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tv   Key Capitol Hill Hearings  CSPAN  June 26, 2014 7:00pm-9:01pm EDT

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it's a permissible purpose to say this is a safe facility, but not a permissible purpose to say this is an unsafe facility? >> the statute is not focused on that person's speech. the statute is focused on -- on what they're doing in the buffer zone. >> but the consequence is just what is described by justice scalia, that is, the consequence of the statute. are you saying that the consequences of what you write are irrelevant to this argument? >> certainly, i wouldn't say that, your honor. however, with respect to >> it seems to me that you should answer justice scalia's question, then. >> with respect to viewpoint discrimination, your honors, the statute has a perfectly legitimate sweep. it allows people to go in and out of the building. it allows pedestrians to go -- move back and forth across the sidewalk, and it allows for even employees, the snow shovelers mentioned in the walter dell brief. >> well, you could have created a completely silent zone. now, i don't know whether that would be permissible or not, but it would be a different question. you could have -- you could say nobody can speak here.
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people can shovel snow. if they work for the -- for the clinic, they can sweep the sidewalk, they can do maintenance, they can go in and they -- and out, but they can't utter a word. well, that would be a different statute. but that's not this statute. this statute says that there is an exemption for employees of the facility if they are operating within the scope of their employment. and surely coming out and saying this is a safe facility is within the scope of their employment. >> right. >> so how do you justify that? forget about the conduct now. the speech that's allowed. one can speak and say it's safe. the other cannot speak and say it is not safe. >> what i would argue, your honor, is that speech in that particular circumstance of the employee actually doing her job and not unnecessarily cluttering the buffer zone, what -- then that speech is simply incidental to the permissible conduct. and it doesn't make the statute on its face -- it doesn't make it viewpoint-discriminatory.
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because as i said -- >> you think it's incidental? what if there's a real question about whether this is a safe facility? that's incidental speech? >> it's incidental to her performing her job. and, your honor, it -- if there were a circumstance where that kind of speech were habitual or widespread or touched on advocacy in any way, shape or form, then obviously, petitioners would have an opportunity to challenge the statute as applied. but, of course, they haven't even begun to make the case that there's viewpoint discrimination actually happening in the buffer zone. >> it's very hard for me to credit the statement or the implication that for an employee to say, "we're glad you're here. you're going to be well taken care of. this is a safe facility. it's important for you to be here," it's very hard for me to credit your statement that that's incidental to their function. >> it's incidental to the permissible purpose for which they are allowed in the buffer zone. and i should point out, actually, that
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pplm -- and again, this is in the walter dillinger brief at page 2a -- they actually train their escorts not to engage in that kind of speech. so that's first of all. and second of all, escorts really only exist and only operate in boston on saturday mornings for a couple of hours. they don't work at all in worcester or springfield. >> well, that raises another question, ms. miller, because i assume that that's true because the crowds and the obstruction really are with respect to one facility at certain periods of time. so mr. rienzi says, look, if it's at one facility, not all ten of them or whatever it is, and it's only for certain periods of time, not all day every day, you know, why not narrow it that way? >> right. >> so why not? >> because the experience has shown that you do have problems at worcester and springfield, and those problems do center around the driveways. 85 to 90 percent of patients who approach those facilities do so by car.
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and the only public sidewalk -- there's a small slice of public sidewalk between the road and the private driveway, and that's the only opportunity that you'd -- that individuals would have in order to protest. and what's happened in the past in worcester and springfield is that you would have pacing across these driveways. that's at joint appendix 41. you'd have individuals stopping and standing and refusing to move in worcester. you'd have literature thrown into cars. you'd have hands and heads thrust into open windows. and there was at least one accident in worcester. that's at j.a. 19. so there definitely was conduct that was a problem, and it wasn't even that there are a couple of lone protestors in worcester or springfield. there are 13 events in worcester and springfield. there are regular protestors there every week, first of all. and second of all, the crowds get much larger at the
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semi-annual -- >> i -- i object to you calling these people protestors, which you've been doing here during the whole presentation. that is not how they present themselves. they do not say they want to make protests. they say they want to talk quietly to the women who are going into these facilities. now how does that make them protestors? >> your honor, the problem, of course, that the statute was looking to address was not with protestors, per se. it was with people who had a desire to be as close to the facility doors and driveways as possible to communicate their message. but the result of that was congestion around these doors and driveways. so it wasn't a concern about the protest, it was a concern about people actually being able to use -- >> and i would think, ms. miller, that if you tried to do a statute that distinguished between protestors and counselors, that would be content-based much more than this statute is. >> i would agree. >> i mean, but -- you know, which is not to say that this statute doesn't have its problems, in my view.
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i mean, so i guess i'm a little bit hung up on why you need so much space. >> again, the experience. we've had quite a long experience in massachusetts, a long history of crowds around these doors or of even violence at the clinics. and we've had law enforcement and others who have viewed that crowd on a regular basis and have described it, the activity around the doors and driveways, as being so frenetic. you have so many people there, the bad actors and the good actors. you have so many people congested in the same space from all points of view that it effectively blocks the door. >> well, before you sit down, can i ask you this question that's suggested by the afl-cio briefs. suppose the state legislature has hearings, and they say there's a long history of violence and obstruction at sites where there is a strike and replacement workers have been called in. could the -- could a state pass a statute that says there is a 35-foot zone like this around every location in the state
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whenever there is a strike and there are replacement workers? could they do that? >> right. well, of course labor actions are protected by federal law, so any state law couldn't directly conflict with the >> all right. could federal law do that? >> well, this court has repeatedly upheld restrictions on labor activity, if given the right record. so there is -- so the answer is yes, the first amendment would permit regulation on the record >> in every case, in every case there could just be a flat rule. doesn't matter whether there is any history at that place, any indication there's going to be violence. maybe there will, maybe there won't. across the board, a zone around every place where there's a strike. >> right. well, certainly it would be an easier case to defend if there was a history, as we have here. and you'd have to prove that 7
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the solution -- >> you don't think there's a history -- you don't think there's a history of violence at places where there are strikes and replacement workers? >> well, i don't think there has been the kind of history and sustained violence that we've had -- this almost unique record in massachusetts with respect to facilities. but your honor, i would say >> that's not my understanding of the labor history. >> is there any abortion clinic that has not had -- is there any abortion clinic that has not had a problem in massachusetts? >> in -- there was, when the legislature was considering the statute, there was a survey submitted by naral that reviewed the experience of the ten facilities that were then in existence in massachusetts. and six of them said that they had significant problems outside of their facilities. eight of them said, at the very least, they had regular protestors. there were two who did not report that there was a significant problem. >> this is testimony by the by the clinics themselves, right? >> correct. thank you, your honors. >> thank you, counsel. mr. gershengorn.
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>> mr. chief justice, and may it please the court: the massachusetts statute here is simply a place regulation that does not ban speech, but instead effectively moves it from one part of a public forum to another, in this case away from the small areas -- >> which of our -- which of our precedents do you think governs this case? >> so, your honor, i think that there are a number of precedents that are helpful. madsen, of course, upheld the 36-foot buffer zone that had a no-speech zone very much like this. >> that was an injunction. >> it was an injunction, your honor, but it was upheld under an even stricter standard that -- that is applies here. but even aside from that, i think a number of the pillars of petitioners' arguments here are directly contradicted by this court's precedents. so, for example, the idea that -- that unrestricted -- that you have the right to choose the best mechanism of communication is contradicted by hefernon and by frisby.
