A Washington D.C. Circuit Court of Appeals ruling issued Friday declared that President Barack Obama’s 2011 recess appointments to the National Labor Relations Board were unconstitutional because the Congress was taking “a recess,” not “the Recess,” a parsing the judges claim “makes all the difference.”
The three-judge panel, made up of Republican appointees led by Chief Judge David B. Sentelle, explained in their ruling (PDF) that the difference between “a recess” and “the Recess” is whether Congress has been formally adjourned. Republicans did not formally adjourn during the period typically considered “the Recess,” instead holding “pro forma” sessions where the speaker or a deputy gavels in the House, then immediately gavels it back out again. Almost everybody leaves town and no business is done during “pro forma” sessions except maybe producing some interesting political theatrics on C-SPAN and, importantly, establishing the minimum amount of effort to legally say that Congress is “in session.”
The president’s attorneys disputed the idea that “pro forma” sessions meant Congress was not in recess at the end of 2011. They moved forward with the same kind of recess appointments Republicans pulled off in 2004, when Democrats unsuccessfully tried to use “pro forma” sessions to block President George W. Bush’s judicial nominees, much to Republicans’ dismay.
But because the labor board’s attorney argued before the D.C. Circuit Court of Appeals that the president has the power to make appointments during “a recess” — as in the time when Congress is not in town and is not doing anything — instead of “the Recess” following formal adjournment, Obama’s appointments were declared illegal. The ruling does not say what the functional difference is between “a recess” and “the Recess” except to cite the “The Federalist Papers,“ a document that preceded the Constitution, to claim that there must be a formal end to the session or it’s legally just a temporary break.
“It is this difference between the word choice ‘recess’ and ‘the Recess’ that first draws our attention,” they wrote. “[During the framing], 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.”
The president’s attorneys plan to appeal the decision to the Supreme Court. If they lose, it would mean that all the decisions issued by the board over the course of more than a year would be null and void, along with all but one of its members. The Supreme Court’s ruling could also endanger the Consumer Financial Protection Bureau, whose chief, Richard Cordray, was appointed on the same day.
What is clear is that it’s going to be hard for the D.C. Circuit Court of Appeals to shake the perception that they did essentially what Republicans have long mocked President Bill Clinton for: questioning what the definition of the word “is” is.