The United States Court of Appeal for the District of Columbia Circuit has decided Canning v. NLRB, holding invalid NLRB decisions on the basis that the Board lacked a quorum because of the invalidity of recess appointments on three grounds: (1) that the appointments were made during intra-session adjournments (and not between sessions), (2) that the vacancies did not arise between sessions, and (3) the appointments were not made during the inter-session adjournment in which the vacancy arose. Here is a link:
Much of the reasoning is originalist, with an emphasis on the original public meaning of the text, e.g.:
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It is this difference between the word choice “recess”and “the Recess” that first draws our attention. 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. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). 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 itmakes all the difference.
