Interesting thoughts on recess appointments
Publius Huldah makes an interesting point. The custom has been for presidents to make recess appointments (requiring no Senate confirmation, but good only until the end of the next Senate session) whenever a job is open and the Senate goes out of session. But the constitutional provision relates only to vacancies that occur while the Senate is in recess, not to filling vacancies that existed before then. The purpose wasn't to circumvent the confirmation requirement, but to enable it to be sidestepped if the Senate were not in session to consider the nominee. It shouldn't be usable where the vacancy existed while the Senate was in session, and the Senate either declined to confirm, or the president neglected to nominate.
Posted by: rspock at December 20, 2011 08:23 AM
I suspect a number of appointments have been improperly made by Presidents beside Obama, but it would be interesting to know how many and whom. The law is pretty clear, that it has been ignored no precedent if we are a country of law.
Posted by: Harry Schell at December 20, 2011 11:11 AM
This is EXACTLY what I have been saying on Volokh and other places for years.
The grammatical syntax of the sentence is such that the vacacy must occur during the recess not that the filling up can occur during the recess for any vacancy.
But the Constitution is the most corrupted document in history with the courts leading the way with invalid and improper decisions.
I do not know who the first president was that didn't understand the vacancy clause but even back to Reagan it was being done.
It is time to throw out all the bums and start over.
Posted by: fwb at December 20, 2011 11:52 AM
Everybody should have to go back to school and learn how to diagram a sentence like we did in the 50s and 60s. AND everyone should have to go out and fully study a second language so they would better understand their native language.
Posted by: fwb at December 20, 2011 11:53 AM
I checked my blogspot blog and I posted the same topic and discussion on it in July 9, 2010.
Posted by: fwb at December 20, 2011 11:58 AM
I'd be happy if the government just gave us the version of the Constitution they were ACTUALLY using. It's obviously not the one they show us now.
Posted by: Jim D. at December 20, 2011 02:18 PM
But Jim D., if they did that, then they would have to follow that one. Whatever would they do when it didn't fit their agenda any longer?
Posted by: Jim at December 20, 2011 04:49 PM
Everyone should purchase and read a copoy of Tribe's The Invisible Constitution. It might help you understand from where the courts get their stuff.
Of just take a copy of the Constitution and format it to triple space. Then you can see where the courts read between the lines.
We have not had a constitutional government EVER. Early on Congress passed the Alien and Sedition acts. They passed the Militia Act defining the Militia but Congress has absolutely no legitimate authority to define any words of the Constitution because IF they can define one word, they can define all the words and the Constitution is moot.
Posted by: fwb at December 21, 2011 09:28 AM
Unfortunatly it's not likely to get corrected. The courts will claim the political question doctrine and refuse to hear the case.
Posted by: ParatrooperJJ at December 21, 2011 10:57 AM