Last week I wrote that the appellate decision striking down President Barack Obama’s January 2012 recess appointments to the National Labor Relations Board identified a real constitutional problem. I myself had been queasy about the appointments at the time, and, with Akhil Reed Amar, I co-authored a piece suggesting a fix. Needless to say, the White House didn't take my suggestion.

I stand by my fix. But in my haste to post something Friday, when The New Republic’s Web redesign was playing havoc with editorial deadlines, I failed to note (and TNR’s Jeffrey Rosen has now made clear) that the decision is so sweeping that it disallows not only these questionable appointments but nearly all recess appointments going back two centuries. In an insanely hubristic fit of “originalism,” the appeals court presumes to know the original meaning of the Constitution better than the Founding Fathers.

You probably think I’m exaggerating, but I’m not. Allow me to explain.

The decision oversteps in two ways.

1. In rejecting a definition of Senate recess that might conceivably include every weekend of the year, the court disallowed all recess appointments made during an intrasession recess, no matter what its duration. An intrasession recess is one that occurs while the Senate is still in session. The only permissible recess appointments, the court said, were those made during intersession recesses, i.e., recesses when the Senate is not in session. These recesses come only once, maybe twice in any given year, whereas intrasession recesses are much more frequent.