

they could ensure that those who wielded it were accountable to

political force and the will of the people.”); cf. id. (noting

that the Appointments Clause “bespeaks a principle of limitation

by dividing the power to appoint the principal federal officers—

ambassadors, ministers, heads of departments, and judges—between

the Executive and Legislative Branches”).

     There was no debate surrounding the inclusion of the Recess

Appointments Clause into the Constitution, and the clause was

included in the Constitution without a single dissenting vote.

Wolf, 81 Fordham L. Rev. at 2063.                  Moreover, it is clearly

established    that   the      phrase    “End   of    [the    Senate’s]    next

Session,” U.S. Const. art. II, § 2, cl.3, means “the end of the

session following the final adjournment of the current session

of Congress.    Thus, an appointment made during the first session

of a particular Congress will not expire until the end of the

                                   - 59 -
second session of that Congress.”                        Wolf, 81 Fordham L. Rev. at

2064        (footnotes,         citations,        and      internal       quotation        marks

omitted).

       Under the Adjournments Clause, “neither [chamber], during

the    Session       of    Congress,       shall,        without    the    Consent       of    the

other, adjourn for more than three days.”                           U.S. Const. art. I,

§ 5, cl.4. 16         An adjournment of more than three days by one

chamber       of    Congress       thus    requires        the   consent     of    the     other

chamber.           Such an adjournment usually is accomplished through

the     passage           of     concurrent         resolutions           permitting          such

adjournment.          Wolf, 81 Fordham L. Rev. at 2065.                           The parties

agree       that     the       Senate     was     not    adjourned        pursuant    to       the

Adjournments         Clause       when     the     President       made    the    three       2012



       16
       “Adjourn” or “adjournment” is used in the Constitution on
five more occasions (in four clauses): (1) Article I, § 5,
Clause 1 (allowing a minority of members to “adjourn from day to
day”); (2) Article I, § 7, Clause 2 (“If any Bill shall not be
returned by the President within ten Days (Sundays excepted)
after it shall have been presented to him, the Same shall be a
Law, in like Manner as if he had signed it, unless the Congress
by their Adjournment prevent its Return, in which Case it shall
not be a Law”); (3) Article I, § 7, Clause 3 (“Every Order,
Resolution, or Vote to which the Concurrence of the Senate and
House of Representatives may be necessary (except on a question
of Adjournment) shall be presented to the President of the
United States”); and (4) Article II, § 3 (“[The President] may,
on extraordinary Occasions, convene both Houses, or either of
them, and in Case of Disagreement between them, with Respect to
the Time of Adjournment, he may adjourn them to such Time as he
shall think proper.”).



                                                - 60 -
recess appointments to the Board at issue in the cases before

us. 17

         The Take Care Clause requires the President to “take Care

that the Laws be faithfully executed.”                         U.S. Const. art. II,

§ 3.          This clause’s application here is subtle.                      On the one

hand, it may be said that the Take Care Clause requires the

President to ensure that the laws of the United States, such as

the NLRA, be faithfully executed and that the use of pro forma

sessions prevents such execution.                       On the other hand, it may be

said      that       the   use    of     pro   forma     sessions   ensures   that   the

President will seek the advice and consent of the Senate in

exercising his appointment power.

                                                 C

         In     pressing         their    respective        constitutional    arguments

before        this    court,      the    parties     take   umbrage   under   authority

supporting their position.                     The Board’s view is supported by

decisions out of the Second, Ninth, and Eleventh Circuits.                           See

Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004); United States

v. Woodley, 751 F.2d 1008 (9th Cir. 1985); United States v.


         17
       The use of pro forma sessions every three days allows one
chamber of Congress effectively to adjourn when the other
chamber will not consent to an adjournment. A Senate pro forma
session usually begins with a single senator gaveling-in the
session and concludes with the same senator ending the session
only several seconds or minutes later. Wolf, 81 Fordham L. Rev.
at 2067.


                                               - 61 -
Allocco, 305 F.2d 704 (2d Cir. 1962).                        Two recent decisions

support the position pressed by Enterprise and Huntington.                               See

New Vista Nursing, 2013 WL 2099742; Noel Canning, 705 F.3d 490.

An analysis of the Eleventh Circuit’s decision in Evans, the

D.C. Circuit’s decision in Noel Canning, and the Third Circuit’s

decision     in   New    Vista    Nursing     is    helpful       in     resolving       the

constitutional question before us.

                                          1

          In Evans, between February 12 and February 23, 2004, the

Senate took a break in their session.                    387 F.3d at 1221.           During

that break, on February 20, the President, relying on the Recess

Appointments      Clause,      appointed      William       Pryor,       Jr.,       to   the

Eleventh Circuit Court of Appeals.                 Id.     The plaintiffs in Evans

challenged     the    authority    of    Judge     Pryor     to    act    as    a    United

States Circuit Judge.         Id. at 1222.

      The Evans court first held that a recess appointment to an

Article III court is permitted under the Recess Appointments

Clause.      Id. at 1222-24.      The court also held that the term “the

Recess” also includes an intrasession break.                        Id. at 1224-26.

In   so    holding,     the   court   first      indicated        that    the   Senate’s

twelve-day break fit within the definition of a “recess” that

was “in use when the Constitution was ratified: the dictionary

definitions that have been called to our attention (or that we



                                        - 62 -
have found) did not, for example, speak of a minimum time.”                   Id.

at 1224.

     The Evans court then rejected the argument that the term

“the Recess” limits the opportunity to make recess appointments

to one particular recess, that is, the recess at the end of a

session.    Id.   Rather, the court observed, the term “the Recess”

could refer to both intersession as well intrasession breaks.

Id. at 1224-45.

     The court in Evans was not persuaded that the Framers’ use

of the term “adjournment” in other clauses and not the term “the

Recess” necessarily limited the meaning of the term “the Recess”

to a break at the end of a session.            Id. at 1225.          The court

stated that, “[i]nstead of describing a block of time, the term

‘Adjournment’     in   the   Constitution   can   be    read    to   signify    a

parliamentary     action:    Congress’s     taking     or   having    taken     a

break.”    Id.

     The Evans court noted that the “Constitution, on its face,

does not establish a minimum time that an authorized break in

the Senate must last to give legal force to the President’s

appointment power under the Recess Appointments Clause,” and the

court elected not to establish a minimum time.                 Id.   The court

did observe that, although a President had not before appointed

a judge to an Article III court during an intrasession break as

short as the one in Judge Pryor’s case, appointments to other

                                   - 63 -
offices    requiring    Senate       confirmation       had     been    made    during

intrasession breaks of about this length or shorter.                    Id.

      The Evans court noted that its interpretation of the term

“the Recess” was consistent with one of the main purposes behind

the Recess Appointments Clause.              The court noted that, to assure

the   proper    functioning     of    the    government,        both    intrasession

breaks    and   intersession       breaks     were     permitted,       because,     in

theory,    an     intersession       break     could     be     shorter     than     an

intrasession break.      Id. at 1226.

      The Evans court then turned to the question of whether the

vacancy   needs    to   “happen”     or   “arise”      during    “the     Recess”    in

order to be filled.       The court concluded that such vacancies can

be filled if they happen to exist during a recess, id. at 1226-

27,   citing    the   Ninth    Circuit’s      decision    in     Woodley       and   the

Second Circuit’s decision in Allocco.                  Id. at 1226.        The court

agreed that the phrase “that may happen” is subject to more than

one interpretation, noting that the word “happen” can be defined

as “befall,” which can mean “happen to be.”                     Id. (citation and

internal quotation marks omitted).              Such a definition, which the

court described as the “most accepted,” does not contradict the

plain meaning rule.      Id.

      The Evans court also relied on the past practice of early

Presidents (in particular, President Washington) making recess

appointments that originated while the Senate was in session.

                                      - 64 -
Id.      Finally,    the    court      noted       that,      interpreting         the       phrase

“that    may     happen”    to   “prohibit         the     President        from    filling       a

vacancy that comes into being on the last day of a Session but

to     empower     the     President      to       fill       a    vacancy       that        arises

immediately        thereafter       (on    the        first         day     of     a     recess)

contradicts what we understand to be the purpose of the Recess

Appointments Clause: to keep important offices filled and the

government functioning.”            Id. at 1227.

                                               2

       In Noel Canning, the D.C. Circuit held that the President’s

three January 4, 2012 appointments to the Board were invalid

under the Recess Appointments Clause.                         705 F.3d at 499-514.               In

its decision, the court first tackled the meaning of the term

“the Recess” as used in the Recess Appointments Clause.                                         The

court    concluded       that    the    term        “the      Recess”       refers       to     the

intersession break of the Senate, that is, 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.                      Id. at 499-507.                The court

relied on eight key points to support its conclusion.

       First, the court in Noel Canning emphasized that the use of

the definite article “‘the’” suggested “specificity.”                                    Id. at

500.     According to the court, as a “matter of cold, unadorned

logic, it makes no sense to adopt the Board’s proposition that

                                          - 65 -
when the Framers said ‘the Recess,’ what they really meant was

‘a recess.’”         Id.

     In support of its definite/indefinite article distinction,

the court in Noel Canning observed that on six occasions 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, and in each case, an indefinite article

is used.       Id.     In contrast, the two uses of “Recess” (once in

the Recess Appointments Clause and the other in the original

Senate       Vacancies       Clause,      U.S.        Const.      art.      I,    § 3,     cl.2,

superseded      by     id.    Amend.       XVII)       contain     a     definite        article

(“the”).         According          to    the     court,       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.”                             Id.

     Second, the Noel Canning court looked to the structure of

the Recess Appointments Clause.                   The court noted that 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.’”                   Id.       The court observed that the

structure of the clause was such that the there was a difference

between the term “‘the Recess’” and the term “‘Session.’”                                    Id.

Accordingly, “[e]ither the Senate is in session, or it is in the

recess.        If it has broken for three days within an ongoing

                                            - 66 -
session,    it    is     not   in     ‘the    Recess.’”          Id.         Since    it   was

“universally accepted that ‘Session’ here refers to the usually

two   or   sometimes        three   sessions         per    Congress     .    .   .   ,    ‘the

Recess’ should be taken to mean only times when the Senate is

not in one of those sessions.”                Id.

      Third,      the       Noel      Canning        court       observed         that     its

interpretations        of    the    terms     “the     Recess”     and       “Session”      was

supported by constitutional history.                        The court cited to The

Federalist No. 67, where Alexander Hamilton noted that recess

appointments would expire at the end of the ensuing session of

Congress.      Id.       For there to be an ensuing session, the court

stated, recess appointments must be “made at a time when the

Senate was not in session−that is, when it was in ‘the Recess.’”

Id. at 500-01.

      Fourth,      the      Noel    Canning         court    noted     that       historical

practice supported its interpretation of the term “the Recess.”

The   court      observed      that    there        were    no   intrasession         recess

appointments         for     the      first     eighty        years      following          the

Constitution’s ratification, id. at 501, and there were only

three documented intrasession recess appointments prior to 1947.

Id.   at   502.        According       to     the    court,      the   “infrequency         of

intrasession recess appointments during the first 150 years of

the Republic suggests an assumed absence of the power to make



                                            - 67 -
such appointments.”                Id. (citation, alterations, and internal

quotation marks omitted).

       Fifth,       the      Noel     Canning        court     indicated         that     the

Constitution’s              overall        appointments         structure          provided

additional support for its position.                      According to the court,

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.”                 Id. at 502.       The court quoted from

Hamilton’s The Federalist No. 67, where Hamilton observed 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.’”         Id. at 502-03 (quoting The Federalist No. 67, at

350).       Such a structure was important to the Framers, the court

observed, because appointments made pursuant to the advice and

consent of the Senate under the Appointments Clause served to

prevent       Presidential         favoritism     and    the    appointment         of    the

unqualified.         Id. at 503.

       By     contrast,      to     keep    the   government        functioning      during

lengthy       intersession         periods    (typically       six    to    nine    months)

where it was difficult to recall the Senate, the Framers created

a supplemental method for appointments.                       Id.     The court noted,

                                            - 68 -
however, that the Framers placed strict limits on the execution

of this supplemental method.                 Id.    According to the court,

       [i]t 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.

Id.

       Seventh, the court in Noel Canning observed that there was

no other plausible interpretation of the term “the Recess.”                            The

term   could    not    refer       to   all    breaks,    otherwise        the   President

could make an appointment during a Senate lunch break.                           Id.   The

court also noted that this interpretation could not “explain the

use of the definite article ‘the,’ the singular ‘Recess’ in the

Clause, or why the Framers used ‘adjournment’ differently from

‘Recess.’”      Id.

       The next interpretation addressed by the Noel Canning court

was    that    the    term       “the   Recess”       refers    to   some    substantial

passage of time.             This interpretation was adopted by Attorney

General    Harry      Daugherty         in    1921.      In    an    opinion,     Attorney

General Daugherty argued 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).                In this

opinion, Attorney General Daugherty did not put an exact time on


                                             - 69 -
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.         However, Attorney General

Daugherty rejected the proposition that an adjournment for five

or ten days met his definition, though he did conclude that a

break of twenty-eight days did.          Id.

     The     Noel     Canning     court        rejected     Attorney    General

Daugherty’s vague alternative in favor of the clarity of the

intersession      interpretation.         According    to    the   court,   “the

inherent     vagueness    of     Daugherty’s       interpretation      counsels

against    it,”     because    “the    Framers     would    not    likely   have

introduced such a flimsy standard.”            Id. at 504.

     The court in Noel Canning likewise rejected the notion that

the term “the Recess” refers to any adjournment of more than

three days pursuant to the Adjournments Clause, because such an

interpretation lacked “any constitutional basis.”                  According to

the court,

     [t]he 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.


                                      - 70 -
Id.

       The   Noel   Canning     court   also     rejected      an    interpretation

adopted by the Office of Legal Counsel in 2012.                         Under this

interpretation      of   the    term    “the    Recess,”       the   President    has

discretion    to    determine    when    the    Senate    is    in   recess.      See

Lawfulness of Recess Appointments During a Recess of the Senate

Notwithstanding Periodic Pro Forma Sessions, 36 Mem. Op. O.L.C.

1,    23   (2012)   (“[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.”).         The    court    in     Noel   Canning       rejected    this

interpretation because to allow

       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 of the other.” Buckley v. Valeo, 424 U.S. 1,
       122, 96 S. Ct. 612, 46 L. Ed. 2d. 659 (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.

705 F.3d at 504.

       Eighth, the Noel Canning court rejected the analysis of the

Eleventh Circuit’s decision in Evans.                  The court observed that


                                       - 71 -
the   Evans    court’s   analysis    failed   to    recognize     one   of   the

important purposes of the Recess Appointments Clause, that is,

that the clause allows the President to fill a vacancy only when

the Senate cannot provide advice and consent.                Id. at 505.     The

Noel Canning court also rejected the implication of the Evans

court’s   analysis−that     the    term    “the   Recess”    applies    to   any

recess.     Id.   Finally, the Noel Canning court observed that the

court in Evans failed to distinguish between “adjournment” and

“recess,”     “rendering   the    latter   superfluous      and   ignoring   the

Framers’ specific choice of words.” Id.            at 506.

      Summarizing its holding concerning the meaning of the term

“the Recess,” the court in Noel Canning stated:

      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

                                    - 72 -
       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, 72
       S. Ct. 863, 96 L. Ed. 1153 (1952).   That is the case
       here . . . .

       In short, we hold that            “the    Recess”    is   limited    to
       intersession recesses.

705 F.3d at 506.

       Although the court in Noel Canning needed to go no further,

it went on to address the scope of the meaning of the word

“happen” in the Recess Appointments Clause.                 The court indicated

that two interpretations were available.                  The first, pressed by

Noel Canning, was that “happen” means “‘arise’” or “‘begin’” or

“‘come into being.’”            Id. at 507.         The second, pressed by the

Board, was that “happen” means “‘happen to exist.’”                       Id.     The

court agreed with Noel Canning’s interpretation.                   Id. at 507-14.

       The    Noel    Canning    court      first    observed      that   the    word

“happen” cannot logically mean vacancies that happened to exist

during “the Recess,” because such a construction rendered the

phrase “that may happen” unnecessary.                  Id. at 507.        The court

next observed that its interpretation of the word “happen” was

consistent with the understanding of the word contemporaneous

with the Constitution’s ratification, citing to a dictionary at

the time of ratification defining the word “happen” as “[t]o

fall   out;    to    chance;    to   come   to   pass.”      Id.    (citation     and

internal quotation marks omitted).                   The court posited that a

                                      - 73 -
“vacancy happens, or comes to pass, only when it first arises,

demonstrating that the Recess Appointments Clause requires that

the relevant vacancy arise during the recess.”                          Id. (alterations

and internal quotation marks omitted).

     The Noel Canning court next turned to the structure of the

Constitution       to    support    its     view.      The       court    noted     that   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.”           Id. at 508.           Otherwise, the court indicated,

the President could sidestep the Appointments Clause altogether

by simply waiting for a recess.                  Id.

     The     court        in     Noel    Canning       also       observed       that      its

interpretation of the word “happen” was consistent with other

uses of the term in the Constitution.                     See id.       (noting that the

Senate     Vacancies      Clause,       which    provided        at    the   time   of     the

adoption      of        the     Constitution        “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,

superseded by id. Amend. XVII, would make no sense if it refers

to vacancies that happen to exist at the time of a recess).

                                           - 74 -
      The    court           in     Noel       Canning     also    observed       that     its

interpretation          of    the       word    “happen”    was    consistent     with     the

earliest Presidential interpretation of the word, examining the

actions     of    President             Washington.        According    to    the    court,

President Washington understood the recess appointment power to

extend only to vacancies that arose during a Senate recess.                               Id.

