DC Circuit Court Rules Obama Misused the Word "The"

| Fri Jan. 25, 2013 12:15 PM EST

As you may recall, the last few years have been fraught ones for appointments to executive branch positions. Republicans in the Senate have spent their time filibustering President Obama's appointments, thus preventing their confirmation via the regular process, while House Republicans have tried to prevent Obama from making recess appointments by refusing to agree to breaks of more than three days, thus forcing the Senate to hold sham "pro forma" sessions when they adjourned for holidays. Obama finally called out these phony sessions for what they were, and went ahead with a handful of recess appointments that Republicans had blocked.

Today, the DC Court of Appeals ruled that Obama exceeded his authority: he is allowed to make recess appointments only between congressional sessions, not during any other kind of recess. Their reasoning is based on a combination of originalism and the meaning of the word "the." Seriously:

It is this difference between the word choice “recess” and “the Recess” that first draws our attention....[In 1787], as now, the word “the” was and is a definite article. [...] Unlike “a” or “an,” that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.” This is not an insignificant distinction. In the end it makes all the difference.

....Finally, we would make explicit what we have implied earlier. The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments.

John Elwood of the Volokh Conspiracy is surprised:

It appears that the Court invalidated the use of intrasession recess appointments, which have been in pretty heavy use since WWII, and were used for a number of high-profile recess appointments, including John Bolton and Judge William H. Pryor, Jr. This is in pretty clear conflict with an Eleventh Circuit opinion and is a broader basis for invalidating the recess appointments than I anticipated. I suspect this one is destined for the Supreme Court.

Yeah, that's a pretty broad basis, all right. Not only have presidents made intrasession appointments for over 50 years, but the court seems to be saying that anything that wasn't done in the early 19th century was pretty clearly meant to be prohibited by the framers. Hoo boy.