Who framed and ratified the constitution . Because if they had thought about that, theres a real chance the senate may take a twomonth break right. Over christmas. Would there be any reason why they wouldnt have wanted the recess appointment power to apply there as well as at the end of the session . Your honor, our argument does not turn on that because to us it is not a temporal question. Its a procedural one. Back then, the senate had the power not to trigger the recess. Just like today, it has the power not to trigger the recess appointments power. The difference is not in principle. Its in historical context. At the time of the framing, they wanted to trigger the recess appointments power because when they left during long periods of time, they wanted the president to be able to act unilaterally since it was very difficult for them to get back. And if they didnt trigger the power, the only way the president could act unilaterally would the only way the president could confirm nominees would be by convening an emergency session. Highly inconvenient. The historical facts today have changed. Not the principle, but the surrounding facts. And today, it is very easy for the senators to get back to washington, d. C. , and so they dont want to trigger a unilateral power. Theyre perfectly willing to be hailed back if necessary. Im not sure i understand the answer. If the purpose is to permit the president to fill vacancies when the senate is unavailable to consider nominations and the country would be harmed by having these offices vacant for a period of time, why would that not apply to any lengthy break whether its at the end of the session or in the middle of the session . And so if youre arguing that it only applies at the end of the session, doesnt that depend on the assumption that they never thought about the possibility that there would be a lengthy break in the middle of the session . Your honor, it is possible that they never thought about it. But even if they had, i dont think it would matter, because i think that that the purpose that youve laid out is not quite the full purpose of the clause. The purpose was also to ensure that the president could not easily do an end run around advice and consent, which after all is the principal method of appointment. And so what they did, as they did with respect to inferior officers, is they vested with the senate the power in certain circumstances to authorize the president to act unilaterally. With respect to recesses, that authority was triggered when the senate decided to end its session. The senate did, for example, take 7 midsession breaks of longer than 10 days prior to 1867. It is inconceivable to me that the senators at that time believed that they were entering into a recess that would have empowered the president to make unilateral appointments during those 10, 11, or 12day periods. And that reflects the fact that the recess appointments clause is a contingent one that arises when the senate triggers it. Mr. Francisco, can i ask a question about the second question presented, the happens question . Yes, your honor. And if you put aside all the history and you look only at the language and you look only at our own modern view of what happens, that surely seems to favor your position. But if, you know, given all the statements in the founding period itself about how this is ambiguous and it might have two meanings, if you look at the dictionaries of that time so i went back and i looked at the Oxford English dictionary, and one of the definitions of happens there is chance to be, essentially the exact same definition that Thomas Jefferson said made this ambiguous. And we would never use happens in that way now. If you look at the examples that the Oxford English gives theyre laughable. Nobody would ever say that now. But it just suggested to me that maybe what we think is pretty clear is only pretty clear because one meaning of happens has, you know, over 200 years sure. Lapsed. Well, your honor, i actually think the word happens had the same meaning then as it does now, which is why at the time of the framing everyone who actually studied the issue madison, hamilton, both of the first two attorneys general, Edmund Randolph and charles lee agreed that it meant what it said, as did even no, i dont think so. Essentially, Thomas Jefferson says it could mean one thing or the other, and the other thing that he said, which is happens to exist, is sort of exactly this old definition, which is happens means chance to be. And then jefferson in his other letters conceded that the recess appointments clause as it stood was going to frustrate his ability to make appointments. And he therefore i think happens continues to mean chances to be. We still use it that way. But we only use it that way when it is followed by an infinitive. I happened to see him, it means a chance that i saw him. Or you know, the 9 11, the destruction of the twin towers happened to occur on 9 11. But you wouldnt say you wouldnt say it happened on on 9 13, simply because it continued to be destroyed. I dont know what the oed examples that Justice Kagan referred to were, but i bet they used happen followed by an infinitive, and i think we still use it that way. You know, i dont remember them exactly. I just remember kind of laughing at them, as things that actually, i think i remember what they were nobody would say and they were 1483 and 1490something, and then there was an asterisk that said obsolete. And in fact in fact, i couldnt figure out what they were talking about. And, yes, your honor, but in addition, though, there is not just the word happen. Its preceded by three other words, that vacancies that may happen. And the only purpose that those words serve is to constrain the universe of vacancies that are eligible for a recess appointment. Well, the constitution as it first was has now been amended and it is no longer a part of the constitution, with reference to appointment of senate, uses the word vacancy in much the same way as the