Specifically, President Washington followed a practice that if

not enough time remained in the session to ask a person to serve

in an office, he would nominate a person without the nominee’s

consent,    and        the    Senate       would    confirm    the   individual      before

recessing.        Rappaport, 52 UCLA L. Rev. 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.”                   Noel Canning, 705 F.3d at 508.

      The Noel Canning court also distinguished Evans, Woodley,

and Allocco on the basis that these decisions did not focus

their   analyses         on       the    original     public      meaning    of   the     word

“happen.”        Id.    The court also noted that modern scholarship had

demonstrated           that       President        Washington’s      exercise       of     the

appointment power was an example of “‘the practice of appointing

an individual without his consent and then, if he turns down the

                                               - 75 -
appointment during the recess, making a recess appointment at

that time.’”      Id. at 509-10 (quoting Rappaport, 52 UCLA L. Rev.

at 1522 n.97).

      The Noel Canning court also rejected the notion that its

interpretation of the word “happen” ran afoul of the Take Care

Clause.      The court noted that the constitutional dilemma raised

by the case was an easy fix−Congress could provide that a Board

member’s service extends until the qualification of a successor,

or provide for action by less than the current quorum, or deal

with any inefficiencies in some other manner.                Id. at 511.

      Applying its interpretation of the word “happen,” the court

in Noel Canning held that the relevant vacancies did not arise

during the intersession break of the Senate.                  Id. at 512.       The

three Board seats that the President filled on January 4, 2012

had   become    vacant   on    August     27,   2010,   August    27,   2011,   and

January 3, 2012, respectively.             On August 27, 2010, the Senate

was in the midst of an intrasession break, so the vacancy that

arose   on     that   date    did   not   arise    during    “the   Recess”     for

purposes of the Recess Appointments Clause.                 Id.   Similarly, the

Senate was in an intrasession break on August 27, 2011, so the

vacancy that arose on that date also did not qualify for a

recess appointment.          Id.    The seat formerly occupied by Becker

became vacant at the end of the Senate’s session on January 3,

2012.     According to the court, it did not “‘happen during the

                                      - 76 -
Recess   of    the      Senate’”     because          the     Senate    did     not      take    an

intersession recess between the first and second sessions of the

112th Congress.         Id.

                                                3

     In New Vista Nursing, the court addressed the question of

whether the President’s March 27, 2010 appointment of Becker to

the Board was valid under the Recess Appointments Clause.                                      2013

WL   2099742,      at    **11-30.              On    March     26,     2012,       the     Senate

“adjourned”       for    a    two-week         period.          Id.     at    *6     (citation,

alterations, and internal quotation marks omitted).                                   The court

in New Vista Nursing held that Becker’s appointment was invalid

under    the      Recess      Appointments             Clause     because          the     Recess

Appointments Clause only applies to intersession breaks.                                   Id. at

**11−30.

     In beginning its analysis, the court in New Vista Nursing

identified     three       plausible       definitions           for    the     phrase         “the

Recess of the Senate.”             Id. at *13.           According to the court, the

phrase     “the      Recess    of        the        Senate”     could        refer       to:    (1)

intersession      breaks      as    the    court        held    in     Noel    Canning;         (2)

intrasession breaks that last at least ten days as developed in

Evans and Attorney General Daugherty’s opinion; or (3) any time

in which “the Senate is not open for business and is unavailable

to provide its advice and consent” as developed by the Office of

Legal Counsel in 2012.             Id.

                                           - 77 -
          In deciding which definition to adopt, the court in New

Vista Nursing first examined dictionaries from the time of the

Constitution’s          ratification.         The         court    noted      that    such

dictionaries        were      inconclusive,    because        the     definitions      of

“recess” in Founding-era dictionaries supported each definition

of the phrase “the Recess of the Senate.”                         Id. at **13-14; id.

at *13 (noting that Samuel Johnson’s 1785 dictionary defined

“recess” to mean “retirement; retreat; withdrawing; secession”

as well as “departure” and “removal to distance”) (citation,

alterations, and internal quotation marks omitted).

          The New Vista Nursing court then examined the parliamentary

practice of the English Parliament to see if it shed light on

the meaning of the phrase “the Recess of the Senate,” because

the parliamentary procedures of the first Senate were based on

the parliamentary procedures employed by the English Parliament.

Id. at *14.        English parliamentary procedure during the Founding

era had three types of breaks: adjournments, prorogations, and

dissolutions.           Id.      Adjournments       were     “continuances       of   the

session from one day to another . . . and sometimes a fortnight

or    a    month   together.”       Id.    (citation       and     internal    quotation

marks       omitted).         Prorogations         were     “continuances       of    the

parliament from one session to another initiated by the king,”

id.       (citation     and    internal     quotation        marks     omitted),      and

dissolutions were “terminations of a Parliament initiated by the

                                          - 78 -
king’s order, his death, or a length of time that necessitated

new elections before another Parliament could be convened.”                                        Id.

(citation and internal quotation marks omitted).

      The        court    in       New    Vista     Nursing         stated        that     it      was

“tempt[ed] to say” that the phrase “the Recess of the Senate”

corresponded to a prorogation and, thus, the phrase “must refer

only to terminations of sessions and the intersession breaks

that follow them.”                 Id. at *15.           However, the court stopped

short of such a conclusion because “adjournment,” as used in the

Constitution, did not mean the same thing to the Framers as it

did to the English Parliament.                      Specifically, the Constitution

employs “adjourn” and “adjournment” to refer to an intrasession

break (e.g., U.S. Const. art. I, § 5, cl.1 (allowing a minority

of   members       to    “adjourn        from     day    to    day”)),       as     well      as   an

intersession break.                See id. (noting that the Supreme Court in

The Pocket Veto Case, 279 U.S. 655 (1929), adopted a definition

of   “adjournment”             that       included       intrasession             as     well      as

intersession breaks).

      Because           the    parliamentary            procedure          of     the      English

Parliament        proved       inconclusive,         the      New    Vista       Nursing        court

turned      to    other       historical        sources,       namely,          numerous        state

constitutions           and    the       practices       of    state       legislatures            and

governors.          Id.       at   *15-16.         The     court         observed      that      this

historical        evidence         demonstrated         that,       at    the     time     of      the

                                             - 79 -
Constitution’s ratification, the word “recess” had one of two

meanings,      “either      intersession          breaks      only    or     intersession

breaks     plus      long    intrasession         breaks,”      id.     at    *16,     with

legislatures         preferring       the     former       definition,        while    the

governors preferred the latter.                Id.       While the court concluded

that    the   historical       evidence      is    unclear     on     whether    “recess”

refers to intersession breaks only or intersession breaks plus

long     intrasession        breaks,    the       court     made      clear     that   the

historical        evidence     does     not       support      the    unavailable-for-

business definition.           The court first noted that the historical

evidence      suggests      that    a   break       of     considerable       length    is

necessary     to     trigger    a   recess     and     that    the    unavailable-for-

business definition does not require a break of any particular

duration.      Id.    Second, the court noted that, at the time of the

Constitution’s ratification, a “recess” was “determined solely

by     when    the     legislature          adjourned—rather           than     by     some

functionalist definition of when the body was unavailable for

business.”        Id. at *17.       The court could find no examples, and

the Board had provided none, suggesting that the definition of

the word “recess” turned on such factors “as whether members

were required to attend, the legislative chamber was empty, and

the body could receive messages.”                    Id.      Rather, whether there




                                        - 80 -
was a “recess” turned on the “type, or possibly the duration, of

the legislature’s self-defined adjournment.”                   Id. 18

      In trying to break the intersession/intrasession knot, the

New   Vista       Nursing    court   addressed     the    significance      of   the

definite article “the” in the phrase “the Recess of the Senate.”

The court observed that “the” might refer to a “specific thing,”

such an intersession break.            Id. (citing Noel Canning).           But the

court      also   noted   that   “the”   could    refer    to     another   specific

thing, such as whenever the Senate was in recess.                       Id. (citing

Evans).       The    court   also    observed    that    the    Constitution     used

“the” in several different contexts.                Id. (citing U.S. Const.

art. I, § 3, cl.4 (stating that “[t]he Vice President . . .

shall be President of the Senate”); art. I, § 3, cl.5 (stating

that that the Senate shall select a President Pro Tempore “in

the Absence of the Vice President”).                Based on this evidence,




      18
       The court in New Vista Nursing found additional faults in
the unavailable-for-business definition.   The court noted that
the structure of the Appointments and Recess Appointments
Clauses meant that the unavailable-for-business definition was
“implausibl[e],” 2013 WL 2099742, at *19, because adopting this
definition “would eviscerate the divided-powers framework the
two Appointments Clauses establish.” Id. The court noted that,
if the Senate refused to confirm one of the President’s
nominations, then the President could circumvent the Senate’s
constitutional role simply by waiting for the Senate to adjourn
for lunch or the evening; thus, the “exception of the Recess
Appointments Clause would swallow the rule of the Appointments
Clause.” Id.


                                       - 81 -
the court found the use of “the” in the phrase “the Recess of

the Senate” to be “uninformative.”               Id.

      The     court    in      New    Vista   Nursing      then       turned       to    the

constitutional context of the phrase “the Recess of the Senate.”

Following the reasoning of Noel Canning, the court observed that

the   structure        of   the      Appointments      Clause        and     the     Recess

Appointments Clause was such that the Recess Appointments Clause

is a “secondary, or exceptional, method of appointing officers,

while the Appointments Clause provides the primary, or general,

method   of    appointment.”           Id.    According         to   the     court,      the

“clauses    thus      reveal    a    constitutional       preference        for    divided

power over the appointments process, which is deviated from only

in specified situations.”              Id. (footnote omitted).                In support

of this conclusion, the court discussed at length Hamilton’s The

Federalist No. 67.           Id. at *18.         Thus, the court posited that

the main purpose of the Recess Appointments Clause was not, as

the   Evans    court     suggested,      to   enable      the   President          to   fill

vacancies to assure the proper functioning of our government,

but rather “to preserve the Senate’s advice-and-consent power by

limiting    the    president’s        unilateral    appointment            power.”       Id.

According     to   the      court,     ignoring     the    separation         of     powers

between the Legislative and Executive Branches “neglect[ed] a

central principle that underlies the two Appointments Clauses.”

Id. (footnote omitted).

                                        - 82 -
      The court in New Vista Nursing found further guidance in

several relevant constitutional provisions.                              First, the court

looked to the word “adjournment,” a term the court noted that

could refer to a break of any type or length.                             Id. at *20.        The

court    observed      that,     “if    the     framers          had     intended    for    the

president to be able to appoint officers during intrasession

breaks,    then    the    Recess       Appointments          Clause       could     have    been

worded     differently,        allowing       recess        appointments       ‘during      the

Adjournment of the Senate.’”                  Id.         For this reason, the court

concluded       that     the   use      of     the        word    “recess”        instead    of

“adjournment,” meant that “recess” had a different meaning than

“adjournment.”         Id. (citing Noel Canning).

      To   discern       the   meanings        of    the     words       “adjournment”       and

“recess,” the court in New Vista Nursing examined such words in

their constitutional context.                 The court noted that the lack of

temporal guideposts in the Constitution concerning the phrase

“the Recess of the Senate.”                  Id. at 21.          The court rejected the

notion     that    the    Adjournments          Clause,          which    requires     either

chamber    of     Congress     to    obtain         the    consent       of   the   other    to

adjourn for more than three days, U.S. Const. art. I, § 5, cl.4,

provides such a guidepost for the Recess Appointments Clause,

because     “‘[n]othing         in     the      text        of    either       Clause,      the

Constitution’s structure, or its history suggests a link between

the   Clauses.’”         New    Vista    Nursing,          2013    WL     2099742,     at   *21

                                         - 83 -
(quoting Noel Canning, 705 F.3d at 504).                   Without the hint of a

connection, the court noted that there was “no reason to believe

that the Adjournment Clause’s duration requirement controls the

meaning of the Recess Appointment[s] Clause.”                       Id.      The court

further noted that “nothing in the Constitution establishe[d]

the   necessary         length     of    an     intrasession     break    that      would

constitute a recess.”            Id. (footnote omitted).

      The       court    in     New     Vista    Nursing   then     turned     to     the

durational component of the Recess Appointments Clause−that the

term of the officer recess-appointed expired “at the End of [the

Senate’s] next Session,” U.S. Const. art. II, § 2, cl.3.                              The

court noted that all parties agreed that a session of the Senate

begins at the Senate’s first convening and ends either when the

Senate adjourns sine die or automatically expires at noon on

January     3    in     any    given    year.      New   Vista    Nursing,    2013    WL

2099742, at *22.              According to the court, the expiration of an

officer’s term “‘at the End of [the Senate’s] next Session’”

implies that the appointment is made during a period between

sessions.        Id.     Such implication arises because the appointment

is designed to last only as long as it would normally take to

confirm the President’s nomination.                  Id.    The court noted that

“[l]imiting the duration to a single opportunity follows from

the auxiliary nature of the Clause” and is consistent with the



                                          - 84 -
principle that “the Senate’s decision not to act on a nomination

effectively is a rejection of that nomination.”          Id.

     According to the New Vista Nursing court, the durational

component of the Recess Appointments Clause suggested that the

Framers adopted the intersession definition of the phrase “the

Recess    of   the   Senate,”   because   such   definition    retained   the

primacy of the Appointments Clause over the Recess Appointments

Clause.    Id. at *23.    The court stated:

     Under the intersession-only definition, the president
     would make a recess appointment between sessions of
     the Senate, which ensures the continued operation of
     the government even though the Senate has not
     considered the president’s selection. Once the Senate
     begins its “next Session” by reconvening, the primary
     appointments process becomes available and—because the
     Constitution requires joint appointment authority—must
     be undertaken by the Senate and the president.
     However, to allow the operation of government to
     continue, the Senate has until the end of this session
     to consider the president’s selection and confirm or
     deny it. And if the body does not act or denies that
     appointment, then the recess appointment ends because
     the constitutional requirement of joint agreement has
     not   been   reached.     Through   this   process,   the
     Appointments   Clause retains     its  primacy   as   the
     preferred    constitutional    method    of    appointing
     officers, while the Recess Appointments Clause retains
     its auxiliary role that allows the president to fill
     positions when the ordinary process is unavailable.

     Under an intrasession definition, the Clause would no
     longer have an auxiliary role.     The president would
     make the recess appointment during a break within a
     Senate session.    But the Senate’s reconvening and
     first subsequent adjournment—whether that be for a
     long intrasession break or for the intersession break—
     would   have  no  immediate   effect   on  the  recess
     appointment because the appointment lasts until the
     “next Session,” as demarked by adjournments sine die.

                                   - 85 -
     The appointment would not expire until the Senate
     reconvened, adjourned sine die, reconvened, and then
     adjourned sine die a second time.           Thus, the
     appointment would continue even though the opportunity
     to undergo the ordinary, preferred process had come
     and gone.     This shows that when the intrasession
     definition of recess is combined with the durational
     provision,  a   fundamentally  different  relationship
     between the clauses is created: the intrasession
     definition makes the Recess Appointments Clause an
     additional rather than auxiliary method of appointing
     officers.

Id. at *23.

     The   court     in    New    Vista   Nursing   next    observed          that   the

intersession definition of the phrase “the Recess of the Senate”

was supported by the language of the original Senate Vacancies

Clause,    which    used       “‘the   next   Meeting’”     as    its       durational

component.         Id.    (quoting     U.S.   Const.   art.      I,     §    3,   cl.2,

superseded by id. Amend. XVII).                 According to the court, the

durational component of the Recess Appointments Clause

     could have been phrased in a manner that would have
     allowed the Senate and president only one opportunity
     to undergo the ordinary process if recess instead
     included intrasession breaks. By setting the duration
     to the “‘next Meeting,’” it becomes irrelevant what
     type of break the legislature took because once it
     convenes, the appointment expires and the legislature
     must act. That the Clause uses “next Session” rather
     than   “next   Meeting”    thus   shows that   recess
     contemplates a particular type of break.     And, in
     light of the competing operations of the definitions,
     that type is the intersession break.

Id. (footnote omitted).

     The court in New Vista Nursing next rejected the Board’s

argument     that        the     durational     component        of     the       Recess

                                       - 86 -
Appointments         Clause     is     consistent       with    the     intrasession

definition of the phrase “the Recess of the Senate.”                         The Board

argued that “if recess appointees’ tenures did not extend until

the end of the next session, then the Senate would lack an

opportunity to consider a recess appointee when an intrasession

break coincides with the end of a session.”                       Id. at *24.      The

court rejected this argument, first, because the problem arises

only if the intrasession definition of recess is adopted.                          Id.

It does not arise under the intersession definition because,

under that definition, the Senate can only weigh in one time,

when it reconvenes for its next session.                  Id.     Second, the court

indicated the Board’s reading of the durational component was

not   the    most    natural     reading   of     the    phrase      “next   Session”;

otherwise, the phrase would be intended to address an unusual

situation−where an intrasession break coincides with the end of

a session.          Id.    The court noted that an intrasession break

extended until the end of one of the Senate’s 296 completed

sessions at most only three times.                 Id.    “The complete absence

of the problem described by the Board in the last 225 years”

implied that the durational component of the Recess Appointments

Clause      “was    most      likely    written     simply      to    reinforce    the

auxiliary nature of the Recess Appointment[s] Clause by limiting

recess appointees’ terms to last only as long as necessary to



                                        - 87 -
afford      the    Senate        one     opportunity         to    undergo      the    ordinary

process.”        Id.

