bkswrites

Posts Tagged ‘definite article’

Too Definite an Article?

In legal lingo, significant insignificancies on January 25, 2013 at 9:11 pm

I can’t say that it’s an error, and I’m afraid I don’t even have a direct quote to include. But I’m afraid that from the first moment I heard about the ruling of a federal appeals court on President Obama’s recess appointments last year to the National Labor Relations Board, I was intrigued by the report that part of their ruling of unconstitutional action hinged on the presence of “the” rather than “a” or any less definite word in Article II, Section 2 (Powers and Duties of the President), Clause 3, which empowers the president to fill executive-branch vacancies “during the Recess of the Senate.”

I guess, among other things, we will find out exactly how much care we think the Framers of the Constitution took with the very smallest words. Or maybe we’ll find out how willing we are in the 21st century to be bound by the conditions of early-19th-century America.

It may well be that the definite article appears in II.2.3 only because, at the time it was written, there was only one Recess in the Senate’s work year. The Senators could not fly back and forth between D.C. and their states to hear their constituents one day, vote on an executive appointment the next. Neither could they, as in 2012, send in one or two of their number every day or so during the (same) idle period to bang a gavel and declare that the Senate was not recessed, but in session. But let’s not go further here into the possibly political motivations of the 2012 Senators, individually or collectively. Let’s likewise leave to the politicians and the Supreme Court the questions of the implications of this ruling for President Obama’s other appointment during this particular recess — which he repeated for Senate confirmation yesterday — or for the work done by the five appointees during their possibly unconstitutional tenure.

There are more linguistic nits to be picked in this case, too: Does “Vacancies that may happen during the Recess” mean only vacancies that begin during the recess, or any vacancy that takes the executive out of action? But then, none of the five 2012 appointments was to a post mentioned in the Constitution or remotely contemplated by the Framers.

One of the talked-about expressions from President Obama’s inaugural address a couple of days earlier is his differentiation of “absolutism” and “principle.” I suspect we’ll hear more of those differences as this ruling is mulled, dealt with, and probably appealed. It’s definitely worthy of our consideration.

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