John Elwood, at the Volokh Conspiracy, notes that President Obama made several recess appointments on December 29. Elwood states that these appointments were intersession recess appointments (rather than intrasession appointments). While these appointments are regarded as constitutional under existing law, I have argued that appointments of this sort violate the original meaning of the Constitution. In particular, I maintain that under the original meaning (1) all intrasession recess appointments are unconstitutional and (2) that recess appointments, where the vacancy first occurred during a session (or where it continued into a session) are unconstitutional.
Unfortunately, the original meaning of the Recess Appointments Clause has not been followed for many years and shows little chance of reemerging. Yet, it would greatly help to address the increasing power of Presidents not merely to employ delegated legislative power, but also to employ it with officials who have not received the consent of the Senate. See, for example, Bruce Ackerman's Op Ed from last year.
Posted at 12:34 AM