      The     New        Vista    Nursing           court    then     observed        that     its

construction of the phrase “the Recess Appointments Clause” was

supported by early historical practice, relying on much of the

authority relied upon by the court in Noel Canning.                               Id. at *25.

The court observed that, from ratification until 1921, there was

a general consensus that recess appointments could be made only

during intersession breaks.                     Id.         This general understanding

supported       the      intersession         definition.           Id.   at    **26-27.        In

relying on this early historical practice, the court rejected

the notion that recent Presidential practices could alter the

structural         framework        of        the    Constitution,         especially          the

presumption that actions by the President are constitutional.

Id. at *27.            The court expressed doubt that such a presumption

applies     in     separation-of-powers              cases.         Id.    The    court       also

observed that recent Presidential practice was inconsistent with

the   structure          of   the      Constitution          because      the    Constitution

provides      no       measure      of    a    “‘long’       duration      and    limits       the

duration of recess appointees’ terms in a manner that indicates

an intersession-only definition.”                     Id. at *28.

      Finally, the court in New Vista Nursing identified some

additional        considerations          supporting         its    holding.          The    court

noted    that      the    unavailable-for-business                 definition     was       vague,

                                               - 88 -
making the standard “difficult for the Senate and the president

to predictably apply.”           Id.      The court next noted that the

intrasession definition that limits the term “recess” to long

breaks is not “judicially defensible because whatever duration

is selected as long [enough] would be based on something other

than   the   Constitution.”       Id.     at    *29   (citation   and   internal

quotation marks omitted).        The court noted that the intrasession

definition      was   “fraught     with        ambiguity,”   because     if   an

“intrasession break of over ten days constitutes a recess, it is

unclear at which point the adjournment evolves into a recess.”

Id.    The court candidly noted that all of the definitions of the

phrase “the Recess of the Senate” provided an opportunity for

abuse.    Id.    However, such potential for abuse simply was the

product of the separation-of-powers framework.               Id. at *30.      The

solution to such abuse was not to tinker with the definition of

“recess,” but rather to allow the political process to play out,

with each branch exercising their allocated powers.               Id.

       Because Becker was invalidly recess appointed to the Board

during the March 2010 intrasession break, the court in New Vista

Nursing concluded that the Board did not have the authority to

issue its unfair labor practices decision in that case.                 Id.   In

so holding, the court declined to address the meaning of the

word “happen” in the Recess Appointments Clause.              Id.

                                        D

                                   - 89 -
      All   parties    agree     that      the    President      may   exercise   his

recess appointment power only “during the Recess of the Senate.”

There are three plausible definitions of the term “the Recess”

as used in the Recess Appointments Clause.                   Id. at *13. 19     First

is the definition adopted by the Noel Canning and New Vista

Nursing courts: the term “the Recess” refers to intersession

breaks of the Senate, that is, the period of time between an

adjournment sine die and the start of the Senate’s next session.

See id. (“We hold that ‘the Recess of the Senate’ means only

intersession breaks.”); Noel Canning, 705 F.3d at 499 (observing

that the term “the Recess” means “the period between sessions of

the Senate when the Senate is by definition not in session and

therefore unavailable”).            Second is the definition adopted by

the court in Evans: the term “the Recess” includes intersession

breaks as well as intrasession breaks.                    387 F.3d at 1224.        As

noted above, an intrasession break is the period of time between

a non-sine die adjournment and the time the Senate reconvenes.

Although      the   court   in     Evans     did    not    create      any   temporal

boundaries, a twelve-day break was at issue there, presumably

the   court    in   that    case    would        agree    with   Attorney     General

      19
        The Board does not argue that the President may exercise
his recess appointment power anytime the Senate takes a break,
and we note that such a definition of the term “the Recess” has
never been embraced by the Executive or Legislative Branches, or
the courts. This anytime definition, though possible, simply is
not plausible.


                                      - 90 -
Daugherty’s 1921 observation that a break for five or ten days

does not fall within the definition of the term “the Recess.”

33 Op. Att’y Gen. at 25.              Although the Board agrees with the

definition of the term “the Recess” as developed in Evans and

Attorney     General     Daugherty’s      opinion,          it    offers        another

definition, which gives us a third option.                       The Board posits

that the term “the Recess” refers to a period when the Senate is

not open for business and, thus, unable to provide advice and

consent on the President’s nominations.               Under this unavailable-

for-business       definition,    when    the       Senate       holds    pro    forma

sessions,    the    President    may    exercise      his    recess      appointment

power because the Senate is neither doing business nor available

to provide its advice and consent.

      As noted above, Enterprise and Huntington urge us to follow

the first definition of the term “the Recess” set forth above,

that is, the definition adopted by the Noel Canning and New

Vista Nursing courts.        The Board urges us to adopt one of the

two remaining definitions.             For the reasons stated below, we

agree with the Noel Canning and New Vista Nursing courts that

the   term   “the    Recess,”    as    used    in    the    Recess       Appointments

Clause, refers to the legislative break that the Senate takes

between its “Session[s].”        In other words, the term “the Recess”

means the intersession period of time between an adjournment

sine die and the start of the Senate’s next session.

                                      - 91 -
       As noted above, the Recess Appointments Clause states that

the 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.”        U.S.   Const.        art.   II,    §     2,    cl.3.    From      the   text

itself, the meaning of the term “the Recess” is not evident.                              As

noted by the New Vista Nursing court, Founding-era dictionaries

are inconclusive on the meaning of the word “recess,” with some

definitions       favoring       an     intersession           definition     and      others

favoring an intrasession or unavailable-for-business definition.

2013    WL   2099742,      at    *13    (noting         that    Samuel   Johnson’s       1785

dictionary       defined        “recess”     to     mean        “retirement;        retreat;

withdrawing; secession” as well as “departure” and “removal to

distance”) (citation, alterations, and internal quotation marks

omitted).        The clarity of the term “recess” is only marginally

improved with the inclusion of the definite article “the.”                                 On

the one hand, the definite article “the” arguably points to a

specific type of recess (an intersession break), on the other

hand,    “the”    points        to   anytime    the       Senate    is   in    recess     (an

intrasession break).             Id. at *17.            While we may not agree with

the level of significance placed upon “the” by the court in Noel

Canning, we agree that the use of the definite article suggests

some “specificity.”             Noel Canning, 705 F.3d at 500.                      This is

especially true since the Recess Appointments Clause does not

                                          - 92 -
refer       to   “a    recess,”       nor    does       it    refer     to    the    plural    form

“recesses.” 20           The     use        of    the        definite    article       over     the

indefinite and plural forms provides some instructive evidence

that    “the      Recess”       refers      to    a     legislative      break       between   two

“[s]ession[s].”

       Even       though        the      textual          evidence           is     inconclusive,

compelling            reasons     exist           for     adopting           the     intersession

definition over the other two available definitions.                                  First, the

Constitution           uses      the     more         inclusive         term       “adjourn”    or

“Adjournment” to refer to those parliamentary breaks that could

occur either after or during a session of Congress.                                   See, e.g.,

U.S. Const. art. I, § 5, cl.1 (less than a majority of each

House “may adjourn from day to day”); id. art. I, § 7, cl.2 (a

bill not signed by the President shall not become law if “the

Congress         by    their     Adjournment            prevent    its       Return”).         Most

instructive, the Adjournments Clause specifically provides that

“during the Session of Congress” neither House may “adjourn for

more than three days” without the “Consent of the other.”                                      Id.

art. I, § 5, cl.4.               By contrast, the term “the Recess” appears

only    once      in    the     Constitution            in    relation       to     congressional

breaks-−in the Recess Appointments Clause, where it refers to a


       20
        Interestingly, the Framers did use                                   the     plural    form
“vacancies” in the Recess Appointments Clause.



                                                 - 93 -
particular sort of adjournment, the break between sessions of

the Senate.

      The    Board       responds    by     emphasizing       that     when     the     word

“Adjournment” appears in the Constitution, it refers to both

intersession        and     intrasession          legislative         breaks.           This

certainly is true.           See The Pocket Veto Case, 279 U.S. at 680

(noting that the word “Adjournment” is used in the Constitution

to refer not only to the final adjournment at the end of a

Congress, but also to adjournments “from day to day”).                            However,

the   Board’s      arrow    misses     the       target.       Each    time     the     term

“adjourn”     or    “Adjournment”          appears      in    the    Constitution,        it

refers to an intrasession cessation of business, even when it

may   also   encompass       intersession         breaks.           Thus,   the   Framers

consistently used the term “adjournment,” rather than the term

“the Recess,” when it wanted to refer to a legislative break

that could occur either during or between sessions of Congress.

Cf. Noel Canning, 705 F.3d at 500 (“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.”).                           As noted by

the court in New Vista Nursing, “if the framers had intended for

the president to be able to appoint officers during intrasession

                                           - 94 -
breaks,    then    the     Recess    Appointments          Clause       could      have    been

worded    differently,          allowing    recess    appointments             ‘during      the

Adjournment of the Senate.’”               2013 WL 2099742, at *20.

     Second,       our    interpretation       of    the        term    “the      Recess”    is

supported by the Framers’ understanding of the term.                                  In The

Federalist     No.        67,     Hamilton     explained              that     the     recess

appointment        power        supplemented        the         “ordinary          power     of

appointment.”        The Federalist No. 67, at 350.                          This ordinary

power,     under    the    Appointments        Clause,          was    to    be     exercised

“jointly” by the President and Senate.                          Id.     The supplemental

authority only was to be exercised when “it might be necessary

for the public service” to fill without delay certain vacancies

that “might happen in [the Senate’s] recess.”                            Id.       The Recess

Appointments Clause was added because the joint power could only

be “exercised during the session of the Senate.”                             Id.     Thus, by

necessary      implication,           under         Hamilton’s              view,      recess

appointments       would    be    necessary,        and    thus        permissible,        only

outside the session of the Senate.

     The     Framers’       understanding       of        the     Recess       Appointments

Clause is underscored by the appointment of duties inspectors by

the First Congress, which contained twenty members who had been

delegates to the Philadelphia Convention, see Bowsher v. Synar,

478 U.S. 714, 724 n.3 (1986).               The Act of March 3, 1791, ch. 15,

1 Stat. 199, authorizing the appointment of duties inspectors,

                                       - 95 -
provided “[t]hat if the appointment of the inspectors of surveys

. . . shall not be made during the present session of Congress,

the    President    may,    and     he    is    hereby       empowered     to      make   such

appointments       during    the     recess       of    the     Senate,       by    granting

commissions    which        shall    expire       at     the       end   of     their      next

session.”     Id. § 4, 1 Stat. at 200; see also Act of Sept. 22,

1789, Ch. 17, § 4, 1 Stat. at 71 (authorizing payment to Senate

clerk of “two dollars per day during the session, with the like

compensation       to   such      clerk    while        he     shall     be     necessarily

employed in the recess”).

       The Framers’ understanding is further underscored by the

valid   reasons     supporting       the       distinction      between       intersession

and intrasession breaks.              As noted above, at the time of the

Constitution’s ratification, breaks between sessions of Congress

typically were six to nine months.                     During such periods, it was

unrealistic to think the Senate could perform its advice and

consent function.           By contrast, there is no evidence that the

Framers thought it was necessary to empower the President to

make    unilateral      appointments           while    the    Senate      was     adjourned

within its session for short periods.                         The Framers would not

have contemplated any need to set aside “the ordinary power of

appointments,”       The    Federalist          No.    67,    at    350,      during      short

breaks, let alone lunch, evening, or weekend breaks.



                                          - 96 -
      Third,      the    historical         record       supports      the    intersession

definition of the term “the Recess.”                           From 1789 until 1921,

Presidents frequently made recess appointments between sessions

of    Congress.           Notably,          however,       Executive         practice     was

dramatically different during the thousands of instances when

the Senate ceased or suspended business during its sessions over

the   course     of     those    132    years.          Admittedly,         most   of   those

adjournments       were       for     periods      of     fewer     than      three     days,

including    almost       every     evening       and    weekend;      but    on   at   least

sixty occasions the Senate also adjourned for more than three

days.      See     U.S.       Gov’t    Printing         Office,   2003-2004         Official

Congressional Directory: 108th Cong. 512-17 (2004).                                Taken to

its   logical     conclusion,          in   the    Board’s      view,       each   of   these

intrasession breaks was “the Recess” for purposes of the Recess

Appointments Clause, during which the President could have made

unilateral       appointments.         However,         with   only     a    single     known

possible exception            (President      Andrew      Johnson),         Presidents    did

not make recess appointments during these breaks.                                  Edward A.

Hartnett,      Recess     Appointments          of      Article   III       Judges:     Three

Constitutional Questions, 26 Cardozo L. Rev. 377, 408–09 (2005).

      In    1901,       the     Executive         Branch       first    considered        the

constitutionality of intrasession recess appointments.                               At that

time, Attorney General Philander Knox opined “that the President

is not authorized to appoint an appraiser at the port of New

                                            - 97 -
York     during       the    current      [intrasession]             adjournment      of     the

Senate.”      23 Op. Att’y Gen. 599, 604 (1901).                           Attorney General

Knox explained that, in contrast to the Constitution’s use of

the broader term “adjourn[ment],” the term “the Recess” refers

to “the period after the final adjournment of Congress for the

session, and before the next session begins.”                              Id. at 601.        An

“intermediate          temporary         adjournment”           during       the      session,

“although it may be a recess in the general and ordinary use of

that term,” is not “the recess during which the President has

power    to   fill     vacancies         by    granting        commissions       which     shall

expire at the end of the next session.”                        Id.

       As noted earlier, Attorney General Daugherty’s opinion in

1921 changed the Executive Branch’s understanding of the Recess

Appointments Clause in favor of a functional approach, asking,

in a practical sense, whether the Senate was in session so that

its advice and consent could be obtained.                            33 Op. Att’y Gen. at

21-22.     He concluded that an intrasession adjournment could be

deemed    “the    Recess”          for   purposes         of   the    Recess     Appointments

Clause    only    when       the    Senate      is    “absent        so   that   it   can    not

receive communications from the President or participate as a

body in making appointments.”                        Id. at 25.           Notably, Attorney

General Daugherty rejected the argument that the President may

make a recess appointment during any pause in Senate business.

“[L]ooking       at    the    matter          from    a    practical       standpoint,”       he

                                              - 98 -
reasoned that “no one . . . would for a moment contend that the

Senate is not in session when an adjournment [of two or three

days] is taken,” and added that even an adjournment “for 5 or

even 10 days” could not satisfy his “practical” test.                    Id.

      As noted by the court in Noel Canning, the infrequency of

intrasession recess appointments in the historical record and

the relative disdain harbored toward such appointments in at

least the first 132 years of our Nation suggests an “absence of

[the]   power”    to    make   such     appointments.         705      F.3d    at     502

(citation and internal quotation marks omitted).                         The marked

increase in the number of recess appointments since the Reagan

Administration may be attributed to political polarization being

at an all-time high, rather than fidelity to the plain language

and   structure    of   the    Recess    Appointments       Clause.           Wolf,    81

Fordham L. Rev. at 2078.

      Fourth,     we     are    troubled       by     the     intrasession            and

unavailable-for-business        definitions     of    the    term      “the    Recess”

because they thwart the advice and consent function engrained in

the Appointments Clause.          Clearly, an expansive reading of the

Recess Appointments Clause gives the President the ability to

appoint controversial individuals to high government posts by

preventing the Senate from performing its constitutional advice

and   consent     function.      Obviously,         such    use   of    the     Recess



                                      - 99 -
Appointments Clause is at odds with the original purposes of

both the Appointments and Recess Appointments Clauses.

       The Board urges us to recognize an expansive reading of the

Recess Appointments Clause as a way to ensure that the President

can   adhere     to    the   Take    Care    Clause.     The    growing    animosity

between the Executive and Legislative Branches over Presidential

nominees is an obvious concern, and such animosity explains the

Board’s reliance on Presidential discretion to determine when

the Senate is in recess.             See Lawfulness of Recess Appointments,

36    Mem.    Op.     O.L.C.    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.”).                But, ultimately, as noted by the

Noel Canning court, it is incumbent on the judiciary to state

what the law is, notwithstanding any presumption that arises

under the Take Care Clause.               705 F.3d at 506 (quoting Marbury, 5

U.S. (1 Cranch) at 177).               We simply cannot rely on political

gridlock to embrace the Board’s interpretation of the term “the

Recess.”        Id. at 504 (“Allowing the President to define the

scope    of     his    own     appointments     power    would     eviscerate     the

Constitution’s separation of powers.”).

       Fifth,    the    intrasession        definition   offers    vague    and   the

unavailable-for-business             definition        offers      no     durational

guideposts.         Under these definitions of the term “the Recess,”

                                          - 100 -
the President simply is left to determine whether the Senate is

in recess, with little or no guidance and/or judicial oversight.

Yet, the constitutional structure of the Appointments and Recess

Appointments Clauses demands more to ensure that the separation

of     the    Executive             and     Legislative      Branches        is    maintained.

Drawing the line between intersession and intrasession breaks,

in our view, strikes the appropriate balance.

       To     be        sure,       the    durational       component        of    the     Recess

Appointments Clause (“End of [the Senate’s] next Session,” U.S.

Const.       art.       II,     §     2,    cl.3),    only     makes      sense     under     the

intersession definition of the term “the Recess.”                                    Under the

intrasession            and     the       unavailable-for-business           definitions,      a

Presidential appointment does not proceed through the ordinary

and preferred confirmation process because the Senate does not

necessarily have to take up the appointment in the next session.

As noted by the court in New Vista Nursing, the appointment

would not expire until the Senate reconvened, adjourned sine

die,    reconvened,           and     then    adjourned      sine      die   a    second    time.

