Commentary Magazine


Making a Federal Case Out of “The”

The D.C. Circuit’s 46-page opinion in Canning v. NLRB (ably analyzed by John Steele Gordon) is a master class for law students, legislators, and lawyers–an illustration of the first rule of constitutional interpretation: before you refer to legislative or judicial history, or how a “living” Constitution might read if you could re-write it, or the words in invisible ink in the “penumbras”–look at the words as written, and determine what they meant to those who adopted them.

The Recess Appointments Clause provides the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” Canning contended “the Recess” is the period between sessions of the Senate, when it is by definition unavailable to receive and act on nominations from the president. The NLRB argued the president could act during any break in the Senate’s business (and determine for himself when a sufficiently long one occurred). The court held the NLRB failed to note that the Constitution references “the Recess,” not “recesses.” Here is the key portion of the opinion:

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. [Citation]. Then, as now, the word “the” was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) … 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.

 Six times the Constitution uses some form of the verb “adjourn” or the noun “adjournment” to refer to breaks in the proceedings of one or both Houses of Congress. … Not only did the Framers use a different word, but none of the “adjournment” usages is preceded by the definite article. All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.

The court went on to address the Federalist Papers, the purpose of the provision, the history of its use, the opinions in other circuits, and other legal materials, but the crux of the opinion was its starting point–the actual words of the provision in dispute, and what they meant to those who enacted them.  

It is worth remembering that the history of American constitutional law shows that even a semi-colon or comma can affect the meaning of a provision. In The Citizen’s Constitution: An Annotated Guide, Seth Lipsky describes the battle over the comma after the word “Excises” in Article 1, Section 8. That provision gives Congress the power to “lay and collect Taxes, Duties, Imposts and Excises, to pay Debts and provide for the common Defense and general Welfare of the United States.” Lipsky recounted that:  

One of the wiliest of the founders, Gouverneur Morris, plotted at the Convention in Philadelphia to change this comma to a semi-colon. He wanted to alter the meaning of the sentence to create, in the clause following this comma, a separate and unlimited [general welfare] power. In the sentence as it currently exists — its original form — the grammar is that the words following the comma are not a general grant of power … but a limitation on the taxing power. … [Morris’s] plot to change the text by adding a dot point over the comma was discovered and foiled by the other founders, a point on which Albert Gallatin testified to the House of Representatives in 1798.

President Obama has occasioned a large number of constitutional moments, as he sought to make the Commerce Clause a power to regulate decisions not to engage in commerce; established a new “shared responsibility payment” power to uphold the Obamacare penalty as a “tax”; argued he can ignore legislation regarding an individual’s passport if he determines it could affect the Middle East “peace process”; and issued executive orders on things he previously said he lacked presidential power to mandate. In Canning, he sought a power to make appointments whenever he determined the Senate was in “a recess,” even though it was not in “the Recess.” The case turned on the Constitution’s use of the definite article “the” and the singular word “Recess.”