![]() First, maybe procedures can block the quorum call, including by simply recessing the Senate. Noel Canning’s brief explains, “Quorum calls were in order at each pro forma session because each was a separate session punctuated by an adjournment and nothing in the Adjournment Order precluded quorum calls.” According to the authoritative Riddick’s Senate Procedure, the presumption exists only until “a point of no quorum is made,” at which point the Senate may not take “any further legislative action until a quorum is established.”Ī few possible answers come to mind. So the question arises, can a member of the President’s party wipe away the fiction and trigger the Recess Appointments Clause by making a quorum call during a pro forma session, to establish that the Senate in reality at that time “is without the capacity to act”? I’m not familiar with Senate procedures, but the answer at first blush appears to be yes. As Noel Canning’s brief continues, “The Senate operates on the absolute presumption that a quorum is always present until a point of no quorum- i.e., a quorum call-is made, and thus possessed a formal quorum at each pro forma session.” In the case before it, the Court takes care to note that “nothing in the Journal of the Senate or the Congressional Record reflects any such suggestion” that a quorum was absent. , a single Senator can prevent the Senate from conducting business by making a quorum call.” Senate rules presume that quorum is present unless a present Senator questions it.” As Noel Canning’s brief in the Supreme Court explains, “whenever the Senate lacks quorum. “During any pro forma session, the Senate could have conducted business simply by passing a unanimous consent agreement. Yet that critical presumption that a quorum exists is easily burst: any member of the Senate can suggest the absence of a quorum. we will not consider an argument that a quorum was not, in fact, present.” As Mitch McConnell’s brief in the Supreme Court explains, “The Senate, in other words, has provided that a quorum is presumed until proven otherwise.” And it is a fiction the Court definitively accepts: “hen the Journal of the Senate indicates that a quorum was present, under a valid Senate rule. The interesting point is that (b) is rests on a fiction: there actually is no Senate quorum during a pro forma session. Because these recess appointments were made despite the existence of a pro forma session that broke up a longer recess, they were invalid. The Court held that both conditions are satisfied by a pro forma session because (a) not only does the Senate say it is in session, but (b) it can also act by unanimous consent during the session because the Senate rules presume the existence of a quorum. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares.” The latter is critical: “But our deference to the Senate cannot be absolute. The five-Justice majority held that the power applies to intra-session recesses and to vacancies that occur prior to the recess.īut the Court held that these appointments were nonetheless invalid because the Senate is in session (and the recess appointments power does not apply) when both (a) the Senate says it is in session, and (b) it has the actual capacity to act. Noel Canning, the Supreme Court (by a vote of five to four) rejected two major structural challenges to the recess appointments power, but all the Justices invalidated the recess appointments at issue in the case by accepting a third argument. ![]()
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