2013 WL 2099742, at *23.                       This makes the Recess Appointments

Clause       an     alternative            rather    than    an       auxiliary     method    of

appointment.            Id.

       Along        a     similar          vein,     because      a    recess      appointee’s

commission lasts until the end of the Senate’s “next [s]ession,”

there is no reason to think that the Framers would have designed

                                               - 101 -
a scheme in which intrasession appointments could last longer

than    intersession       appointments,        i.e.,   to   last   throughout      the

remainder of the session, one additional intersession break, and

the entire subsequent session, a period that could last almost

two years.       Thus, the relevant question is not, as the Evans

court intimated, how long an intersession or intrasession recess

may last, 387 F.3d at 1226, but rather how long such appointees

may serve. 21

       Sixth,      the     intrasession         and     unavailable-for-business

definitions of the term “the Recess” essentially prevent the

Senate from establishing its own rules concerning the conduct of

its proceedings.         See U.S. Const. art. I, § 5, cl.2 (“Each House

may    determine     the   Rules    of    its    Proceedings.”).          It   is   the

Senate, not the President, who has the privilege of determining

the manner      in   which    the   Senate      meets   during      a   Congressional

session.    In this case, the Senate decided to meet in pro forma

sessions during a five-week period.                   During such sessions, the

Senate is called to order.               On December 23, 2011, during a pro

       21
        The language of the original Senate Vacancies Clause,
which used the phrase “‘the next Meeting’” as its durational
component, U.S. Const. art. I, § 3, cl.2, superseded by id.
Amend. XVII, also supports the intersession definition of the
term “the Recess” because the Recess Appointments Clause’s use
of the term “the Recess” instead of the phrase “the next
Meeting” demonstrates that the Framers had a particular type of
break in mind when it created the Recess Appointments Clause,
instead of any type of break in Senate business, which
essentially is what the intrasession definition allows.


                                     - 102 -
forma       session,      the     Senate       passed    payroll      tax   extension

legislation, and that same day the President signed into law the

payroll tax extension.            This coordination of the Legislative and

Executive Branches during pro forma sessions suggests that the

Senate can perform its advice and consent function during such

sessions. 22

       For the reasons set forth above, we agree with the Noel

Canning and New Vista Nursing courts that the term “the Recess,”

as    used    in    the     Recess     Appointments      Clause,      refers     to    the

legislative         break       that     the       Senate     takes     between        its

“Session[s].”          That is to say “the Recess” occurs during an

intersession break--the period of time between an adjournment

sine die and the start of the Senate’s next session.                             Such an

interpretation adheres to the plain language of the Appointments

and    Recess      Appointments        Clauses,    and   is   consistent       with    the

structure of the Constitution, the history behind the enactment

of    these   clauses,      and   the     recess    appointment       practice    of    at

least the first 132 years of our Nation.

                                               E

       22
       We note that this case is not, as the Board would have us
believe, about the propriety of legislative pro forma sessions.
While the use of such sessions arguably can have an impact on
the President’s ability to make recess appointments, the
practice does not alter our conceptual understanding of the
Recess Appointments Clause, especially since the Senate is more
than capable of conducting business during this time, as
evidenced by the passage of the payroll tax extension.


                                         - 103 -
       In his spirited dissent, our good colleague embraces the

unavailable-for-business              definition    of   the    term    “the   Recess,”

opining that the Senate is in “‘the Recess’ when it is not

available to provide advice and consent on nominations.”                             Post

at 143.      As the dissent sees it, the Senate is in “the Recess”

if it “is not engaged in its regular course of business, is

unavailable to receive messages from the President, or cannot

meet to consider a nomination for a position.”                    Post at 143.

       The   unavailable-for-business              definition     embraced      by     the

dissent is a contemporary definition of the term “the Recess.”

Such    definition,       as    the    dissent     recognizes,    sets    no    minimum

length for an intrasession break to be considered “the Recess.”

Post at 149.           According to the dissent, the absence of such a

minimum is not “a flaw, but rather a part of the[] grand design

in drafting a compact” that would remain relevant for future

generations.       Post at 153.           Untethering the recess appointment

power     from     a     durational       guidepost,       says    our        dissenting

colleague, “operates to exclude the altogether silly scenario of

the    President       making   recess     appointments        during   the     Senate’s

breaks    for    meals    or    weekends,     while      including      the    types    of

weeks-long       intrasession           recesses      that      could     stall        the

functioning of government if an important post is left vacant.”

Post at 153.



                                         - 104 -
       This contemporary definition of the term “the Recess” has

no historical support.             As noted earlier, up until 1921, that

the President could only exercise his recess appointment power

during    an   intersession        break   was    settled.              Attorney       General

Daugherty’s 1921 opinion introduced a functional approach, yet

even     his   definition      recognized         that        a     five        or     ten-day

intrasession break would not suffice.                   33 Op. Att’y Gen. at 25

(“Nor do I think an adjournment for 5 or even 10 days can be

said to constitute the recess intended by the Constitution.”).

Moreover, the Office of Legal Counsel’s 2012 memorandum opinion

recognizes some durational minimum in reaching the conclusion

that    “the   President’s     authority         to    make       recess        appointments

extends to an intrasession recess of twenty days.”                                Lawfulness

of Recess Appointments, 36 Mem. Op. O.L.C. at 9.                          However, under

the unavailable-for-business definition espoused by the dissent,

a break as little as a couple of work days would suffice if the

Senate could not meet to consider a nomination.                            No historical

support    exists     for    this     proposition.                The    utter       lack    of

historical     support      begs    the    question:      How           could    all    three

branches of the federal government have been so wrong for so

long?     But the lack of historical support is just the beginning

of the unavailable-for-business definition’s shortcomings, and

we have identified some of them in the previous section of this

opinion.       A   closer   analysis       of    the   dissent          reveals      why    the

                                      - 105 -
unavailable-for-business             definition     simply    is    not     a        viable

option.

       The dissent begins where it should--with the language of

the Recess Appointments Clause.                  Upon examining such language,

the dissent concludes the term “the Recess” is ambiguous.                               To

reach this conclusion, the dissent starts with the unremarkable

proposition that the use of the definite article “the” in the

term “the Recess” is inconclusive on the meaning of the term.

From there, the dissent stresses that, if the term “the Recess”

in the Recess Appointments Clause refers only to intersession

breaks, the use of the term “the Recess” in the original Senate

Vacancies Clause, U.S. Const. art. I, § 3, cl. 2, superseded by

id. Amend. XVII, should mean the same thing.                   The dissent posits

that the term “the Recess” in the Senate Vacancies Clause cannot

mean a singular recess (i.e., an intersession break) because

“the   clause     is     used   to    refer      collectively      to   the      various

recesses of the several state legislatures.”                    Post at 137.            It

follows,     then,      according    to    the   dissent,    that   the     term      “the

Recess”      in   the     Recess     Appointments     Clause       points       to    both

intrasession and intersession recesses.                    However, comparing the

term “the Recess” in the Recess Appointments Clause to the term

“the Recess” in the Senate Vacancies Clause is like comparing

apples to oranges.           Critically, the Recess Appointments Clause

and    the    Senate      Vacancies       Clause    have    different       durational

                                          - 106 -
components,      “the    next       [s]ession”          in     the    case      of    the     Recess

Appointments Clause, and “the next [m]eeting” in the case of the

Senate Vacancies Clause.                  Because the durational component in

the Senate Vacancies Clause is tied to “the next [m]eeting,” the

type of break the state legislature takes before it reconvenes

is     irrelevant     because           the     recess       appointment         expires       upon

reconvention.         Equally           critical,      the     Senate      Vacancies          Clause

does    not    involve       the    relationship          between         the   Executive          and

Legislative      Branches          of    the    federal       government,            nor    does    it

involve the relationship between the Appointments Clause and the

Recess Appointments Clause.                    Thus, the term “the Recess” must be

construed in two very different contexts.                            The Supreme Court has

recognized that some words in the Constitution have different

meanings      “according       to       the     connection           in   which       [they    are]

employed” and “the character of the function” in which the word

is found.      Atlantic Cleaners & Dryers v. United States, 286 U.S.

427, 433–34 (1932).                Such is the case here.                       The term “the

Recess” in the Senate Vacancies Clause must apply in a variety

of     situations       to     account          for      the     various          parliamentary

procedures used by state legislatures.                          The same cannot be said

about the term “the Recess” as used in the Recess Appointments

Clause.       Moreover, the Recess Appointments Clause’s use of “the

next     [s]ession”      shows          that     the     Recess       Appointments            Clause

“contemplates a particular kind of break[, a]nd, in light of the

                                              - 107 -
competing       operations       of    the     definitions,         that    type     is    the

intersession break.”             New Vista Nursing, 2013 WL 2099742, at

*23.

       The     dissent    finds       further     ambiguity         in   the     term     “the

Recess” because the intersession definition of the term “the

Recess”      requires      the         insertion       of     a      modifier,          namely

“intersession,” before the term “the Recess.”                            However, if the

intersession definition requires the insertion of a modifier, so

does   the     unavailable-for-business               definition.           To   make     that

definition      work,    one     has    to     read   “the    Recess”       to     mean   “the

Recess in which the Senate cannot provide advice and consent.”

Thus, the dissent’s modifier argument misses the mark.                              Both the

majority and the dissent are attempting to divine the meaning of

the term “the Recess” by examining the text of the Constitution

and    historical       usages    and     practices.           We    believe,       for    the

reasons expressed above, such evidence decidedly points to the

intersession       definition,         while    the    dissent       sees    the    evidence

pointing     in    a   different       direction.           Put     another      way,     after

examining such evidence, the intersession definition does not

use “intersession” as a modifier because “the Recess” “means

only intersession breaks.”               New Vista Nursing, 2013 WL 2099742,

at *25 n.30.

       Next,      continuing      its        ambiguity       analysis,        the    dissent

downplays the significance that the Constitution uses the terms

                                         - 108 -
“adjourn” and “adjournment” in a broader sense than the term

“the Recess,” describing “the distinction between adjournments

and ‘the Recess’” as a “convenient correlation” with “no basis

in the text of the Constitution.”              Post at 139.         However, the

fact    remains     that   the    terms     “adjourn”    and        “adjournment”

necessarily       apply    to    both   intersession      and        intrasession

recesses, while the term “the Recess” does not.                 This certainly

indicates that the Framers believed “the Recess” applied in a

narrower context.

       Concluding its ambiguity analysis, the dissent rejects as

irrelevant the fact that an intrasession appointee’s term could

last twice as long as an intersession appointee.                    According to

the dissent, “nothing in the Recess Appointments Clause,” or

anywhere else in the Constitution for that matter, “requires

that all recess appointments be of the same length, and such an

interpretation      does   not   further”     the   purpose    of    the    clause.

Post at 140.       But the dissent’s view ignores the structure of

the    Recess   Appointments     Clause.      It    provides    that    a    recess

appointment expires at the end of the Senate’s “next [s]ession.”

Thus, there is a dichotomy between “the Recess” and the “next

[s]ession” such that the Senate is either in session or it is in

recess.     Recess appointments are allowed during “the Recess”

preceding the “next [s]ession” and that “next [s]ession” then

caps the length of any such appointments--one Senate session.

                                    - 109 -
This ensures that the Senate always has one full session to

consider confirmation.            Once the Senate has that opportunity to

consider confirmation, the need for an emergency appointment is

gone.       As    Justice      Story    explained      way       back   in    1833,    “the

president should be authorized to make temporary appointments

during the recess, which should expire, when the senate should

have had an opportunity to act on the subject.”                              3 Joseph L.

Story, Commentaries on the Constitution of the United States

§ 1551 (1833); see also New Vista Nursing, 2013 WL 2099742, at

*22     (“The    Clause’s       function   is     .    .     .    fulfilled     once    an

opportunity for the Senate to act has come and gone.”).

      More telling, the dissent offers no explanation for why the

Constitution would empower the President to double the length of

recess appointments through strategic timing.                       We can find none.

But   the   fact    remains,      the   unavailable-for-business               definition

creates     the    inexplicable         anomaly       that       intrasession      recess

appointees       may    serve     twice    as   long       as     their      intersession

counterparts.          It strains credulity that the Framers intended

such a result.         Rather, they intended all recess appointments to

be made during the intersession break, which would result in all

such appointments lasting one Senate session.

      Having      found   “a    strictly    textual        interpretation”        of    the

Recess Appointments Clause “inconclusive,” the dissent turns its

attention to the purpose underlying the clause.                              The dissent

                                        - 110 -
concludes that the sole purpose of the clause is to “ensure the

proper functioning of government,” Post at 144, and that the

unavailable-for-business definition fits comfortably within that

purpose.         Telling    from       the    dissent’s         discussion       is    its

reluctance to give one of the core functions of the clause its

proper     place.        One     of    the     purposes         behind     the     Recess

Appointments     Clause     is   “to    preserve       the      Senate’s   advice-and-

consent power by limiting the president’s unilateral appointment

power.”     New Vista Nursing, 2013 WL 2099742, at *18.                          Yet, the

dissent downplays the Senate’s role almost to the point of a

casual bystander, noting that it is not permitted to “weigh the

executive’s policy choice.”             Post at 142.            What the dissent is

doing, really by necessity, is placing all of the face cards in

the hands of the President.             However, the Framers had something

completely different in mind when it created the Appointments

and Recess Appointments Clauses.                   At the time of ratification,

the    Framers    were     skeptical        with     the     notion   of    unilateral

executive appointments power.                As noted by the Supreme Court in

Freytag, the “power of appointments to offices was deemed the

most     insidious   and       powerful       weapon       of    eighteenth       century

despotism.”       501 U.S. at 883 (citation and internal quotation

marks omitted); see also Edmond v. United States, 520 U.S. 651,

659 (1997) (noting that the advice and consent feature in the

Constitution      “serves      both    to     curb    Executive       abuses      of   the

                                       - 111 -
appointment power, . . . and to promote a judicious choice of

persons       for    filling    the      offices    of    the    union”)          (citations,

internal       quotation       marks,     and   alterations        omitted).             As    a

consequence of this concern, the Framers sought to “ensure that

those    who    wielded      [appointments         powers]      were     accountable          to

political force and the will of the people” by limiting the

power of the Executive and Legislative Branches.                                 Freytag, 501

U.S. at 884.          This was accomplished through a division of power

between these two branches.               Id.      And to ignore this division of

power,    as    the    dissent     essentially        does,     destroys         one    of    the

central       pillars       undergirding        the      Appointments            and     Recess

Appointments Clauses.

     Moving from its discussion of the purpose of the Recess

Appointments          Clause,      the    dissent        engages       in    an        extended

discussion           concerning          how    the        unavailable-for-business

definition “fits with historical practice.”                        Post at 144                The

dissent begins its discussion by downplaying the significance of

the fact that it was universally recognized for the first 132

years    of    our    Nation    that     “the   Recess”        meant    an       intersession

recess.         See     post     at      145    (“In      my    view,        a     functional

interpretation         of    the      Recess    Appointments           Clause          properly

counsels against a blind adherence to the precise procedural

conditions in which earlier executives exercised the power.”).

Yet historical practice is extremely important to the Recess

                                          - 112 -
Appointments Clause analysis.                 See, e.g., District of Columbia

v. Heller, 554 U.S. 570, 600-19 (2008) (examining historical

practices and understandings concerning the Second Amendment’s

right    to    bear    arms);      Freytag,    501     U.S.    at    883-84      (examining

history to determine the scope of the Appointments Clause).

       In any event, what the dissent ignores here is that, in the

first 132 years of our Nation, there were numerous opportunities

to make intrasession recess appointments, but none, with the

lone possible exception of one by President Andrew Johnson, were

made.       The     Senate    took   three     intrasession         recesses        in    1800,

1817,    and       1828,    and,   beginning     in    1863,       the    Senate      started

taking annual intrasession recesses of approximately two weeks

from    the    end    of     December   through       the     beginning        of    January.

Michael       A.   Carrier,     Note,   When     is    the    Senate      in    Recess      for

Purposes of the Recess Appointments Clause?, 92 Mich. L. Rev.

2204,    2211       (1994).        Despite     this     increase         in    intrasession

breaks, and the corresponding increase in opportunities to make

appointments during such breaks, Presidents continued to make

recess      appointments       exclusively       (with       the    possible        President

Andrew      Johnson        exception)   during        intersession        breaks.           Id.

Unlike      our     dissenting       colleague       who     must    view      the       Recess

Appointments Clause in a contemporary, “practical light,” post

at   149,     we    find    this   historical     understanding           of    the      recess

appointments procedure telling.

                                        - 113 -
       The dissent next turns its focus to a purported flaw in the

intersession definition of the term “the Recess”--the lack of a

durational         minimum.      The     dissent      notes       that,    like       the

unavailable-for-business definition, the intersession definition

fixes no minimum length.            See post at 149 (“Thus, if Congress

takes a one-day break between sessions, the majority apparently

would    find      no   fault   with     the     President       making     a    recess

appointment during that time, despite the fact that the Senate

would have returned to business the next day and been available

to provide its advice and consent on the nominee.”).                        According

to the dissent, the intersession definition is flawed because it

allows for a recess appointment during a momentary intersession

break.       The    dissent’s   argument       here   is   a    red-herring.          All

courts and commentators agree that the President may make recess

appointments        during    intersession       breaks,       regardless       of    the

break’s length.          So the lack of a durational minimum in the

intersession definition simply is of no consequence.                            But the

lack of such a minimum is understandable for another reason.

