What "the" means

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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.)

After reading the opinion carefully, I remain puzzled by the "cold, unadorned logic" of the court's linguistic analysis. If there were always exactly two "sessions" and one inter-session "recess" per Congress, then the definite article might be taken to pick out a unique per-Congress inter-session recess. But given that from the beginning there have sometimes been three regularly-scheduled sessions per Congress, and sometimes special sessions as well, some other interpretation of the definite article is suggested.

Edward A. Hartnett ("Recess Appointments of Article III Judges: Three Constitutional Questions", Cardozo Law Review 2006) observes that the Constitution itself contains an example of such an alternative usage, in Section 3 of Article 1:

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

As Hartnett argues,

Surely no one would contend that the use of the definite article and the singular form somehow means that there is some once-a-year, or once-a-session, absence of the Vice President that constitutes “the Absence” during which a president pro tempore can serve.

Hartnett considers some other relevant linguistic questions as well, such as when a vacancy may be said to "occur", and how the Constitution uses the words recess and adjourn(ment). All of this is likely to come back into the news, as the circuit court's decision is appealed, and other similar cases enter the system.

For more political and legal context, see Tom Schoenberg, "Obama Defeat on NLRB Picks a Rare Loss on Recess Power", Bloomberg 1/28/2012. Schoenberg notes some political irony in the result:

The U.S. Court of Appeals in Atlanta rejected similar arguments in 2004 by Democratic Senator Ted Kennedy when it upheld President George W. Bush’s recess pick of U.S. Circuit Judge William Pryor.

[...] Bush made the recess appointment of Pryor to the Atlanta-based U.S. Court of Appeals after Senate Democrats twice blocked his confirmation. Bush said at the time that he was forced to put Pryor on the bench to overcome “unprecedented obstructionist tactics” by Democrats.

At least three challenges were filed claiming Pryor’s rulings were invalid because the U.S. Constitution allows temporary appointments only during the recess between one-year sessions of Congress, not during breaks within a congressional session. Pryor was appointed one business day before the Senate reconvened after a 10-day intra-session holiday adjournment.

When one of the cases came before a panel of 10 members of the appeals court, Senator Kennedy filed a brief making the same arguments and constitutional analysis that the Washington appeals court accepted in last week’s ruling.



31 Comments

  1. Jonathan said,

    January 28, 2013 @ 9:17 am

    I happened to read that decision this morning and I was similarly puzzled. The better points, also made in the decision, are that (a) the Constitution generally uses the word adjournment for these sorts of things, so "recess" must mean something different, and (b) the fact that the gov'ts contention that the President's judgment is the final arbiter of whether or not the Senate is in recess is absurd.

    As to the political irony, I would say that is is distressingly common for one party to use Constitutional argument at one point and then yurn around and adopt the opposite argument when it suits them. See for example the interpretation of the War Powers Act and the declaration of war clauses with regards to say, Cambodia in 1968 and Libya last year. Congressman swear to defend the Constitution, but they don't promise to keep their interpretations of its meanings constant.

  2. Mark Etherton said,

    January 28, 2013 @ 9:28 am

    In the UK, Erskine May has this to say about recesses in the UK parliament:

    "The period between prorogation of Parliament and its reassembly in a new session is termed a 'recess', while the period between the adjournment of either House and the resumption of its sitting is properly called an 'adjournment' (although in practice the word 'recess' is generally used in this sense also). A prorogation terminates a session; an adjournment is an interruption in the course of a single session."

    [(myl) Hartnett considers this terminological issue at some length, and concludes that

    [T]he Constitution cannot plausibly be read to treat an “adjournment” as inherently different and shorter than a “recess.” To the contrary, the Constitution’s use of the term “adjourn” must include the taking of a “recess.” Otherwise, the requirement that neither house adjourn for more than three days without the consent of the other could be evaded by the simple expedient of declaring a unilateral “recess.” Surely the Constitution should not be read to prevent either house from taking a week long break without the consent of the other, while permitting either house to unilaterally close up shop until the next scheduled meeting of Congress. Congressional practice has, quite wisely, treated this requirement of consent to apply not only to breaks in the midst of the session, whether labeled adjournments or recesses, but also to decisions to end a session.

    ]

  3. Joe said,

    January 28, 2013 @ 10:39 am

    The second major linguistic analysis of the Court's decision concerns the meaning of "happen":

    "Upon a simple reading of the language itself, we conclude that the word “happen” could not logically have encompassed any vacancies that happened to exist during “the Recess.”

    "The term “happen” connotes an event taking place — an action — and it would be plainly incorrect to say that an event happened during some period of time when in fact it happened before that time."