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in hefernon, there was -- the petitioner said, "i need to be able to talk quietly to people to ask for money, and that's the only way i can get it." and this court said you have ample communication channels -- alternative channels over in that booth. in frisby, what the protestor wanted to do was target a house, and what this court said in frisby was you have alternative channels of communication. you can go door to door. you can mail things. you can make calls. so i think that that pillar of the -- of the argument -- >> what's the alternative here? yelling? is that the alternative? no, your honor. the alternative in this case is the entire length of the sidewalk, quiet counseling, leafletting, and conversation is permitted. it is the last four to five seconds before the petition -- before the counselors enter the clinic that --
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>> they don't know who's going into the clinic. until you get to the area close to the clinic, you don't know whether passersby are going there or not. >> your honor, the testimony is actually to the contrary, that they get -- that ms. mccullen and others get quite good at identifying who is going and is not going into the clinic. and actually so what we're talking about is the last four to five seconds before they go in. >> is your concern that, absent this statute, there will be physical obstruction to the entrance? is that a major concern? >> so, your honor, let me address that. the answer is -- the answer is yes, but that's not all. what the legislature had before it, and justice breyer -- >> let me ask, if that's your concern, how many federal prosecutions were brought in massachusetts for physical obstruction under the federal statute? >> your honor, i'm not aware of the number. there are 45 face prosecutions nationwide. but face is a very different statute. the criminal prosecutions in face are for -- are for murder, arson, and for chaining yourselves to doorways. they are not for the kind of quiet counseling and -- and picketing that's at issue here. >> but the federal interest that
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you're the defending is you don't want this physical obstruction statute to be misinterpreted. >> that's right. >> but what's wrong with the physical obstruction statute as an answer to many of the problems that massachusetts is facing? >> your honor, i don't think it's at all an answer to the problems massachusetts is facing because, as justice scalia has repeatedly pointed out, these are not the type of defendants who are at issue in the face act. what face act is talking about is murder, arson, and chaining to doorways. what this statute is getting at is something quite different. it is congestion in front of doorways. it is people -- individuals handing out >> that's obstruction under the federal statute. >> it is not, your honor, because those are specific intent crimes in both massachusetts and in the federal statute. >> justice holmes said even a dog knows the difference in being stumbled over and being kicked. you're saying federal prosecutions can't tell when people are deliberately
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obstructing? this is beyond -- this is beyond the realm of the law? >> i'm saying what's at issue here, your honor, is not that kind of -- of deliberative obstruction. what the testimony before the legislature was, was that there was a congregation of people and the massing of people. that indeed, there were pro choice protestors in the zone who have -- certainly are not intending to obstruct. and it was -- so what they were dealing with was quiet counseling leading to counter-counseling leading to congestion in front of the doorways. there also was testimony that there were people handing literature to moving cars, accidents and near accidents, which are not intentional obstruction in the least. the kinds of statutes that this court that -- that are at issue in the specific intent crime in massachusetts and the face act do not get at the kind of peaceful, quiet, yet congesting and disrupting conduct that is at issue here. and, justice breyer, i would urge you to look at the evans testimony at joint appendix 67
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to 71. the hefernon testimony at 79 to 80. the coakley testimony of ja-51, and the capone testimony at ja-19. there are specific arguments as to why these did not work. the argument petitioners make here, your honors, is very, very broad. the lower courts have upheld buffer zones around political conventions, around circuses, around funerals. the idea that you could defeat those buffer zones by simply saying, i would like to have a quiet conversation with the delegates as they go into the political convention, would wipe out a number of court of appeals decisions and the kind of buffer zones that this court, i submit, and that the lower courts have found are -- are needed. >> well, how far do you think -- what do you think a state legislature or congress needs to find in order to establish a zone around some category of facility at which there -- they have some evidence that there have been some disruptions and some obstruction? >> take the example of -- i think it's -- it's a real -- real ordinance someplace you can't have, there's a buffer
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zone around fraternal lodges. >> so, your honor, i'm not aware of the history of fraternal lodges, but what's at issue here is really >> what would they have to find? or slaughterhouses. or labor -- or sites where there are strikes. >> so i think -- i think, for example, in the slaughterhouse or what they found in around circuses and conventions is the idea that there is massing of people that prevents the orderly ingress and egress to and from the facilities. what the state was dealing with here was not an isolated incident, but the state had 14, 15 years of history of the massing. they had tried other things. they had tried the statutes that justice scalia identified. they had tried a narrower buffer zone, and the testimony was it wasn't working, and that the police were coming in and said, we can't enforce it. why is that? because they had a hard time measuring consent, evaluating what does -- >> what kind of a record do they need? could -- could there be a state law that says no picketing around any -- you can never have
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a picket around any store to try to prevent people -- to tell people don't go -- don't patronize this store. could they do that? isn't that thornhill v. alabama? >> right. and what actually, in thornhill, they struck that down. >> right. >> but it was very different from this statute. thornhill's was you can't go anywhere near the facility and it was -- it was only one type of speech. this is content neutral and it is -- it is a narrow buffer zone. justice kagan, i really urge you to because -- >> well, i mean, i understand. stop. i'll ask this one more time. >> yes. >> i think it's -- i understand the -- the desire to create a buffer zone around certain sensitive facilities. what i'm asking is what requirements, if any, does congress or a state legislature have to meet before they can do that? if it is done, do we simply say they -- they have a rational basis for it and that's it, so they can establish basically a buffer zone around any kind of a facility they want. if not, then what needs to be established? >> so, your honor, i think in the evidentiary realm, it's hard to have hard-and-fast rules.
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i would say you would need a lengthy history of serious congestion and other problems and -- and a some sort of showing that the alternatives weren't working, but that's what's here. this problem has been going on in massachusetts since 1994. this is not something the legislature woke up one day and said in light of one incident, we're going to -- to deal with this. they tried other things. they -- and the evidence, therefore, supported this. what would it take to support a broader statute? it's hard for me to say, but i think this record shows. >> one more thing. what about the example of a strike? there certainly is a long history of labor violence in places where there are replacement workers. could that -- could it be done in that situation across the board? >> so i think that would be a very broad statute and hard -- hard to defend. but if there were before the legislature, as there is in this case, the kind of congestion -- and the solution, i submit, is much narrower than the
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petitioners are suggesting. it is to clear out an area around the entrance. >> justice kagan, the testimony is 22 feet from the entrance in boston, 22 feet from the edge of the doorway to the edge of the -- of the buffer zone. it is from me to the marshal. it is not to the back of the courtroom. it is -- it is an nba 3-point zone. >> but i understand you're saying the reasonableness of it. >> but go back to justice alito's first question. maybe we can make some progress here. the regulation of labor is up to the nlrb. all right. now, the nlrb does regulate picketing. it does say what you can do and can't do, and the courts have reviewed that. and you -- what standard do courts use when the nlrb decides, in its wisdom and expertise, well, the pickets can go here, but they can't go there. you can do this, but you can't do that. all of which have speech implications. what standard of review do the courts use? >> your honor, i am not aware of the standard they use, but it is
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a -- >> are you aware of any case -- i'm putting it -- loading it because -- only because to show my ignorance of it -- where the standard has differed from the ordinary apa standard? >> i'm not, your honor. i'm not aware of cases one way or the other. >> should we create a new standard for reviewing this kind of regulation? i think that's actually a serious question. >> i don't think so, your honor. thank you. >> thank you, counsel. mr. rienzi, you have three minutes remaining. >> thank you, mr. chief justice. several points. first, it's not impossible to draw a statute to deal with the problems. 49 other states deal with the alleged problems. the next prosecution massachusetts institutes for blocking a door will be its first in at least two decades. >> is that true, mr. rienzi? is massachusetts' statute the only one of this kind? >> it is the only state statute of its kind. there are a few municipal statutes of -- that are similar that are, frankly, based on the first circuit decisions in this case. secondly, here, the police officers testified that they know all the regular players at the clinics. that's their testimony. they know them all. well, if you know them all and if they're congregating in the doors and they need to get out of the doors, you should go to court and get an injunction and say, stay out of the doors.
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until they do that, the claim that they have to throw their hands up and put people in prison for peaceful speech is not a very persuasive claim. secondly, all of the evidence that the united states cited -- cited you to from the record, all of it, boston, saturday mornings. the claim that the legislature can extrapolate from that to ban peaceful speech in boston at other times when the sidewalk is empty, and at other clinics where the sidewalk is empty 16 and say, well, there's abortion there, and where there's abortion, we expect certain speech problems, therefore, we're going to make it illegal to speak there. that's the state's claim here. the evidence is boston specific. the first amendment requires precision. they need to regulate the problem where it happens and if that means police officers, if that means dispersal laws, if that means actually bringing a face prosecution, which the united states has never done, they ought to do that. but they shouldn't imprison mrs. mccullen for her speech. third, the united states mentions -- >> are you questioning the
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government's representation? i haven't looked at face. >> is it limited to the three situations, to -- to murder, arson and chaining? >> thank you, your honor. no, it is not. the statute is not remotely limited to that. i direct the court to section c -- i'm sorry, section -- it's the definitions section of the statute. definition 4, physical obstruction, includes even making entry unreasonably difficult. it is not at all solely for violence. it's for physical obstruction even making it unreasonably difficult. counsel said that they brought 45 cases across the country. that's true. zero, zero in massachusetts. they shouldn't be able to restrict the peaceful speech. lastly, to the extent the court feels the need to recognize that there are some situations that are so extraordinary that we should put people in prison for peaceful conversations on public streets, that ought to be the exceptional case where the statute passes strict scrutiny and the state actually has tried the solutions that it claims don't work. that is not this case. the government does not claim its restriction to pass strict scrutiny. they didn't say it would be impossible. they said it would be hard. 49 other states do different things.
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the federal government protects peaceful speech in the face law. face is a great example of something that deliberately gets at the problem and if somebody's in the doorway and they need to get out of the doorway, the answer is, sir, please get out of the doorway. it is not dragging mrs. mccullen off to prison because she has a consensual conversation 25 feet away from the doorway. that's an extraordinary power for the government to ask to selectively control speech among willing participants on public sidewalks. thank you very much. >> thank you, counsel. the case is submitted. the supreme court heard this case in january and handed down its decision today. unanimously the massachusetts law creating buffer zones around of orson clinics limits the free speech rights of antiabortion activists. found states can pass laws ensuring access to
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abortion clinics, but can't prohibit speech on public streets and sidewalks. obama kicked off what the white house is calling a series of day in the life summer trips to meet with americans. tomorrow he is speaking at minneapolis. you can see that here on c-span. speaksorrow john dingell at the national press club in washington. office since 1955 and has titled his speech "when congress worked." >> what i have is a partially ross asked client that i have cut down and then i took off all of the big leagues and those were sent into the kitchen. they have a small amount of thc.
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these little leaves are the tight trim. that can be dried and made into joints or sent to the places that make extractions. and then right here, we have the finished blood. to dry sent over to cure before it goes to the dispensary. >> washington journal looks at of marijuana in colorado. friday morning from 7:00 to 10:00 on c-span. >> we want to welcome hakeem jeffries, and democrat of new york. you also have a law degree. the do you make of situation of these minors crossing the border in the united states to flee the central american countries? this is a significant
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humanitarian crisis that requires multi pronged action in response. we have to do a better job trying to secure our borders billwas inherent in the that was passed in the senate that has been stalled in the house of representatives. we ine to work with mexico terms of dealing with a dynamic on the mexico quad a mall border, which is the entry port from guatemala, on doors, and salvador. we have to make sure when the children arrive, they are treated with midi and respect and with humaneness and are giving due process they will be subjected to. they may not actually have a valid claim to remain. but some will under current
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immigration law. that is why we have proposed providing every single unaccompanied minor with access to counsel to expedite the processing that may exist in the current u.s. law in the context of these proceedings. >> what about the national kids,ty threat from these or children, and others remaining in this country? you also have a health threat. surfaced among you legal children crossing. the first case was found among those crossing to america leading authorities to ship backing -- vaccines. >> a betweenn, somewhere 40000 and 50,000 companies have
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could have 90,000 issue. as compared to 24,000 last year and 13,000 in 2012. there has been a dramatic increase. one of the things the current law requires is after 72 hours the unaccompanied minors are turned over to health and human services, which is equipped or better equipped to deal with a to protect of issues them and the border of the u.s. dhs is doing the best they can. host: you have legislation to give these kids due process, what would it to? guest: it would provide accesspanied minors with to counsel in the context of the immigration proceedings. recognizing that many might not have a valid legal claim to remain, but some will. under current u.s. law that could be an asylum claim because of a legitimate fear of
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persecution or should they be returned to their country. there is something called special immigrant juvenile whous, available to minors have been abused, neglected, or abandoned by parents. visas available to minors that have been victims of violent crime, have suffered trauma, and are cooperating with authorities. the providing of counsel will also help expedite the procedure that each of them are going to be subjected to in terms of the immigration process. conserve judicial resources and reduce unnecessary detention once a determination is made that someone may have a valid basis to remain or should be removed. it will increase the removal proceedings. all of which will save taxpayers money. host: how?
