>> what do you say about the 20th amendment that says that january 3 was a meeting, are you saying they violated the 20th amendment? this is the congress of the 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 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 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. 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 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 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 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 now, 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 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. 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 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 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. 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. >> 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 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 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 "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.

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. 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 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 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. so, what have i missed? 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. 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. >> 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 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 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. 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. 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. 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 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 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. 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? >> 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 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 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' 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 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 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. 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 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 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 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? >> 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. 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 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 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. >> 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 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 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 even contemplated by those who framed and ratified the constitution? because if they had thought

about that, there's a real chance the senate may take a two-month break -- >> right. >> over christmas. would there be any reason why they wouldn't have wanted the recess appointment power to apply there as well as at the end of the session? >> your honor, our argument does not turn on that because to us, it is not a temporal question. it's a procedural one. back then, the senate had the power not to trigger the recess. just like today, it has the power not to trigger the recess appointments power. the difference is not in principle. it's in historical context. at the time of the framing, they wanted to trigger the recess appointments power because when they left during long periods of time, they wanted the president to be able to act unilaterally since it was very difficult for them to get back. and if they didn't trigger the power, the only way the president could act unilaterally would -- the only way the president could confirm nominees would be by convening an emergency session. highly inconvenient. the historical facts today have changed. not the principle, but the surrounding facts. and today, it is very easy for the senators to get back to

washington, d.c., and so they don't want to trigger a unilateral power. they're perfectly willing to be hailed back if necessary. >> i'm not sure i understand the answer. if the purpose is to permit the president to fill vacancies when the senate is unavailable to consider nominations and the country would be harmed by having these offices vacant for a period of time, why would that not apply to any lengthy break, whether it's at the end of the session or in the middle of the session? and so if you're arguing that it only applies at the end of the session, doesn't that depend on the assumption that they never thought about the possibility that there would be a lengthy break in the middle of the session? >> your honor, it is possible that they never thought about it. but even if they had, i don't think it would matter, because i think that that the purpose that you've laid out is not quite the full purpose of the clause.

the purpose was also to ensure that the president could not easily do an end run around advice and consent, which after all is the principal method of appointment. and so what they did, as they did with respect to inferior officers, is they vested with the senate the power in certain circumstances to authorize the president to act unilaterally. with respect to recesses, that authority was triggered when the senate decided to end its session. the senate did, for example, take 7 mid-session breaks of longer than 10 days prior to 1867. it is inconceivable to me that the senators at that time believed that they were entering into a recess that would have empowered the president to make unilateral appointments during those 10-, 11-, or 12-day periods. and that reflects the fact that the recess appointments clause is a contingent one that arises when the senate triggers it. >> mr. francisco, can i ask a question about the second question presented, the "happens" question? >> yes, your honor. >> and if you put aside all the history and you look only at the language and you look only at

our own modern view of what happens, that surely seems to favor your position. but if, you know, given all the statements in the founding period itself about how this is ambiguous and it might have two meanings, if you look at the dictionaries of that time -- so i went back and i looked at the oxford english dictionary, and one of the definitions of "happens" there is "chance to be," essentially the exact same definition that thomas jefferson said made this ambiguous. and we would never use "happens" in that way now. if you look at the examples that the oxford english gives, they're laughable. nobody would ever say that now. but it just suggested to me that maybe what we think is pretty clear is only pretty clear because one meaning of "happens" has, you know, over 200 years -- >> sure.

>> lapsed. >> well, your honor, i actually think the word "happens" had the same meaning then as it does now, which is why at the time of the framing everyone who actually studied the issue -- madison, hamilton, both of the first two attorneys general, edmund randolph and charles lee -- agreed that it meant what it said, as did even >> no, i don't think so. essentially, thomas jefferson says it could mean one thing or the other, and the other thing that he said, which is "happens to exist," is sort of exactly this old definition, which is "happens" means "chance to be." >> and then jefferson in his other letters conceded that the recess appointments clause as it stood was going to frustrate his ability to make appointments. and he therefore -- >> i think "happens" continues to mean "chances to be." we still use it that way. but we only use it that way when it is followed by an infinitive. "i happened to see him," it means a chance that i saw him. or -- you know, the 9/11, the destruction of the twin towers

happened to occur on 9/11. but you wouldn't say -- you wouldn't say it happened on -- on 9/13, simply because it continued to be destroyed. i don't know what the oed examples that justice kagan referred to were, but i bet they used "happen" followed by an infinitive, and i think we still use it that way. >> you know, i don't remember them exactly. i just remember kind of laughing at them, as things that -- >> actually, i think i remember what they were -- >> nobody would say -- >> and they were 1483 and 1490-something, and then there was an asterisk that said "obsolete." and in fact -- in fact, i couldn't figure out what they were talking about. >> and, yes, your honor, but in addition, though, there is not just the word "happen." it's preceded by three other words, that "vacancies that may happen." and the only purpose that those

words serve is to constrain the universe of vacancies that are eligible for a recess appointment. >> well, the constitution as it first was has now been amended and it is no longer a part of the constitution, with reference to appointment of senate, uses the word "vacancy" in much the same way as the clause we're discussing here, and i think favors your position, because if a vacancy happens by resignation during the recess of the legislature then the governor can make the appointment. and you certainly wouldn't think that that could happen over 3 days -- >> exactly, your honor -- >> occur over -- i should say occur over 3 days. >> and it's even better than that because at the time of the framing, a legislator -- a governor tried to appoint somebody to the senate pursuant to the clause that had arisen where the vacancy had arisen during the legislative session rather than during the legislative recess, and the senators actually refused to seat that individual. so, yes, that further supports our position on that. >> do you want to say anything before the -- about the language

on the "happen," i support you. but the practice, and in particular, the practicalities, because you say, well, the president can make an acting appointment, make a recess appointment even. i mean, you know, they have much less authority, somebody appointed in that way, much less than a person who's been confirmed by the senate. so if the government won't grind to a halt, it still faces a problem. >> and, your honor -- >> what do you want to say about that? >> that's a consequence of advice and consent. that problem arises not just when the senate takes breaks, but when the senate is in session. the senate could show up every day for an hour, sit at their desks, and announce to the president -- we're not going to do anything, no nominations, no legislation, because we don't like what you're doing. and by the way, the only reason we're showing up here at our desks and sitting here for one hour a day is because we don't want you to be able to make recess appointments. nobody would claim that the senate was in recess during those sessions. well, that is effectively what it was doing here. i would, though, like to address the practicality issue. i talked about how there have

only been four recess appointments to the article iii courts that are potentially invalid since 1960. i likewise don't think, if you were to rule in our favor on the first two questions, that it would be particularly disruptive to the executive branch either. if you look at the government's appendix, i would hazard to say that most of those officials probably don't exercise much, if any, agency rule-making or adjudicatory power at all. but as to those who do, going forward the government can solve the problem through agency ratification of past decisions. going backward, there are a variety of doctrines that would limit anybody's ability to actually challenge those past actions, including, for example, the apa's 6-year statute of limitations on challenging final agency action, various finality rules that would prohibit a party from raising an issue that they could have but failed to raise in an earlier proceeding, and various justiciability doctrines, like mootness, standing, and, your honor, the de facto officer doctrine, at least outside of the context of direct appeal.

