graphic image depicting green amicus briefs for Atlantic Legal Foundation Amicus Brief Summary

NLRB v. Noel Canning (Supreme Court) (petition stage)

“The Appointments Clause sets out the respective powers of the Executive and Legislative Branches with admirable clarity.” Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 487 (1989) (Kennedy, J., concurring). Under Article II, “[t]he President has the sole responsibility for nominating [principal] officials, and the Senate has the sole responsibility of consenting to the President’s choice.” Id. “The Framers understood … 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.” Freytag v. Commissioner, 501 U.S. 868, 884 (1991). “It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union[.]” The Federalist 76, at 510 (A. Hamilton) (Jacob E. Cooke ed., 1961).


“Where a power has been committed to a particular Branch of the Government in the text of the Constitution, the balance already has been struck by the Constitution itself,” and the Court may not “rewrite the particular balance of power that the Constitution specifies among the Executive, Legislative, and Judicial Departments.” Public Citizen, 491 U.S. at 486-87 (Kennedy, J., concurring). The government nonetheless asks this Court to do just that by converting a narrow exception allowing the President to “fill up all Vacancies that may happen during the Recess of the Senate,” U.S. Const. art. II, § 2, cl. 3 (emphases added), into a sweeping grant of unilateral executive authority to make such appointments whenever a vacancy may “exist” during any “period of cessation from usual work.” 

The government tries to complicate a relatively straightforward question of textual interpretation by inventing the concept of an “intra-session” recess based on generic dictionary definitions.


Issue Areas:

Limited Government

Read the Amicus Brief:
Question(s) Presented:

Is the Government’s view that: the Constitution of the United States Article II clause 3 grant a sweeping unilateral executive authority to make appointments whenever a vacancy may exist during any period of cessation of usual work; compatible with the text of the Constitution?


ALF’s Amicus Brief:

ALF argues that the government’s view is incompatible with the text, structure, purpose, and history of the Recess Appointments Clause. The Clause allows recess appointments that arise—and are then filled by the President—during a break between legislative sessions. Article II makes plain that “the Recess” occurs between a legislative Session and the “next Session.” U.S. Const. art. II, § 2, cl. 3. The parties agree that the “Session” refers to Congress’s annual assembly in which it formally conducts business. Textually, then, “the Recess” must be the period between the two sessions. This is not intricate draftsmanship. The meaning is plain. ALF asks this Court to hold the government to the text of this country’s foundational document.



The Supreme Court issued an adverse opinion on June 26, 2014.

Date Originally Posted: November 25, 2015

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