  4. Paul Sand said,

    January 28, 2013 @ 11:03 am

    You might be interested:
    http://www.commentarymagazine.com/2013/01/28/making-a-federal-case-out-of-the/
    especially the bit about a founder fight over a comma vs a semicolon in Article 1, Section 8

  5. Ben Zimmer said,

    January 28, 2013 @ 11:15 am

    I don't know if Hartnett's constitutional example with "absence" is really all that compelling, since it could easily be argued that "in the absence of" is a fixed idiom in which "the" isn't expected to pick out a single "absence." The same can't be said for "during the recess." Note, too, that "absence" can be construed as a mass noun, while "recess" is always a count noun [except in the set phrase "in recess" -- see Neal Goldfarb's comment below].

    Anyhow, all of this reminds me a bit of another case of legal wrangling over articles: the battling interpretations of the "a" in "a football injury."

  6. Steve Hall said,

    January 28, 2013 @ 11:21 am

    Interestingly, I just finished reading The Odd Clauses (Amazon link) by Boston University law professor Jay Wexler. Chapter 3 is an analysis of the recess-appointments clause.

    His summation is that, while there is confusion and controversy regarding what a "recess" is (Congress has been known to recess for as much as a month or more, within a session), that confusion has not been resolved either by Congress—via law—nor by the courts.

    Now, obviously, there has been a legal decision rendered. It will be interesting to see where the appeals process leads—especially if the Supreme Court reviews the case.

  7. J.W. Brewer said,

    January 28, 2013 @ 11:23 am

    There are a bunch of other important issues going on in the decision other than the definite-article point (not least the tension between semi-settled modern practice and earlier practice which seems to have assumed a different construction of the same language), but I would be surprised if the briefing in the D.C. Circuit had benefitted from the fruits of any applicable corpus-linguistics work on 18th-century usage of definite articles (or the various usages of "recess" in a broader range of 18th century prose sources talking about various legislatures). Perhaps Supreme Court review might provide an opportunity for someone to get some corpus-research based arguments out on the table.

    Of course, if the best linguistics-based answer is that the particular text can plausibly bear more than one meaning, with the tools of linguistics themselves unable to say particularly strongly which is more likely to be the "correct" meaning in context, that leaves the question open as to what other means is to be used to decide the particular dispute (which might include what the right default rule is as to who should win when a piece of legal text is ambiguous), but to the extent lawyers and judges put more weight on language-based arguments than a sophisticated and scientific understanding of language (giving due regard for the particular peculiar traditional interpretive conventions of the legal community) would find supportable, it is socially productive for the linguistics community to politely explain when a particular argument may be less compelling than it first sounds, even without the ability to offer an alternative way of answering the question.

  8. Neal Goldfarb said,

    January 28, 2013 @ 11:30 am

    Upon a simple reading of the language itself, we conclude that the word “happen” could not logically have encompassed any vacancies that happened to exist during “the Recess.”

    The term “happen” connotes an event taking place—an action—and it would be plainly incorrect to say that an event happened during some period of time when in fact it happened before that time.

    What we have here is a possible candidate for inclusion in the Archive of Self-refuting Sentences. If happen is invariably eventive, how do we explain the happen in happened to exist, which pretty clearly isn't eventive?

    It may well be that happen is primarily used eventively, and that constructions like happen to VERB or it just so happens that CLAUSE are idiomatic exceptions. That's my initial impression, but that impression (as is Judge Sentelle's intuition about what happen means) is based on English as it is spoken now. It would be interesting to know whether there's been a change since 1787 in how the word is used.

    [(myl) It's certainly worth looking into the historical patterns of usage. With respect to current norms, Hartnett again:

    Is a vacancy something that “happens” at a particular time? Or is it something that “happens” over an extended period of time? There is an ambiguity; both are textually plausible. A vacancy in an office, like a vacancy in a motel room, can be understood to “happen” either at the moment that the prior occupant left, or to “happen” the entire time that the office or room is unoccupied. On the first understanding, “happen” is used in the sense of “originate”; on the second, “happen” is used in the sense of “exist.”

    Smith: There was a vacancy in the office of Vice President.
    Jones: When did that happen?
    Smith: On April 15, 1865, when Lincoln died.
    Smith: There was a vacancy in the office of Vice President.
    Jones: When did that happen?
    Smith: From April 15, 1865, when Lincoln died, until March 4,
    1869, when President Grant and Vice President Colfax took office.

    ]

  9. Neal Goldfarb said,

    January 28, 2013 @ 11:37 am

    @Ben Zimmer: "Note, too, that 'absence' can be construed as a mass noun, while 'recess' is always a count noun."