clause were discussing here, and i think favors your position, because if a vacancy happens by resignation during the recess of the legislature then the governor can make the appointment. And you certainly wouldnt think that that could happen over 3 days exactly, your honor occur over i should say occur over 3 days. And its even better than that because at the time of the framing, a legislator a governor tried to appoint somebody to the Senate Pursuant to the clause that had arisen where the vacancy had arisen during the legislative session rather than during the legislative recess, and the senators actually refused to seat that individual. So, yes, that further supports our position on that. Do you want to say anything before the about the language on the happen, i support you. But the practice, and in particular, the practicalities because you say, well, the president can make an acting appointment, make a recess appointment even. I mean, you know, they have much less authority, somebody appointed in that way, much less than a person whos been confirmed by the senate. So if the government wont grind to a halt, it still faces a problem. And, your honor what do you want to say about that . Thats a consequence of advice and consent. That problem arises not just when the senate takes breaks but when the senate is in session. The senate could show up every day for an hour, sit at their desks, and announce to the president were not going to do anything, no nominations, no legislation, because we dont like what youre doing. And by the way, the only reason were showing up here at our desks and sitting here for one hour a day is because we dont want you to be able to make recess appointments. Nobody would claim that the senate was in recess during those sessions. Well, that is effectively what it was doing here. I would, though, like to address the practicality issue. I talked about how there have only been four recess appointments to the article iii courts that are potentially invalid since 1960. I likewise dont think, if you were to rule in our favor on the first two questions, that it would be particularly disruptive to the executive branch either. If you look at the governments appendix, i would hazard to say that most of those officials probably dont exercise much, if any, Agency Rulemaking or adjudicatory power at all. But as to those who do, Going Forward the government can solve the problem through agency ratification of past decisions. Going backward, there are a variety of doctrines that would limit anybodys ability to actually challenge those past actions, including, for example, the apas 6year statute of limitations on challenging final agency action, various finality rules that would prohibit a party from raising an issue that they could have but failed to raise in an earlier proceeding and various justiciability doctrines, like mootness standing, and, your honor, the de facto officer doctrine, at least outside of the context of direct appeal. I think this constellation of issues probably explains why this is the first time this issue has reached this court in 225 years. This is not to say that a ruling in our favor on the first two questions wouldnt have any past impact. It would undoubtedly have some. But as this courts decisions in cases like chada and booker and blakeley make clear, this court has never shied away from enforcing the strictures of the constitution simply because it could have some impact on prior cases. Here the structural protections of the constitution exist to protect the liberty of the people. They were clearly transgressed with these unprecedented appointments, and therefore we believe that the court below should be affirmed. I am happy to answer any additional questions that your honors may have. Thank you, counsel. Mr. Estrada. Thank you, mr. Chief justice, and may it please the court, as Justice Kagan recognized earlier in the argument, this case fundamentally is about who gets to decide whether the senate is in recess, the senate or the president . Our submission today is that the senate gets to decide whether the senate is in recess. Mr. Estrada, you said in your brief that that was true within wide limits. What are the wide limits . This is all about how the senate chooses to arrange its affairs, Justice Kagan, under the rules of proceedings act. And what the court said in the ballin case was that the exercise of Rulemaking Authority by congress was almost absolute and beyond the challenge of any body or tribunal unless it usurped some independent Constitutional Authority. The only possible offer here that the solicitor general has as to how the constitution could have been violated by the actions of the senate in arranging its own affairs is the notion that this has invaded the purported recess appointments power of the president. And the reason, as we say in our brief, why that is completely insubstantial is because, as the solicitor general recognizes in the closing two pages of its brief, the senate by the design of the constitution, the appointment clause, the primary method of appointment, has an absolute veto over nominations. The framers could not have been more clear that the Standard Power of appointment was a joint power of appointment. And, therefore, the solicitor general is forced to concede that this appointment power, this right that the president is asserting here as a stop on the exercise of the Rulemaking Authority, is a subsidiary power that only arises if the government if the senate, excuse me, chooses to recess. Is the chief justices example before, if the senate just said, were never in recess for purposes of appointments would that be permissible . If the senate says, were never in recess, and the senate then is not in recess so that it could exercise the duties of its office as it does here, yes, it would be. If the senate says, were checking out and going to hawaii, well never again be in washington, kona is very nice this time of year, that would not be permissible, because, a the adjournment