i think this constellation of issues probably explains why this is the first time this issue has reached this court in 225 years. this is not to say that a ruling in our favor on the first two questions wouldn't have any past impact. it would undoubtedly have some. but as this court's decisions in cases like chada and booker and blakeley make clear, this court has never shied away from enforcing the strictures of the constitution simply because it could have some impact on prior cases. here the structural protections of the constitution exist to protect the liberty of the people. they were clearly transgressed with these unprecedented appointments, and therefore we believe that the court below should be affirmed. i am happy to answer any additional questions that your honors may have. >> thank you, counsel.

mr. estrada. >> thank you, mr. chief justice, and may it please the court, as justice kagan recognized earlier in the argument, this case fundamentally is about who gets to decide whether the senate is in recess, the senate or the president? our submission today is that the senate gets to decide whether the senate is in recess. >> mr. estrada, you said in your brief that that was true within wide limits. what are the wide limits? >> this is all about how the senate chooses to arrange its affairs, justice kagan, under the rules of proceedings act. and what the court said in the ballin case was that the exercise of rulemaking authority by congress was almost absolute and beyond the challenge of any body or tribunal unless it usurped some independent constitutional authority. the only possible offer here

that the solicitor general has as to how the constitution could have been violated by the actions of the senate in arranging its own affairs is the notion that this has invaded the purported recess appointments power of the president. and the reason, as we say in our brief, why that is completely insubstantial is because, as the solicitor general recognizes in the closing two pages of its brief, the senate by the design of the constitution, the appointment clause, the primary method of appointment, has an absolute veto over nominations. the framers could not have been more clear that the standard power of appointment was a joint power of appointment. and, therefore, the solicitor general is forced to concede that this appointment power, this right that the president is asserting here as a stop on the exercise of the rulemaking authority, is a subsidiary power that only arises if the

government -- if the senate, excuse me, chooses to recess. >> is the chief justice's example before, if the senate just said, we're never in recess for purposes of appointments, would that be permissible? >> if the senate says, we're never in recess, and the senate then is not in recess so that it could exercise the duties of its office as it does here, yes, it would be. if the senate says, we're checking out and going to hawaii, we'll never again be in washington, kona is very nice this time of year, that would not be permissible, because, a, the adjournment clause requires the consent of the house for the senate to be not only gone for 3 days, but to be in a different place. and, second, you know, the senate cannot leave, you know, the chamber, and -- other than with the consent of the house. and maybe if the senate has effectively given up, you know,

the business of legislating, in that case, maybe the president could say that it is, quote, a "recess." now, the fundamental problem with the president's position here is twofold. we have senate records. there is -- the journal clause of the constitution directs each house of the congress to have a journal of its proceedings. the journal of the senate, which is in relevant part printed in our appendix, shows that on each of the disputed dates the senate was called to order and then adjourned. it is an official record of the senate. it says the senate was called to order and then adjourned. it doesn't say two guys who happened to be senators met at a bar and had a beer. the official records of the senate say the senate was called to order and adjourned. and under the rules of proceedings clause, that would be conclusive, full stop. >> that's the end of it, exactly the same, if this all took place

during the 9-month inter-session recess in 1835. >> it would be the same unless the senate chooses to recess. >> no, no, no. exactly, same facts. same facts. >> right. >> and, therefore, in your view, the clause, even if they were all scattered to the winds in 1835, there would have been not possible for president andrew jackson, if i have that right, to make the recess appointments. >> justice breyer, the executive at the time could have attempted to construct the same type of argument that the executive is trying to construct here -- >> yes. but your view would be that the court should reject it. >> yes. but here, it is even a weaker argument because one of the oddities of the case is that as the senate has -- and the country have all moved into the modern age, the rules of the 11 senate tend to provide for the senate to be available at the drop of a hat.

if you look, for example, at rule 9, you can always get, you know, the communications from houses from the house or from the executive. if you look at rule 26 of the senate, committees can meet whether or not the chamber is actually in session. you know, the business of the senate is ongoing. and, therefore, in the modern world, it is even much, much, much different than even the hypothetical that you posited. >> you can say anything that would -- on this, if you want to, that would turn it back to the practicalities. imagine, hypothetically, that i would have thought president theodore roosevelt acted unconstitutionally when he tried to make all of his appointments, dozens and dozens, during a two-second -- >> in 1903. >> yes, yes, inter-session -- >> yes, constructive recess. >> yes, yes. >> well -- >> and by converse reasoning,

the congress would not have been able, in 1835, to prevent recess appointments simply by having a nearby senator show up for a -- for one second, once every 3 days, over a 9-month period. it seems to me what goes around comes around in this -- >> well, let me take that as an opportunity because i think it does raise, you know, the question to speak to the implication that the solicitor general makes in his brief, that the senate, as a body, doesn't have a view on whether it was in recess or in session. for the reason that i started out by outlouding -- by outlining -- excuse me -- the senate's official records do show that the senate was in session on each date, and therefore, the senate does have an official view. but from the practical point of view, we do know that the senate has a view on these things. and how do we know?

the president's party controls the senate. if the senate wanted to recess, rule 22nd of the senate says that's not a debatable proposition. if a majority of the senate wants to recess, even before the evolution of the filibuster, non-debatable proposition. so the senate says, which is controlled by the president's party, says, we want to recess, we want to go away, we don't care if the president has this power. they vote for that. house says no. what happens then? article ii, section 3 of the constitution, the fight goes to the president, and it is in that event that the president gets to adjourn them until such date as he shall see proper. so if the senate had any view that it wanted to recess, they could have had a vote, and the issue would have ended up in the white house, in the lap of the president. he had plenary constitutional power to give himself an inter-session recess by terminating the session and have a real recess appointment power

if he could find somebody whose vacancy had actually arisen at the time. but this is the cockeyed way of going about the instruments of the constitution. there is no power in the constitution to use the recess appointments clause to overcome the opposition of the senate to the president's nominees. and for all that we hear about today, which has to do with how the heaven will fall, and the parade of horribles, there is no parade, and there is no horrible. the only thing that will happen is that the president, heaven help us, will be forced to comply with the advice and consent that the appointments power -- excuse me -- the appointments clause actually calls for. that was not viewed as an evil by the framers. that was what the framers unanimously agreed was going to be the principal means for appointments for the principal officers of the union. >> mr. estrada -- if there is a 3-day recess

