I am very pleased with the DC Court of Appeals invalidating the president’s recent (non recess) recess appointments as beyond his power. The ruling also called into significant question the validity of recess appointments during brief vacations, as opposed to formal adjournments. I like that. The whole concept is a throwback to the good old days when we had a part time Congress and the appointments were necessary to keep government functioning.
But it hit me: Donald Berwick, formerly the head of Medicare, was a recess appointee. (Obama made the appointment to prevent Berwick from having to testify during confirmation hearings about his support for NHS-style health care rationing.) He was key in the Obamacare/Medicare promulgation process during his tenure. If recess appointments generally are invalid constitutionally–except after formal adjournment–might this decision impact rules promulgated under Medicare while Berwick was unconstitutionally in charge? I am asking, not opining, because I don’t know.