The    durational       component   of   the     Recess        Appointments      Clause

entered the discussion only when the Executive Branch sought in

1921    to   expand     the   settled    understanding          of   the   term      “the

Recess.”      Until that time, a durational minimum was not brought

to the forefront because it was understood that the President’s



                                       - 114 -
recess    appointment     power    could    only       be    exercised     during       the

intersession break, regardless of its length.

       The dissent next argues that the intersession definition of

the     term   “the   Recess”     is     flawed    because         it   assumes       “the

President might abuse his power to appoint officials.”                           Post at

150.     In this regard, the dissent likens the President’s recess

appointment power to his veto and pardoning powers, noting that

there are no limits on the exercise of these latter powers;

thus,    we    must   “expect     some    modicum       of       good   faith    in     the

individual our fellow citizens elect to the most powerful office

in the world.”        Post at 150-51.          And the dissent adds that we

give “short shrift” to the “presumption of constitutionality”

accorded to Presidential actions.                Post at 152.           The dissent’s

argument once again misses its intended target.                         First off, we

harbor doubt that a presumption of constitutionality applies in

separation-of-powers       cases.        See     New    Vista      Nursing,      2013    WL

2099742, at *27 (“Our role as the ultimate interpreter of the

Constitution requires that we ensure its structural safeguards

are preserved. . . .            It is a role that cannot be shared with

the other branches anymore than the president can share his veto

power    or    Congress   can   share    its   power        to    override      vetoes.”)

(citations and internal quotation marks omitted); see also Free

Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct.

3138, 3155 (2010) (noting that “the separation of powers does

                                       - 115 -
not depend on the views of individual Presidents, nor on whether

the encroached-upon branch approves the encroachment”) (citation

and internal quotation marks omitted); Clinton v. New York City,

524 U.S. 417, 428-48 (1998) (analyzing the constitutionality of

the line-item veto without expressing the need to defer to the

other branches’ constitutional judgments); New York v. United

States,       505    U.S.         144,    182      (1992)     (noting       that      the

“Constitution’s division of power among the three branches is

violated     where    one    branch      invades    the     territory      of    another,

whether      or     not     the     encroached-upon         branch    approves        the

encroachment”).           But notwithstanding any presumption, comparing

the   President’s         veto     and    pardoning       powers     to    his     recess

appointment power is just another apples to oranges comparison.

These other powers were not “the most insidious and powerful

weapon of eighteenth century despotism.”                     Freytag, 501 U.S. at

883 (citation and internal quotation marks omitted).                            The power

that can be wielded by a President who desires to make an end-

run around Senate approval is obvious.                      The dissent says that

Presidents will not act so unruly because the President will

want to maintain favor with the Senate and with the public at

large.     But the recent historical record suggests otherwise.                        In

the   past    two    Presidential        administrations,         nearly    all    recess

appointees themselves previously were nominated to their posts,

usually      by   several    months.        See     Henry    B.    Hogue    &     Maureen

                                         - 116 -
Bearden,      Cong.      Research    Service,       R42329,       Recess    Appointments

Made by President Barack Obama,                   at 7 (2012); Henry B. Hogue &

Maureen      Bearden,       Cong.        Research    Service,         RL33310,     Recess

Appointments Made by President George W. Bush, January 20, 2001-

October      31,   2008,    at     3-5    (2008).     If        anything,   this   recent

evidence shows that recess appointments have become a means to

sidestep the confirmation process.

      The dissent next posits that the intersession definition of

the term “the Recess” is flawed because it leaves the President

powerless to act.          According to the dissent, “the Senate is free

to    read     out    of     the     Constitution         the     President’s      recess

appointment        power    by    refusing    to    take    intersession       recesses,

opting instead to take an extended intrasession break, returning

just before the session ends, and then moving directly into the

next session.”           Post at 153.         The dissent here is overstating

its   case.        For     starters,      under     the    unavailable-for-business

definition, the President easily can get around Senate advice

and consent by strategically making his recess appointments, as

he did in this case.             More importantly, the Senate already is in

a position to substantially limit the President’s appointments

power by remaining in session.                    But remaining in session does

not   ensure       that     the     Senate    will        act    on   the    President’s

nominations.         The upshot is that the Constitution envisions the

potential      for    gridlock      between    the    Executive       and    Legislative

                                          - 117 -
Branches, with neither side having the upper hand in resolving

such gridlock.         Such gridlock simply is resolved through the

political process.

     The dissent next claims that the intersession definition of

the term “the Recess” is flawed because it “actually gives the

House of Representatives a de facto veto on Presidential recess

appointments.”        Post at 155.       According to the dissent, because

the Adjournments Clause requires the House and Senate to agree

on   any    adjournment        lasting    longer       than    three   days,      the

Adjournments     Clause    enables       the   House    of    Representatives      to

prevent the Senate from adjourning sine die.                   This, the dissent

says, inserts the House of Representatives into the appointments

process even though the Constitution purposely excludes it from

that process.         Such is not the case.            The Constitution allows

the President to adjourn both houses of Congress if the two

houses cannot agree on a date of adjournment.                   U.S. Const. art.

II, § 3.        This provision allows the President to prevent the

House of Representatives from interfering in the appointments

process    if   the    House   and   Senate    cannot     agree   on   a   date    of

adjournment.

     The dissent “confess[es] to some surprise” concerning the

basis for our rejection of the dissent’s de facto veto argument.

Post at 156.          Because we reject the dissent’s de facto veto

argument on the basis that the President may adjourn Congress

                                     - 118 -
when    there    is    a     disagreement       between    the       houses    of    Congress

concerning      the        date    of   adjournment,       the       dissent       says     such

reasoning necessarily means that the President gets to decide

when the Senate is in “the Recess.”                        See post at 156 (“[I]t

would allow the President to decide when the Senate is in “‘the

Recess,’ thereby granting the President the precise unilateral

power of appointment that the majority finds objectionable.”).

Not so.      Either the House will agree to a date of adjournment

sine die or it will not.                In the latter case, the Senate has two

choices, remain in session or ask the President to set a date of

adjournment and a date of reconvention.                        Here, the Senate chose

to remain in session by way of pro forma sessions, which meant

that the Appointments Clause was the proper mechanism to make

the Board appointments at issue.                     Moreover, Article II, § 3 does

not give the President unilateral power concerning adjournments.

There must be a disagreement concerning the date of adjournment

which    would        give    rise      to     one     house    of     Congress       seeking

Presidential intervention.               As far as we can tell, neither house

of   Congress     has       ever   sought      such    intervention.           But    if     the

Senate felt the need to request Presidential intervention, it is

an available option if the House and Senate cannot reach an

agreement on the date of adjournment.                          And once Presidential

intervention      is        sought,     and    the     President       sets    a     date    of

adjournment sine die and a date of reconvention, the President

                                             - 119 -
may   exercise      his     appointments      power      pursuant      to   the   Recess

Appointments        Clause.        Of   course,    that     is   not    what   happened

here. 23

      Finally,       the    dissent     suggests     that    the    unavailable-for-

business definition does not interfere with the Senate’s ability

to regulate its own rules.              According to the dissent, “while the

Senate may meet in pro forma sessions when its members see fit,

the   President      may    also    choose    to   use    his    recess     appointment

power      during    such     sessions       if    the    Senate       is   practically

unavailable to provide its advice and consent for nominees.”

Post at 157.        The dissent here gives the President a dual light-

saber.      The President has the power to both unilaterally make

recess appointments and unilaterally declare when the Senate is

      23
        There is an important similarity between the President’s
adjournment power and his appointment power worth noting.     In
the adjournment setting, both houses of Congress work together
on setting a date of adjournment. If they cannot agree and one
house is determined to adjourn for more than three days, that
house can seek Presidential intervention. Before the moment of
Presidential intervention, each house is acting pursuant to its
own chosen rules of procedure, and the President must respect
such rules before acting; otherwise the President can exercise
almost absolute power over when Congress can meet.      The same
Presidential respect is necessary to make the Appointments
Clause and Recess Appointments Clause function properly.     The
Senate operates pursuant to its own rules and determines in what
manner it will meet. If the Senate decides to meet in pro forma
sessions, the President must respect such decision and make
appointments pursuant to the Appointments Clause. If he chooses
to ignore such Senate action, he can exercise almost absolute
power over appointments.    The intersession definition of the
term “the Recess” preserves this necessary Presidential respect;
the unavailable-for-business definition does not.


                                        - 120 -
in recess.         Such a view gives the President the very absolute

power of appointment that the Framers sought to withhold.                     This

dual light-saber has disastrous consequences.                 If the President

dictates when the Senate is in recess, essentially he can make

recess appointments any time he feels the Senate is unavailable

to advise and consent.           This results in the Recess Appointments

Clause swallowing the Appointments Clause.                  Appointments under

the Appointments Clause could become the exception rather than

the rule.         In this regard, the circumstances surrounding the

appointments in this case are telling.                Block and Griffin were

nominated      approximately       three      weeks    before      their     recess

appointments.         The    President     nonetheless      made   these     recess

appointments even though the Senate was in a position to advise

and consent.        One of the central features of a pro forma session

is that the Senate convenes.             Neither the dissent nor the Board

can distinguish pro forma sessions from ordinary sessions on the

basis   of    the    Senate’s    availability     because    during   pro     forma

sessions     the    Senate   convenes    in   a   manner    that   allows    it   to

consent to nominations if it wants to do so.                 This is evidenced

by   the     Senate’s    passing    of     the    payroll    tax    legislation.

“Holding that the Senate is unavailable during these sessions

requires      a     definition     of    availability       that    allows        the

counterintuitive situation in which the Senate is available to

enact   legislation      while   simultaneously       unavailable     to    provide

                                     - 121 -
its advice and consent.”         New Vista Nursing, 2013 WL 2099742, at

*19 n.23.

     The dissents says that the payroll tax legislation was an

“extraordinary    bill    that    was    part   of   a    broader   legislative

effort to avert a national financial catastrophe, and was passed

by unanimous consent, thus not requiring the Senate to return to

Washington.”     Post at 158.      Yet, the dissent never explains why

legislation passed pursuant to a unanimous-consent agreement is

permissible, but a similar procedure would be inadequate to give

advice and consent on a nominee. 24             This flaw in the dissent’s

reasoning   explains      why      the    Senate         is   responsible   for

establishing its own rules subject to the limitations outlined

in the Constitution. 25    Reduced to its essence, then, the dissent

is objecting not to the Senate’s inability to conduct business,


     24
        Of course, the payroll tax legislation is not the only
piece of legislation to have been passed during a pro forma
session.   There have been many.  See, e.g., Airport and Airway
Extension Act of 2011, 157 Cong. Rec. S5297 (daily ed. Aug. 5,
2011) (passed by the Senate during its August 5, 2011 pro forma
session).
     25
        The constraints on the manner in which the Senate
conducts its business are minor.   It must meet once a year on
January 3 (or another date Congress chooses), U.S. Const. amend.
XX, § 2, and when called into special session by the President,
id. art. II, § 3. And once convened, the Senate cannot adjourn
for more than three days (or to another place) without the
House’s consent. Id. art. I, § 5, cl.4. As noted earlier, only
if the House and Senate disagree does the President play a role
in adjournments. Id. art. II, § 3.



                                   - 122 -
but rather to the procedure chosen by the Senate to conduct its

business.     And the Senate has chosen to conduct business through

unanimous-consent       agreements    rather    than     through   actual     roll-

call votes. 26     But this is a judgment call made by the Senate.

It simply is not the province of this court to dictate the

manner in which the Senate chooses to conduct its business.                    Yet

this is exactly what the dissent would do here--it is saying

that the Senate was not in session even though it was fully

capable of acting if it desired to do so.

      We    certainly    respect     the    position     taken     by   our   good

colleague in dissent.         The dissent attempts to craft a solution

to a very difficult problem that hopefully the Supreme Court

will resolve in Noel Canning.           At the end of the day, we have an

honest disagreement with a colleague we hold in high esteem.

But   for    the   reasons     stated      above,   we    cannot    embrace    the

unavailable-for-business definition.

                                        F

      In    this   case,     the   President’s      three    January     4,   2012

appointments to the Board were not made during an intersession

recess because Congress began a new session on January 3, 2012.

      26
        The use of unanimous-consent agreements is commonplace.
From the 101st to the 110th Congresses, “an average of 93
percent of approved measures did not receive roll call votes and
in the 111th Congress through February 1, 2010, 94 percent of
approved measures were approved without a roll call vote.” 156
Cong. Rec. S7137-38 (daily ed. Sept. 15, 2010).


                                     - 123 -
Consequently,         “these    appointments       were     invalid        from    their

inception.”          Noel Canning, 705 F.3d at 507.              Because the Board

lacked a quorum of three members when it issued its 2012 unfair

labor practices decisions in both the Enterprise and Huntington

cases, its decisions must be vacated.                New Process Steel, 130 S.

Ct. at 2644–45. 27



                                           V

     Unfortunately, in modern times, the question concerning the

scope     of   the    President’s    recess    appointment         power    under    the

Recess     Appointments        Clause    has      become    a     political       debate

regarding      the     qualifications     of   the    President’s      nominations,

rather    than   a     genuine,    meaningful      debate       regarding    the    true

meaning of the clause.            Today, it is the Executive Branch, with

a Democratic president in office, seeking to exercise expansive

recess appointment power.               Republicans are crying foul.                 See

Brief of Senate Republican Leader Mitch McConnell and 44 Other

Members of the United States Senate as Amici Curiae in Support

of Certiorari in NLRB v. Noel Canning, 2013 WL 2352593, at **5-

19 (May 28, 2013) (challenging, inter alia, President Obama’s

     27
       Because we agree with Enterprise and Huntington that “the
Recess,” as used in the Recess Appointments Clause, refers to
the legislative break that the Senate takes between its
“Session[s],” we need not decide whether the appointments at
issue are also invalid because the vacancies did not “happen”
during “the Recess.”


                                        - 124 -
three January 4, 2012 recess appointments to the Board); Senator

Roger Wicker, Executive Overreach and Recess Appointments, 31

Miss. C. L. Rev. 319, 321-27 (2013) (same).                            In the case of

Judge Pryor, it was a Republican president, President Bush, in

office, seeking to exercise expansive recess appointment power,

with the Democrats crying foul.                   See Brief of Amicus Curiae

Senator Edward Kennedy in Support of Petitioner’s Petition for

Writ    of       Certiorari     in   Franklin    v.     United    States,       2004   WL

2326801, at **6-19 (October 12, 2004) (challenging the recess

appointment        of   Judge    Pryor).      Who     knows     what    tomorrow    will

bring?       Regardless, one thing must remain constant--the meaning

of the Recess Appointments Clause, and it is the duty of this

court       to   set    forth    that   meaning     irrespective         of   political

fortunes.          We   have    done    so   here. 28      We    deny     the    Board’s

applications for enforcement of its orders.

                                                                 ENFORCEMENT DENIED




       28
        The Board does not suggest that we should decline to
address the meaning of the term “the Recess” because it is a
non-justiciable political question. See Baker v. Carr, 369 U.S.
186,   198,   217  (1962)   (outlining   requirements of   non-
justiciability). However, if the Board raised such an argument,
we would reject it. See New Vista Nursing, 2013 WL 2099742, at
**8-10 (rejecting non-justiciability argument); Evans, 387 F.3d
at 1227 (same).


                                        - 125 -
DUNCAN, Circuit Judge, concurring:

       I concur in Parts I-III of the majority opinion.                            I also

fully concur in Parts IV and V, because I agree that the most

plausible     reading       of     the    Constitution’s         Recess    Appointments

Clause limits “the Recess” to the so-called “intersession break”

between two legislative sessions.                   I write separately to briefly

underscore what, in my view, compels the conclusion reached by

the majority in this regard.

       I begin by explicitly recognizing what should be evident

from    the   spirited           and     principled       debate    between       my   two

colleagues:       this      appeal       presents     a   challenging       issue      with

respect to which there is limited guidance.                         The Constitution

does not define “the Recess,” and we find no discussion of the

Recess Appointments Clause at the Constitutional Convention in

Philadelphia      or     the     state    ratifying       conventions.        Alexander

Hamilton’s brief essay in Federalist 67 addresses the Recess

Appointments       Clause        only     in     passing,    focusing       instead     on

counteracting       the        misrepresentation          made     by     opponents     of

ratification that the Constitution permitted the President to

fill   vacancies       in    the       Senate.      Historical      practice      in   the

decades following ratification of the Constitution is similarly

sparse,     and    too      easily       subject     to   manipulation       by     “savvy

lawyers,” as the dissent rightly notes.                     Diss. Op. at 147.          Nor

is it obvious how the uptick in intrasession recess appointments

                                          - 126 -
since    1981        ought       to   affect      our   analysis.        Compare     Marsh    v.

Chambers, 463 U.S. 783, 792 (1983) (upholding the practice of

beginning legislative sessions with a prayer because its long

history of use had made it “part of the fabric of our society”),

with INS v. Chadha, 462 U.S. 919, 944 (1983) (observing that the

increased        frequency            of    the    Congressional       veto     in    statutes

“sharpened rather than blunted” the judicial inquiry).

     But therein lies the flaw at the heart of the dissent’s

logic.          It        faults      the    majority’s        textual      arguments,      but,

significantly, proffers none in response.                             Rather, the dissent

falls    back        on    the     same     purposive     reading     of    legislative      tea

leaves for which it chides the majority, but without any textual

underpinning.             It is certainly noteworthy that “the Recess” sits

in grammatical tension with a reference to all inter-and intra-

session     breaks.                And      although     perhaps      not     decisive,      the

interplay of “recess” and “adjourn/adjournment” and the framers’

use of “Session,” see Maj. Op. at 91-95, at least tips the scale

of the textual argument in favor of the majority’s intersession-

only reading of the Recess Appointments Clause when there is no

counter-weight in the balance.