between sessions, then your argument is that that is a recess and the president can make appointments in that time. >> justice ginsburg, that is a very interesting and somewhat difficult question. on the facts of this case, there is a substantial question, which no one really has litigated, as to whether there was, in fact, an inter-session recess, whether the first session of the 112th congress ended on the morning of january 3 and, therefore, we have the same teddy roosevelt situation, or whether by adjourning on december 30 and contemplating no further meetings until january 3, whether that in effect was a sine die adjournment that ended the first session of the congress. if the president had the same view about the nature of the pro forma sessions, he could have

taken the view about the sessions between december 17 and january 3 and could have had a better legal argument in attempting to claim that between december 30 and january 3, there was at least an arguable inter-session recess. and he did not do that. why didn't he? because by waiting until the convening of the first session -- of the second session of the 112th congress, by making an appointment on january 4 instead of the morning of january 3, he gives an extra year to his appointees to serve. that shows that this is, indeed, the bottom of the slippery slope on the recess appointments clause. it is a complete abuse of the process. it is being used for no other purpose than to overcome the senate opposition or the senate disinclination to agree with the president's nominations.

what the framers contemplated in coming up with a joint power of appointment was you have to act jointly. you have to play nice. and in a country of 300 million people, when the president wants a nominee and the senate does not agree, it is always possible for the president to come up with another nominee who is even more qualified and acceptable to the senate. the key here is acceptable to the senate. he has to be able to proffer someone to the senate that the senate is willing to engage in a joint power of appointment for. >> mr. estrada, in your earlier example, you said that if the senate decides to recess and the house doesn't approve, that the president can then do it. is it your belief that a recess is only something that both houses have agreed to? a break in business that both houses have agreed to?

>> i don't think so. it is usually the case, justice sotomayor, but not necessarily. the example i would give -- >> so what do you need why does the president have to adjourn the house in your example? >> no, i don't -- >> if the senate votes tomorrow to recess -- >> yes. >> can the president appoint, at least in your view, any vacancy that occurs during that recess? >> if the senate has been recessed without days so that the session of the senate is over, even if the president, under article ii, chooses to leave the house in session -- >> why do you need a date? in what rule makes a recess defined as something without date? >> this takes us back to the first argument, and i think the contemplation was that the recess would be the period of time that intervened between the ending of a session of the congress and the beginning of the next.

here -- >> it always had a date, because we knew january 3 was a new session. >> well, that wasn't true until the 20th amendment. you know, the date was a much different date in the original constitution. but to answer your earlier question, it is usually the case that a recess is going to be longer than 3 days, but it needn't be. if the senate finished all of its legislative business, for example, in this year on december 30, 2011, and then voted to adjourn sine die, and did not again meet until the beginning of the second session of the congress on january 3, that would be an intra-session recess even though it would not be one that would require consent of the house. but in the usual case in which a recess is taken for an extended period of time, it would be the type of break that the framers contemplated would need the consent of the house. and the reason for that should be obvious. we have a system of a bicameral legislation.

the houses two are supposed to work together to accomplish the business of the people. if the house is working on something and the senate wants to go away, or visa-versa, they need the consent of each other because they may need each other to frame out ongoing legislative projects. and if the house in its own judgment thinks that the senate is sufficiently available to the house in our bicameral system so that it -- so that has been is full compliance with the adjournments clause, it is very difficult to see how in the agreement of both houses of congress that the senate is in fact effectively available, that is there with its full power of unanimous consent every third day. if the house thinks that that is adequate for the discharge of its constitutional functions and the constitutional functions of the senate, it's very difficult to see how the president gets to second-guess that.

one final point that has to do with the solicitor general's insistence on the no-business language. rules 5.1 of the senate -- may i finish? >> yes. >> makes very clear -- it's also in our appendix -- that any business may be conducted at any time, without notice, by unanimous consent. and so that effectively, what we have here is merely an announcement by the senate that between december 17 and january 23, only unanimous consent business would be agreed to. >> thank you, counsel. general verrilli, 6 minutes. >> thank you, mr. chief justice. let me begin with a couple of points on intra-session recesses. with respect to the question that justice alito raised, it would have been perfectly familiar to the framers that a legislative body could take an intra-session recess. jefferson's parliamentary manual

written while he was vice president and presiding over the senate specifically refers to recesses by adjournment that occur within a session and the session resumes when they are over. the adjournment clause itself contemplates the need for approval by the other branch for a period longer than three days during the session. i think it's difficult to imagine that if, as justice alito's hypothetical suggested, that the senate had in the first years under president washington decided to take a two-month, intra-session break, that president washington wouldn't have been able to staff the offices of the fledgling republic using the recess appointment power. >> well, if we agree with you on the first question, then there either needs to either be a number or a functional test. and i don't know where the number would come from and i don't know how the functional test would play out, so maybe you could say just a word about that.

>> we think the number should be -- should be the number in the adjournments clause, 3 days or less. now, presidents have exercised restraint and there haven't been recess appointments in periods below 10 days, but we think that would be the line. now -- >> with respect to the presence of that in the adjournments clause but the absence of any number in the recess appointments clause, how do you explain that? >> well, i think that there isn't really a need for explanation. a recess is a suspension of business, and what the are gone for 3 days or less you the adjournment clause says is if you are gone for 3 days or less you are not really suspending your business, but if you are gone for more than 3 days you are. and i think that is quite consistent with the argument that my friends on the other side are making. now, with respect to the history on intra-session recess appointments, really if you look at the congressional directory, which is a document that we cite in our brief, and you look at the column that says

intra-session recesses, you will see page after page of blank space until you get to the civil war era when intra-session recesses become more frequent. and intra-session recess appointments really just precisely parallel the increasing use by the senate of intra-session recesses. >> can you argue that the senate sort of acquiesced in that and everybody's come together, but what would expect a senator to do? >> well, if they -- >> you know, the president appoints somebody during a recess contrary to the respondent's view, what's the senator who objects to that supposed to do? >> well, a couple of things about that, mr. chief justice. the pay act, of course, was first enacted in this period, in the 1860's, when the first intra-session recess appointments occurred, in fact, even in its original form never said -- and since, never said anything about trying to restrict intra-session appointments. if the congress felt that these were improper, they could have done what they did in the tenure of office act and passed a statute of making it a crime for somebody to take one of these appointments. but they didn't do anything like that. >> well, you would object to that, wouldn't you? >> of course.

