The Recess Appointments Decision Part II: Pro Forma Sessions Are Not Real Sessions

In my first post, I noted that I thought Justice Breyer’s decision was wrong on all three grounds based on the original meaning of the Constitution. This may surprise some people who believe that the third ground of the Court’s decision – that the pro forma sessions were real sessions and therefore the recesses were not long enough to justify a recess appointment – was a favorable rebuke of the Obama administration. But in my view, the majority’s third ground is probably not in accord with the original meaning.

I have come to this position over time. But the final straw was Justice Breyer’s opinion, which ironically convinced me that the pro forma sessions were not real ones (ironic since he was arguing the opposite position). It is significant that Justice Scalia and the other concurring justices did not join this part of the opinion, suggesting that they may agree with my doubts about this conclusion.

A pro forma session involves two or three Senators meeting for a minute or two. Justice Breyer argues that the Senate is entitled to deference as to its conclusion that the Senate is in session and therefore the Court and the President must treat these sessions as real ones.

But this is mistaken. The Constitution establishes that a majority of the Senators constitutes a quorum. Therefore, one or two Senators cannot operate the Senate. If the Senate was in a recess, a meeting of two Senators would not end the recess. The Senate as a whole would lack capacity to conduct business.

Justice Breyer argues that, based on a reasonable Supreme Court precedent, the Senate is entitled to adopt rules that are reasonably related to a constitutional provision. Thus, any rule that is reasonably related to determining whether there is a quorum is constitutional. And he argues that the Senate operates based on a rule that assumes there is a quorum, unless someone objects and calls for a quorum determination.

But while the Supreme Court precedent Justice Breyer relies upon makes sense, his application of it to the Senate’s “no quorum determination unless someone objects” rule is mistaken. The Supreme Court precedent, which may very well accord with the original meaning, merely means that the Senate can adopt a rule that does a reasonable job of determining whether there is a quorum. It can take attendance and lists who says “here.” Or it can have someone take attendance by observing who is in the room. It does not have to take attendance again every ten minutes, even though it is possible that some Senators left and therefore there is no longer a quorum.

But if two Senators show up, and it is clear to both of them that no one else is in the room, that is not a reasonable method for determining whether there is quorum. That is a way of evading a constitutional provision. It is unreasonable and unconstitutional.

I suppose if someone were to come up with strong historical evidence that this is how Parliament operated and people assumed this rule would operate, I would reconsider. But I doubt two or three people would be a quorum of a house of Parliament or in the colonies.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. gabe says


    You make some good points especially with the “taking” and “timing” of attendance for purposes of a quorum. The problem with this perspective is that, if accepted, then are we not allowing, as Justice Breyer seems ready to do, the Black Robes to involve themselves in deciding what is a quorum, when the Senate is actually in session (and, of course, devising some “strict scrutiny” (ha ha) calculations.
    It would be preferred that they simply get back to the text and recognize that “intersession” recesses were at issue in the provision. Yet again, the Black Robes wish for a further accretion of power to the bench.

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