     I     am    further         troubled--and          unpersuaded--by       the    dissent’s

skating     past          the    constitutional         text    and   “look[ing]       to    the

purpose of the clause as our lodestar.”                          Diss. Op. at 148.           If,

as   the        dissent          contends,        the    text    is    ambiguous,        surely

                                               - 127 -
discerning       the     proper    application         of   the   Recess      Appointments

Clause’s purpose is even more so.                      The clause’s purpose is, as

the    dissent      acknowledges,          actually         twofold:     “to        ensure       a

functioning        government      and   maintain        the   separation           of    powers

between      the       executive     and     legislative          branches           of        that

government.”           Id. at 131.       The dissent reaches its conclusion

only by elevating the goal of ensuring the functioning of the

government        when    the     Senate     is    (ostensibly)         unavailable              to

provide its advice and consent, and ignoring that of maintaining

the separation of powers by cabining the President’s unilateral

appointments        power    to    limited       circumstances.              The    dissent’s

failure     to    explain    why    it     has    emphasized      one    of        the    Recess

Appointments        Clause’s      purposes       and    largely      ignored        the    other

also gives one pause.

      Finally, the majority offers a more judicially manageable

interpretation of “the Recess” than that offered by the dissent.

Although the dissent criticizes the majority’s reading of the

Recess Appointments Clause as “unworkable in practice,” id. at

134, in my view, that description more aptly applies to the

dissent’s        position.        Limiting        “the      Recess”     to    intersession

breaks      creates       clear     parameters         for     the     Legislative             and

Executive branches on when the Senate is in recess for purposes

of    the    Recess       Appointments       Clause.           Such     clarity           is    of

particular importance when, as here, the case implicates the

                                         - 128 -
separation of powers doctrine.              See Plaut v. Spendthrift Farm,

Inc., 514 U.S. 211, 239 (1995) (identifying the separation of

powers     doctrine    as     a     structural     safeguard      which    requires

“establishing       high    walls    and   clear    distinctions     because       low

walls and vague distinctions will not be judicially defensible

in the heat of interbranch conflict”).

     The     dissent’s     proposed     standard,    by    contrast,      offers    no

guidance, meaningful or otherwise.                 Its view that the Senate

would be in “the Recess” when it “is not engaged in its regular

course of business, is unavailable to receive messages from the

President, or cannot meet to consider a nominee for a position,”

Diss. Op. at 143, raises more questions than it answers.                       What

constitutes the Senate’s “regular course of business”?                         What

precludes     the   Senate    from     providing     its   advice    and    consent

during   a   pro    forma    session?       How    long    must   the     Senate   be

unavailable to receive messages, and what (and who) determines

its unavailability?           Would a senator filibustering a nominee

mean the Senate “cannot meet to consider th[at] nominee for a

position,” and therefore give rise to the President’s recess

appointments power?         I fear that these and other questions, for

which the dissent provides no answers, would be more, rather

than less, problematic.

     I therefore fully concur in the majority’s reading of the

Recess Appointments Clause.

                                      - 129 -
DIAZ, Circuit Judge, concurring in part and dissenting in part:

     When      they       convened         in    Philadelphia        in    May   1787   for    the

Constitutional Convention, the Framers understood that they were

engaged       in    something        more        than   a     drafting     exercise.         Their

effort was an inspired work following a debate for the ages

about the role of government, its relationship to the people,

and--as       we    consider         today--the         division      of    power   among      its

coordinate branches.                 These consolidated appeals require us to

interpret the Recess Appointments Clause of Article II of the

Constitution, which received little attention or discussion at

the Founding, and yet serves as a linchpin of the division of

power between the President and the Senate.

     I am pleased to join my colleagues’ resolution of these

cases    as    to    the    merits         of     the   National      Labor      Relations     Act

issues,       contained        in    parts        I,    II,    and   III    of   the    majority

opinion.            But    I        part        company       with   my     friends     on     the

constitutional questions before us. 1                          In interpreting the Recess



     1
        The Board contends that Enterprise Leasing Co. and
Huntington Ingalls, Inc. (the “Employers”) have waived certain
constitutional arguments--namely, that “the Recess” refers to
intersession recesses only and that “may happen” means “happen
to arise”--by first raising them in their reply briefs. But we
have discretion to consider an untimely constitutional challenge
to an officer’s appointment, see Freytag v. CIR, 501 U.S. 868,
878-79   (1991),  and  considering   the  significance  of   the
constitutional questions presented by these appeals, such
discretion is properly exercised here.    We also remedied any
(Continued)
                                                 - 130 -
Appointments Clause, we must be mindful of the Framers’ intent

in drafting it: to ensure a functioning government and maintain

the separation of powers between the executive and legislative

branches of that government.                 With this purpose fixed firmly in

mind,       and    for     the    reasons     I   explain   below,     I   find    no

constitutional defect in President Barack Obama’s intrasession

recess appointments of National Labor Relations Board (“NLRB” or

the “Board”) Members Sharon Block, Terence Flynn, and Richard

Griffin, Jr.



                                             I.

       These appeals originate from the Senate’s unanimous consent

resolution to “adjourn and convene for pro forma sessions only,

with       no   business       conducted,”    between   December     20,   2011   and

January 23, 2012.              157 Cong. Rec. S 8783-03 (daily ed. Dec. 17,

2011).          These pro forma sessions were necessary, at least in

part,       because      the   House   of    Representatives,   relying      on   the

Adjournments Clause of the Constitution, 2 refused to give consent

for the Senate to take its normal extended intersession recess.



harm the Board would have suffered by granting both parties
permission to address the arguments in supplemental briefs.
       2
       The Adjournments Clause provides that “[n]either House,
during the Session of Congress, shall, without the Consent of
the other, adjourn for more than three days.” U.S. Const. art.
I, § 5, cl. 4.


                                        - 131 -
See NLRB v. New Vista Nursing and Rehabilitation, LLC, Nos. 11-

3440, 12-1027, 12-1936, 2013 WL 2099742, at *32 n.6 (3d. Cir.

May 16, 2013) (Greenaway, J., dissenting) (citing Lawfulness of

Recess      Appointments        During       a         Recess   of    the       Senate

Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. 1, 2–

3 (2012)).      As a result, the pro forma sessions created two

intrasession recesses: one lasting from December 17, 2011, to

January 2, 2012, and another lasting from January 3 (when a new

session of Congress began) to January 23, 2012.

     Each    Tuesday    and   Friday     during         these   periods,    a   single

senator took to the floor to convene and adjourn each pro forma

session, which typically lasted for no more than a minute.                          The

Senate did not say a prayer or recite the Pledge of Allegiance

during these sessions, see 158 Cong. Rec. S3-11 (daily eds. Jan.

6-20, 2012), nor did it receive messages from the President or

the House, see 158 Cong. Rec. S37 (daily ed. Jan. 23, 2012).

During one such session, the Senate agreed by unanimous consent

to the payroll tax extension, see 157 Cong. Rec. S 8789 (daily

ed. Dec. 23, 2011), which the President signed into law that

same day.

     On   January     3,   2012,    Board    Member        Craig   Becker’s     recess

appointment    term    ended,      leaving       the    Board   without    a    quorum.

President Obama had nominated Sharon Block and Richard Griffin

to the Board on December 14, 2011, but the Senate had not yet

                                     - 132 -
voted on their nominations before recessing on December 17.                               On

January 4, the President, apparently concluding that the Senate

had   entered      “the    Recess”       despite        its     pro    forma     sessions,

appointed Members Block, Griffin, and Flynn using his recess

appointment       power.         See     Press     Release,       The     White        House,

President       Obama      Announces        Recess            Appointments        to     Key

Administration           Posts     (Jan.         4,       2012),         available        at

http://www.whitehouse.gov/the-press-office/2012/01/04/president-

obama-announces-recess-appointments-key-administration-posts.

      The   President      acted       pursuant    to    the     Recess      Appointments

Clause, which gives him the “Power to fill up all Vacancies that

may happen during the Recess of the Senate, by granting the

Commissions       which    shall       expire     at    the      End    of     their     next

Session.”      U.S. Const. art. II, § 2, cl. 3.                       The majority says

that, as used in the clause, “the Recess” refers to the break

between the end of one regular session of the Senate and the

convening    of    the    next    (the    so-called       “intersession          recess”).

Because the Senate was not in an intersession recess when the

President made his appointments, the majority holds that they

are constitutionally invalid.              As the Board notes, this view of

the   Recess      Appointments     Clause        also    deems        invalid    over     500

appointments by fourteen Presidents dating back to the 1860s.

See NLRB Supp. Br. 17.



                                         - 133 -
     The        majority’s      definition          of     “the     Recess”     presumes        a

textual clarity not found in the clause and, more importantly,

upsets     the       Framers’      carefully        crafted        allocation      of     power

between        the     President      and    the     Senate        in   the   appointments

process.        I would hold instead that “the Recess” “refers to both

intra-    and        intersession      recesses          because    the    Senate       can    be

unavailable to provide advice and consent during both.”                                       New

Vista,    2013       WL   2099742,     at    *30     (Greenaway,        J.,   dissenting).

Interpreting the clause as I propose, that is, with an eye to

its original purpose, lends a pragmatic understanding of the

scope     of     the      authority     it    confers,        while       maintaining         the

delicate balance of power that the Framers intended.                                    Because

the majority’s reading of the clause is not supported by the

language itself and is unworkable in practice, I respectfully

dissent from parts IV and V of the opinion.



                                              II.

     The Appointments Clause of the Constitution 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[.]”                            U.S. Const. art. II,

§ 2, cl. 2.            Recognizing that it would be impractical for the

Senate to remain perpetually in session to consider presidential

                                            - 134 -
nominees, The Federalist No. 67, at 410 (Alexander Hamilton) (C.

Rossiter ed., 1961), the Framers also gave the President the

power to make recess appointments.

        The majority has accurately summarized the law supporting

the     conflicting      interpretations         of    the     Recess   Appointments

Clause:       the   first,   championed     by    the    Employers      and   recently

embraced by the Third and D.C. Circuits, 3 reads the clause so as

to allow the President to make recess appointments only during

an intersession recess, while the second, favored by the Board

and by the Second, Ninth, and Eleventh Circuits, 4 as well as by

Judge       Greenaway   in   dissent   in   New       Vista,   maintains      that   the

President’s power to appoint extends to recesses generally, no

matter when they occur. 5         I find the latter reading--also termed

the “functional approach” 6--to be more persuasive.


        3
       See New Vista, 2013 WL 2099742; Noel Canning v. NLRB, 705
F.3d 490 (D.C. Cir.), cert. granted, __ U.S. ____ (2013).
        4
       See Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (en
banc); United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985)
(en banc); United States v. Allocco, 305 F.2d 704 (2d Cir.
1962).
        5
        The majority says that the Board espouses a third
interpretation of the clause, i.e., that a break need not meet a
minimum time threshold in order to be considered “the Recess.”
I do not think the Board goes so far.      To the contrary, the
Board has specifically distinguished the instant situation from
“an ordinary, long-weekend recess,” NLRB Br. 40, and aligned
itself with the understanding that the clause generally excludes
“very short breaks” of fewer than three days, NLRB Supp. Br. 15-
16.
(Continued)
                                       - 135 -
                                           A.

     The   first   rule    of   constitutional            interpretation           is,   of

course, to apply the plain meaning of the text.                           McPherson v.

Blacker, 146 U.S. 1 (1892); see also District of Columbia v.

Heller, 554 U.S. 570, 576 (2008) (“In interpreting [the] text,

we are guided by the principle that the Constitution was written

to be understood by the voters; its words and phrases were used

in their normal and ordinary as distinguished from technical

meaning.” (internal quotations omitted)).

     The    problem      with   a      textualist          view    of        the    Recess

Appointments    Clause     is   that       the    language,       while      sparse,     is

anything but clear.         See New Vista, 2013 WL 2099742, at *13

(“The    word   ‘recess’    lacks      a        natural    meaning      that       clearly

identifies whether it includes only intersession breaks or also

includes   intrasession     breaks,         whether       they    be    of    a    certain

duration or a period of unavailability.”).                   Most Americans would

understand a “recess” to be a break from something--in this case

a break from Senate proceedings.                   The question, then, becomes

whether the Framers’ use of the definite article (i.e., “the”)




     6
       See Noel Canning, 705 F.3d at 504 (calling the Board’s
interpretation, as set out by Attorney General Daughtery in
1921, the “functional approach”); New Vista, 2013 WL 2099742, at
*12 (same).


                                    - 136 -
as a modifier was intended to denominate a particular type of

break.

        I think it a stretch to say that the plain language of the

clause shows that the Framers intended to limit the President’s

recess    appointment       power      to   the   singular      period    between      two

congressional sessions.           If that were so, then it would stand to

reason that the other use of “the Recess” in the Constitution--

in   Article      I,   Section    3,    Clause    2, 7    which    provides     for    the

temporary    appointment         of    Senators    by     state    executives     during

their     legislatures’      recesses--would             have     the   same    singular

meaning.       Yet we know that is not so because in that latter

context, the clause is used to refer collectively to the various

recesses of the several state legislatures.                         The Constitution

also refers repeatedly to “the Congress” and “the President,”

yet I doubt the majority ascribes the same literal meaning to

the definite article in these contexts.

      Perhaps the Framers’ use of the definite article has some

unique meaning in this context, but there is nothing in the

clause    that     points    unambiguously        to     the    majority’s      view    of

things.      It    seems    to    me    equally    plausible       that   the    Framers


      7
        “[I]f 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.


                                        - 137 -
choice of words was intended to exclude other types of recesses-

-for example, when the Senate breaks for lunch by recessing.

Alternatively,       as   the    en   banc   Eleventh        Circuit    concluded    in

Evans, the word “the” might have also been intended to refer

“generically    to    any    one--intrasession          or   intersession--of       the

Senate’s acts of recessing, that is, taking a break.”                       387 F.3d

at 1225.

      Furthermore, the majority’s reading does more than simply

give meaning to the word “the”--it also requires the court to

inject an additional modifier into the Constitution, a practice

that the Supreme Court has disfavored.                       See The Pocket Veto

Case, 279 U.S. 655, 679 (1929).              As Judge Greenaway notes in his

dissent in New Vista, the majority’s reading necessitates that

one insert “intersession” before “Recess” in the clause.                            New

Vista, 2013 WL 2099742, at *34.              By contrast, a functional view

of the clause does not require an additional modifier, because

“the Recess” would refer without qualification to any break from

Senate business when that body is functionally unavailable to

give advice and consent.

     The    majority      also    concludes      that    because       “adjourn”    and

“adjournment” are used elsewhere in the Constitution to refer to

various    types   of     congressional      breaks,     including      intrasession

recesses, “the Recess” must refer to a specific suspension of

business: an intersession recess.                The majority is correct that

                                       - 138 -
“adjourn” is used throughout the Constitution as a broader term

than “the Recess.”          On that point, the Adjournments Clause of

the Constitution demonstrates that an adjournment may either be

very   short--for      example,      a    break       from   day     to    day--or    much

longer.       See U.S. Const. art. I, § 5, cl. 4 (providing that

“during the Session of Congress” neither House may “adjourn for

more   than    three     days”   without        the    “consent      of    the    other”).

However, I fail to see how this fact logically leads to the

conclusion that all intrasession breaks are excluded from “the

Recess.”      The notion that the distinction between adjournments

and    “the    Recess”     applies       with    equal       force    to    intra-     and

intersession recesses is a convenient correlation, but it has no

basis in the text of the Constitution.

       Nor does the balance of the clause shed further light on

the question before us.            The Employers argue that because the

clause mandates that recess appointments expire at the end of

Congress’s     “next     session,”       the    President’s        power     to    appoint

necessarily      must      be     limited         to     intersession            recesses.

Otherwise, they say, two recess appointees could have widely

disparate     tenures--that      is,      the    President      could       appoint    one

official during an intrasession recess and another months later,

during a subsequent intersession recess, yet both appointments

would expire at the same time: the end of the next session.



                                         - 139 -
      But nothing in the Recess Appointments Clause requires that

all   recess   appointments        be   of    the    same    length,     and    such   an

interpretation does not further its purpose.                        “The check on the

Recess   Appointments        Clause . . . is         that     recess     appointments

have a fixed end, not necessarily a fixed length.”                           New Vista,

2013 WL 2099742, at *45 (Greenaway, J., dissenting).                            In that

regard, I agree with Judge Greenaway that the Framers likely

expected   that     recess     appointments,          even    those     made    between

sessions, would have varying durations, particularly given that

intersession      recesses    in    the      nation’s       early    years     routinely

lasted six months or longer.            See id.

                                          B.

      Finding the clause’s text inconclusive, I turn to consider

its purpose.        The   Supreme       Court    has     embraced     this     approach,

often looking to the spirit and purpose of the language for

guidance   when    constitutional         text      is   ambiguous.          See,   e.g.,

Polar Tankers, Inc. v. City of Valdez, 557 U.S. 1, 6-7 (2009)

(noting that “[t]he Court over the course of many years has

consistently interpreted the language of the [Tonnage Clause] in

light of its purpose . . . .”); Maryland v. Craig, 497 U.S. 836,

849 (1990) (“We have accordingly interpreted the Confrontation

Clause in a manner sensitive to its purposes . . . .”); Tashjian

v. Republican Party of Conn., 479 U.S. 208, 227 (1986) (“Our



                                        - 140 -
inquiry begins with an examination of the Framers’ purpose in

enacting the first Qualifications Clause.”). 8

       Although          The   Federalist        Papers     are        indispensable   in

ascertaining many aspects of the Framers’ intent and purpose,

they       reveal       precious    little       about    the   Recess       Appointments

Clause, which was adopted without debate.                          It is undisputed,

however,         that    the   clause’s      purpose      was     to    “establish[]    an

auxiliary method of appointment, in cases to which the general

method was inadequate.”               The Federalist No. 67, at 409.                   The

power      was    designed     to   work    in    concert   with       the   Appointments

Clause, which allows the President to fill vacancies with the

advice and consent of the Senate.