>> on the same grounds that you're objecting here. >> well, we would. but in terms of -- >> well, then that's not something that is effective for the -- >> but in terms of -- >> you think it's unconstitutional. >> in terms of an expression of their disagreement as opposed to acquiescence it would certainly be a question of disagreement, and it didn't happen. >> well, the senate says we don't agree with the recess appointment, and you say, well, it's too bad, the appointee is still in office. >> but they didn't, i guess, would be, or the point being >> well, some did senator byrd -- >> senators -- >> famously objected to the president's assertion of that power. >> yeah, but he famously objected to it, mr. chief justice, by saying that the intra-session recess ought to be 30 days or longer, not that intra-session recesses are inappropriate as a matter of constitutional power. so i actually think that is just haggling about the length of the recess, not about the existence of the power. now, if i can move to the question of -- >> no, i just want to make sure i understand. your idea is the senator who objects should do what? >> well, the senator who objects can say whatever the senator wants, but we don't have a historical record of objection. we have a historical record of acquiescence. >> but suppose the senator says, look, i object to that, i think it's unconstitutional, but i'm not going to -- what can i do?

the only think you can do is impeach the president, right, for violating the constitution. and he says it's not worth it for the -- one of the offices -- >> well, if the congress as a body thought that these were inappropriate they could take legislative action to try to limit the president's authority, and they just, they never have. >> but would you say that action would be totally ineffective? >> well, we'd agree on the -- we'd certainly agree on the criminalizing point, but in terms of the pay act, for example, they just never in all their -- in their original consideration of the pay act and subsequently, they never tried to address this. now if i could turn to the -- >> but people object all the time to things that in fact they can't do anything about, right? >> and, yes, your honor, and, of course -- and that's an individual objecting and it's not the senate objecting. >> the question of reports. there were reports, remember? sorry, i didn't mean to -- your six minutes couldn't be up already. >> take a few more minutes. [laughter] >> i was thinking the same thing, your honor. there were a couple of committee

reports but i believe those were on the "happen" issue, and let me turn to that, if i could. now your honor had pointed out the number of -- happens number of appointments. as i said, don't take that chart comprehensive. as we said in our brief, it's not. we think there are many more, and, of course, 39 presidents have made those appointments. now, for purposes of the clause as we discussed earlier, i think, are far better served by our reading than the other side's. jefferson gave a reasonable textual reading, and then your honor asked about the pay act. the pay act of course says if the nomination -- if the vacancy arose within 30 days, but it says something else, too, which is if a nomination is pending -- >> yeah, but i'm focusing on 30 days and the reason i'm doing that is this seems to me, hypothetically at least, a real matter for the political branches to resolve among themselves. now, we have to decide this, so i thought, well, why not look and see what congress objects to the least? and i got that 30-day thing from the pay act by analogy. >> i guess what i --

>> i guess what i -- >> so i want to get your view on that. >> yes, of course. and what i would point out by analogy also is that there is another provision in the pay act, the very same statute, that says so long as a nomination is pending, even if the vacancy arose more than 30 days, that's the same expression of congress's views about what's appropriate. what they care about is the chance to exercise their advice against the -- >> well, that was that senate. i mean, that's not the senate that is sitting now. you are attributing the views of one senate to the senate over time. >> that is an expression of the law of the united states that the congress enacted. >> i'm really interested in how you think the 30-day idea, if practical, plays out in terms of your concerns. >> well, i think it, as i said, i think there is an equilibrium here and the 30 days doesn't fully capture it. and let me just talk about that if i could. >> briefly. >> briefly. >> yes, thank you, mr. chief justice, briefly. the vast majority of appointees are submitted for advice and consent. that was true historically. it's true now. the vast majority of recess appointees are subsequently

confirmed. so it's just not the case that this is an end run around the advice and consent role of the senate. and there are powerful reasons, of course, why presidents do that. they don't want to have temporary appointments that they have got to then deal with vacancies again, and they don't want to unnecessarily create interbranch friction. the real problem, i would submit here, is that if you go with respondents on the pro forma issue or under the -- on the two underlying issues, the d.c. circuit ruling, you are really are writing the recess appointment power out of the constitution, and that's antithetical to the liberty-enhancing properties of separation of powers that madison described in federals 51, because ambitions which counteract ambitions shouldn't disarm one side. thank you. >> thank you, general. the case is submitted. >> the supreme court handed down its decision in this case today, limiting the president's power

to make recess appointments. the court ruled the president does not have the power to make appointments without senate confirmation during short congressional recesses. another decision to date dealing with protesters about -- outside abortion clinics. ruled buffer limits unconstitutionally limits the actions of protesters. states can pass laws ensuring access to clinics, it cannot prohibit speech on public sidewalks. >> we will hear argument first this morning in case 12-1168, mccullen v. coakley. mr. rienzi. >> mr. chief justice, and may it please the court, this court has held that the public sidewalks are a natural and proper place for free citizens to exchange information and ideas, and for

that reason the court has held that public sidewalks occupy a special position in first amendment analysis. if the massachusetts law at issue here makes it a crime to enter onto certain public sidewalks, even for the purpose of peaceful conversation, or leafletting, the law applies at abortion clinics throughout the state on every hour of every day that they are open, regardless of the circumstances. massachusetts asked this court to uphold that statute under the time, place, and manner test, but the law fails each aspect of that test. i would like to begin with narrow tailoring. the state says the law is necessary to protect its interests in preventing obstruction and congestion. but the law is not narrowly tailored to those interests for three reasons -- first, the law applies regardless of whether there's any threat of obstruction or congestion at all, even when the sidewalks are entirely open and empty. for example, mrs. mccullen

generally does her counseling early in the morning on tuesdays and wednesdays beginning at 7:00 in the morning. she testified that she is sometimes alone when she does this counseling. nancy clark testified that 90% of the time that she is at the clinic in worcester, she is all alone. a statute that makes it illegal for mrs. mccullen or mrs. clark to engage in peaceful, consensual conversation on a public sidewalk for fear of obstruction and congestion is not narrowly tailored. >> mr. rienzi, the problem that the state faced is it doesn't know -- and it has a history, there was a considerable history of disturbances and blocking the entrance, and it doesn't know in advance who are the well-behaved people and who are the people who won't behave well.