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guest: because of the conservation of resources. the tension is expensive. if you can reduce unnecessary detention you save money. host: are the taxpayers going to have to pay for this legal counsel? guest: that's what is contemplated by the law. we have to determine what the cost may be. studies have suggested that in terms of a cost-benefit analysis, taxpayers will save money at the end of the day because of the expedited removal. once it is determined that there is no valid claim to remain, removal can take place and i saves money. the reduction of proceedings that are no longer prolonged, the conservation of resources saves taxpayers money. someone it is clear should not be declaimed, a six
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or seven-year-old poses no threat to society, the reduction could takeion, which place when someone has an attorney, there is a reduction of 11 days of detention that otherwise were deemed to be unnecessary. the tension is very expensive. host: you and your colleagues heard from border officials that the children coming here over the past five years have meant staying in the country for years after they get here. of the unaccompanied children apprehended, 87% are still awaiting court rulings. would your bill address this. it doesn't address the broader
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points you have raised to make the digestion process -- judicial process more efficient. we have taken that step weight best way to increase the amount of immigration judges in order to expedite the proceedings. some of the proceedings addressed yesterday in terms of unaccompanied minors were not necessarily substituted as far as i can tell, but there is a legitimate reason to believe we have to expedite the immigration proceedings. those that do not have a valid basis to remain should be removed. be givent do should every opportunity to vindicate and then a decision can be made. host: a tweet -- change the law, make the protocol the same. guest: i am not clear that is
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the right thing to do, although we should take a look at whether that would be appropriate. what we do have is an overwhelming majority where unaccompanied minors come from do -- to come from countries or molokai honduras. those are among most dangerous in the world. in fact, honduras has the highest homicide rates in the world. in those three countries, 95% of homicides over the past several years go unresolved. so there is a climate of violence and intimidation and gang activity that insists -- exist in those three countries in particular, so there is reason to believe the manner in which they are treated is appropriately different than the manner in which we deal with individuals from canada and mexico at the present moment. guest: jamie waiting to talk to you from pittsburgh. caller: good morning, congressman. is already the worst
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tax state in the union. and losingrregulated people at a greater rate than any other state in the u.s.. why first are these kids being shipped, and why are we paying for them to come to new york? fewt: well, there are a sensors in new york, to in the new york city metropolitan area and some in the upstate region. in terms of the appropriate protocol that exists right now, we cannot simply turn a five or six or seven and eight-year-old away, or even a preteen or 15,companied minor who is 16, or 17th back to a situation
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in honduras, guatemala and el salvador that may result in their death. proceedingsopriate consistent with current laws that exist on our books. now, obviously there is a whole host of problems we will continue to tackle in this country, reviving the economy is something i got an opportunity to work on as a member of the new york state legislature and certainly an essential public policy agenda that all of us should be concerned with tackling to represent new york state in the congressional delegation, but we have to be able to multitask as a whole host of issues we have to confront. this happens to be one right now. >> nick in jacksonville, florida. good morning. >> for six years i have heard from the democrats that our borders are secure, but why is this still going on? we should militarize the border down there and stop this. obama is the one who sends the
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message to south america. they told them to come on in. you is your comment? host: think the president sense that signal with what? caller: the way he has been thomas the borders andwith the everything in the dreamers and stuff like that. i do disagree with the underlying premise. first of all, deferred action come executive order issued in 2012. related to so-called dreamers who were brought to the country .t a very young age particular executive action would only apply to individuals who have been in this country
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of twotively since june thousand seven. with respect to comprehensive immigration reform bill the president supported that was passed by democrats, independents and public ends a pretty robust margin last year. would only apply in terms of creating probationary legal status and a pathway toward citizenship for individuals who have been in the country since december 2011. actionse, none of the that have been taken and supported by the administration would actually be applicable in terms of legalization of unaccompanied minors come into the country right now. host: melissa on twitter -- guest: one thing we do have to take i believe is better cooperation with a mexican government in terms of securing the border of mexico and guatemala.
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borderted states mexican is over 2000 miles. it is a very difficult order to police, as we have seen. border between mexico and guatemala is under 200 miles. there is a real opportunity to deal with border security in a two-pronged fashion. we obviously have to continue to to providecessary -- necessary resources for border security in this country, but if we can cooperate more with the mexican government, secure increased capacity for them in policing their border with guatemala under 200 miles much easier to do. it is a lot easier to defend the ball on a 35 yard line and it is on the five yard line. host: usaid announced it was -- 40g 40 militant
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million to improve security. 25 million to combat crime and violence and 18.5 million to under risk for criminal or -- similar crime prevention. independent scholar in sarasota, florida. caller: i am having a problem listening to this. seems as though congress is stymied. we can send and criticize the borders in iraq and afghanistan and all the other places and cannot even secure the border and cannot take immediate action. it will cost us money in the long run because of your figurative act. disgustedam really with what i see.
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actt: i think it is time to on comprehensive immigration reform. we have a broken system. the senate act as last year, i believe in july. 52 democrats, to independence, 14 republicans. they did come together to come up with a package that would remedy any of the things that are broken in terms of the immigration system, dramatically improved border security by increasing resources available from a particularly as it relates to the border between mexico and the united states, and house republicans refuse to -- bring comprehensive immigration reform to the floor, so i do believe it is time to act. hearingst oversight this week. that is the constitutional ability on behalf of the
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american people. certainly your premise is correct, time for action. host: john boehner did say he would form a working group to look into the border situation. >> we have a group of members i think are uniquely qualified to understand what is happening down there, to help our members understand what the facts are as suggest to the administration things that we think can be done or should be done, and if necessary, make suggestions to our members about changes in the law that might need to occur. it just seems to me, given the magnitude of the graces and the fact that it appears it will continue, that we ought to get a better handle on this. have you started to ask what
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to do? >> i have given them suggestions. >> i would hope it would have information for the members the week we are back from the fourth in terms of outlining more specifically what the problems are. host: congressman would you serve on the working group? guest: i think that is a decision for speaker pelosi to make in terms of democratic participation. this does not come in the category of the run-of-the-mill argument and disagreement between democrats and republicans. this is a significant humanitarian crisis, the likes of which we certainly have not seen in modern american history and requires a multi pronged response. the department of justice will have to step forward. the department of homeland security, secretary johnson doing a great job. health and human services has to
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deal with the care and humanitarian aspect with the care and treatment of our children. we also have the department of state that needs to be involved. i know secretary kerry has increasingly stepped up communications with those in the thehern trial, which are root cause of the problem in terms of the lawlessness that exists in the country, creating a climate for this to take lace. host: richard next. republican caller. caller: yes, the border problem is simple. you are not enforcing the law. -- why would republicans agree to any new amnesty-type bill? abused authority. anything past would be changed by him probably if it were not to his liking. enforce the law. 181st airborne and special forces down there and do
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not let anyone in. it can be done. what about the national guard, something republicans have called for, to put the national guard down there? i think we have increased resources available to custom border control agency. something passed by the senate would do. i think that is a necessary step. in terms of the notion the president has not enforced the law, under this president more people have been deported than any other president in the united states history. the obama administration has in has been forced the law and gone overboard in terms of separating families and removal of individuals that perhaps may not be justified. that certainly is a position of the strongest immigration there that problem.
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very complex. caller: please don't cut me off. tois obvious from talking talking to people they are using the kids to game the system. you as a lawmaker should be aware of this. ok, i have to ask you, as a member of the congressional black caucus on the why is the congressional caucus supporting illegal immigration or reform immigration when the end of limit rate in the black community is 15-20%? guest: thank you very much for the observation. one, i believe comprehensive
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immigration reform is comprehensive with the values and independent studies have shown if we were to enact it, it would greatly improve the united states economy. it would add to the treasury and would reduce the deficit. that is good for everyone. if we have a current immigration system that exist that is broken and we have employers who are not necessarily vigilantly regulated in terms of the hiring of undocumented workers, that impacts the african-american community in terms of the individuals you are speaking about related to unemployment, americans every other seeking employment. if you have employers who are able to currently game the system, without consequence, that has actually -- that is actually what hurts the average ordinary american otherwise seeking employment.
