Constitution but i dont think often enough if any changes. Your honor, and your honor, in this situation the meaning of the cause with respect to the timing of the vacancy has been a matter of contention since the first days you are questioning my hypothesis. You have to accept my hypothesis. Lets assume it takes these clearly against you. Should i say yes, it says Something Else, but the practice for over 200 years has been Something Different and its a practice that must prevail. Fact they started with George Washington and has worked through. Yes or no. The crack this gives meaning to the constitution. You are questioning my hypothesis. I am assuming a clear text of the constitution and the practice that is contrary to it. Its extremely unlikely it wouldve eyes. I am answering. I will answer it again. The answer is given the crack is going back to the republic, the crack this should be the practice should govern, but we dont have that here. This provision has been subject to contention as to its meaning since the first days of the republic. Let me ask you about the premise. Vacancy begins in a particular point in time and continues for some period. I was trying to think of some other things that might fall into the same category. One would be an appointment to the federal office. So you were appointed as solicitor general at a particular point in time in the appointment continues. Another example might be a marriage. It happens that a particular point in time and continues for a period of time. Now would we say that your pipe and as solicitor general is happening today and will happen again tomorrow and happened yesterday, is that the way the english language is used . The constitutconstitut ional phrase is a natural use than if i may, Justice Alito, give you a counter example. Congress enacted a phrase in 2008 this at the Federal Reserve is invested with all the power necessary to do with any financial emergency that may happen in 2009. That emergency first arose in november 2008. I dont think anybody would interpret the statute as denying the Federal Reserve the Authority Congress conferred and that is because may happen will cover every situation, but its certainly not sure we do not cover some. As jefferson said, it is certainly susceptible. Weve taken you off the starting point. The starting point was what cons to two server he says in your position is historically, they met continuously and then they outweigh home for six months, even nine months. Today is nothing like that. The intercession of recess to be at all. So what do we do with the division of a recess and today the intercession recesses might be momentary. So i think two points to make in response to the question what to do. The first one is with respect to the original understanding, we do think the term recess and the phrase the recess certainly at the time of the family did encompass recesses occurred during the session of congress, during a session of the legislature and not just in between sessions of the legislature. I would point the court to jeffersons manual of parliamentary procedures that requires with the session. I would point to the adjournment causes so which says that one house of commons wants to take a break of longer than three days during the session it needs to enter the other house that indicates the framers contemplated the possibility of a break longer than three days. The house of commons or the speaker had authority to call election is a member dies during the recess. As Justice Ginsburg points out, the argument to me in search of the principal at lunch break, a oneday break. He thought about the threeday break, a one break, how do you resolve that problem . We resolve the problem is by looking to the adjournment causes. The break would require the white house to get the consent of the other that that is a de minimis recess and not a recess in which the president would have authority. What about pro forma sessions . Correct me if im wrong, they dont require consent of the other half. The problem with the pro forma session, justice kennedy, thinking about the length of the recess, the recess we would submit based on formal dictionary definition of recess at the time of the founding and now, which is a suspension of business. The recess is from january 3rd when the session started until january 23rd so you think there is no recess during pro forma sessions . There is a recess and the reason is because the senate has issued a formal order that no business shall be conducted. Lets focus on that. Instead of saying no business shall be conduct did the order said it is not anticipated any business will be conducted. Is that suffice to eliminate that. As a recess . Is a different case and a significantly harder case for the executive because here. Its difficult and harder but suggests you are talking about a couple magic words the senate can change at the drop of a hat. Maybe its not that significant. It is significant, mr. Chief justice. If the formal action by the senate and in addition other actions the senate to letter confirming indicia. The Senate Passed a resolution that gave committees the authority to submit reports and report bills and passed a resolution giving the president pro tem the power to sign bills. You are not answering the real thrust of the chief justices question which is we could just be back here if we said well, they didnt phrase this in the right way. Ill phrase it differently m. Will be back here at the same essential problem. Youre asking us to peg this on a formality that the senate could he easily of days. It is the senates job to determine whether they are in recess or not. There has to be a limit to that point, justice sunday. Were talking about the power the constitution gives to the president and the president has to make a determination. You are making an assumption that the senate has to take a recess. The senate could choose if you want it to when there might be citizens that would encourage it to never recess. And to work every day. Like lots of people do. Thats true. [laughter] thats absolutely true. It seems that is the choice the constitution puts. What about the amendment at january 3rd was the meeting. Are you saying it violated . The congress of