Oh My God That Was Some Bad Grammar Analysis

So, apparently a three-judge panel of the D.C. Circuit Court of Appeals just ruled that, basically, all intrasession recess appointments are invalid. The proximate issue was Obama's recent recess appointments, which were controversial in the first place only because the House of Representatives refused to go into formal recess, in a deliberate attempt to prevent Obama from being able to do recess appointments. But the Court apparently didn't limit its ruling to that narrow question. Rather, they ruled that the clause of the Constitution authorizing recess appointments only provides for them between sessions of Congress, i.e. after the Nth Congress has left town but before the (N+1)th Congress has been sworn in. Why? Apparently because it depends on what the meaning of the word "the" is:

It is this difference between the word choice “recess” and “the Recess” that first draws our attention....[In 1787], 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.

Really, guys? Let's examine the Recess Appointments Clause in full:

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.

The phrase is "the Recess of the Senate." To me, it sounds like the referent of that phrase is the set of times when the Senate is in recess. Taken together, that is "the Recess," because there is only one such set, and it is all-encompassing. But it doesn't remotely suggest that it wouldn't include intrasession recesses. It sounds more like the view is of two natural states, the times when the Senate is in Washington meeting and the times when it isn't, and the latter is naturally termed "the Recess of the Senate," and they used that term. Just saying "during Recess of the Senate" clearly wouldn't work, so the only plausible alternative would be "during a Recess of the Senate," which I suppose works grammatically. It doesn't feel as natural, though, even to me, and I really don't think it sounds like 1789 diction. They used "the" pretty loosely. And besides, if we're insisting on the definiteness of "the," there's the wee problem that the intersession recess happens more than once as well. It's not categorically any less chronic than intrasession recesses. If you should've used the word "a" to refer to the chronic intrasession recesses, I don't see why you shouldn't also use it to refer to the chronic intersession ones. The only way to make the "the" refer to one specific thing is the device I've used: it refers to the set of recesses taken together.

In other words, this is a really, really wrong ruling. It is also, potentially, hugely disruptive of governance. It is also rather plainly against the spirit of the Constitutional provision: the point is that, when the Senate isn't around to confirm the President's nominees, it's necessary to let the President make temporary appointments to fill vacancies so that we can staff the government. It's a very bad ruling. Hopefully the Supreme Court will overturn it. Maybe they'll hold that the House's trick of not calling it an adjournment works, and these particular appointments were invalid, but that would be a lot less damaging than this ruling, and a lot more defensible.