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that is one reason why we have to deal with the situation and fix the broken system. your colleague yesterday calling on the president to do immigration by executive order, giving up, as it says in the paper, any sort of comprehensive reform passing through the house and senate. think the president should closely look at taking whatever steps he can under law, using discretion and constitutional authority of thet to article two united states institution, but there certainly will be areas where congress is the only entity that can act, and we just have to continue to press the case in the house of representatives that it is time for action. it this humanitarian crisis does not prompt the need to engage, i am not sure what will. host: the use of executive action by the president has prompted the speaker of the house to file suit he says, but the presidentnst
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for superseding congress's power against many different issues. it is not clear to me where the newfound vigilance to congressional authority has come from send john boehner and other were in congress. boehner and other were in congress. george bush took actions administration and encourage the use of executive action and demanded -- and many believed were inconsistent with the law, if not the constitution and the silence was deafening. this is a political statement. differenceis the between what the bush administration did if you think they were wrong then and what the president is doing now? what the bush did was clearly an overreach. what the president has done is
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consistent with the authority that otherwise exist in the law andthat has been viewed deemed an existence since the founding of the republic. this is a president that clearly has not been embraced at any point in time during his presidency by my friends on the other side of the aisle, and in some ways it is unfortunate because it is a time for politics during the campaign season and then there is a time to govern. we have serious problems in this country. we still have an economy trying to kick into high gear. there are unemployed americans who have been cut off from unemployment compensation. this country needs a raise in terms of middle-class that has been falling behind. there are serious problems, and the notion that a lawsuit will be filed by the house republicans because this president allegedly has engaged in unconstitutional overreach is
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a political gimmick, and i think we have to get back to doing the business of the people. host: similar collars believe the obstruction is because he is african-american. do you believe it is because of his race? guest: i do not necessarily believe it is because of his race, although i do not believe that should be discounted. we certainly have a history of , voterment, jim crow suppression directed at the african-american community, and we have not completely moved beyond that, but i think there are serious philosophical differences, and you are seeing a more extreme republican party that exist right now being led by the tea party factious, which is small but powerful in terms of the direction. the same group responsible for shutting down the government, recklessly costing us 24 billion in lost economic activity.
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the same group that brought us to quest ration. the same group that now refuses to renew unemployment insurance. so there is policy disagreement that results from the extreme of some of the house of representatives. that is unfortunate because i think there are a lot of people housedwill in the republican conference that want to find common ground, and i am just hopeful their voices can be heard as we move forward. houses coming into morning session and about 10 minutes, an hour earlier than usual as both bodies of congress prepared to vote and then leave for the fourth of july recess. we have about 10 minutes left with congressman jeffries. mary in ohio. caller: i have a little bit different take on this. these countries are primarily catholic.
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brief --e no reproductive rights in these countries, and they are forced to have more children than they can afford or protect. now these countries realize they cannot do this either so they are shipping their problems to us. why can't we ask these countries for money to help take care of these children? also, we should ask the vatican. the catholic church has been strangely quiet on the subject. i think the catholic church can play a very productive role, both in the a central american countries of water model, honduras -- guatemala, honduras and providing assistance to the minors. these countries are extremely poor in general so i do not think it is feasible for them to provide the united states of america, the most powerful
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country in the world, with any assistance, but we do have to work cooperatively with them and they have to take some accountability for the lawlessness that exist. a climate of violence, intimidation, gang recruitment, sexual abuse, which in many ways, has created a situation where children are literally running for their lives. it is also central to know that other american countries, nicaragua, panama have all experienced exponential increases in asylum applications run the same three central american countries to which unaccompanied minors are coming to the united states of america. what that suggests to me is that this is not a crisis generated by uphold them the united
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states. that these children are being pushed out because of the extreme dangerousness that exist, and some are coming to the united states certainly but also going to other countries of the region. caller: hello. saying this president has deported more illegal than any other, saying it does not make it so. for instance, leading 38,000 convicted criminals, you legal criminals out on the streets to isy on the citizens certainly not enforcing our laws. you blame everything on the republicans in the house. that is not true. the democrats and president are trying to rule by fiat. unemployment benefits
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are being cut. unemployment benefits are being cut because we do not have a money egg we can produce constantly. however, he spends it like we do. we have to support all of the illegals who are here in draining the system. jobs under the table and illegally. and we cannot afford to take every trial they say they are having problems in their country. we have to put the national guard on the border and stop all incoming. patrol say they cannot stop gangs and terrorists from coming over because they're babysitting the children. guest: the first is just factually clear that this president on a year by year comparison has deported more individuals from this country
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than any other president in american history and certainly a side-by-side comparison with deportation with the previous president. the obama administration has forcefully engaged in upholding our nation's immigration laws. i am not sure where it they came .rom one thing is trying -- crime continues to drop, certainly in new york city district i represent. we still have a long way to go. but things have greatly improved. we do have a fiscal situation we have to confront. part of the reason the debt
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tax cuts were enacted largely benefit running -- benefiting the wealthy and well-off and 2001 and 2003. all of the activities were not paid for at the time. as a result, america has been asked to shoulder an incredible debt burden. we lost trillions and trillions of dollars in wealth in america. in order to right the ship. that is why we are in the situation we're in right now. we should all come together to address it. last point, did you hear yesterday in the judiciary committee from border folks that because they are distracted by dealing with the kids that there is a national security threat here, the domestic front. criminal are getting through and drug cartels are getting through. theoretically the border
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agents are being stretched to capacity. that is just an empirical reality given the nature of the crisis. i was heartened to hear in their view there is not an appreciable increase in the number of gangs or drugs, cartels attempting to cross the border. that the nature of this particular humanitarian crisis is very different. unaccompanied minors on individuals fleeing violence, not inherently violent criminals themselves. caller: hi. thank you for taking my call. question for representative jeffries. do you honestly in your heart believe that you will be able to solve this problem? i ask this because these countries know that once these children get , that they will pull on the heartstrings of the united states of america.
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they study our judicial system. they know exactly what they are doing. i am not saying that in a hateful manner, just being realistic. don't you think they know these children are not going to go back? looking at these pictures i would not send one single one of these children back into a situation. i want to know, do you honestly think we will be able to solve the problem? thank you. guest: we are a nation of laws and ultimately these will have to be upheld in a fair and strong and robust fashion. , coyotes individuals and human traffickers taking advantage of the highly violent nature of the situation in the central american countries, communicating misinformation, perhaps encouraging some parents to send their children on a very perilous and dangerous journey.
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instances through three different countries under very extreme circumstances to come to the united states. there may not be a valid legal basis to remain. we have to sort that out. this is a country that has always confronted great challenges and has been successful. we confronted a tremendous challenge in the civil war. we held it together and came together as a country and moved forward. we confronted the challenge in the aftermath of the great depression and october 1929. empire of japan. they overcame great challenge in my home city and the aftermath of the terror strikes of september 11. america certainly has the capacity to deal with everything thrown at us and to come out stronger. host: >> coming up tonight, we bring
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you oral arguments in two cases decided by the supreme court today. first, national labor relations board versus noel canning. challenging president obama's recess appointments. after that, a case challenging a 35-5 buffer zone around abortion clinics in massachusetts. he supreme court ruled unanimously that president obama exceeded power under the constitution by filling three federal positions when the senate was on a brief break. an article notes that while the president is authorized to fill vacancies while the senate is on recess, the senate was not on a true recess in january of 2012. justices were split 5-4 on whether the modern presidency should retain the right to make recess appointments.