       Alexander         Hamilton    offered      a   succinct     rationale     for   the

recess appointment power, stating that “it might be necessary

for the public service [for the President] to fill [vacancies]


       8
       The Supreme Court also applied this functional approach in
a case testing the meaning of the Pocket Veto Clause.     See The
Pocket Veto Case, 279 U.S. at 680.        There, in considering
whether the Senate was available to receive a bill from the
President for the purposes of the Pocket Veto Clause, the Court
eschewed a myopic focus on Congress’s procedural status in favor
of an analysis of the underlying purpose of the clause. See id.
(holding that it was immaterial to whether the Senate had
“adjourned” if it was a “final adjournment” or an “interim
adjournment,” and instead considering “whether [the adjournment]
‘prevents’ the President from returning the bill to the House in
which it originated within the time allowed”).       By ignoring
procedural technicalities, the Court’s interpretation upheld the
purpose underlying the text and preserved the Framers’ intended
governmental structure.


                                           - 141 -
without delay.”          Id. at 410.     Such a view is consistent with the

Executive’s separate constitutional duty to “take Care that the

Laws be faithfully executed,” U.S. Const. art. II, § 3, cl. 5,

which in turn requires that the President have in place the

principal officers necessary to carry out this mandate.

       To that end, I submit that the Framers intended to place

the    power    of   appointment     chiefly      in    the    President.      In     The

Federalist No. 76 for example, Hamilton explained that “one man

of    discernment     is   better    fitted    to      analyze    and    estimate     the

peculiar qualities adapted to particular offices than a body of

men of equal or perhaps even of superior discernment.”                                The

Federalist No. 76, at 455 (Alexander Hamilton) (C. Rossiter ed.,

1961).

       The     Framers     no   doubt    intended       the     Senate    to   play     a

significant role in the process, but its duty primarily was to

ferret    out    appointments       doled   out     based      upon     favoritism    or

corruption, and certainly not to weigh the executive’s policy

choice and impede the selection to an extent that risks shutting

down entire agencies of the government.                       As Hamilton described

it, “[The Senate] 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.”         Id. at 457; see also Myers v. United States, 272

                                        - 142 -
U.S.    52,       118       (1926)   (stating    that   the    Senate’s        advice     and

consent role should be “strictly construed” and not “enlarged

beyond words used”).

       Thus,       while       Hamilton   described     the        recess    power   as    an

“auxiliary method of appointment,” The Federalist No. 67, at

409, his broader view of the coordinate branches’ respective

roles in the process shows that the power was intended primarily

for    the    President,         and   that    the   recess    appointment       power    in

particular was a practical aid in support of the President’s

constitutional obligations as the nation’s chief executive.

       Against this backdrop, I discern a meaning of “the Recess”

that I believe would find favor with the Framers:                            the Senate is

in “the Recess” when it is not available to provide advice and

consent      on    nominations.           Particularly,       if    the     Senate   is   not

engaged in its regular course of business, is unavailable to

receive messages from the President, or cannot meet to consider

a nominee for a position, it is in “the Recess.”                              I note that

this    is    not       a    test    foreign    to   Congress;       indeed    the   Senate

Judiciary Committee long ago opined that “the Recess” denotes “a

period of time when the Senate is not sitting in regular or

extraordinary session . . . when its chamber is empty[,] when,

because of its absence, it cannot receive communications from

the President or participate as a body in making appointments.”

S. Rep. No. 58-4389, at 2 (1905).

                                           - 143 -
       My view of the clause thus does not distinguish between

intrasession        and     intersession             recesses,       because       such     a

distinction, while perhaps grist for wordsmiths, is meaningless

in the context of the recess power’s core purpose--to ensure the

proper    functioning        of    the    government.             Whatever     label      one

chooses to affix to “the Recess,” so long as the Senate is

unable   to   provide       its    advice      and    consent     on     the   President’s

nominees,     the     result      is    the    same:       important     offices     remain

unfilled and the government does not function as intended.



                                              III.

       The majority contends that its interpretation of the Recess

Appointments Clause should be favored because it is consistent

with the historical record.               But a closer look at the conduct of

the coordinate branches, both past and present, reveals that the

functional approach not only fits with historical practice, but

also   better    sustains         the    balance      of    powers     inherent      in   our

constitutional structure.

                                               A.

       Relying   on    Noel       Canning,      the    majority      posits     that      “the

infrequency      of    intrasession           appointments        in     the   historical

record    and       the     relative          disdain        harbored      toward         such

appointments     in    at    least      the    first       132   years    of   our   Nation

suggests an ‘absence of [the] power’ to make such appointments.”

                                         - 144 -
Maj. Op. at 99 (quoting Noel Canning, 705 F.3d at 502).                                  In my

view    though,        a     functional         interpretation           of     the   Recess

Appointments Clause properly counsels against a blind adherence

to the precise procedural conditions in which earlier executives

exercised      the     power.          In    any    event,     I    do    not    think     the

majority’s         “use     it    or    lose       it”   theory     of        constitutional

interpretation is dispositive, particularly since the relevant

history purporting to support it is not so compelling.

       In    the    infancy       of   our    republic,    the     Senate       rarely    took

intrasession          recesses,        instead       working       steadily       while     in

Washington and opting to take lengthy intersession recesses--

sometimes lasting six to nine months--to return home to family

and constituents.                See Congressional Directory for the 112th

Congress 522-38 (2011).                Travel for those early legislators was

both        arduous        and     treacherous,          creating        an       additional

disincentive to take additional breaks during a session.                                 Thus,

“until the Civil War, there were no intrasession recesses longer

than 14 days, and only a handful that even exceeded three days.”

NLRB Supp. Br. 12 (citing Congressional Directory for the 112th

Congress 522-25 (2011)).

       The first time that Congress took an extended intrasession

recess--from April 20, 1867 to July 3, 1867--President Andrew

Johnson made the first known intrasession recess appointment.

Edward A. Hartnett, Recess Appointments of Article III Judges:

                                             - 145 -
Three Constitutional Questions, 26 Cardozo L. Rev. 377, 408-09

(2005).      President       Johnson      made   other   intrasession      recess

appointments during his tenure, including one whose legitimacy

was later challenged in--and upheld by--the Court of Claims. 9

Id.   at   409   (citing     Gould   v.   United   States,   19   Ct.   Cl.    593

(1884)).

      As   the   country’s      transportation      infrastructure      improved

substantially in the 20th century, it became easier for Senators

to travel quickly and easily between the Capitol and their home

states; this, in turn, has led to more intrasession breaks at

the   expense    of   the   traditional      extended    intersession    recess.

Indeed,    intrasession       recesses     today   often   last   longer      than

intersession ones.          See Evans, 387 F.3d at 1226 & n.10 (noting

that the Senate has taken “zero-day intersession recesses” as

well as “intrasession recesses lasting months”).               The net result


      9
       The majority is correct that the Senate took a number of
intrasession recesses--typically around the Christmas holiday--
between 1867 and 1947, during which presidents did not make
recess appointments. But the majority points to nothing in the
historical record showing that the reason for this dearth of
appointments was a concern as to the scope of the executive’s
recess appointment power.   It appears, rather, that the record
is silent on the question, although, as Judge Greenaway points
out in his dissent in New Vista, one possible explanation is
that “intersession recesses [during that period] were still
rather lengthy, often spanning several months, which gave the
President ample time to make recess appointments during
intersession recesses, compared to the relatively short duration
of early intrasession recesses.” New Vista, 2013 WL 2099742, at
*46 (Greenaway, J., dissenting).


                                     - 146 -
is that in modern Senate practice, intrasession recesses account

for more of the Senate’s absences than intersession recesses.

See   Congressional     Directory      for    the    112th   Congress      530-37

(2011).

      I therefore attach little, if any, negative constitutional

significance to the historical fact that since 1947, presidents

from both parties have made over 400 intrasession appointments.

See   New   Vista,     2013   WL   2099742,     at    *44    (Greenaway,     J.,

dissenting).    Yet the majority’s fixation on bygone history--at

the   expense   of    the   reality   that    informs    recess   appointment

practices   today--effectively        deems   every    single   one   of   those

appointments to be constitutionally infirm.

      I do not suggest that history should be ignored as a tool

of constitutional interpretation.             But one need only read the

fine briefs in these cases to recognize that, given time, savvy

lawyers can excavate historical references to support virtually

any proposition. 10     Compare NLRB Supp. Br. 9 (noting that George


      10
        The same holds true for any attempt to divine an answer
to the questions before us by relying on dictionary definitions
of the day.        Compare Evans, 387 F.3d at 1226 (citing
dictionaries that define “happen” in the recess appointment
clause as “to happen to be”) with id. at 1230 n.4 (Barkett, J.,
dissenting) (citing dictionaries that define “happen” as “to
occur”).     Indeed, the parties’ resort to historical and
dictionary references here is “the equivalent of entering a
crowded cocktail party and looking over the heads of the guests
for one’s friends.”      Conroy v. Aniskoff, 507 U.S. 511, 519
(1993) (Scalia, J., concurring).


                                   - 147 -
Washington         once     referred    to    an     intrasession       break   as     “the

recess” in a letter to John Jay), and NLRB Supp. Br. 9 (arguing

that    the        eighteenth-century         Pennsylvania       and      Vermont      state

constitutions          supported        the     “intrasession”          definition       of

“recess”), with Resp’ts’ Supp. Br. 14-15 (citing Judge Barkett’s

dissent       in     Evans    in      which    she    notes      George     Washington’s

reference to an intersession break as “the recess” in a message

to   Congress)        and     Resp’ts’       Supp.    Br.   15    (arguing      that    the

Massachusetts and North Carolina state constitutions supported

the “intersession” definition).

       Rather       than     impute    dubious       meaning     to    sparse   text     or

ascribe consistency to what is, at best, ambiguous historical

practice, I would look to the purpose of the clause as our

lodestar.       To that end, we would do well to remember that

          [t]ime works changes, brings into existence new
          conditions and purposes. Therefore, a principle to
          be vital must be capable of wider application than
          the mischief which gave it birth.           This is
          peculiarly true of constitutions.      They are not
          ephemeral enactments, designed to meet passing
          occasions.    They are, to use the words of Chief
          Justice   John   Marshall,  ‘designed   to   approach
          immortality as nearly as human institutions can
          approach it.’      The future is their care and
          provision for events of good and bad tendencies of
          which no prophecy can be made.    In the application
          of a constitution, therefore, our contemplation
          cannot be only of what has been, but of what may be.

Weems v. United States, 217 U.S. 349, 373 (1910) (quoting Cohens

v. Virginia, 19 U.S. 264, 387 (1821)).


                                          - 148 -
       Viewed       in   this   practical         light,       the   Recess     Appointments

Clause sheds the ambiguity of its text in favor of a meaning

that promotes its core function.                         I would therefore hold that

“the Recess” refers to recesses generally, no matter the type,

as long as the Senate is not engaged in its regular business and

is unable to perform its constitutional duty of providing advice

and consent on the President’s nominees.

                                                 B.

       Admittedly,        a   functional          view    of   the    President’s       recess

appointment power does not fix a minimum length for the Senate’s

break    in     business        to    constitute          “the       Recess.”       But    the

majority’s own reading of the clause fares no better.                              Under its

interpretation, “the Recess” authorizing the President to act

occurs       only    when     Congress         breaks     between      sessions,     without

regard to whether the break spans weeks, days, or hours.                                  Thus,

if Congress takes a one-day break between sessions, the majority

apparently      would       find     no    fault      with     the    President    making     a

recess appointment during that time, despite the fact that the

Senate would have returned to business the next day and been

available to provide its advice and consent on the nominee.

       Nor     would      the      majority’s          interpretation           prevent    the

President from making hundreds of recess appointments during a

momentary intersession recess.                     Indeed, I note with some irony

that    the     sole     instance         in    which     a    President      assumed     such

                                               - 149 -
audacious       power        occurred       in     1903     when     President          Theodore

Roosevelt “used a moment’s intersession recess . . . to make 193

executive branch appointments, literally between two raps of a

gavel.”         Peter        M.   Shane,     Third      Circuit       Further          Fuels    the

Constitutional Conflict Over Recess Appointments, U.S. Law Week,

June 11, 2013.           The majority’s decision today would do nothing

to stop a future President from channeling the Rough Rider.

     Certainly, we should not ignore the possibility that the

President       might    abuse      his     power      to   appoint       officials       in    the

manner    suggested          by    the    Employers         here.        But     the     majority

appears    eager        to    assume      the     worse     from     the       nation’s        chief

executive.       I, for one, decline to “imput[e] to the President a

degree    of    turpitude         entirely        inconsistent       with       the     character

which     his     office          implies,        as      well      as        with     the     high

responsibility          and       short     tenure      annexed          to     that    office.”

Allocco, 305 F.2d at 714 (quoting Exec. Auth. to Fill Vacancies,

1 Op. Att’y Gen. 631, 634 (1823)).                            After all, “[t]here is

[also] no text limiting the laws a President may veto (or his

reasons for vetoing them), the pardons he may issue, or the

occasions       on      which      he     may     convene        Congress        on     his      own

initiative.”              Shane,          Third     Circuit         Further          Fuels      the

Constitutional Conflict Over Recess Appointments, U.S. Law Week,

June 11, 2013.               We should nonetheless expect some modicum of

good faith in the individual our fellow citizens elect to the

                                            - 150 -
most powerful office in the world, otherwise his “textual powers

are quite adequate, if asserted irresponsibly, to undermine both

Congress and the judiciary.”              Id.

       In     any   event,     there     are    checks    in     our    constitutional

structure, both explicit and implicit, that protect against just

such    abuse.         To   begin   with,      the   President     may    make    recess

appointments only when the Senate is not in session for regular

business.        If the Senate wishes to give its advice and consent

as to particular nominees, it may remain in regular session for

that        purpose.         Second,     the    very     fact     that    all     recess

appointments        are     temporary     restrains      the     President’s      power.

Third, the President has a substantial interest in obtaining the

Senate’s advice and consent for full terms for the principal

officers he nominates to implement the administration’s agenda,

rather than relying on short-term recess appointees.                       Fourth, as

Judge       Greenaway       notes   in   his    dissent     in    New    Vista,     “the

structure of the branches of government, as conceived by the

Constitution, give[s] the President a very strong interest in

maintaining the favor of the Senate and not stoking its ire.”

New Vista, 2013 WL 2099742, at *41. (citing The Federalist No.

77, at 459 (Alexander Hamilton) (C. Rossiter ed., 1961)). 11                         The


       11
        It appears that President Obama has acknowledged and
respected this interest, given that he has made but thirty-two
recess appointments while in office.     In contrast, his two
(Continued)
                                         - 151 -
President also must consider public opinion, as an executive who

abuses his power will damage his reputation, as well as that of

his party.       See id.

       The majority also gives short shrift to the fact that the

President too swears an oath to uphold the Constitution, and

that    when     he    acts     under      its    express       authority,      his     actions

should    be     accorded       a    presumption         of    constitutionality.             See

Evans, 387 F.3d at 1222 (citing United States v. Nixon, 418 U.S.

683    (1974)).         The   Supreme       Court       has    further      underscored       the

necessity of the legislative branch providing some latitude to

the     President        in      his       use     of     constitutional            authority,

admonishing          that     congressional             action       is     invalid     if     it

“undermine[s] the powers of the Executive Branch, or disrupt[s]

the    proper         balance       between       the     coordinate          branches       [by]

prevent[ing]          the     Executive          Branch       from        accomplishing       its

constitutionally assigned functions.”                           Morrison v. Olsen, 487

U.S.     654,     658       (1988)        (citations          and    internal       quotations

omitted).

       But     the     more     direct      response          to    the     claim     that    the

functional view fails for lack of temporal limits is, so what?

Limiting        principles          are    important          when    courts        engage     in



immediate predecessors made 310 such appointments. Henry Hogue,
Cong. Res. Serv., Recess Appointments:         Frequently Asked
Questions (Jun. 7, 2013).


                                            - 152 -
constitutional interpretation, but a slavish devotion to them at

the expense of common sense is no virtue.                That the Framers

chose not to draw a bright line delineating the limits of the

President’s recess appointment power is not a flaw, but rather a

part of their grand design in drafting a compact “intended to

endure for ages to come, and consequently to be adapted to the

various crises of human affairs.” McCulloch v. Maryland, 17 U.S.

(4 Wheat.) 316, 415 (1819).

     In short, because any fixed time limitation has no basis in

the text of the clause, it would perforce be arbitrary.             See New

Vista, 2013 WL 2099742, at *44 (Greenaway, J., dissenting).              The

proper   test   in    assessing     whether   a   “Recess”   triggers    the

President’s power to appoint is whether the Senate is engaged in

its regular business and thus available to give its advice and

consent: this inquiry operates to exclude the altogether silly

scenario of the President making recess appointments during the

Senate’s breaks for meals or weekends, while including the types

of   weeks-long      intrasession    recesses     that   could   stall   the

functioning of government if an important post is left vacant.

     As the majority would have it, the Senate is free to read

out of the Constitution the President’s recess appointment power

by refusing to take intersession recesses, opting instead to

take an extended intrasession break, returning just before the

session ends, and then moving directly into the next session.

