According to Article 2, Section 2, Clause 3 of the U.S. Constitution,
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.
According recent decision of the U.S. Court of Appeals for the D.C. Circuit, "the term 'the Recess' in the Recess Appointments Clause refers to the intersession recess of the Senate", so that this option is not available "during intrasession 'recesses,' or breaks in the Senate’s business when it is otherwise in a continuing session". The court's argument is a linguistic one:
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. […] 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)). 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.
[…]
It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions.
The result is of some political consequence, since it invalidates decisions made by the National Labor Relations Board, on the grounds that several of its members were intra-session recess appointments. (These were recess appointments because some members of the Senate, opposed to the NLRB on principle, have made it clear that they will use Senatorial privilege and/or filibuster techniques to block any in-session appointments to that board.)
After reading the opinion carefully, I remain puzzled by the "cold, unadorned logic" of the court's linguistic analysis. If there were always exactly two "sessions" and one inter-session "recess" per Congress, then the definite article might be taken to pick out the unique (per-Congress) recess. But given that from the beginning there have sometimes been three regularly-scheduled sessions per Congress, and sometimes special sessions as well, some other interpretation of the definite article is suggested.
Edward A. Hartnett ("Recess Appointments of Article III Judges: Three Constitutional Questions", Cardozo Law Review 2006) observes that the Constitution itself contains an example of such an alternative usage, in Section 3 of Article 1:
The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
As Hartnett argues,
Surely no one would contend that the use of the definite article and the singular form somehow means that there is some once-a-year, or once-a-session, absence of the Vice President that constitutes “the Absence” during which a president pro tempore can serve.
Hartnett considers some other relevant linguistic questions as well, such as when a vacancy may be said to "occur", and how the Constitution uses the words recess and adjourn(ment). All of this is likely to come back into the news, as the circuit court's decision is appealed, and other similar cases enter the system.
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