the United States shall meet on january 3rd every year unless they appoint a different day. Yes, they havent. I care for the men in pro forma session. What do you think about the other part that says they can adjourn for more than three days without the approval of the house which they didnt have. Are you saying the senate violated the other two amendments are you saying they have different meanings in the three parties . Our view is that it is hard to see what the senate did with pro forma sessions complies either. U. S. A. And the violated if they have pro forma session on january 3rd, they violate the 20th amendment of the constitution. You are saying if they had a pro forma session on january 3rd that since their recess was still on a blasted within three days, it was a violation of the adjournment clause of the constitution. Thats one way to interpret it. Overlong. Time they have apparently been a pro forma those days. Or we could try to mean the same name which would minimus up to the senate. If they consider that a meeting, its a meeting. There is another option. If it violated two limits of the constitution quite you dont need to read that opinion. You may perhaps give the senate deference with respect to requirements that apply only internally to the congress. But when youre talking about the senate use of pro forma sessions in a manner that the president of authority that article too would otherwise. Thats my basic question. Why is this an important case . My really basic question is why is this an import case in europe union . He said theres thousands of recess appointments. Youve listed 7600 or so on the recess part. But you have been only been able to find 102 and moreover weve had an example of where this court, for better or worse fad diet to members of the board and weve got more members. Theyve doubt what the problem. They ratified all his opinions. It didnt take them too much time. We have different Political Parties taken absolutely opposite sides it seems to me or some members thereof depending on the Political Party of the president. We had a clause that had to do with the constitution and the problem of intersession recesses and they were sevenmonth and nobody can be. That isnt true anymore. So explain to me im not a nearby. I just want to hear from your mouth why this is an important case. It is important for multiple reasons with respect to practicalities and fundamental questions of constitutional structure. Let me start with practicalities it doesnt purport to be comprehensive or anything like comprehensive. Part of the reason why he cant be comprehensive is that they really are records of when the vacancy first arose with respect to use numbers of recess appointments or not is because i submit what was considered material. I cant comment there are practical examples in our history that made a very great deal of difference to make an appointment to the vacancy that preexisted the recess. Weve mentioned the 1948 example. The secretary of labor dies on the verge of a very extended intersession recess by the senate. They are going to be out of the month, back for 12 days and they go out in june, are out for a month. Theyre back for 12 days and all the way until december 31st. The secretary of labor dies just in advance of them going out in june. Remember 1948 disappeared a significant labor unrest. Would you agree that this clause now is not mostly used to do with emergencies arising from congressional absinthe, that most modern president s and ice age is going back to president reagan, president of both parties essentially use this clause is a way to deal not with congressional absinthe, the congressional intransigence when the congress simply does not want to approve appointments that the president dinks wants to be approved. You know, absence in this day and age is not the worst and buggy anymore. Theres no such thing truly is congressional absinthe anymore. That makes me wonder whether we are dealing here with what is essentially and his work relic, something his original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have. Two answers. I dont think its original purpose has disappeared. Nlrb was going to go dark, was going to lose its quorum. As a result of congressional refusal to that gets to the second point, which is that it may be true as a matter of raw power that the senate has the ability to sit on nominations for months and years at a time. But that is 100 miles from what the framers would have expect it. If you look at what hamilton said about the advice and consent role and thought it would be the power is rarely exercised and would operate if at all invisibly or silently. In the early days of the republic were advice and consent was a matter days. Thats a very, very aggressive argument and it has nothing whatsoever with whether to do the senate is in session or not. When the senate acts in your view irresponsibly and refuses to conform nominations, the president must feel to fill those positions. That is what youre arguing. I dont see with what that has to do with whether the senate is in session. The recess power may now act as a safety ballot given the intransigence. It is to the availability of the senate. I think you said throughout your brief that the recess power is the president must be able to have the government functioning and staff, even though the defendant is nowhere. But you seem to be departing from the senate not available and making quite another justification. The senate, to be candid, the senate is always available. They can be called back on very short notice. So what is it the constitutional law here . Citizen that it isnt available. It is available. Let me take half a step back if i could Justice Ginsburg and asked the question this way. Perhaps it sounds this is an aggressive assertion of executive authority. But i asked the court to get back to the federalist 51. What the framers were most concerned about with congress and the separation of powers calculus was going to a mass authority and Train Authority and energy from the executive and therefore the executive needed to be fortified against those actions by congress. One specific way in which the framers decided to fortify the executive was by rejecting the