so -- and after the disturbance occurs, it's too late. so the state is trying to say, we want to make sure that the entrance is not blocked, and the have a rule that applies to only way we can do that is to everyone. we can't screen people to know who will be well behaved and who will be disruptive. >> so i think the state is simply wrong about that fact for several reasons. there are many tools that the state either has in its current toolbox or could enact that would deal with that concern. and if i may back up for a second, i think there are really two different interests that the state asserts when it makes that argument, justice ginsburg. first, they say that there are actual deliberate bad actors. all right. there are some people whom the state claims have deliberately violated the law and blocked the door and interfered with access. and then secondly, the state says there is also some circumstances where there are enough people on the sidewalk that even lawful, consensual conversation might accidentally block the door. i think those are actually two quite different interests, but

there are tools in the toolbox to deal with both of them. for example, section e of this statute makes it illegal to impede, block, obstruct or even hinder somebody's access to the clinics. and that section of the statute is not challenged here and never has been. >> you know, i should probably ask this of the other side, and i will, but do you happen to know when was the last time that massachusetts prosecuted somebody for obstructing entrance to an abortion clinic? >> so i believe the last cite in the record that i'm aware of is, as of 1997, there was a decision in a previous injunction case against people who had been adjudicated to have broken rules. there is a 1997 case on that. to my knowledge, they've never brought a case, for example, under the federal face law, which has been in existence for 20 years. >> so there have been laws against obstruction during this entire period, right? >> there have been laws against obstruction the entire time. >> and you say that only once,

in 1997, that was the last time a prosecution was brought. >> and that was an injunction against prior bad actors. that was not a face prosecution or a section e prosecution. >> you are not taking the position that 1997 was the last time an entrance was obstructed or that the police were called to open access to a clinic? are you taking that position that the last time it happened was 1997? >> i frankly don't -- i couldn't say that i know the last time it happened. >> but you do know that in the record there were more examples? >> i know that in the record there was testimony claiming that that happened. my argument is simply that the state has tools that are deliberately designed to deal with that. and so the united states -- >> mr. rienzi, the state says, of that particular tool, that it's a hard thing to prosecute because you have to show intent, and there is a lot of obstruction and interference that goes on naturally just because there are a lot of people around. so that is an insufficient tool is what the state argues. >> yes.

and so to the extent, what the state is saying -- to the extent the state is claiming that there are deliberate bad actors deliberately blocking the door, i don't think that's a very persuasive argument. there are police on the scene, and if the police say, get out of the doorway, either the person moves in which case there is not a problem anymore, or they don't, in which case, intent is pretty clear. amicus united states has prosecuted, i think more than 45 cases and gotten more than 70 convictions under that statute. >> and sometimes there are those bad actors, but probably more often it's just a function of there are just lots of people, and they, your clients and all of --all of them want to be as close as possible to the site, and that that naturally leads to an interference with normal access. >> and so i agree that's the second part of the state's argument. i don't think this law is narrowly tailored to that concern, in two respects. one, the law applies -- you know, the evidence in the case is that the crowds that the state is concerned about happened essentially at one clinic, one day, one time --saturday mornings in boston --and when they happen, there are video cameras rolling and police officers present.

and there is no reason to believe the police can't simply say, move out of the doorway. and if someone is in front of the doorway, they certainly should do that. >> does the record show how many clinics in the state are covered by the law? >> i believe there are 11 or 12 clinics in the state. so long as they are freestanding abortion clinics they fall within statutory definitions. >> how far do you want to go in your concession? would you want to concede this point that imagine the state has two groups of people and one group feels what the other is doing is terribly wrong. and the second group feels, we absolutely want to do it. and everyone is in a fragile state of mind, and they want to, if possible, at least one group wants to sort of shout as loud as you could at the other, please don't do this. and the other says, please leave me alone. and we are not saying which group is which. the analogy is obvious, but i keep all the titles out. does the state have the right, in your opinion, to say, it's tough to referee this, we see

the potential for real harm on one side or the other, so we're going to have this kind of 35-foot boundary? say, okay, but the evidence here didn't doesn't justify it, or do you want to fight that, too? >> so, no, i do not mean to concede that. i don't think -- i think a solution that is done with painted lines on the sidewalk that says -- >> but now you are into the details. i want to know about the principle. i mean, i can imagine the principle applying special care and need must be taken outside of hospitals for veterans, even though there are some who are very much opposed to the war, because these people will be coming out, they'll be in wheelchairs, it will be terrible. and others thinking -- you know, we can think of many, many situations, irrespective subject matter, where there is a need for such refereeing. and i just want to know if the -- if the concept is okay with you or if not. >> generally --

>> with the details. >> generally speaking, no. i don't think the concept that >> so protestors like the one we had in the schneider case at a funeral of a veteran can go right up to the public sidewalk outside the church and put up the signs that they did and give out the leaflets that they did, talking about that veteran in the ways that they did? that's ok by you. >> so -- so, a couple points about that. one -- >> there was no evidence there that they were -- that they were disruptive. they were just expressing their first amendment rights. >> so i think that that -- >> but there is the potential for disruption because of the strong sentiments around that. >> agreed. i think a statute that worked the way the one -- this one does here, that would make it illegal to even engage in peaceful conversation on sidewalks near a church or near a funeral or near just about anything else, i think clearly is not permitted by the first amendment. >> in schneider, they were held

not so far back that their shouts and protests couldn't be heard. isn't that the case? they could still be heard >> i think it made >> -- out of >> -- perhaps were part of the funeral procession that passed by. i don't think they -- >> do you see now why i am trying to narrow it? because in my case, in schneider, i thought it was pretty important that the demonstrators were behind a hill somewhere and the police restricted where they could go. many states have enacted similar laws, and i thought that's important, because maybe it would have come out differently. i mean, you could argue about it, and i could. so i'm trying to narrow it. i'm trying to see to what extent do i have to look at this particular set of facts, in which case we are into the hearings, et cetera, and to what extent is there a matter of very broad principle here, and any help you can give me on that would be appreciated. >> so the matter of very broad principle is that a law that makes it illegal to even engage in consensual conversation, quiet conversation, on a public

sidewalk, an act that makes that a criminal act for which mrs. mccullen can go to prison, i think, is not permissible under the first amendment. if you compare it to, for example, the federal military funeral protest law, that law is specifically drawn to acts that disrupt the peace and good order of the funeral, and i think that is different. >> but are you saying that you could not do an act that instead just says, look, it's a little bit too hard to figure out what and what does not disrupt peace and order, so we're just going to say 25 feet around a funeral, or 25 feet around any facility, that that's never permissible? >> so, generally speaking, i think any law like that runs into a big first amendment problem of even eliminating peaceful, consensual conversation that doesn't disrupt anything. and this court's past first amendment decisions have said that precision of regulation is required.