clause requires the consent of the house for the senate to be not only gone for 3 days, but to be in a different place. And, second, you know, the senate cannot leave, you know, the chamber, and other than with the consent of the house. And maybe if the senate has effectively given up, you know the business of legislating, in that case, maybe the president could say that it is, quote, a recess. Now, the fundamental problem with the president s position here is twofold. We have senate records. There is the journal clause of the constitution directs each house of the congress to have a journal of its proceedings. The journal of the senate, which is in relevant part printed in our appendix, shows that on each of the disputed dates the senate was called to order and then adjourned. It is an official record of the senate. It says the senate was called to order and then adjourned. It doesnt say two guys who happened to be senators met at a bar and had a beer. The official records of the senate say the senate was called to order and adjourned. And under the rules of proceedings clause, that would be conclusive, full stop. Thats the end of it, exactly the same, if this all took place during the 9month intersession recess in 1835. It would be the same unless the senate chooses to recess. No, no, no. Exactly, same facts. Same facts. Right. And, therefore, in your view, the clause, even if they were all scattered to the winds in 1835, there would have been not possible for president andrew jackson, if i have that right, to make the recess appointments. Justice breyer, the executive at the time could have attempted to construct the same type of argument that the executive is trying to construct here yes. But your view would be that the court should reject it. Yes. But here, it is even a weaker argument because one of the oddities of the case is that as the senate has and the country have all moved into the modern age, the rules of the senate tend to provide for the senate to be available at the drop of a hat. If you look, for example, at rule 9, you can always get, you know, the communications from houses from the house or from the executive. If you look at rule 26 of the senate, committees can meet whether or not the chamber is actually in session. You know, the business of the senate is ongoing. And, therefore, in the modern world, it is even much, much much different than even the hypothetical that you posited. You can say anything that would on this, if you want to, that would turn it back to the practicalities. Imagine, hypothetically, that i would have thought president Theodore Roosevelt acted unconstitutionally when he tried to make all of his appointments, dozens and dozens, during a twosecond in 1903. Yes, yes, intersession yes, constructive recess. Yes, yes. Well and by converse reasoning the congress would not have been able, in 1835, to prevent recess appointments simply by having a nearby senator show up for a for one second, once every 3 days, over a 9month period. It seems to me what Goes Around Comes Around in this well, let me take that as an opportunity because i think it does raise, you know, the question to speak to the implication that the solicitor general makes in his brief, that the senate, as a body, doesnt have a view on whether it was in recess or in session. For the reason that i started out by outlouding by outlining excuse me the senates official records do show that the senate was in session on each date, and therefore, the senate does have an official view. But from the practical point of view, we do know that the senate has a view on these things. And how do we know . The president s Party Controls the senate. If the senate wanted to recess rule 22nd of the senate says thats not a debatable proposition. If a majority of the senate wants to recess, even before the evolution of the filibuster, nondebatable proposition. So the senate says, which is controlled by the president s party, says, we want to recess we want to go away, we dont 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. He had plenary constitutional power to give himself an intersession recess by terminating the session and have a real recess appointment power if he could find somebody whose vacancy had actually arisen at the time. But this is the cockeyed way of going about the instruments of the constitution. There is no power in the constitution to use the recess appointments clause to overcome the opposition of the senate to the president s nominees. 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 power excuse me the appointments clause actually calls for. That was not viewed as an evil by the framers. That was what the framers unanimously agreed was going to be the principal means for appointments for the principal officers of the union. Mr. Estrada if there is a 3day recess between sessions, then your argument is that that is a recess and the president can make appointments in that time. Justice ginsburg, that is a very interesting and somewhat difficult question. On the facts of this case, there is a substantial question, which no one really has litigated, as to whether there was, in fact, an intersession recess, whether the first session of the 112th congress ended on the morning of january 3 and, therefore, we have the same Teddy Roosevelt situation, or whether by adjourning on december 30 and contemplating no further meetings until january 3 whether that in effect was a sine die adjournment that ended the first session of the congress. If the president had the same view about the nature of the pro forma sessions, he could have taken the view about the sessions between december 17 and january 3 and could have had a better legal argument in attempting to claim that between december 30 and january 3, there was at least an arguable intersession recess. And he did not do that. Why didnt he . Because by waiting until the convening of the first session of the second session of the 112th congress, by making an appointment on january 4 instead of the morning of jan