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justice scalia wrote, "the decision transforms the recess appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future presidents against future senate s." the oral argument from january. it is 90 minutes. >> we will hear argument first this morning in case 12-1281, the national labor relations board v. noel canning. general verrilli? >> mr. chief justice, and may it please the court, the interpretation of the recess appointments clause that respondent urges would repudiate the constitutional legitimacy of thousands of appointments by presidents going back to george washington, and going forward, it would diminish presidential authority in a way that is flatly at odds with the constitutional structure the framers established. respondent simply has not advanced the compelling case that would be needed to strip presidents of their traditional authority to make appointments during intra-session recesses and to fill preexisting
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vacancies. >> you say that it would repudiate the constitutionality of appointments. you don't suggest that those -- the actions of those appointees would be invalid going back however far you want to go back, do you? >> no, but they -- no, i don't, mr. chief justice, but it certainly would repudiate the legitimacy of those appointments. >> why not? >> how did it affect the -- how many board decisions will have to be redone, or how did -- how is the board coping with that problem? >> well, there are many dozens of board decisions and, perhaps, many hundreds of board decisions that are under a cloud as a result of the d.c. circuit's ruling in this case. and so, the board will have a considerable amount of work to do in -- if the d.c. circuit's decisions were to be affirmed. now, there would be issues about waiver, there'll be issues about whether there -- there is authority sufficient to justify
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what the board did under other circumstances or apparent authority argument. so that would all have to be sorted out with respect to the board's role. >> what would happen, under the reasoning of this case, what would happen to the decisions of recess-appointed judges? of which there has been quite a few. >> i think that would be a very serious question, justice sotomayor, and i think it does point up the difficulty with the position respondent is urging. >> well, surely, you would you would argue the de facto officer doctrine. >> yes, we would. >> of course you would. >> yes, we would. >> and we've applied that in innumerable cases. you don't really think we're going to go back and rip out every decision made. >> well, i would certainly hope not, your honor, but it certainly casts a serious cloud over the legitimacy of all of those actions. and it does point up the fact that the recess power, including appointments during intra-session recesses and to fill preexisting vacancies has been used to fill offices of great importance. >> you started off by saying, you know, it would repudiate so many actions that have been
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taken. i have a very, very stark question -- suppose i agree with the court of appeals that the only interpretation of the constitution is that the vacancy must have arisen during the recess, just by hypothesis. i agree with that, ok? what do you do when there is a practice that -- that flatly contradicts a clear text of the constitution? which of the two prevails? >> now, i think the practice has to prevail, your honor, but i do -- and i -- >> so if you ignore the constitution -- >> but i don't think -- >> often enough, its meaning changes? >> but, your honor, of course, in this situation, the meaning of the clause with respect to the timing of the vacancy has been a matter of contention since the first days of the republic. >> now, you're questioning my
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hypothesis. you have to accept my hypothesis. >> well, i think i've answered the question accepting your hypothesis, but i think -- >> let's assume that the text is clearly against you. should i say, oh, yes, it says something else, but the practice for over 200 years has been something different and it's the practice that must prevail. >> well, the practice has started with george washington, and it has worked through the -- >> yes or no? >> i think i've already answered that. >> does the practice prevail over the clear text -- >> the practice gives meaning to the constitution -- >> you're questioning my hypothesis again. >> no -- >> i am assuming a clear text of the constitution and a practice that is -- is contrary to it. >> it's extremely unlikely that would arise if the text were so free of doubt. but if -- >> you do not want to answer my hypothesis. >> no, i am answering. i think i already answered it once, justice scalia, but i'll answer it again. the answer is i think, given this -- a practice going back to the founding of the republic, the practice should be -- the practice should govern, but we don't have that here. this provision has been subject
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to contention as to its meaning since the first days of the republic. >> well, let me ask you about the premise. a vacancy is something that begins at a particular point in time and then it continues for some period. and i was trying to think of some other things that might fall into the same category. one would be an appointment to a federal office. so you were appointed as solicitor general at a particular point in time, and the appointment continues. another example might be a marriage. it happens at a particular point in time, and it continues for a period of time. now, would we say that your appointment as solicitor general is happening today and will happen again tomorrow and happened yesterday? is that the way the english language is used? >> but the word "happens" may not always be an apt phrase, the phrase "may happen," the constitutional phrase, but it is a natural use. and if i may, justice alito, i'll give you a counterexample. if congress had enacted a statute in the summer of 2008 that said the federal reserve is
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invested with all powers necessary to deal with any financial emergency that may happen in 2009, if that emergency first arose in november of 2008 i don't think anybody would interpret that statute as denying the federal reserve the authority that congress conferred. and that's because "may happen" -- "may happen" won't cover every situation of a persisting state, but it's certainly a natural reading of it that covers some. and as jefferson said, it's certain this context, it's certainly susceptible of being interpreted to mean -- >> general verrilli, we've taken you off your starting point. your starting point was what is it -- what constitutes a recess. and your position is that it can be an intra-session recess. but if we look back historically, congress met and they met continuously. and then they went on horseback
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back home and they were away for 6 months, even 9 months. today, there's nothing like that. the inter-session recess could be, could be an hour. so what do we do with that? there was the vision of a long recess running for months and today, the inter-session recess might be momentary. >> so i think i have two points to make in response to the question of what to do. the first one is that, with respect to the original understanding, we do think that the term "recess" and the phrase "the recess" certainly at the time of the founding did encompass recesses that occurred during a session of congress, during a session of the legislature, and not just in between sessions of the legislature. i would point the court to jefferson's manual of parliamentary procedure, which
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describes a recess by adjournment as occurring within a session. i would point to the adjournment clause itself, which says if the -- one house of congress wants to take a break of longer than 3 days during the session, it needs the consent of the other house, which indicates that the framers contemplated the possibility of a break longer than 3 days. i would point the court to the parliamentary practice of the house of commons, where the speaker of the house of commons had authority to call elections when a member died during the recess. >> well, of course, justice ginsburg's question points out that your argument is, it seems to me, in search of a limiting principle. a lunch break, a one-day break -- you've thought about this -- a 3-day break, a 1-week break, a 1-month break -- how do you resolve that problem for us? >> i think the way we resolve that problem is by looking to the adjournment clause. we think if it's a break that is sufficiently short, that it
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wouldn't require the one house to get the consent of the other, but that's a de minimis recess and that's not a recess in which the president would have authority -- >> is that 3 days? >> and what about the pro forma sessions, then? they don't -- or correct me if i'm wrong. they don't require the consent of the other house. >> well, but the problem with the pro forma sessions, i think, justice kennedy, is in thinking about the length of the recess. the recess, we would submit, and this is based on the formal dictionary definition of "recess" at the time of the founding and now, which is "a suspension of business," the recess was from january 3 when the session started until january 23. and the reason i think that -- >> so you think there's 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 and that's a formal >> well, let's just talk -- let's focus on that.
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what if, instead of saying "no business shall be conducted," the order said, "it is not anticipated that any business will be conducted." does that suffice to eliminate that period as a recess? >> i think that it's a that's a different case and i think, concededly, a significantly harder case for the executive because here -- >> yeah. well, it's difficult and harder, but it also suggests that you're just talking about a couple of magic words that the senate can just change at the drop of a hat. so maybe the point is not that significant. >> well, i think it is significant, mr. chief justice. it's a formal action by the senate by rule saying that no business shall be conducted. and then in addition, there are other formal actions that the senate took during this period that are confirming indicia. the senate passed a resolution that gave committees the authority to submit reports and report bills. they passed a resolution giving the president pro tempore the power to sign enrolled bills.
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it passed -- >> general, i think you're not answering the real thrust of the chief justice's question, which is that we could just be back here if we said, well, they didn't phrase this in the right way. well, they'll phrase it differently and we would be back here with the same essential problem, that you're asking us to peg this on a formality that the senate could easily evade, and that suggests that it real is the senate's job to determine whether they're in recess or whether they're not. >> i think there has to be a limit to that point, justice kagan, because, after all, what we're talking about here is a power that the constitution gives to the president, the power in article ii. and the president has got to make the determination of when there's a recess. >> but why? you're making an assumption, which is that the senate has to take a recess. but the senate could choose, if it wanted to, and i think there might be some citizens that would encourage it to, to never recess. >> sure. of course, it could. >> and to work every day, which -- >> that's true. >> lots of people do. >> that's true.
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they could decide not to take a recess. >> so -- >> that's absolutely true. but it seems to me that that is the choice that the constitution puts >> so what do you say about the 20th amendment, which says that that january 3 was a meeting? are you saying they violated the 20th amendment? january 3. this says the congress of the united states shall meet on january 3 every year, unless they appoint a different day. >> yes. >> and they haven't. and, therefore, they met in pro forma session. or do you think it wasn't a meeting? and what do you think about the other part of the constitution which says they can't adjourn for more than 3 days without the approval of the house, which they didn't have. so are you saying that the senate violated those other two amendments of -- the two parts of the constitution, or are you saying that they have different meanings in the three parts? >> i think our view is that it's hard to see how the -- what the senate did with pro forma sessions complies with either and -- >> ok. so you're saying they violated. but if they have pro forma sessions on january 3, they
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violate the 20th amendment to the constitution. you are saying that if they had a pro forma session on january 3, that since their meeting -- their recess was still on and lasted more than 3 days, it was a violation of that adjournment clause of the constitution. now, that's one way to interpret it. over a long period of time, they have apparently met pro forma on those days. or we could try to make them mean the same thing, which would mean it was up to the senate. they consider that a meeting, it's a meeting. what do we do? >> or there is another option, justice breyer. >> would you write that opinion, saying the senate of the united states has violated two provisions of the constitution? >> no, no. i don't think you need to write that opinion. >> all right. why not? >> because you might, perhaps, give the senate some deference with respect to requirements that apply only internally to the congress. but when what you're talking about is the senate's use of pro forma sessions in a manner that
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deprives the president of authority that article ii would otherwise give >> would it -- i mean, that's my basic question really. why is this an important case? i see what you're saying on this one. that's fine for an answer. thank you. >> so why -- >> what my really basic question is why is this an important case, in your opinion? now, you've said, oh, because there are thousands of recess appointments. not on the happen clause. you've listed 7600 or so, really, on the recess part, but on the happen clause, you've only been able to find 102. and moreover, we've had an example of where this court, for better or for worse, said that two members of the board is not a quorum, and we got some more members, they dealt with the problem. they ratified all those opinions, they dealt with it. it didn't take them too much time. so -- and we have different political parties taking absolutely opposite sides, it seems to me, or some members thereof, depending on the political party of the president.
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and we have a clause that had to do with the constitution and the problem of intra inter-session recesses when they were 7 months and nobody could meet. ok, that isn't true anymore. so, explain to me. i'm not saying you're wrong. i just want to hear from your mouth why this is an important case? >> so it's important for multiple reasons with respect to practicalities and fundamental questions of constitutional structure. let me start with practicalities and with the happens point, the "may happen" point, that our appendix doesn't purport to be comprehensive or anything like comprehensive. part of the reason why it can't be comprehensive is that there really aren't records of when the vacancy first arose with respect to huge numbers of recess appointments, and that's because, i submit, it wasn't considered material. but second, i can -- there are numerous practical examples in our history of when it made a very great deal of difference
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that the president had the authority to make an appointment to a vacancy that preexisted the recess. we have mentioned the 1948 example. the secretary of labor dies on the verge of a very extended intra-session recess by the senate. they're going to be out for a month, back for 12 days, and then out all the way from june -- they go out in june, they're out for a month, they are back for 12 days, and then they're out all the way until december 31. the secretary of labor dies just in advance of them going out in june, and this is -- remember, 1948 is a period of significant labor unrest. we needed a secretary of labor in place. >> general, would you agree that this clause now is not mostly used to deal with emergencies arising from congressional absence? that most modern presidents -- and i say this sort of going back to president reagan, presidents of both parties essentially have used this clause as a way to deal, not
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with congressional absence, but with congressional intransigence, with a congress that simply does not want to approve appointments that the president thinks ought to be approved? you know, absence in this day and age this is not the horse and buggy era anymore. there's no real -- there's no such thing truly as congressional absence anymore. and that makes me wonder whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have. >> well, two answers. i don't think its original purpose has disappeared. i mean, the nlrb was going to go dark. it was going to lose its quorum. >> yes, as a result of congressional refusal, not as a result of congressional action. >> and 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
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and years at a time, but that is 100 miles from what the framers would have expected. if you look at what hamilton said in federalist 76 about the advice and consent role of the senate, he said he thought it would be a power that was rarely exercised and would operate, if at all, invisibly or silently. and in the early days of the republic, it was -- advice and consent was a matter of days. >> but you are making a very, very aggressive argument in favor of executive power no, and it has nothing whatsoever to do with whether the senate is in session or not. you're just saying when the senate acts, in your view, irresponsibly and refuses to confirm nominations, then the president must be able to fill those positions. that's what you're arguing. i don't see what that has to do with whether the senate is in session. >> well, i do -- i think this -- i think the recess power may now
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act as a safety valve given that intransigence, and that is actually quite consistent >> but it isn't tied then to the availability of the congress, availability of the senate. i think you said throughout your brief that the rationale for the recess power is the president must be able to have the government functioning and staffed even though -- although the senate isn't -- isn't around. but now the -- you seem in your answers to be departing from the senate not available and making quite another justification for this. the senate, i think to be candid, the senate is always available. they can be called back on very short notice. so what is it that's the constitutional flaw here? it isn't that the senate isn't available. the senate is available.
