In National Labor Relations Board v. Noel Canning, the Supreme Court (by a vote of five to four) rejected two major structural challenges to the recess appointments power, but all the Justices invalidated the recess appointments at issue in the case by accepting a third argument. The five-Justice majority held that the power applies to intra-session recesses and to vacancies that occur prior to the recess.
But the Court held that these appointments were nonetheless invalid because the Senate is in session (and the recess appointments power does not apply) when both (a) the Senate says it is in session, and (b) it has the actual capacity to act. The latter is critical: “But our deference to the Senate cannot be absolute. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares.”
The Court held that both conditions are satisfied by a pro forma session because (a) not only does the Senate say it is in session, but (b) it can also act by unanimous consent during the session because the Senate rules presume the existence of a quorum. Because these recess appointments were made despite the existence of a pro forma session that broke up a longer recess, they were invalid.
The interesting point is that (b) is rests on a fiction: there actually is no Senate quorum during a pro forma session. As Mitch McConnell’s brief in the Supreme Court explains, “The Senate, in other words, has provided that a quorum is presumed until proven otherwise.” And it is a fiction the Court definitively accepts: “[W]hen the Journal of the Senate indicates that a quorum was present, under a valid Senate rule, . . . we will not consider an argument that a quorum was not, in fact, present.”
Yet that critical presumption that a quorum exists is easily burst: any member of the Senate can suggest the absence of a quorum. “During any pro forma session, the Senate could have conducted business simply by passing a unanimous consent agreement. . . . Senate rules presume that quorum is present unless a present Senator questions it.” As Noel Canning’s brief in the Supreme Court explains, “whenever the Senate lacks quorum . . . , a single Senator can prevent the Senate from conducting business by making a quorum call.”
In the case before it, the Court takes care to note that “nothing in the Journal of the Senate or the Congressional Record reflects any such suggestion” that a quorum was absent. As Noel Canning’s brief continues, “The Senate operates on the absolute presumption that a quorum is always present until a point of no quorum—i.e., a quorum call—is made, and thus possessed a formal quorum at each pro forma session.”
So the question arises, can a member of the President’s party wipe away the fiction and trigger the Recess Appointments Clause by making a quorum call during a pro forma session, to establish that the Senate in reality at that time “is without the capacity to act”? I’m not familiar with Senate procedures, but the answer at first blush appears to be yes. Noel Canning’s brief explains, “Quorum calls were in order at each pro forma session because each was a separate session punctuated by an adjournment and nothing in the Adjournment Order precluded quorum calls.” According to the authoritative Riddick’s Senate Procedure, the presumption exists only until “a point of no quorum is made,” at which point the Senate may not take “any further legislative action until a quorum is established.”
A few possible answers come to mind. First, maybe procedures can block the quorum call, including by simply recessing the Senate. It appears not. Under Senate Rule VI, upon a quorum call, “the Presiding Officer shall forthwith direct the Secretary to call the roll,” and the Presiding Officer “shall announce the result.” According to Riddick’s, there can be intervening debate only “at the sufferance of the Senator who suggested the absence of quorum.” Further, “[i]t is not in order to interrupt the call of a quorum for the transaction of business.”
Second, when a senator suggests the absence of a quorum, the sergeant at arms has the power to compel the attendance of the senators to create a quorum, which would permit the body to conduct business. But the entire point of a pro forma session is that the senators are generally away. So it seems unlikely that the sergeant at arms would actually exercise that power, or at least exercise it successfully.
Third, Noel Canning’s brief suggests that it is possible that the order adjourning the Senate could preclude a quorum call. Again, I am not familiar with Senate procedure. But Riddick’s indicates that a quorum call itself can only be precluded by unanimous consent. And the members of the president’s party would not need to consent.
Fourth, the Supreme Court’s decision recognizes a separate limitation on the recess appointments power: absent an emergency, the power does not apply to recesses of less than ten days. So if the Senate takes an actual recess that is less than ten days, pro forma sessions are completely unnecessary. But it could substantially change the senators’ practices if they could not be away from the Senate for more than nine days.
Fifth, I may be overreading the Court’s reference to the Senate’s ability to conduct business under its own rules. Perhaps the Court merely means that the Senate needs to be able to do something, even if it is to conduct a quorum call. But the point of the opinion is that the Senate is available to confirm the president’s nominees. And it cannot do that in the absence of a quorum, when there has been a quorum call.
Given my lack of familiarity with Senate procedure, there obviously may be something I’m missing. But if not, it seems that yesterday’s decision could be substantially a dead letter, so long as the Senate does take recesses longer than nine days. In other words, pro forma sessions may not count, so long as a single member of the president’s party is available to make the point that the Senate is not actually present.