Relying on the difference between “the” and “a,” a panel of Republican judges in Washington, DC, last week struck down three recess appointments made last January by President Barack Obama to the National Labor Relations Board (NLRB), based on a novel legal theory that would invalidate most of the hundreds of recess appointments Presidents have made over the years. The panel was comprised of judges David Sentelle (appointed by President Reagan in 1987), Karen L. Henderson (George H.W. Bush, 1990) and Thomas B. Griffith (George W. Bush, 2005).

If the ruling survives an appeal, it would invalidate all 300 decisions issued by the NLRB since last January, leave the Board with only one validly appointed member (Chairman Mark Gaston Pearce), and threaten other recess appointments as well, like that of Richard Cordray to chair the Consumer Financial Protection Bureau.

The court made its ruling in an appeal by Pepsi bottler Noel Canning of an NLRB decision that the company had improperly refused to sign a collective bargaining agreement. Although the court found that the evidence supported the board’s decision, it struck it down because the board’s quorum relied on Obama’s recess appointments, which it invalidated. The NLRB has five members, and needs a quorum of three to issue rulings.

At the time Obama made the recess appointments, the Senate was operating under a unanimous consent agreement providing that a few senators would gavel it into a minutes-long “session” every three business days. The NLRB, echoing the White House, argued that these pro forma meetings were no more than a ploy to frustrate the president’s recess appointment power and did not mean that Congress was not in recess at the end of 2011.

The court disagreed, holding that the recess appointments clause is limited to recesses between sessions of Congress, which occur only once every year or two, and not to intra-session adjournments, which occur frequently. They based this ruling, which contradicts about 150 years of actual practice, as well as a 2004 en banc decision from the 11th Circuit in Atlanta, Evans v. Stephens, based on two uses of the word “the.”

“It is this difference between the word choice ‘recess’ and ‘the Recess’ that first draws our attention,” the opinion states. “[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 Constitution uses the phrase “the Recess,” only twice, neither time defining it or distinguishing it from “a recess” or from adjournments, and it uses forms of the word “adjourn” only six times, three times each as a noun and a verb. In none of the three cases where the noun “adjournment” is used would use of the definite article “the” have been grammatical, but in one instance the text refers to “their adjournment.” In short, and as the 11th Circuit found in Evans, the Constitution’s use of these terms is ambiguous, and does not set forth nearly as clear a distinction between recess and adjournment as the D.C. Circuit imagines.

Apparently realizing this, the court shored up its ruling by contending that because “for at least 80 years after the ratification of the Constitution, no President attempted such an appointment…We conclude that [this] ‘suggests an assumed absence of [the] power’ to make such appointments.” Dismissing the hundreds of recess appointments made by recent presidents—Obama has made 32, George W. Bush made 171, Bill Clinton 139, George H.W. Bush 77, and Ronald Reagan 240—the court wrote that, “Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.”

Nearly all of the 659 recess appointments made by the five most recent presidents would be invalid under the new ruling, and any government actions that relied on such appointments could be voided. Jay Carney, the White House press secretary, said: “The decision is novel and unprecedented. It contradicts 150 years of practice by Democratic and Republican administrations. So we respectfully but strongly disagree with the ruling.”

It is virtually assured that the Obama administration will appeal last week’s ruling, either by asking the Supreme Court to take the case or requesting the full D.C. Circuit to review the panel decision en banc. It is worth noting—although it is by no means definitive—that when the contrary 11th Circuit decision in Evans was appealed, the Supreme Court refused to intervene and let the ruling stand.

-Matt Bewig

To Learn More:

What’s Next for the National Labor Relations Board? (by Josh Hicks, Washington Post)

Court Rejects Obama Move to Fill Posts (by Charlie Savage and Steven Greenhouse, New York Times)

Republican Judges Parse Definition of “the” to Strike Down Obama Labor Nominees (by Stephen C. Webster, Raw Story)

Obama Overstepped Recess Appointment Power, D.C. Circuit Rules (by Jack Bouboushian, Courthouse New Service)

Noel Canning v. NLRB (D.C. Circuit, 2013) (pdf)

Republicans Disappear from National Labor Relations Board (by David Wallechinsky and Noel Brinkerhoff, AllGov)

Labor Relations Board Member Resigns, Under Investigation (by David Wallechinsky and Noel Brinkerhoff, AllGov)