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it can easily be convened. >> so let me take a half a step back, if i could, justice ginsburg, and answer that question in this way. you know, perhaps it sounds like this is an aggressive assertion of executive authority, but i'd ask the court to think back to federalist 51. and what the framers were most concerned about was that congress, in the separation of powers calculus, was going to amass authority and drain authority and energy from the executive, and therefore, the executive needed to be fortified against those actions by congress. and one specific way in which the framers decided to fortify the executive was by rejecting the notion that the appointment power should reside with the senate. the framers considered that and they rejected it. and the reason they rejected it, as this court noted in its edmund opinion, was to protect the executive against
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encroachment by the legislature. >> but the compromise they settled on in moving away from that is that the president will nominate and the senate, if it so chooses, can confirm a nominee. you spoke of the intransigence of the senate. well, they have an absolute right not to confirm nominees that the president submits. and it seems to me, following up on justice kagan's point, you're latching on to the recess appointment clause as a way to combat that intransigence rather than to deal with the happenstance that the senate is not in session when a vacancy becomes open. >> well, but those things there are often situations in which the senate is not in session when a vacancy becomes open or needs to be filled, i guess would be the more accurate way to say it. the examples -- i'll give you another example, if i could, from the 1940's. taft-hartley gets enacted in 1947 in the summer. one requirement of taft-hartley is that the general counsel of the nlrb must enforce the ban on secondary boycotts within a fixed period of time, 30 or 60
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days. well, it turns out there is no general counsel of the nlrb at that time, so president truman -- >> well, if the senate has -- the congress and the executive have come together to address those sorts of problems in a vast number of cases by providing that there can be an acting general counsel of the nlrb to deal with that situation. >> well, actually, mr. chief justice, with respect to multi-member boards, the vacancy act doesn't cover them. that's one reason we have the problem here. but beyond that, the framers made a judgment that this wasn't going to be left to congressional largesse. that's why there is a recess appointment clause, and it's not left to the congress. >> well, let's go to that 1948 emergency, the secretary of labor. there was a vacancy in that post. the president has the authority to convene congress. and whatever was the case in 1948 or in 1789, congress can be back here in one day.
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article ii, section 3 says, "he may, on extraordinary occasions, convene both houses." >> that's true, justice scalia. but the -- >> so what's the problem? if there is indeed this, you know, this terrible emergency you're talking about, the president has the power to call them back. >> well, i think it seems to me the framers made a different judgment, because they gave the president both the power to call back in extraordinary circumstances and the recess appointment power. and if the framers had intended the power to call back to be the way to deal with vacancies during absences of the senate, then -- >> yes, but my only point is what -- what the recess appointment power consists of cannot be determined on the basis that, well, there are going to be terrible emergencies, so it must enable the president to do this or that. extraordinary emergencies are handled in the constitution. you don't have to expand the vacancy appointment power in order to handle those.
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>> so, what i would say about this, and also to your point, mr. chief justice, is we have, i would submit, a stable equilibrium that has emerged over the course of this country's history between the two branches. after all, what we are advocating for here is the status quo. it is the equilibrium that has emerged since congress -- since the senate started taking lengthy intra-session recesses, presidents started making recess appointments during those recesses. that began in the civil war days. it's continued to the present. the president -- >> general, i think that's a really strong argument, but i have to say i'm not sure it applies consistently throughout each of the three claims that you make. because if you are going to rely on history and on the development of an equilibrium with respect to what "happens" means, and if you are going to do that again with respect to whether intra-session recesses are included, then it seems to me you also have to look to history and the development of
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an equilibrium with respect to congress's definition of its own power to determine whether they are in recess or not. in other words, your third argument about pro forma sessions, the history is entirely on the senate's side, not on your side. and if we're going to take a kind of continuing practice and the development of equilibrium seriously, you might win on questions 1 and 2 and then lose on question 3. >> well, winning on questions 1 and 2 would be of great importance to the executive, but we also should win on question 3, and here's why -- there isn't a long history reflecting equilibrium with respect to the use of pro forma sessions in order to restrict the president's ability to use the recess appointment power. there really is no history before 2007 of this daisy chaining of one pro forma session after another after another in conjunction with an order that no business shall be conducted. >> well, there's no practice
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there is no long practice of doing it. there is also no long practice of rejecting it. but if i could take you back to that, you said that the pro forma sessions may violate the adjournment clause in the 20th amendment. would you also say that they violate the presentment clause, because the senate has passed legislation during these pro forma sessions and the president has signed that legislation. >> no, we don't. i think the right way to think about that is the same way that you would think about if the senate declares that it's in recess from august 1 until september 15 and then comes back early because an emergency has happened, for example, with hurricane katrina. once they are back in doing business, they are doing business. now, what the senate did with respect to the legislation your honor identified was they came out of pro forma session, they passed legislation, and then went back in to -- they went back in under the order of pro forma session. so they take that action >> but it seems to me that we're searching here for a proper interpretation of the word
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"session," which, after all, is in the provision that we are looking at. it talks about "next session." and we have a long tradition of congress defining what that session is. they have the first -- this is, what, the 113th congress? i think something like that. and they have the first and second session. that's how their records are based. this is a considered judgment by both houses of the legislative branch as to what "session" means, and it seems to me that that has very powerful bearing on the question of inter-and intra-session appointments that we are arguing, forget the -- when the vacancy happens to arise. and so why don't we defer to congress as to what the term "session" means and say that this gives us guidance as to when the -- there is a recess.
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there is a recess between those sessions. >> i don't think that that's an interpretation that really can be squared with the body of contemporaneous evidence from the time of the framing. and i would start with the text of the constitution itself and the adjournment clause, which is at page 91a of the appendix to our brief. and it -- one thing it says is that "neither house during the session of the congress shall, without consent of the other, adjourn for more than 3 days." it seems clear from that language that "the session of the congress" is referring to the period that commences on the constitutionally prescribed date and continues until the congress adjourns sine die, because otherwise these recesses wouldn't be during the session of the congress.
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it's also clear from this language that the framers at least contemplated the possibility of breaks longer than 3 days within sessions because they provided a mechanism to get permission to do it. >> but where does this 3-day rule >> but you are relying on adjournment. that does not have the word "recess." >> no, that's right. but i'm going back now to think about what "session" means in the recess appointment clause where "the session" is also used. i would submit, your honor, that it means the same thing as it means here, which is the full session of the congress. >> if it means the same thing, then you are tying the two together, which actually might have some validity. but wouldn't that require the definition of a recess to be a period in which both houses have chosen to consent to an adjournment? >> no, i don't think so, because the dictionary definition then and now of recess is a suspension of business. and you could have recesses of that kind, suspensions of business within sessions. that's -- jefferson's parliamentary manual refers to
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recess by adjournment >> can you have an adjournment without a suspension of business? aren't the two the same? >> well, i'm just talking now, justice sotomayor, if i may, about the intra-session recess point. >> but i'm talking about tying the two together. >> right, but with respect to -- putting the pro forma issue aside for a second, with respect to intra-session recesses, the meaning of the "session," it seems to me, is the session, the full session, because you can have recesses by adjournment, as jefferson's parliamentary manual said. and as i think i said earlier, there is quite substantial evidence that the term "the recess" at the time of the framing could refer to a break during a session and not just breaks between sessions. so i just don't think there is contemporaneous evidence from the framing generation that would lead you to conclude that intra-session recesses are not within the meaning of the word "recess." >> well, where is this -- >> the most surprising thing to me that you have said, and it's important, is not just the view of language at the time of the framing, but what the purpose of
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this clause was. i mean, this is a very well-briefed case, and i have looked at them. i have read them, actually. >> ok. >> i cannot find anything, so far, and i may have missed it -- i'm asking -- i can't find anything that says the purpose of this clause has anything at all to do with political fights between congress and the president. to the contrary, hamilton says that the way we're going to appoint people in this country is congress and the president have to agree. now, that's a political problem, not a constitutional problem, that agreement. and it was just as much true of president george bush, who made six appointments that happened previously, as it is with president obama, who's made four. all right? so where -- and he says this clause is a supplement, a supplement, to the basic clause to take care of the timing problem.
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so, what have i missed? 10 where is it in the history of this clause, in its origination, that it has as a purpose to allow the president to try to overcome political disagreement? >> i don't think that's its purpose, but it is in the constitution. the president has the authority to make appointments >> well, if it isn't a purpose, can you give me an example where the language, particularly that word "happen" -- i mean, your example is a good one but i don't think it applies, but that's a different matter. i can't -- the language is over here. the number of appointments on "happen" is few. if you are worried about james tobin, congress has passed a law that can be taken as looking at a vacancy occurring when it occurs within 30 days of the beginning of the recess, which would have taken care of tobin. so look at the language difficulty. look at the comparatively small practice in that area.
