BREAKING: 9:37 A.M. E.T. SUPREME COURT WILL DECIDE ON PRESIDENT'S POWER TO MAKE RECESS APPOINTMENTS

[Igel]

19. Apples and oranges.

The question is whether the pro forma sessions count as sessions of Congress and whether the President has the authority to make a recess appointment while such sessions are taking place. The Republicans have argued that pro forma sessions count as sessions and disallow recess appointments.

The issue didn't come up with Bush. The Democrats in the Senate held pro forma sessions and Bush treated them as bona fide sessions. He didn't make appointments during those sessiond, even though it left a number of vacancies in key spots. Them's politics.

Obama, who supported the pro forma sessions when he was in the Senate along with the majority of Democrats, decided that they didn't really count and made appointments in spite of them. Suddenly the pro forma sessions that worked against Bush are to be ignored when they impede Obama.

The President has authority to make appointments if the Congress is not in Session. The Constitution doesn't say what's illegal--it says what the Executive branch can do. What's not permitted is forbidden. He has no authority to make appointments if Congress is in session, so that's forbidden. It's a saner, even if sometimes problematic way, of dealing with a situation that can change radically over time.

The lower court's ruling was pretty much nonsense, taking such an atomistic approach to lexemes in the Constitution that it totally subverts the Constitution. That's especially problematic with words that indicate a variety of semantic categories like "the" does, in which you have to look at pragmatic context, sentence-level syntax, and what the dictionary and text-grammars say. Deconstruction may be a nice hobby when it applies to nothing of importance, but when interpreting the Constitution you should bring a bit of good will to the table.

I take the lower court's ruling as a cry for help from a more authoritative body, like the SCOTUS. Let's see what they say. Be forewarned: Almost anything they say will be difficult to parse, and the first 10 minutes of reporting are likely to be near-gibberish, if only because it will explicitly with English grammar, probably be wrong, and most Americans have at most a rudimentary explicit understanding of their own grammar.