Figures such as Jefferson and Madison had puzzled over the clause. Morons! Sentelle simply looked up the word “the” in a 1754 dictionary and concluded that there can only be one "recess of the Senate" per session of Congress. Most Congresses have two sessions, separated by only a few seconds or days; thus presidents can only make recess appointment once a year, often in the nanosecond between one session and the next.* And beyond that, he said, the phrase “may happen” can only mean that the vacancies themselves must occur when the Senate is in “the recess.”
In other words, by the time Vizzini had finished with it, the clause was all but useless.
Luckily, the Court on Monday seemed eager to find a different way to settle the dispute. One way of construing an ambiguous constitutional phrase is what lawyers call purposive—applying it to achieve what you think its drafters were aiming at. To Noel Francisco, representing the company, the purpose is to make Congress stronger and the president weaker. To Solicitor General Donald Verrilli, on the other hand, it’s there to empower the president when Congress is obdurate or irresponsible.
History doesn’t really support either reading: The main reason for the clause seems to have been to allow interim appointments when members of Congress traveled long distances by horse or foot to assemble once a year. Justice Elena Kagan noted that “there's no such thing truly as congressional absence anymore. And that makes me wonder whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.”
If the purposive approach is futile, a court might just withdraw from the whole stinking mess. As the 90-minute argument dragged on, you could almost see the thought balloons above the justices’ heads as they contemplated a world in which the meaning of “the” was not their central concern.
That was Estrada’s moment. As counsel for the Senate Republican minority, he had been granted 15 minutes. He used it well.
Despite the mischief of the House Republicans, he said, the Senate Democrats and the president could have handled this matter without bothering their betters:
The president's party controls the Senate. If the Senate wanted to recess, Rule 22 of the Senate says that's not a debatable proposition .... So the Senate says, which is controlled by the president's party, says, we want to recess, we want to go away, we don't care if the president has this power. They vote for that. House says no. What happens then? Article II, Section 3 of the Constitution, the fight goes to the president, and it is in that event that the president gets to adjourn them until such date as he shall see proper. So if the Senate had any view that it wanted to recess, they could have had a vote, and the issue would have ended up in the White House, in the lap of the president .... And for all that we hear about today, which has to do with how the heaven will fall, and the parade of horribles, there is no parade, and there is no horrible. The only thing that will happen is that the president, heaven help us, will be forced to comply with the advice and consent that the ... Appointments Clause actually calls for.
Remember that the NLRB appointments were back in the pre-“nuclear option” days when Senate Democrats were still reluctant to fight. If they’d been willing to confront the House bullies, Estrada was saying, they could have forced a crisis that would have created a real recess. Obama could have made his appointments. We could all be doing something else. But they didn’t, and now they want the Court to clean up the mess.
As Estrada spoke, I wanted, like Gomer Pyle, to shout “Sha-ZAM!” The nine opinionated justices were as meek as Harvard first-years confronting Kingsfield
So effective was Estrada that I am willing to predict the Court will simply hold—probably by a lopsided margin—that, in his words, “the Senate gets to decide whether the Senate is in recess.”
* Correction: This post previously misstated the technical number of sessions in each Congress. We regret the error.