motion that the appointment power should reside in the senate. The framers considered that and rejected it and the reason they rejected as the court noted in the opinion was to protect the executive the compromise they settled on is that the president will nominate and the senate if it so chooses can confirm a nominee. He spoke of the intransigence of the senate for they have the absolute right not to confirm nominees the president said mays. It seems to be followed up in Justice Kagans point, youre latching onto the recess appointment clause as a way to combat the intransigence, rather then to deal with the happenstance that the senate is not in session when the vacancy becomes open. Those things there are often situations in which the senate was not in session and becomes open or needs to be filled in a more accurate way to say it. Ill give you another example of that code the 1940s are beginning enacted in 1947 and in the summer one requirement is that the general counsel of the nlrb must enforce the ban on secondary boycotts within a fixed period of time, 30 or 60 days. It turns out there is no general counsel at that time. The congress and the executives have come together to address those problems in a vast number of cases by providing there can be enacting general counsel of the nlrb to do with the situation. Mr. Chief justice with respect to multimember boards, the act doesnt cover them and that is one reason we have the problem here. Beyond that, the framers made a judgment this wasnt going to be laughed. That is why theres a recess appointment cause. Lets talk about your 1948 emergency the secretary of labor had a vacancy and not posed. The president has the authority to casino congress and whatever was the case in 1948 or in 1789. Congress can evacuate monday. Article ii Section Three says he may convene both houses. Thats true. But if there is indeed a terrible emergency are talking about, they have the power to call them back. Seems to me the framers made a different judgment because they give the president the power to call back an extra or a circumstance as in the recess appointment power and the framers had intended the power to call back for a way to deal with vacancies during the senate. The mac by electing us what the recess consists cannot be determined on the basis that while theyre going to be terrible emergency so it must enable the president to do this or that. Extraordinary emergencies are handled in the constitution. You dont have to expand the vacancy appointment power in order to handle those. What i would say about this and also to your point, mr. Chief justice, we have time to submit a stable equilibrium that has emerged over the course of this countrys history. Between the two branches. What were advocating for years the status quo. It is the equilibrium that has emerged since congress, since the senate started taking like the intercessions and started making recess appointments during those recesses that began in the civil war days and continue to the present. General, thats a really strong argument that i have to say im not sure it applies consistently through the each claims you make. If youre going to rely on history and the development of any polenta with respect to what happened and if youre going to do that again with respect to whether intercession recesses are included, it seems to me you also have to look to history and the development of an equilibrium with respect to the congress definition of its own power to determine whether they are in recess or not. In other words, the third argument about pro forma session, the history is entirely on the senate side, not on your side. If we are going to take that kind of continuing crack it and the development of equilibrium seriously, you might win on questions one and two amazon question three. Winning on questions one and two would be of great importance, but we should also win on question three. And here is why. Is in a long history with respect to the use of pro forma sessions in order to restrict the president ability to use the power. There is no history before 2007 at one pro forma session not her another after another in conjunction with an order that no business shall be conducted. Theres no law practice at doing it. Theres also no block practice of rejecting it. If i could take you back to that, he said the pro forma sessions may violate the adjournment loss of the 20th amendment. Would you also say they violate the presentment clause because the senate has passed legislation during these pro forma session and the president has found that legislation. I think the right way to think about that is the same maybe with ink about the Senate Declares its in recess from august 1st until september 15th and then comes back early because of an emergency with hurricane katrina. Once they are back doing business, the senate did with respect to legislation, your honor, identified they came out of the pro forma session and passed legislation and went back in under the order of pro forma session. It seems to me that we are searching here for a proper interpretation of the word session, which after all is in the provision way of looking at. Talks about next session. I would have a long tradition of congress defining what the session is. This is the 113th congress. I think Something Like that. They had the first and second session. That is how the records are based. This is considered judgment of both houses of the legislative range as to what session means and it seems to me that has very powerful bearing on the question of interand intra session appointments. And so why dont we defer to congress as to what the term session being and say that this gives us guidance as to when there is a recess. There is a recess between those sessions. I dont think that is an interpretation that really could be squared with the body of contemporaneous evidence from the time of the framing. Start with the text of the constitution itself in the adjournment cause that page 91 and eight of appendix to our brief. One thing it says is that neither house during the session of the Congress Shall without consent of the other, adjourn for more than three days seems clear for not language the session of the congress is referr