    I disagree.

    The Constitution allows for such appointments without Senate approval when Congress is in recess. [Link]

  10. West said,

    January 28, 2013 @ 12:54 pm

    "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.)"

    Well, then if these republicans wish to thwart the Will of Obama, then it makes perfect sense to find a way around the language of the constitution.

  11. G Jones said,

    January 28, 2013 @ 1:26 pm

    @West

    I love that "republicans" is not capitalized but "Will" is. Is Obama a god now, and his opponents beneath contempt?

  12. Mark Young said,

    January 28, 2013 @ 1:28 pm

    "Close the door of your house when you leave" does not require that your house have only one door. The context allows us to understand the command to apply to the door that you leave by — a unique door. Similarly, the way "the Recess" and "their next Session" appear together in the constitution suggests that "the Recess" should be understood to be unique with respect to the "Session" (rather than the "Congress", as you suggest). Thus the last paragraph quoted makes perfect sense — whatever "Session" refers to, there should be one recess per, and since it refers to one of those longer periods, the recess referrred to must be the longer one as well. The earlier quoted paragraph is just the introduction to that argument, and the latter its culmination. The rest of the argument should have appeared in the excised part of the quote. Maybe it didn't?

  13. J.W. Brewer said,

    January 28, 2013 @ 1:53 pm

    I'm not familiar with Prof. Hartnett's work in general, and also not qualified to say how his piece fits in with the wider range of recent scholarly work by legal academics on the topic, but it is worth noting that his piece was a lightly-revised 2006 publication of a 2004 lecture, at a time (as noted in the Bloomberg piece also quoted above) when the political valence of the issue was somewhat different because it was the second President Bush who was taking a broad but certainly not unprecedented view of his appointment authority in the face of aggravating but not certainly unprecedented alleged obstructionism by Senate Democrats. Indeed, the NLRB confirmation crisis that led to the challenged recess appointments here was the successor to a prior NLRB crisis occasioned by a standoff in 2007-08 between the second President Bush and Senate Democrats (the attempted workaround there was an ingenious but ultimately unsuccessful-in-litigation theory as to how two continuing members of a five member board, after three of their colleagues' terms had expired, could be a valid quorum via some intermediate handwaving).

  14. Hening Makholm said,

    January 28, 2013 @ 2:10 pm

    It's completely opaque to me which political point it is @West is pushing.

    Is he saying that it makes sense for the thwarting republicans and their litigating allies to interpret the constitution to mean something it doesn't?

    Or is he saying that since Obama is being thwarted, it makes sense for him to interpret the constitution to mean something it doesn't?

    And no matter whether he's saying one or the other, is he being sarcastic or not? And if so, does the sarcasm apply to the claim that the interpretation in question makes tactical sense for whichever party he speaks about, or to the implied claim that the interpretation in question is wrong? Or both?

    An impressive example of one-size-fits-all political snarkery, like a rhetorical Rubin vase.

    [(myl) Indeed. If not for the interpretive-illusion aspects, I'd be tempted to try the kitten setting.]

  15. GeorgeW said,

    January 28, 2013 @ 4:24 pm

    "The rain in Spain stays mainly in the plain." Which specific rainfall?

  16. Robert said,

    January 28, 2013 @ 5:00 pm

    "The rain in Spain" doesn't contrast with "A rain in Spain", so that 'the' isn't indicating specificity.

    Saying "the next session' suggests the clause refers to vacancies occurring between sessions, not during intrasession recesses. If that had been contemplated I'd expect something along the lines of 'expire at the end of the current session, if it has more than x weeks left to run, otherwise at the end of the next session" since the intent seems to be to restrict the length of time for which appointees without senate consent can stay in office.

    However, the wording isn't specific enough to be unambiguous.

    [(myl) "A hard rain's gonna fall.."]

  17. GeorgeW said,

    January 28, 2013 @ 6:19 pm

    Robert: "The rain in Spain" doesn't contrast with 'A rain in Spain', so that 'the' isn't indicating specificity."

    It could: The rain in Spain yesterday afternoon at 2:00 was . . .

  18. Robert said,

    January 29, 2013 @ 4:02 am

    GeorgeW: It could: The rain in Spain yesterday afternoon at 2:00 was . . .

    As opposed to 'A rain in Spain yesterday afternoon at 2:00'?

    'The rain in Spain' does refer to specific rain, but this isn't signalled by using 'the' rather than 'a'., but by the string of propositional clauses. 'A rain' is possible under some circumstances, but isn't usual.

