“During the Recess”

The Recess Appointments Clause, recall, says: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Several readers have asked about which verbs are modified by the phrase “during the Recess.” It has generally been thought that “during” modifies “happen” — and sensibly enough, since the two words are right next to one another. Yet it also has generally been thought that the President must make the appointments during the recess, too. One way (not the only way, but the most straightforward way) for that to be true is if the “during” clause modifies both sets of verbs — “happen” as well as “have/fill.”

Some commenters on this post have suggested that this is simply not possible as a matter of text. But it seems to me that one can think of other parallel sentences where it is indeed permissible, given the context and common sense, to think that the “during” clause modifies both sets of verbs.

Here are a few I thought of:

The soldiers were authorized to shoot any Germans they encountered in the trenches during the war.

It seems permissible to read this to be limited to those who are both shot and encountered during the war — you can’t shoot somebody 20 years later just because you saw them in the trenches back then.

The trial judge may exclude from the courtroom any spectator who is disruptive during the trial.

Again, it seems permissible to read “during the trial” to modify both “exclude” and “is disruptive.” The judge couldn’t necessarily exclude people who’d been disruptive some other time, and he couldn’t necessarily exclude people permanently from that room once the trial was over.

Don’t say “hi” to anybody you see at the racetrack.

Once again, permissible for this to mean: Don’t say “hi” at the racetrack, to those you see at the racetrack. It doesn’t have to mean “don’t say ‘hi’ to them ever.”

One can certainly think of other constructions that might not be read this way, but I hope these examples show that this kind of reading is at a minimum grammatically possible, if the purpose or context of the sentence gives you reason to think it is meant that way.

[Apropos of nothing in particular, I should mention that when I blog about recess appointments now or in the future, I'm generally speaking for myself -- not necessarily for everybody who wrote or joined the scholars' brief.]