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Old 01-28-2013, 03:26 PM   #71
Direckshun Direckshun is offline
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Quote:
Originally Posted by Direckshun View Post
Apparently, the 11th, 2nd, and 9th circuit have all addressed this issue before and found that the POTUS can in fact make recess appointments in the middle of a Senate recess.

I will keep digging, to see if I can locate their stated reasoning.

As of now, the DC circuit is firmly in the minority.
The 11th on intrasession recesses:

Quote:
[W]e reject the argument that the plain meaning of the
phrase, “the Recess of the Senate,” limits the opportunity to make recess
appointments to one particular recess: the recess at the end of a Session. We do
not agree that the Framers’ use of the term “the” unambiguously points to the
single recess that comes at the end of a Session. Instead, we accept that “the
Recess,” originally and through today, could just as properly refer generically to
any one -- intrasession or intersession -- of the Senate’s acts of recessing, that is,
taking a break.
Quote:
Furthermore, what we understand to be the
main purpose of the Recess Appointments Clause -- to enable the President to fill
vacancies to assure the proper functioning of our government -- supports reading
both intrasession recesses and intersession recesses as within the correct scope of
the Clause. That an intersession recess might be shorter than an intrasession
recess is entirely possible.10 The purpose of the Clause is no less satisfied during
an intrasession recess than during a recess of potentially even shorter duration that
comes as an intersession break.
Quote:
This kind of argument presents a political question that moves beyond
interpretation of the text of the Constitution and on to matters of discretionary
power, comity and good policy. These matters are criteria of political wisdom and
are highly subjective. They might be the proper cause for political challenges to
the President, but not for judicial decision making: we lack the legal standards --
once we move away from interpreting the text of the Constitution -- to determine
how much Presidential deference is due to the Senate when the President is
exercising the discretionary authority that the Constitution gives fully to him.
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