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look at the other ways to get around the problem, and then give me another example in the constitution where you have both language and purpose pointing one place and yet this court because of practice has come to the opposite conclusion. >> well, i don't think that language points unambiguously in one direction. >> "happen?" of course battles happen. that's because battles occur over time. give me an example with the word "vacancy," where that word "vacancy" is used with the word "is" but not "occurred." >> a vacancy is an enduring state, and from the perspective of the >> but just give me an english example from its natural -- >> i tried with my statutory example before, but from >> your statutory example has to do with a battle, not a vacancy. >> no, it was about an emergency. it was the statutory example about a financial emergency that may happen, which is state, just like the vacancy. >> a financial emergency, correct. i'm sorry. i'm asking you for an example with the word "vacancy." that's what i am having trouble with.
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>> well, a vacancy is an enduring state. from the perspective of the -- >> i'm not talking about -- i just say, could you find an example, and i'm gathering from my answer you couldn't. >> well, i think -- >> and i couldn't either. >> your honor, maybe this statutory -- maybe the language in the constitution looks unambiguous to you now, but it has been the subject of contention, it has been thought to be ambiguous from the time of george washington to the present. and with respect to the question of the practice and there being -- i don't think it's correct to assume that because there are a certain number of identified examples of preexisting vacancies being filled in our appendix, that that's the sum total. i think this is far, far less than the sum total. >> let me -- it's been assumed to be -- it's been assumed to be ambiguous by self-interested presidents. >> of course. death is an enduring state. but if someone dies in 1941, you don't say he died in 1945. he's still dead. >> the fact that -- the fact it happens >> but his death happened in
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1941. >> but the fact that "may happen" is a phrase that isn't always apt to describe an enduring state. it doesn't mean it's never apt to describe an enduring state. it's what jefferson thought. it's what -- it has been the understanding since the framing that there is ambiguity here and there >> your -- it's your argument -- your friend on the other side says one flaw with your argument is that it makes the words "it may happen" or "happen during" superfluous, that the clause would mean exactly what you say it means if you took those words out. and your response, the only one i could see on the reply -- your reply brief, page 13, is that those words were put in there to quote, "confine the president to filling vacancies that actually exist at the time of appointment." now, is that -- did you really think that they put that language in there because they were afraid the president would fill appointments that don't exist? >> i don't know why they put the language in there, mr. chief justice, but it doesn't -- it isn't superfluous because it does serve that function, whatever their intent. >> one reason they could have
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put the language in is because they were afraid otherwise the president would have the power, simply, when somebody died two or three years before and they've had a big fight in congress to save up all the controversial nominations and then put them through as recess appointments. that could be one thing they didn't want to happen. i don't know. you see, it's the same problem. same problem. >> you do have the one that you relied on in your brief, and this understanding goes back at least to 1823, and the wirt letter, attorney general wirt said, on the wording -- maybe on the wording, the case is not strong. but the purpose, he said, you would be honoring the letter and defying the spirit. that was the -- on the question of the -- when the vacancy -- >> and we don't disagree with that.
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we think it's just what wirt said. it's does no violence to the language and is consistent with the purpose of the clause. and from the from the perspective of the purpose of the clause, the office is equally vacant, whether that vacancy arose the day before or the day after the senate went into recess. the senate is equally unavailable to act because they're dispersed, whether the vacancy arose the day before or the day after. and the public's need that the office be filled so that the laws can be faithfully executed is the same whether the vacancy arose the day before or the day after. >> before you -- >> and so we do have that very established practice that is completely in accord with the purpose and the structure. >> we sort of drifted away from the new practice, the pro forma session.
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and you were asked, suppose there was nothing in the resolution about they would conduct no business. it was an informal understanding that they wouldn't. but there is no express agreement that they're not going to conduct business. then do you lose on that part of the case? >> i think that's a way harder case for us. i would agree with that, justice ginsburg, and -- but they're two things. one is that formalities do matter. and two, going back to the point you made earlier, justice kagan, i think it's not an accident that there's a no-business order in place. it's because that's what gives the senators the protection to know that they can leave town without somebody else going to the court and saying to conduct business. >> suppose it was the exact same no-business order, but the single senator who was there got up and asked for unanimous consent to name a post office, and every three days, he got up and said unanimous consent to name a post office. the post office is named. so they can do, you know, trivial business in each of these sessions. would that make a constitutional difference? >> well, i think if they did business each of the three days, then you wouldn't have a situation in which no business was conducted and you wouldn't meet the definition of a recess.
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but that's a different case than this one. >> but that, again, suggests that the rule that you're asking us to establish is so easy to evade that why bother establishing it at all. the fact that it's so easy to evade suggests that this really is -- the question of how to define a recess really does belong to the senate. >> no, i think the problem with looking at it that way, justice kagan, is that that's the end of the recess appointment power. you write it out of the constitution, if you look at it that way, because all the senate needs to do is stay in pro forma session until 11:59 a.m. on january 3 when that term ends and the next term starts and then there are no intercession recesses >> i totally take your point on that. but what i'm suggesting is they can just come back, and by naming post offices, have the same effect, that they would write it out of the constitution as much as you say this does. >> well, this does. this does. and whether something else might or might not, i guess we could try to fight that out if the senate were ever to do it. but i assume, if this court were to hold that pro forma sessions of this kind are not real and they don't defeat the
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president's recess appointment power, that maybe the senate would think twice before doing something like that. >> well, what is significant is whether they're available to confirm nominees. isn't that right? >> yes. >> so suppose they say, instead of no business will be conducted, no nominations will be considered. >> that would be a different case because they would be >> well, i know it would be a different case, but -- >> they would be there they would be here. you know, they're not -- they're in business for something. >> so what? the point of the question is whether they're available to consider nominations. so if they say, we'll do other business, but no nominations will be considered, why isn't it exactly the same for purposes of the recess appointments clause? >> it's not, because the recess -- or the definition of recess is when no business shall be conducted. and that's exactly what the senate said. if i may reserve the balance of my time. >> thank you, general. mr. francisco? >> mr. chief justice, and may it please the court, the advice and consent clause imposes an important check on executive
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power. each of our three arguments preserves that check, and provides a separate and independent basis for affirming the court below. the government's position, in contrast, would eviscerate that check, creating a unilateral appointment power available for every vacancy at virtually any time with advice and consent to be used only when convenient to the president. >> but your argument would destroy the recess clause. there would be -- under your argument, it is totally within the hands of the senate to abolish any and all recess appointments. >> yes, your honor. and that reflects the fact that the recess appointment power is a contingent one. it arises only when the senate chooses to trigger it by ending its session and beginning its recess. so the senate always has the power to prevent recess appointments. the constitution, however, gives the president corresponding powers.
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if the president thinks that the senate is being derelict in its duties, he can convene an emergency session, and he can force the senate to consider his nominees. and if they refuse, he can subject them to withering criticism for being derelict in their responsibilities. the one thing that the president may not do is force the senate to act against its will, nor should the president be permitted to do and run around the senate's refusal to act, because that conception of the recess appointments clause is at war with advice and consent itself. >> can i ask you a variant of the question that justice scalia asked general verrilli. suppose we think that the language in the constitution is perfectly clear in some respect, but that there is a 200-year-old consistent practice, agreement by the president, going back to washington and by the senate that the language actually means something else. what would we do in that situation?
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>> your honor, i think that the language has to govern. and i would like to address the issue about the consequences of a ruling in our favor in this case. of course, if you were to rule on the third question presented, it wouldn't call into question any past recess appointments at all, given the unprecedented nature of the appointments at issue in this case. but, frankly, if you ruled on the first two questions, i don't think it would be particularly disruptive in terms of calling it a question, the decisions of past appointees. justice sotomayor, to take the article iii courts, for example, since 1960, there have only been four potentially improper appointments to the article iii court's recess appointments. each of them served approximately a year or less. three were to the court of appeals, one to a federal district court judge in 1981. >> mr. francisco, i'm sorry, but could we go back to justice alito's question, because i really have the same issue with your argument. you know, suppose that on one -- let's say the "happens" argument, that yours is at least the most natural reading of the statute, at least the way we understand the word "happen" today, and may be a compelled reading, but the history points
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so much in the other direction. and that that history brings with it a whole set of practices and traditions and ways of dealing with each other that has grown around a certain interpretation of what "happens" means, right? the idea that we would wake up one fine morning and chuck all of that because all of a sudden we happened to read the clause, i mean, that at least needs to be defended. >> yes, your honor, and i believe that the relevant history actually supports us, that is the history at the time of the founding. >> i know, but now, you're again -- i mean, assume that there is a 200-year-old established practice, everybody has agreed to it, but the text, when you really look at it, points the other way. >> yes, your honor. i would dispute the premises, but i will accept the premises for the purposes of the question. the political branches of the government have no authority to give or take away the structural protections of the constitution. they don't exist to protect the
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senate from the president or the president from the senate. these are liberty-protecting provisions that protect the people from the government as a whole. so if the constitution is quite clear as to what those structural protections are, but the political branches, assuming for the sake of argument, have conspired to deplete them, that is illegitimate, and it should be rejected by this court. >> but that assumes something, which is -- >> yes, your honor. >> let's go back to the "happenings" words -- that is so unambiguous, that they knew it was unambiguous, but 200-year history, starting with president washington, who filled two vacancies that occurred before the senate broke, to every -- almost every president thereafter has done the same. so why should we conclude that today's understanding is the same as the understanding of the founding fathers? why don't we take their unbroken practice as giving us that definition? >> yes, your honor, a couple of different responses. first of all, we dispute the government's historical account of president washington's and the first four presidents'
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position -- actions. but even putting that aside here, everyone who actually spoke to and addressed the issue at the time agreed that the text means precisely what it says, including president madison, who refused to make a recess appointment to andrew jackson, the hero of the war of 1812, precisely because the vacancy had arisen during the senate's session and in its recess. second, we also don't have an unbroken and never contested practice. indeed, the senate has regularly resisted. in 1863, the senate passed the pay act, which prohibited pay to any appointee to a preexisting vacancy. so you don't have a kind of uniformly held practice. >> let me ask you this. suppose that we were to conclude that the history is simply too overwhelming to rule in your
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favor on the "happens" problem. could we still use history to say that -- or overlook history to rule for you on the inter/intra-session point? >> yes, your honor. >> how do we do that? >> from the time of the founding -- >> is it because of the 80 years or? >> i think it's longer than that. from the time of the founding until, i would say, 1948, there was a uniform understanding that the recess and the session as used in the clause were interchanging periods. you were either in recess or you were in session. and so an appointment made during the recess lasted until the end of the next session. now, in 1921 attorney general doherty's opinion kind of muddled things a bit because he assumed that if you took a long break in the midst of a long session, it broke that break into two recesses for the purposes of the recess appointments clause. but you still had that dichotomous view subject to the
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arguable and quite ambiguous exception of president andrew johnson. so what you see is from the time of the founding until 1921 there were some 63 mid-session breaks, all longer than 3 days, so all recesses under the government's definition. yet during that entire period, with the arguable exception of andrew johnson, no president ever attempted to make a recess appointment. >> mr. francisco, tell me if i am wrong about this, but it seems to me that intra-session recesses really only arose in the 1940's or so, right? there is the period with andrew johnson and andrew johnson used intra-recess -- intra-session recesses to make a lot of appointments. other than that, intra-session recesses of more than 3 days that are not christmas simply do not exist. so that assume that as intra-session recesses came to be presidents started making appointments in them. >> let me address it this way.