one difference, if it's a rule around any facility or a rule around all funerals, for example, is that -- that there isn't nearly as much distortion of the marketplace of ideas as happens when you do what massachusetts did here, which is pick -- >> well, for example, i was intrigued by one of the examples that you gave in your own brief, which you said slaughterhouses. so, let's say, that there are animal rights activists, and this is easy to imagine, who try to interfere with access in and out of slaughterhouses. and a state passes a regulation that says there's a ton of interference, it's preventing the operation of these facilities, employees can't get in, suppliers can't get in, slaughterhouses are leaving the state because of this problem, and so we're just going to set up a zone and let's call it 30 feet, because it's very hard to enforce anything else. i guess my reaction to that hypothetical -- you -- you must have used it for me to say, oh, that's terrible. but my reaction, my intuition

was kind of what's wrong with that? just have everybody take a step back. so what is wrong with that? >> so what's wrong with that is a couple of things. one, again, this court's decisions require precision of regulation. so an injunction, for example, against groups and individuals like madsen and schenck, for example, an injunction against groups and individuals who have interfered with access, keeping them back, i think that's perfectly permissible. we take no issue with that type of solution. it's the generally applicable statute, right, that's tied to just one particular often-protested event that gives the state enormous power to interfere with the marketplace of ideas. >> in one of the examples that is given in one of the amicus briefs in this case, and they -- they provide a lot of background, is a state law that creates a buffer zone around every fraternal lodge. what would you say about that? >> i think it is difficult to imagine the government interest to -- well, first, i guess, i don't know the particulars of

that law and what it -- what it restricts. if it restricts peaceful conversation on public sidewalks anyplace there's a fraternal lodge, i would say that -- that should not be permissible under the first amendment. i think, generally speaking, the idea of the government picking one particular item and saying, well, around this, suddenly the character of the public forum changes from a place where people can have peaceful, consensual conversations to a place where we will imprison them for doing that, i think that's a dramatic restriction of first amendment rights. i think if there is a particular group or individual who keeps interfering with the fraternal order, of course, you can get an injunction against that type of behavior, but i don't think the state can say even peaceful discussion and leafletting -- >> but let's go back to the slaughterhouse case. i mean, there might be people who say it's really important to us to actually be able to face-to-face talk with the employees and tell them why they should get different jobs or why they should change their practices in various kinds of ways. and, you know, there are some people who think signs and chants are great, but there are people who really want to make

one-to-one contact with the truck drivers, with the employees, whoever. but -- but you say, you know, we have to let whatever interference goes on, even if there's a record of -- of real obstruction, of real interference with the operation of the facility, in order to allow that to happen. and i guess i think that that's -- that's pretty hard. >> to be clear, your honor, i'm not saying the government has to let it go on. i'm saying the government has tools that are better drawn to it than eliminating even the peaceful, consensual conversation. >> but suppose -- and this is still justice kagan's question -- suppose it were a given, assume that those laws just did not work. could there then be consideration of a buffer zone? now, this is a hypothetical that i'm sure that you wouldn't accept in the context of your case, but suppose. >> suppose it were a given that there is no way to keep the abortion clinic open >> the laws simply do not

reference to obstruction and blocking entrance, simply do not work. >> if the laws simply do not work, i think perhaps the government could come in and make a case that it has a compelling interest and that this is the least restrictive means of doing it. >> ok. so that -- now, at this point -- that was a better way of getting what i was trying to get at. just assume that there is let's look at the narrow part of the case, and let's assume that the colorado case is right. and this particular restriction is more a restrictive than colorado in two important respects, which you've gone into. now, the reason that they did that is they had hearings in massachusetts, and they discovered that the colorado law didn't really work very well. and so, what are we supposed to do? are we supposed to now go look at -- as long as those hearings are -- are legitimate hearings and they have good explanation on something like whether the zone is 8 feet and consensual or

whether it's 35 feet and different amounts of sidewalk, depending on the nearness of the facility, when doesn't it become just up to them? we can't -- we're not legislators. we don't know the situation in massachusetts. we can insist upon a reasonable record. but how can we do more than that on this detail? >> so -- so, on this detail, what -- what i think the court should look for is, for example, had they had a -- the state said they did not even convict a single person of one unconsensual -- >> but you understand that. we all understand that. it's one thing to try to prove an intent on such matters, particularly when people are, in good faith, they're trying to explain it, and it's another thing to actually stop the congestion and to protect the interests of the woman who wants to have the abortion, may be in a fragile state of mind, and this kind of thing could interfere with her health, et cetera. so there are two interests, one on each side. we know 8 feet with the bubble

is ok. we're not sure about 35 feet, and they have an evidentiary record. >> so, a few things. one, the reasons this court gave in hill for allowing the 8-foot no-approach zone was precisely that it only was about protecting unwilling listeners and it did not stop discussions with willing listeners. there are real people -- >> counsel, do you accept that the record here shows that it did not work well in the sense that justice breyer >> no, not at all. >> -- seems to use it? >> i understood i was being asked to assume that. >> as i recall the record, all -- all it says is that the police found it difficult to apply a bubble, that, you know, they have to measure 8 feet or whatever it is. they didn't say that massive obstruction and protests are occurring, preventing people from -- that wasn't the finding, was it? >> no. i -- i agree, it was not. the claim was >> that's why i just asked you that question. it just happens that the police testify with some evidence and

examples that the 8-foot bubble doesn't work. and it also -- they have some evidence and reasons for thinking that if you want to have a conversation, you have to convince the woman to walk 10 feet. i mean, the difference is about half -- you know, if you were near me, price is near colorado. if we're over to where the first row is, we'd have massachusetts, and -- and they have some evidence that we can't enforce this colorado thing very well; , it doesn't help. now, go ahead. i want your answer. >> i -- i agree, but if >> i'm not trying to put words >> -- if you sent me 35 feet further back and asked me to make my argument from there >> i'd hear you. >> you might hear me, but i would suggest you'd -- you'd receive it quite differently. if i were sent back there, but the clinic -- or the state were permitted to stand in front of you like a normal lawyer and make their argument in the normal way, i would suggest that would be a significant difference.

and what we have here is -- >> i'm not denying the difference. >> yeah. >> i am asking you, we've now heard different characterizations of the record. i didn't mean to characterize it. i want you to explain what it is in the record, from your point of view or lack thereof, that means that the constitution intervenes to prevent massachusetts from doing it. >> so the constitutional narrow tailoring test under the time, place, and manner test requires that the law not restrict substantially more speech than necessary to serve the government's interest. >> how much is -- how much is restricted? how -- how long does it take from when you enter the buffer zone until you reach the clinic entrance? >> if -- if you're walking nonstop, i assume 7 to 10 seconds or something like that. >> so the conversation can go on before those 7 to 10 seconds. >> yeah. >> there's not much you're going to be able to do to have a conversation that will persuade people in 7 to 10 seconds. >> i respectfully disagree on that last point, your honor. the evidence in this record is that the -- the inability to speak with people close to the clinic has a dramatic effect on the petitioners' ability to reach their audience. so if someone happens to be walking from the same side of