    Basically, 'rain' is a mass noun, and 'recess' a count noun. This affects the way they interact with articles, definite and indefinite, so reasoning by analogy from one to the other has to be done with care.

  19. GeorgeW said,

    January 29, 2013 @ 6:10 am

    Robert: "Basically, 'rain' is a mass noun, and 'recess' a count noun."

    Not always: 'Recess is my congressman's favorite time.' 'The rain was very heavy (today).'

  20. Pete said,

    January 29, 2013 @ 10:49 am

    GeorgeW: You're right about recess: you've given an example of how it can be used as a mass noun. But your rain example doesn't prove that rain can be a count noun; to do that you need to prefix it with a, or use it in the plural (which I think should be possible).

  21. GeorgeW said,

    January 29, 2013 @ 11:03 am

    Pete: How about, 'We had a rain today and one yesterday as well.'

    The plural is, I think, a little more problematic. '?We had only three rains the whole month of December.'

  22. J.W. Brewer said,

    January 29, 2013 @ 11:14 am

    "Be glad then, ye children of Zion, and rejoice in the LORD your God: for he hath given you the former rain moderately, and he will cause to come down for you the rain, the former rain, and the latter rain in the first month." (Pluralized in the looser style of the NIV as "Be glad, O people of Zion, rejoice in the LORD your God, for he has given you the autumn rains in righteousness. He sends you abundant showers, both autumn and spring rains, as before.") Of course, that could just be an example of the common phenomenon where a mass noun X can also be a count noun meaning "type or variety of X."

  23. Pete said,

    January 29, 2013 @ 11:56 am

    GeorgeW: Yeah…I suppose. Well…no, really you wouldn't say we had a rain, would you?

    But you could say The rains have arrived. That's syntactically a plural but even then I'm not sure it's enough to qualify rain as a count noun because the meaning is still that of a mass noun. There's no semantic distinction between The rains have arrived and The rain has arrived – the former just sounds a bit more safariesque.

  24. GeorgeW said,

    January 29, 2013 @ 4:33 pm

    Pete: How about, We had a good rain or a long recess. Does an adjective change the definitness of the noun?

  25. Ken Brown said,

    January 29, 2013 @ 6:19 pm

    You can have some rain but not some recess.

  26. GeorgeW said,

    January 29, 2013 @ 7:49 pm

    Wow! That was some recess! :-)

  27. Ethan said,

    January 29, 2013 @ 8:49 pm

    @Ken Brown
    I have no personal experience talking about congressional schedules but I share with [all?] American former schoolchildren the use of "recess" to describe a long break between classes, usually spent on the playground. In that context I think "recess" is a divisible quantity: "We had to stay late in Mrs Abercrombie's room to clean up the mess, but at least we got some recess before math".

  28. Andy Averill said,

    January 30, 2013 @ 9:15 am

    Have we actually reached the point where the manifestly unworkable doctrine of originalism is so taken for granted that all questions of constitutional interpretation can only be resolved in the domain of linguistic analysis? As a citizen (rather than as a linguist, which in any event I'm not), I find this appalling. Even if we reject the idea that the Constitution is a living document, there still remains the alternative of appealing to "original intent", rather than "original meaning" (which is what the Scalia faction insists on).

    And here the picture becomes much less murky. Hamilton, writing about this clause in The Federalist #67, says:

    The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments "during the recess of the Senate, by granting commissions which shall expire at the end of their next session[emphasis added]."

    In other words, recess appointments are to be resorted to only in the case of urgent business which can't wait until the Senate reconvenes. This was undoubtedly more unlikely to occur in the days when Senate recesses were of considerably greater length than they are today. IIRC, they used to evacuate the insalubrious environs of Washington for the entire summer, like any sensible person.

    So under that reading, Obama is basically trying to pull a fast one, as did Bush and numerous other presidents before him. I don't know whether the question of what a president is supposed to do when the Senate refuses to confirm any of his appointees occurred to Hamilton or not.

  29. Andy Averill said,

    January 30, 2013 @ 9:18 am

    Sorry, that should have been "more likely to occur" rather than "more unlikely to occur".

  30. J.W. Brewer said,

    January 30, 2013 @ 1:26 pm

    Andy A: Judge Sentelle's opinion does quote from and refer to Federalist 67 at various points. Indeed, myl's quotes are from pages 17 and 18 of a 46-page opinion (which myl linked so you can read it yourself), so it is fair to say the definite-article analysis did not form the entirety of the decision's rationale.

  31. The Recess Appointments Clause (Part 1) | LAWnLinguistics said,

    February 18, 2013 @ 11:58 pm

    [...] [H/t Edward Hartnett via Language Log.] [...]

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