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i'm not sure i agree with the factual understanding, your honor. there were intra-session recesses longer than 3 days prior to 1867. i think there were some 10 of them prior to 1867, including 7 that were longer than 10 days. and bear in mind, yes, they were christmas recesses, but so were the ones at issue in this case. they were christmas recess appointments. but i do take your point that intra-session recess appointments did not become very common, or i should say it this way -- intra-session recess appointments did not become very common until -- really they started with truman, but then they broke off for a long time with three presidents, johnson, kennedy, and ford, making no mid-session recess appointments. then beginning in the carter and the reagan administrations is when they became very common and particularly a very common way to do an end-run around advice and consent. >> what happened in that period
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at around 1970 is that's about the first time that you have intra-session -- an intra-session recess that's longer than an inter-session recess. and so now if we look from 1970 on, that's fairly common. and so all that's happening is that the presidents are appointing recess appointees during periods where they are out for a longer time. now, how are we supposed to go and say that this thing thousands of people on the recess part -- is unconstitutional? i mean, it isn't unheard of. what about the due process clause? does that easily cover the language? substantive due process? what about the interstate commerce clause and the doctrine of, you know, the implicit clause there? i mean, it isn't unheard of that over time language in the constitution takes on a somewhat different meaning. >> yes, your honor. >> how do we -- i mean, probably different judges have different approaches. but if i'm concerned about the basic practicality and the basic objective here, why would i
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agree with you? >> yes, your honor. i certainly am not going to attempt to purport to resolve this court's differences on those issues, but on -- >> unless you are not going to let me off the hook, your honor. >> the two examples that justice breyer gives are examples where we gave it a meaning that was different from what it said. [applause] [laughter] >> we don't have a case involving this particular issue yet. >> that's precisely correct, your honor. and it reflects the fact that the recess appointments clause and the appointments clause and all of the structural protections, again, are not meant to protect the branches against one another. >> what if i do place more weight on this? should we -- i mean, i do believe and agree with you on this point that this is basically a matter of politics for other branches basically. that doesn't help me resolve this. but it does lead over to this possibility. congress did pass the no pay act. then it passed the pay act. and in that pay act on this "happen" part, which i think is the strongest -- very strong for
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your side, but it defines the vacancy in terms of 30 days prior to the recess. that would take care of most of these. you see, if vacancy could be defined as something that stretches, because congress says it stretches in terms of pay for 30 days. >> right. >> what do you think of that? and i would love to know what the sg thinks of that. >> yes, your honor. a couple of different responses. first, of course, the third question calls into question no past recess appointees, the third question. >> the third question, by the way, and i just put in your mind, if you digress in your answer, put in your mind what would have happened in 1830 if someone, when they had a 9-month recess, close to 10 months, someone had the bright idea, well, you live near washington. go show up at wherever we are holding our sessions and sit there for 5 minutes, and we'll stop president andrew jackson from making recess appointments. what would we be saying then?
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>> sure. well, i will put my finger on that question and answer your first question first as to the pay act in 1940. the pay act of 1940, in our view, clearly repudiates the government's inter-session view for the reason you put your finger on. it ties pay to appointments being made either right before or after the session ends. so most mid-session recess appointees can't get paid under the pay act. with respect to the second question presented, at best it creates three exceptions to the general rule against any pay to any preexisting appointees, so you have got somewhat of a compromise. i would say that is no more senate acquiescence in the president's position than the president's acquiescence in the senate's position when he signed that law. so to me that's a jump ball. coming back to your historical example, i think it reflects the fact that the recess appointments clause is not about timing, it's not a temporal issue. it's about procedure.
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what it does is it creates a contingent power that arises when the senate decides to trigger it. back at the time of the founding, the senators wanted to trigger that power. it was important to trigger that power, because when they were gone, the president needed to be able to act unilaterally, unless they wanted to be subject to a recall in emergency sessions every time he needed to confirm nominees. they obviously didn't want that. today, the situation has changed. not the principle, but the historical context. and today, the senators can get back to washington, d.c., very easily. they are there for much less -- >> suppose we have an inter-session break. it's three days. on your reading of the recess clause, in that three days, the president can fill up vacancies. >> yes, your honor, because under the second question presented, there would not be very many vacancies in that context, because the vacancy would have to -- >> well, leave out this second question. just on the first question, because it seems to me if the
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rationale was when congress was out of town for 6, 9 months, of course, the president has to be able to make the government work. but now you're saying that in that time, it's only three days, they are going to be there available very soon to confirm. and let's say somebody -- somebody dies on day 1. the president puts in -- makes an appointment on day 2. you would say that's ok? >> yes, your honor, but i first of all, i'd say i don't think you can really separate it from the second question presented because that's why -- it explains why it wouldn't have been much of a problem. very few vacancies would arise during a 3-day break, and so there wouldn't be that much of an opportunity to make those kinds of appointments. let's put that aside. let me assume you reject my argument on the second question presented. then you're really in the world of the 1905 senate report when they were dealing with president
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roosevelt's midnight recess appointments, where he made them in-between gavel drops. if you reject their argument on the second question, then i do think that you may need to confront the notion that an inter-session recess is too short to make recess appointments. not at issue in this case, because here the appointments came on january 4, the day after congress commenced the second session. so by anyone's definition, this was an intra-session recess appointment, not an inter-session recess appointment. and all of this really reflects the fact that the recess appointments clause is a contingent power that arises only when the senate triggers it, which is what gives the senate the power to prevent the president from making recess appointments. if i could turn back to the consequences -- >> well, before you do so, i mean, is the senate's power, in your view, so comprehensive that if they passed an order saying, we're actually never in recess, people can be reached, you know, we can call people back. so for purposes of the recess clause, we are never in recess.
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>> your honor, under the first question presented, i think the answer is, yes, they could do that, because it really is the senate's ability to trigger the power. in a sense, the recess appointments clause is of a piece with the inferior officer's clause. the senate always has the power of advice and consent, but what the president can do -- what the senate can do is authorize the president to act unilaterally in certain circumstances. it can authorize the president to act unilaterally with respect to inferior officers and it can authorize the president to act unilaterally in certain time periods where it ends its session and begins its recess. so it's always within the senate's power. and that's precisely why advice and consent serves as an important check. on the third question presented, i think where you're deciding whether or not a session is a real session, then, no, i don't think the senate could do that. i think that it's for the court to look at the senate's journal to see what the facts are, and those facts must be taken by this court as undisputed. so if those facts show that there was a senator who actually gaveled them into session each day, and that during that period
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they were capable of conducting business, as they were here at every session that they held every three days, then this court would have to take those facts as a given. >> could you tell -- let's go back to this. what's your definition of a recess? when the senate actually says we're taking a recess -- >> yes, your honor. >> whether it got the consent of the house or not? >> it's when the senate again, it depends on which question you're talking about. on the first question presented, the recess of the senate is the period between when the senate says that it is ending its session through an adjournment sine die, and the period when it begins its next session, as the clause says. >> does it have to do that? by what command does it have to do that? >> sine die? >> yes. >> it does not >> no. sine die or any -- >> it does not have to adjourn
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sine die. that, though, in this country, is the way that the senate has traditionally signaled to the president that it was ending its session. and i think that's what it would have to do. >> does it need the consent of the house to do that? >> yes, your honor, it does. >> so does it have to do that in between the two congressional sessions? >> i don't -- i think -- no, i don't think it has to. i think the senate can adopt its own rules for determining how it ends its session and how it begins a new one. i think the important point, though, is it has to communicate that to the president. so, for example, during president madison's time, the tradition was the senate would dispatch a committee to the president to inform this president that it had ended its session. so the president now knew that it was in recess and the powers that imbue upon the president during that recess had been triggered, the recess appointment power. here, ruling in our favor on the third question would, of course, call in the question no past appointees. but i would like to -- >> on the first question, does your argument depend on the fact that -- on the assumption that the possibility of a lengthy intra-session break was never