the zone that you're standing on, you may have a shot. now, the clinic still has the space in front of the clinic to talk to people, which you don't, but you may have a shot if you're on the right spot. >> and if you know they're going to the clinic. >> and if you can identify the audience early enough. but, for example, places like worcester and springfield, where essentially the only chance to reach the audience is by standing on the public sidewalk and waving a leaflet as they drive through the driveway entrance. if you have to stand 35 feet back and do that, the evidence here shows there's essentially zero chance to reach that audience. >> but isn't that more a function that they just have a private parking lot? so even if this law didn't exist, you actually couldn't reach most of these people because they drive into the private parking lot and you can't talk to them anyway. >> no, your honor. i don't think that's a fair characterization of it. so yes, there's a private parking lot, but there's a public sidewalk on which, before this law, you had the right to engage in speech. the fact that this law pushes you 35 feet back is what makes it impossible to make the offer. many people would just drive on by, they don't want the information, and that's fine. that's their right. but many people do want the

information and have acted on the information. and this law makes it much harder, almost impossible in places like worcester and springfield, to offer it. >> is there a buffer zone that you would concede is permissible? in other words, if it were 12 feet, would that be all right? >> so, as the size of the zone decreases, i think the -- the imposition on the speech rights is -- you know, gets less and less and better and better. and so the adequacy of the alternatives, for example, that may improve as you go. it would still be a problem, i think, to have zones on the sidewalk where, even when no one's there, it's a criminal act to have a conversation. >> well, but that goes back to justice ginsburg's question. i mean, how is a law supposed to deal with -- with that, sort of the fluctuating conditions that may be at a particular clinic site? >> that's -- that's precisely the point. that's why this is not something that should be addressed with a statute like this. this is something that should be addressed with either a statute drawn to something like large crowds or a dispersal statute. the brief -- amicus brief for new york state in support of massachusetts here talks about how concord, new hampshire and

los angeles deal with this problem. they give the police the power to disperse crowds when they become obstructive or violent, the same way this court approved in boos v. barry. >> it is the case, isn't it, that not only abortion counselors are -- are excluded from this area, everybody is, right? anybody who wants to talk to anybody or who just wants to be there -- can't -- i mean, this is a -- a dead speech zone, right? >> in many respects it is. in many respects it is no different than the speech-free zone in the jews for jesus case. it's a place where the government claims it can essentially turn off the first amendment. but the government says -- >> it's more than a speech-free zone. it's also a conduct-free zone, right? you can't sell hats there, you can't, you know, beg there. i mean, you just can't go there. >> i agree the government has eliminated more than speech on that sidewalk, but they've eliminated speech on that sidewalk as surely as in the jews for jesus case. >> well, they haven't entirely

eliminated speech because employees are permitted to speak within the scope of their employment, isn't that right? >> thank you, justice alito. yes. so they haven't eliminated speech for all people. >> well, that's a -- a contested point because the attorney general reads "scope of employment" to mean getting to my job and leaving my job, and does not include speech activity. >> so on the face of the statute, i don't that -- that that interpretation doesn't do very much. >> this is the -- the chief legal officer of the state says this is a term that needs to be interpreted. the term is "scope of employment." scope of employment within this statute means getting to work and leaving work, and it doesn't mean political speech. >> so the attorney general says it's more than just getting to work and leaving work. it says it's just doing their jobs. first, i don't believe -- i don't believe that they have the

authority to do that, in other words, i don't think they could go arrest somebody who happened to speak about abortion when they work for an abortion clinic. they have an absolute statutory defense. but even if they could limit it to just doing their job, you end up with the problem that the ninth circuit sought in the hoyt case, which is if the clinic is allowed to use that sidewalk, even just to say, "good morning, may i help you into the clinic," and the government says that's a valid use of our public sidewalks, but the state says mrs. mccullen will go to prison if she goes on that sidewalk and says, "good morning, may i offer you an alternative? as the ninth circuit panel said, that's indubitably content-based. the government doesn't get to decide that the public sidewalk -- which it leaves open for people just walking by, right? if i'm going down that sidewalk to get a cup of coffee, it's fine. >> well, am i correct that the attorney general's regulation with respect to employees of the clinic in a way made this even more content-based because there was a prohibition on discussing the -- the abortion procedure? >> i -- i agree. that's one of the reasons that the interpretation is flagrantly unconstitutional. the government can't simply say to people who work for planned parenthood, we won't arrest you when you talk on the sidewalk unless you talk about abortion,

right? if you talk about abortion, then we'll arrest you. and that mirrors -- that mirrors the state's interpretation of its -- of the exemption for people walking through the zone, where it says you can walk through, and this is j.a. 93-94, "provided that the individual does not do anything else within the buffer zone, such as expressing their views about abortion." so the government's saying you can walk through, but you can't talk about abortion. >> but it's "such as," it's "such as." it says you can't talk about anything. >> well, i -- i agree. >> well, it's not content it's not based on speech about abortion. it's that you can't speak about anything. >> well, the -- the interpretation as to the employees that the attorney general has proffered for 6 years is about speech about abortion. so it's not they can't talk about abortion. >> excuse me. if -- if you're going through the zone just to get somewhere, not to get to the clinic, and you're walking with a companion, can't you speak to your companion as you -- it doesn't ban speech by everybody who's walking through. >> the attorney general has taken multiple positions on that. in the lower court, their position was you can't talk

about abortion or partisan issues. they told the first circuit that you can't even wear -- that you can be arrested if you wore a cleveland indians shirt while you were just passing through. at this court, they say that people passing through have speech rights. either one is bad. either way the government doesn't have the ability to say who gets to speak and who doesn't get to speak on an open public sidewalk. if i may reserve my time? >> thank you, counsel. ms. miller. >> mr. chief justice, and may it please the court: petitioners can and do protest abortion in massachusetts and they can do it in the public spaces right outside abortion facilities. >> this is not a protest case. these people don't want to protest abortion. they want to talk to the women who are about to get abortions and try to talk them out of it. i -- i think it -- it distorts it to say that what they want to do is protest abortion. if it was a protest, keeping them back 35 feet might not be so bad. they can scream and yell and hold up signs from 35 feet. but what they can't do is try to

talk the woman out of the abortion. it's a counseling case, not a -- not a protest case. >> it -- your honor, i would say it's a congestion case. certainly, ms. mccullen and others can have those conversations right in front of the abortion facility. it's just that those conversations are moved back a few feet. and in point of fact, ms. mccullen -- >> well, it's more than a few feet. you know, 35 feet is a ways. it's from this bench to the end of the court. and if you imagine the chief justice as sort of where the door would be, it's most of the width of this courtroom as well. it's it's pretty much this courtroom, kind of. that's a lot of space. >> just as a factual matter, i did want to point out that in boston, for example, the door is recessed. it's a private entrance with a recessed door and the 35 feet is measured from the door. so it's actually only about 23 feet. >> i thought it was two car lengths. >> i'm sorry? >> two car lengths.