                                    - 153 -
Even though the harm to the country of leaving vital offices

unfilled while the Senate is away and unable to give advice and

consent is no less compelling in this scenario, the President

would be powerless to act.                The Supreme Court has long made

clear, however, that no clause should be interpreted in a manner

that would render it meaningless.                      See Marbury v. Madison, 5

U.S. 137, 174 (1803) (“It cannot be presumed that any clause in

the constitution is intended to be without effect . . . .”).

     This    concern       is     far   from    hypothetical,       as    the   NRLB’s

history of vacancies demonstrates.                 Despite nominations made by

Presidents of both parties, the NLRB has not had a full panel of

Senate-confirmed members since 2003, a problem exacerbated by

the Supreme Court’s decision in New Process Steel LP v. NLRB,

130 S. Ct. 2635 (2010), which held that the Board must have at

least three members in order to constitute a quorum for purposes

of resolving unfair labor practice charges.                       Board Member and

Chairman Mark Gaston Pearce’s term will expire in August of this

year, see 29 U.S.C. § 153(a), 12 leaving the Board again without a

quorum    unless     the    President’s       nominees     are   confirmed      by   the

Senate.       It     is    this    precise      scenario,    that      is,   where    an

appointment        vacuum         (whatever      its     origins)        impedes     the

enforcement     of     a    statute--in        these    cases    one     designed    “to

     12
       Mark Gaston Pearce, NLRB.gov, http://www.nlrb.gov/who-we-
are/board/mark-gaston-pearce-chairman.


                                        - 154 -
protect    the     rights     of    employees        and     employers,    to   encourage

collective      bargaining,        and     to   curtail       certain    private     sector

labor     and   management         practices,        which    can   harm      the   general

welfare of workers, businesses and the U.S. economy,” 13--that the

President’s recess appointment power was designed to remedy.

     To make matters worse, while the majority claims that its

reading simply restores the Senate’s power in the appointments

process, it actually gives the House of Representatives a de

facto     veto      on      presidential         recess        appointments.             The

Adjournments Clause provides that neither House of Congress may

adjourn for more than three days without mutual consent.                                 See

U.S. Const. art. I, § 5, cl. 4.                      Its purpose is to allow the

business of Congress to be conducted by preventing either House

to adjourn for an extended period without the other’s consent.

But these appeals are before us precisely because the House has

wielded     this      power    in        part   to     block     intrasession       recess

appointments by refusing to adjourn, thereby forcing the Senate

to rely on pro forma sessions to allow its members to break for

significant periods of time.                See New Vista, 2013 WL 2099742, at

*32 n.6 (Greenaway, J., dissenting).

     Under      the   majority’s          holding,     the     House    has   effectively

gained     a    check    on        the    President’s         appointment       power,    a

     13
           National     Labor     Relations    Act,                             NLRB.gov,
http://www.nlrb.gov/national-labor-relations-act.


                                           - 155 -
proposition    neither   contemplated    by   the   Constitution     nor

intended by the Framers.     See id. at *34 (stating that the House

should not “interfere with the appointments process because ‘[a]

body so fluctuating and at the same time so numerous can never

be deemed proper for the exercise of that power’”) (quoting The

Federalist No. 77, at 463 (Alexander Hamilton) (C. Rossiter ed.,

1961))).

     The majority contends that the President may override this

House “veto” by invoking his power to force an adjournment of

Congress, thus creating an intersession recess during which he

could make appointments.     See U.S. Const. art. II, § 2, cl. 3;

Todd Garvey et al., Cong. Res. Serv., The Recess Appointment

Power After Noel Canning v. NLRB: Constitutional Implications

(Mar. 27, 2013).     It appears, however, that no President has

ever exercised this power, and it is unclear how it would be

determined that the House and Senate are truly in “disagreement

. . . with respect to the Time of Adjournment.”       In any event, I

confess to some surprise that the majority has taken this tack,

as it runs counter to their view of the President’s authority in

two ways:     First, it would allow the President to decide when

the Senate is in “the Recess,” thereby granting the President

the precise unilateral power of appointment that the majority

finds   objectionable.     Second,   given    the   majority’s     clear

distinction between an “adjournment” and “the Recess,” see Maj.

                               - 156 -
Op. at 93-94, even if the President forced an adjournment of

Congress,    presumably          the      majority    would       not    countenance      the

President’s    use       of     the    recess      appointment       power      during    the

resulting break.

     The     majority         also     claims      that     the    functional      approach

interferes     with       the    Senate’s         ability     to     regulate      its    own

procedure.         Not    so.        My    reading    of    the    Recess     Appointments

Clause     would    not       prevent       the    Senate     from      engaging    in    any

practice, including its use of pro forma sessions.                               Indeed, I

recognize that such practices may be necessary for the Senate to

conform to the requirements of the Adjournments Clause.                                   But

“[t]he   Senate      cannot      be       both    unavailable      and    yet    force     the

President to submit to its advice and consent.”                          New Vista, 2013

WL 2099742, at *42 (Greenaway, J., dissenting).                               Put another

way, we should not allow the Senate to determine the effect of

such actions on a coordinate branch.                        Rather, while the Senate

may meet in pro forma sessions when its members see fit, the

President may also choose to use his recess appointment power

during such sessions if the Senate is practically unavailable to

provide its advice and consent for nominees.

     Finally, I find no merit to the Employers’ argument that

the Senate was, in fact, available to provide advice and consent

during the relevant period due to its passing the payroll tax

extension    legislation         on       December    23,    2011.       To   begin      with,

                                            - 157 -
Congress began a new session on January 3, 2012, and therefore

this    legislative       action       took    place     during    a     different

intrasession recess than the one in which the President made his

appointments.         Thus,    even    assuming   that   the    Senate    had    been

available during the December intrasession recess, that fact has

no bearing on whether it could act on a nomination during a

subsequent    break.         Second,    the   payroll    tax   extension       was   an

extraordinary bill that was part of a broader legislative effort

to avert a national financial catastrophe, and was passed by

unanimous consent, thus not requiring the Senate to return to

Washington.     See 157 Cong. Rec. S 8789-03 (daily ed. Dec. 23,

2011) (statement of Sen. Harry Reid).               By contrast, nominees to

offices like the Board are typically subject to a confirmation

hearing, followed by a vote.            Considering the time and attention

typically given to presidential nominees, it was reasonable for

the President to assume that the Senate could not practically

give   its   advice    and    consent    to   nominations      during    pro    forma

sessions in which (1) a lone senator gaveled the body to order

for sessions lasting no more than a few minutes, (2) the Senate

could not receive messages from the President, (3) no debates

were held, and (4) no speeches were made.                  See New Vista, 2013

WL 2099742, at *32 (Greenaway, J., dissenting) (“While courts

have not had occasion to articulate a standard for advice and



                                       - 158 -
consent, it is clear . . . that provision of advice and consent

cannot be perfunctory.”).

                                      C.

     Under      a   functional       interpretation        of   the     Recess

Appointments    Clause,    the    Senate’s      intrasession    break   during

January 2012 qualifies as “the Recess.”               The Senate had adopted

a no-business order, 157 Cong. Rec. S 8783-07 (daily ed. Dec.

17, 2011), instead holding pro forma sessions wherein the Senate

was not engaged in regular business, and thus was unable to

provide   its   advice    and    consent   on   any    nominations    that   the

President may have presented.         Therefore, I would hold that the

intrasession recess from January 3, 2012, to January 23, 2012,

constituted “the Recess” for purposes of the Recess Appointments

Clause.



                                     IV.

     Next, I consider the Employers’ contention that a vacancy

must arise during the recess in order for the President to use

his recess appointment power to fill it.               Because it found the

interpretation of “the Recess” to be dispositive, the majority

did not reach this issue.

     The Employers argue that the appointments of Members Block,

Flynn, and Griffin are invalid because the relevant vacancies

did not arise during “the Recess of the Senate.”                According to

                                   - 159 -
the Employers, to be filled by a recess appointment, a position

must be vacated during the recess--that is, the President cannot

use his power during the recess to fill a vacancy that arose

while the Senate was still in session.                   For this proposition,

the   Employers   rely    on    the    Noel   Canning    opinion,       wherein   the

court   concluded   that       the    plain   language    and    history    of    the

clause shows that “may happen” means “may arise” and is modified

by “during the Recess of the Senate.”               Noel Canning, 705 F.3d at

507-12).

      The Board, on the other hand, claims that the clause places

no such restriction on the President’s power.                   In its view, “may

happen” means “may exist,” and therefore the President may use

his authority to make recess appointments to any vacant position

while the Senate is in recess.                Because both the text and the

purpose of the clause support its interpretation, I agree with

the Board.

      If “during the Recess of the Senate” modifies “may happen,”

as    the   Employers    assert,      then    the   clause      would    allow    the

President to make recess appointments at any time, even while

the Senate is in session, as long as the vacancy first arose

during a recess.        In effect, one would have to read “during the

Recess of the Senate” twice to give the clause the Employers’

preferred meaning: once to denote when the vacancy must arise,

and once again to limit when the President may exercise his

                                      - 160 -
recess appointment power.            I decline to give the text of the

clause such a convoluted meaning.            See Woodley, 751 F.2d at 1012

(noting that the “may arise” interpretation “conflicts with a

common     sense    reading    of    the   word   happen,   as   well   as   the

construction given to this word by the three branches of our

government”).

     The Board’s interpretation, by contrast, flows from a plain

reading of the text.           Reading “may happen” to mean “happen to

exist,” one need only read “during the Recess of the Senate”

once in order to reach the traditional understanding of when the

President may make recess appointments.

     The     D.C.    Circuit    in    Noel   Canning   disagrees    with     this

reading, concluding that it renders “the operative phrase ‘that

may happen’ wholly unnecessary.”                705 F.3d at 507.        That is

incorrect.     Were the clause to read “[t]he President shall have

Power to fill up all Vacancies during the Recess of the Senate,”

it would imply a much broader power than the Framers intended,

suggesting that the recess appointment power was on equal par

with that given in the Appointments Clause.                 The inclusion of

“that may happen” makes clear that the power is not intended to

be the default method of appointment, but is rather an auxiliary

to be used when vacant positions could not, for some reason, be

filled during the session.



                                      - 161 -
        Nor       is    the       clause’s     purpose         served    by     limiting   the

President’s appointment authority to those vacancies that arise

during        a    recess.            It     bears     repeating         that    the    Recess

Appointments Clause serves to maintain a functioning government

at times when the Senate is unavailable to provide its advice

and   consent          for    a     nominee.      As      a   practical       matter,   when   a

vacancy       arises,         the    President       and      his   advisors     may    take   a

significant amount of time to select and vet a candidate before

officially presenting the nominee to the Senate.                               At times, this

period may be longer than that which remains before the Senate’s

recess.

      Such was the case in Allocco, 305 F.2d 704, when a judicial

vacancy arose on July 31, 1955, and the President was unable to

fill the position before the Senate adjourned three days later.

The court there held that the President’s recess power extended

to all vacancies, regardless of when they arose, relying in part

on “a long and continuous line of opinions” by the Attorneys-

General of the United States, beginning in 1823, advising the

President “the recess power extends to vacancies which arise

while the Senate is in session.”                     Id. at 713.

      But         under      the     Employers’      interpretation,           the   President

could    not        temporarily         appoint      an       official    to    an   important

government post, even if the vacancy arose the day prior to the

Senate’s recess, and even if the recess were expected to last

                                               - 162 -
for weeks or months.              “It is inconceivable that the drafters of

the     Constitution           intended     to    create     such   a     manifestly

undesirable situation.”               Allocco, 305 F.2d at 710.          Rather, the

public interest lies in maintaining a functioning government,

and the Board’s interpretation of the clause effects that very

purpose.       See       Evans,    387    F.3d   at   1227   (“[I]nterpreting     the

phrase to prohibit the President from filling a vacancy that

comes into being on the last day of a Session but to empower the

President to fill a vacancy that arises immediately thereafter

(on the first day of recess) contradicts what we understand to

be    the    purpose      of    the   Recess     Appointments    Clause:    to    keep

important offices filled and the government functioning.”). 14

       This understanding of the recess appointment power has been

espoused by every Attorney General confronted with the question

since 1823, when Attorney General William Wirt advised President

Monroe      that   the    clause      extended   to   all    vacancies   that    exist

       14
        Congress has effectively acquiesced in the Board’s
reading of the clause.    The Pay Act, originally enacted during
the Civil War and currently codified as 5 U.S.C. § 5503,
provides for the payment of salaries to recess appointees who
fill vacancies that first arise while the Senate is in session.
Although the act originally postponed salaries to these
appointees, Act of Feb. 9, 1863, ch. 25 § 2, 12 Stat. 642, 646,
Congress subsequently amended it to permit them to be paid under
certain conditions, see Act of July 11, 1940, 54 Stat. 751. In
passing a law that regulated the salaries of these appointees--
even if its terms display an aversion to the practice--Congress
acknowledged that it was within the President’s constitutional
authority to make recess appointments to pre-existing vacancies.



                                          - 163 -
during a recess, including those that arose beforehand.                                See,

e.g.,      Exec.   Auth.      to   Fill   Vacancies,      1     Op.   Att’y     Gen.   631

(1823); President’s Power to Fill Vacancies in Recess of the

Senate, 12 Op. Att’y Gen. 32 (1866); Appointments Made During

the   Recess       of   the    Senate,     16   Op.     Att’y    Gen.    522    (1880). 15

Furthermore,        until     this   year,      every    circuit        court   to     have

considered this issue has endorsed that interpretation.                                See

Evans, 387 F.3d at 1226-27 (en banc); Woodley, 751 F.2d at 1012-

13 (en banc); Allocco, 305 F.2d at 709-15.

      The sole outlier is Noel Canning.                    But the D.C. Circuit’s

reasoning, in addition to running counter to nearly two hundred

years of precedent and distorting the text of the clause, is

squarely at odds with the clause’s purpose.                           As one scholar

aptly notes, “[i]f the [P]resident needs to make an appointment,


      15
         One earlier opinion, from Attorney General Edmund
Randolph, endorses the “happen to arise” interpretation.     See
Edmund Randolph, Opinion on Recess Appointments (July 7, 1792),
in 24 The Papers of Thomas Jefferson 165, 165-67 (John
Catanzariti ed., 1990).   However, as the Board points out, not
only has that reading been repudiated by the long line of
subsequent Attorneys-General opinions, but it is not clear that
any President found it persuasive.    Even George Washington, to
whom the opinion was addressed, appeared to reject the
interpretation when he appointed William Clarke to be U.S.
Attorney for Kentucky and Robert Scot to be the first Engraver
of the Mint--both to vacancies that arose prior to the Senate’s
recess.    See S. Exec. J., 4th Cong., 2d Sess. 217 (1796);
Tachau, Federal Courts in the Early Republic: Kentucky 1789-
1816, at 65-73 (1979); 27 The Papers of Thomas Jefferson 192
(John Catanzariti, ed. 1990); S. Exec. J., 3d Cong., 1st Sess.,
142-43 (1793).


                                          - 164 -
and the Senate is not around, when the vacancy arose hardly

matters; the point is that it must be filled now.”                                Michael

Herz,    Abandoning       Recess     Appointments?:         A   Comment    on    Hartnett

(and Others), 26 Cardozo L. Rev. 443, 445-46 (2005) (emphasis

added).

        Finding    that       both   text    and   purpose      support    the    Board’s

view, I conclude that “may happen” means “may exist” in the

context    of     the   Recess       Appointments      Clause.          Therefore,      the

President’s recess appointments to the NLRB are valid, despite

the fact that the vacancies first arose prior to the recess of

the Senate.



                                              V.

     The constitutional questions before us are vexing ones, and

I respect deeply my colleagues’ good faith effort to resolve

them.     The majority’s interpretation of the Recess Appointments

Clause     attempts       a    literal       reading   of       the    text,    which     it

endeavors to bolster by reviewing the manner in which it claims

the power was exercised during the first half of our democracy.

But I can divine no textual clarity in the words of the clause,

and the history of its use is muddled at best.

     The     majority’s          view       also   ignores       the    modern     recess

practices    of    the        Senate,    wherein    intrasession         recesses       have

become the norm, and does violence to the fundamental purpose of

                                         - 165 -
the recess appointment power--to allow the President to fill up

important offices and keep the government functioning.                            Worse,

it grants the House a veto over recess appointments, a power

nowhere to be found in the Constitution, and grants the Senate--

through the use of a procedural artifice unworthy of the world’s

greatest      deliberative    body--unfettered           power     to    prevent    the

President from making recess appointments to fill up important

offices.          Indeed,       the        majority’s        reading      tilts      our

constitutional        separation       of     powers    far      out     of    balance,

according excessive leverage to the Congress in the appointment

of   government      officials,       at    the   expense     of   the    President’s

constitutional prerogative to choose those he or she deems best

fit to aid in taking care that the laws be faithfully executed.

It is a reading contrary to the Framers’ intent.

      Under     the     functional          interpretation         of    the      Recess

Appointments     Clause     that   I       propose,    the   Senate’s     break     from

January    3    to    January      23,      2012,     was--pro      forma      sessions

notwithstanding--“the         Recess”          for     the     purposes        of    the

President’s recess appointment power because the Senate was not

then available to give its advice and consent.                      In my view, the

plain language of the clause and its fundamental purpose allow

the President--as he has done here--to fill up all vacancies

then-existing during the Recess.



                                       - 166 -
On this reasoning, I would uphold the President’s appointments

of   Members   Block,   Flynn,   and   Griffin   to   the   NLRB   and   would

affirm the Board’s decisions in these appeals.

      I respectfully dissent from parts IV and V of the majority

opinion.




                                  - 167 -
