According to Article 2, Section 2, Clause 3 of the U.S. Constitution,
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
According to a recent decision of the U.S. Court of Appeals for the D.C. Circuit, "the term 'the Recess' in the Recess Appointments Clause refers to the intersession recess of the Senate", so that this option is not available "during intrasession 'recesses,' or breaks in the Senate’s business when it is otherwise in a continuing session". The court's argument is a linguistic one:
When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. [...] Then, as now, the word “the” was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) (defining “the” as an “article noting a particular thing” (emphasis added)). 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.
It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions.
The result is of some political consequence, since it invalidates decisions made by the National Labor Relations Board during 2012, on the grounds that several of its members in this period were intra-session recess appointments. (These were recess appointments because some members of the Senate, opposed to the NLRB on principle, have made it clear that they will use Senatorial privilege and/or filibuster techniques to block any in-session appointments to that board.)
Read the rest of this entry »