>> i'm sorry. i didn't hear you. >> two car lengths. >> two car lengths. >> that's, i think, a little less than this courtroom. >> we measured this courtroom. >> i'd just like you to go back to justice scalia's question for one second. i didn't hear the -- as he was saying that this case is not a protest case, it's simply about calm conversations. and that is what i want to know if the evidence showed that. >> well, certainly, there's a picture of a calm conversation >> no, the evidence upon which massachusetts based its decision to go to 35 feet instead of 8 feet. there were hearings. did the evidence show that what was involved was calm conversations between one person trying to counsel another or did the evidence show something else? >> certainly, the evidence showed something else. >> what? >> experience showed that there had to be a certain amount of space around the facilities. what we had, for example, were pro choice advocates swearing and screaming at pro life advocates within the buffer zone. that's at joint appendix 26 through 28. you had the pink group, which is a pro choice organization, pushing and shoving and jockeying for position. >> well, surely you could have a

law against screaming and shouting within 35 feet or protesting within 35 feet. isn't that more narrowly tailored? i mean, what this case involves, what these people want to do is to speak quietly and in a friendly manner, not in a hostile manner, because that would that would frustrate their purpose, with the people going into the clinic. >> but, again, experience showed that even individuals who wanted to engage in close, quiet, peaceful conversation were creating congestion around -- >> rather -- i note there's some people who are peaceful, in which case i would accept justice scalia's suggestion this is a counseling case. but you've cited some other evidence that suggests there were other people who were screaming, pushing and shouting, which sounds like, in his characterization, a protest case. and the reason that massachusetts found it difficult to write a statute that distinguishes one from the other is?

why do people write statutes that sometimes do not make these fine distinctions? why did they in this instance? >> they didn't make a fine distinction, your honor, because it didn't matter whether people were being peaceful or whether they were -- >> could you have written such a statute that would have worked? >> it would have been very difficult to write such a statute, your honor. >> how did you pick 35 feet? why 35? >> well, again, experience showed that some amount of space around the buffer zones around the facilities needed to be open. so then it was simply a question of looking at past experience, at the prior injunctions, for example, your honor. for example, in planned parenthood v. bell, which is cited at page 2 of our brief, there was actually a 50-foot buffer zone imposed by a district court judge in massachusetts. we knew from, of course, madsen and schenk, that 36-foot buffer zones were acceptable in -- when you were being responsive to that kind of problem, and we knew that a 15-foot buffer zone would be acceptable if

responding to a similar kind of problem. so at some point or another, the -- the legislature was aware that some amount of space needed to be created, and it chose 35 feet as a reasonable response, a reasonable amount of space around the facility to allow -- >> to go to -- go back for a second. i see that. is there anything in the record -- the obvious reason for a legislator, i think -- i did work in the legislature for a while as a staff member that you don't write these fine statutes is they won't work. they have too fine a distinction. the activity is commingled. the activity -- all right. now, i knew you were just going to nod my -- your head as soon as i said that. so i was trying to get you to say it in spontaneously if it's true. is there anything in this record that suggests that this is one of those cases where it's just too tough to say whether they're counseling somebody or whether they're screaming at somebody, whether they're pushing somebody or whether they're standing near them peacefully? is there any evidence in the record i could turn to that would suggest that? >> you should say yes. >> and i will.

>> she can't say yes if it isn't there, because i'm going to ask her where because i want to read it. >> i will of course, your honor. the best description of that is, of course, commissioner evans's description of the space functioning like a goalie's crease. >> well, let -- let me ask this question: assume it to be true that an elderly lady who was quite successful and had meaningful communication with over 100 women going into the clinic, before this law, was unable to talk to even one after this law. assume that's true. does that have any bearing on our analysis? and does that have any bearing on justice breyer's question about whether or not a law can be written to protect that kind of activity but still to prevent obstruction and blocking? >> i -- i think, your honor, that no one is guaranteed any specific form of communication.

so, there is no guarantee, as a doctrinal matter, to close, quiet conversations. the question is, are there adequate alternatives? and in this particular instance in this record, there are adequate alternatives. take, for example, the situation >> you say there's no -- no guarantee of talking quietly? do you want me to write an opinion and say there's no free speech right to quietly converse on an issue of public importance? >> generally on the public sidewalk. but, of course, that right is tempered by the -- the state's interest in making sure that the public sidewalks function as they should and that there is peace and good order. but i would give you an example, your honor. i'd -- i'd point you >> i still don't know where you're going to -- this -- this goes to justice breyer's question. you -- you cannot write an ordinance that says obstruction, intimidation, blocking is

prohibited, and still allow the kind of conversation that i described earlier and that i want you to assume to be true for the -- for the purposes of this question. >> your honor, we -- we couldn't here, obviously, because that wasn't the problem. the problem with making that kind of a fine distinction is that it doesn't address what the state's >> but in speech cases, when you address one problem, you have a duty to protect speech that's -- that's -- that's lawful. >> you do. as long as your protection is narrowly tailored to your interest, you -- >> but i -- i think what you have to say to this court is that it's impossible to write a statute of the kind that we are discussing now, and this is justice breyer's question. >> it would be enormously difficult to write a statute that addressed the problem and the significant interest here where you are making that kind

of a find -- >> may i ask you a question about a distinction that is in this statute? now, let me give you this -- this example. a woman is approaching the door of a clinic, and she enters the zone. two other women approach her. one is an employee of the facility, the other is not. the first who is an employee of the facility says, good morning. this is a safe facility. the other one who's not an employee says, good morning, this is not a safe facility. now, under this statute, the first one has not committed a crime, the second one has committed a crime. and the only difference between the two is that they've expressed a different viewpoint. one says it's safe, one says it's not safe. now, how can a statute like that be considered viewpoint-neutral? >> your honor, i think what the statute distinguishes is based on what those two different people are doing. the -- as you say, the employee could say, if she was performing her job, which would be escorting that individual into the facility, and if she wasn't unnecessarily cluttering up the -- the buffer zone, which was the reason that the statute was -- was enacted in the first place, then that person could say that. you judge it on what she's

doing, not what she's saying. >> well, that's what she what she's doing is what she's saying. she approaches and she says this is a safe facility. the other one says it's not a safe facility. they have a bad safety record. and they're -- they're the only people in the zone. >> right. >> if it's as big as this courtroom, they're the only three people in that zone. >> right. >> the difference is a viewpoint difference. >> the -- what the legislature has done is that it has created a circle around these entrances and has only permitted particular conduct within that buffer zone to allow the traffic to keep moving on the sidewalk and to allow people to get in and out. so unless you have a permissible purpose for your conduct to be in the buffer zone, then you cannot be in the buffer zone and that is what the statute is addressing. >> i don't understand it. 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.