This could become another field day for linguists, but for the rest of us this is what happens when everybody stops playing nice.
In a case eerily reminiscent of Bill Clinton's famous defense based on the definition of "is," a federal appeals court ruled that President Obama made an unconstitutional recess appointment to the National Labor Relations Board based on the purpose of "the" when describing "the Recess of the Senate."
The 2-1 ruling from the Third U.S. Circuit Court of Appeals joins the D.C. Circuit Court of Appeals in a case that is likely to draw Supreme Court attention. This week has already seen President Obama and the White House embroiled in scandals, but this one would have serious legal repercussions going forward.
The recess appointments were applied to fill seats that become vacant suddenly or when it is assumed that the Senate is likely to approve the candidate once it returns. Every president has made recess appointments if the Senate breaks for longer than 10 days, including those that were rejected by the Senate earlier such as U.N. Ambassador Robert Brown by President George W. Bush.
In this incident, Congress purposely held pro-forma sessions to block President Obama's appointment in question. President Obama went ahead and nominated Craig Becker during a pro forma session in 2010 when the Senate was out for 17 days.
While President Obama has faced unprecedented obstruction to his efforts, it would be trivializing to say that is all at fault here. The founding fathers provided the Senate and the Executive Branch shared responsibility to appoint the leaders of these various organizations to prevent any untoward influence.
But the current state of political affairs has resulted in both sides finding ways to avoid working with each other. Congress categorically blocked the president's nominations which one can argue was why the White House used the recess appointments to avoid further gridlock.
Neither of them are right. This situation is a potentially crippling one for both Democrats and Republicans, even though the legal debate might hinge on pedantics. If the Supreme Court joins the debate and rules against all recess appointments that would force this practice of shirking collaborative responsibility to end in at least one avenue.
Recess appointments are likely to become an even more aggravating political tactic one way or another, and this was just the opening salvo to a whole new round of partisan attacks.