Bench Memos

NRO’s home for judicial news and analysis.

The Left’s Irrational Tizzy Against Recess-Appointment Ruling


As I noted on Friday, a D.C. Circuit panel issued a momentous opinion that rules that the president’s constitutional authority to make recess appointments may be exercised (1) only during an intersession recess of the Senate, not during intrasession adjournments, and (2) only with respect to vacancies that have arisen during that intersession recess. (The Recess Appointments Clause, in Article II, section 2, clause 2 of the Constitution, states: “The President shall have Power to fill all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”)

While the immediate effect of this ruling is to deliver a major defeat for President Obama, the long-term effect (if, that is, the Supreme Court affirms the ruling or declines review) would be to make it much more difficult for any president to evade the Senate’s authority to approve or disapprove nominees. In other words, in terms of separation of powers, the ruling is a victory for the Senate against the president, not for one party against another.

Despite the fact that the Left has generally stood with Congress against executive-branch aggrandizements, and despite the fact that the D.C. Circuit panel adopts the very arguments that liberal icon Laurence Tribe and others made (unsuccessfully) against one of President Bush’s recess appointments, legal commentators on the Left have gone bonkers over the D.C. Circuit’s ruling. As I will show in further posts, their critiques are far feebler than their overheated rhetoric.


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