The Definite Article: The D.C. Circuit’s Redefinition of Recess Appointments

VanDam, Jeff | October 1, 2013

The Supreme Court is in the midst of considering the D.C. Circuit’s decision in NLRB v. Noel Canning, in which the Court of Appeals decided that a few of President Obama’s 2012 recess appointments were unconstitutional. As the Justices review Noel Canning, they have before them a majority opinion with a peculiar, and somewhat alarming, stance on constitutional interpretation. By deciding that the appointments did not accord with the Constitution in part because the word the appears in the operative clause of Article II, the D.C. Circuit placed a sort of textualist originalism ahead of common sense. If the Supreme Court agrees with the outcome of the D.C. Circuit case—and this Essay (mostly) takes no position on whether it should—grammarians and legal minds alike would rest easier if the Court does so on grounds other than those related to the that the D.C. Circuit found so persuasive.