The meaning of “the”

Does “the” mean “the,” or does “the” mean “a”? theThat is the essence of the key question before the Supreme Court of the United States, which will hear oral arguments today in National Labor Relations Board v. Noel Canning. Ten years ago, when President George W. Bush was in office, the late Senator Ted Kennedy argued that “the” means the definite article. Today counsel for President Obama’s NLRB will say that it does not.  As Senator Kennedy’s brief makes clear, this is not an inherently partisan question, and the meaning of “the” should not depend on which party controls the White House.

At issue is the President’s authority to appoint government officials without the advice and consent of the Senate. As a default rule, the Constitution requires Senate approval for these appointments, but provides an exception:  “The President shall have power to fill up vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” U.S. Const. art. II, S.2., cl. 3.

When can the President exercise this power?  In other words, what is “the recess”? Can any break within a Senate session qualify, or does the phrase only apply to the recess that occurs between sessions?

Senator Ted Kennedy

In 2004, Senator Kennedy argued that President Bush’s appointment of a judge was invalid because it happened during a 10-day break after the Senate had reconvened in January 2004 for its second session.  A break within a session does not create an opportunity to exploit the Recess Clause, Kennedy argued. “An intrasession adjournment is not ‘the Recess’ to which the Recess Clause refers.” (Kennedy Amicus Brief, p. 4).

The issue arose again after President Obama made appointments to the NLRB without the Senate’s consent.  The Senate was not between sessions at the time, and was holding pro forma sessions of the sort that it used in 2007 for the express purpose of preventing President Bush from making any more recess appointments.  President Bush appears to have agreed that these pro forma sessions had the effect of keeping the Senate in session and not in recess.  At any rate, he made no further purported “recess” appointments.

The alleged “recess” that President Obama used in January 2012 – like President Bush in 2004 – was within a session of the Senate (an intrasession recess as opposed to an intersession recess). This was precisely the kind of appointment that Senator Kennedy’s brief denounced as unconstitutional.

Back in 2004 the Court of Appeals for the Eleventh Circuit rejected Senator Kennedy’s argument and ruled in favor of President Bush. It held that the “Senate’s break fits the definition of ‘recess’ in use when the Constitution was ratified.” Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).  In contrast, the Court of Appeals for the D.C. Circuit held that “the recess” does not mean just any break in proceedings, but rather is confined to the gap between sessions.

The lower courts are divided.  Now it is up to the Supreme Court to decide which argument is correct: Senator Kennedy’s or President Obama’s.

Update: June 26, 2014: The Supreme Court of the United States held that the Senate is in session whenever it says that it is, so long as it has the capacity to transact Senate business.

Obama to Demstore: “No You Can’t.”

President Obama’s reelection campaign is suing to prevent, a purveyor of political paraphernalia, from selling merchandise with the Obama rising sun logo. A recent story in the Washington Post describes the issues and the stakes. As well as reminding us that there is no constitutional wall of separation between politics and commerce, the lawsuit reveals some noteworthy differences between the President and the Republican nominee, Mitt Romney.

Back in 2008, Obama For America (OFA), a nonprofit corporation, registered the sunrise logo as a trademark with the United States Patent & Trademark Office (USPTO).  Federal registration is evidence of the owner’s exclusive right to use the mark in commerce, and this is the basis for OFA’s action against  On June 1 OFA filed suit in the federal district court for the District of Columbia and on July 9 the court granted OFA’s request for a preliminary injunction, enjoining from using the trademark on its merchandise.

What high-minded political principle is at issue here? Money. Tens of millions of dollars.

According to OFA’s complaint, the “sale of merchandise featuring the Rising Sun Trademark makes up a significant portion of OFA’s revenue [and]… each time a supporter makes a relatively small purchase on the website, OFA obtains that individual’s contact information, which OFA can then use to reach out to that individual repeatedly to seek further donations and further opportunities to promote the Campaign.” By selling rising sun products, is allegedly free-riding and eating into OFA’s market share.

The OFA trademark registration (number 3541038) covers several classes of goods and services, among them “baby clothing, namely onesies.” Mitt Romney’s trademark application (number 77231852) refers to onesies as “infant and toddler one piece clothing.” At most this distinction may reflect the differences in the respective campaigns’ communication styles. But the biggest difference between Obama’s approach to trademark rights and Romney’s is this: Obama saw his application through to the end; Romney abandoned his.

“[A]n eagle-like bird with a head and beak and body that resembles a billowing flag” is how Romney’s 2007 application described the candidate’s trademark. Romney’s application cast a wide net, attempting to register the mark for 14 separate classes of goods and services. However, it seems that in stating that it would use the mark on products as diverse as money clips, deck chairs, umbrellas, shot glasses, cocktail shakers, hair bows, golf tees, drinking water, and, of course, “infant and toddler one piece clothing,” the Romney campaign may have over-reached. First they failed to file an Allegation of Use in connection with all 14 classes (a requirement for intent-to-use applications), and then failed to respond to the USPTO’s letter on the subject. So in October 2008, the USPTO deemed Romney’s application abandoned.

One campaign rigorously upholds its trademark rights. The other makes sweeping claims that it cannot support. Intellectual property aside, does this tell us something else about the candidates?