Court to Obama: What Part of ‘The’ Do You Not Understand?

Terence P. Jeffrey | January 25, 2013 | 4:31pm EST
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President Barack Obama at the National Archives (AP Photo/Charles Dharapak)

( - The U.S. Court of Appeals for the District of Columbia ruled today that if the word “the” in the U.S. Constitution carries its customary meaning—which the court forcefully affirmed it does—then President Barack Obama violated the Constitution and usurped power from Congress by appointing persons to federal office without securing the constitutionally required consent of the Senate.

On Jan. 4, 2012, Obama unilaterally named three people to the National Labor Relations Board (NLRB). The Senate—by a unanimous agreement of all 100 senators—had said that it was in fact still in session that day and not in the recess.

Yet despite the Senate’s unanimous declaration that it was in session, Obama unilaterally determined the Senate was in fact in “recess” on Jan. 4, 2012 and that he could therefore use the Constitution’s recess appointment power to directly appoint his three choices to the five-member National Labor Relations Board, thus denying the Senate its constitutional power to confirm or reject them.

Obama’s action was challenged in federal court by Noel Canning, a Pepsi distributor. The company argued that when the NLRB ruled against it in a dispute decided in February 2012, the board did not have its legally-required quorum of three members because Obama’s three recess appointments were not constitutional.

Three key passages in the Constitution governed the case.

Article 2, Section 2, Clause 2 says the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.”

Article 2, Section 2, Clause 3 says: “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.”

Article 1, Section 5, Clause 2 says: “Each House may determine the rules of its proceedings.”

In an amicus brief that they jointly submitted to the court, the National Right to Work Foundation and Mark Levin’s Landmark Legal Foundation argued that because the Constitution gives the House and Senate sole power to set their own rules of proceedings, Obama has no power to say when the Senate is in or out of session.

The National Right to Work Foundation is currently providing free legal assistance to four workers who have cases before the NLRB.

“The President improperly arrogated to himself the power to declare the constitutional significance of the Senate’s proceedings, notwithstanding the prerogative to make its own rules,” National Right to Work and Landmark told the court.

If, as the Obama administration argued to the court, Obama could unilaterally determine when the Senate was in session and when it was not for purposes of making recess appointments, than the Senate’s power to confirm federal officials was meaningless.

“Indeed, if the president has the power to determine for himself when the Senate is in recess, he can declare it in recess on a whim, during any lunch break, weekend, or even when he believes that the Senators’ debate has stalled and they are not working efficiently and effectively as a body,” National Right to Work and Landmark said in their brief.

So, did the court believe the president could declare the Senate in recess every weekend the members went home—or any time they broke for lunch?

In his opinion, Chief Judge David Sentelle systematically analyzed the actual constitutional language in question and what it meant to the Framers.

He pointed to the obvious: The Constitution did not talk about “recesses,” but about “the Recess.”

“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,” wrote Judge Sentelle.

“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)),” said the judge. “Unlike ‘a’ or ‘an,’ that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the [National Labor Relations] 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.”

“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,” wrote Sentelle.

“Again, the Framers have created a dichotomy,” Judge Sentelle said. “The appointment may be made in ‘the Recess,’ but it ends at the end of the next ‘Session.’ The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the ‘Session.’ Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in ‘the Recess.’

“It is universally accepted that ‘Session’ here refers to the usually two or sometimes three sessions per Congress,” wrote the judge. “Therefore, ‘the Recess’ should be taken to mean only times when the Senate is not in one of those sessions.”

Judge Sentelle gave examples of statements and actions by the Framers that demonstrated this was the case. He then explained that when the Recess Appointment Clause says that presidents may fill up “vacancies that may happen during the Recess” it means exactly that—namely that if a vacancy happens “during the Recess” the president may fill it with a recess appointment made “during the Recess” without a Senate confirmation vote, and that person may serve only until the end of the next "session."

A vacancy that does not happen “during the Recess” cannot be filled by a recess appointment, said the judge.

In the case of Obama’s three NRLB appointments, the vacancies Obama sought to fill happened while the Senate was in session and Obama unilaterally appointed his people to those vacancies while the Senate was in session.

Thus Obama violated the Constitution on both scores as he usurped the Senate’s power to consent to the appointment of federal officials.

“As discussed above, the appointments structure would have been turned upside down if the president could make appointments any time the Senate so much as broke for lunch,” Judge Sentelle wrote in a passage echoing the Landmark Legal Foundation's brief.

“Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board,” concluded the judge.

"Today, the court agreed with foundation attorneys: Barack Obama's so-called recess appointments to the National Labor Relations Board clearly violate the U.S. Constitution," said National Right to Work Foundation President Mark Mix. "Because the U.S. Senate was not in recess the President could not make the appointments to the NLRB without Senate confirmation."

“We’re very pleased that the court agreed with our position that no president is above the law,” said Landmark Legal Foundation President Mark Levin. “The Senate was meeting in pro forma sessions every three days when President Obama announced his appointments. They even conducted business during those sessions. This president doesn’t get to tear up and toss aside the Constitution just because he disagrees with the limitations it imposes on him.”

[This story was updated on Jan. 26, 2013.]

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