Recess Appointments Unconstitutional?

Marty Lederman has penned an interesting post about the constitutional status of the John Bolton recess appointment. From a purely strict constructionist or originalist point of view, Lederman is quite likely right. The recess appointment power was granted to the President at a time when the Senate was a part time legislative body that met only for short periods of time each year.

The Framers, according to Lederman, gave this power to the President so that he would not have to wait for hte Senate to come back into session during a long hiatus to approve appointments to important posts. Today, with Congress is session pretty much year round, there are very few posts that would classify a so vital that the confirmation process cannot wait a couple of weeks.

That does not of course, excuse the Democrats filibuster of an ambassadorial nominee, the president is entitle to name those people who will carry out his brand of foriegn policy. But Lederman's argument about the use of the recess appointment power in recent administrations, Democratic and Republican, does make some very good sense.

I wonder what will happen if Lederman's case comes before a strict constructionist judge.

Balkinization