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I had earlier defended the president's right to make recess appointments even during a three-day recess -- an argument that, in a footnote, the OLC opinion holds in reserve.
Republicans also pointed to an Obama administration official referring to the three-day recess precedent in a legal argument before the Supreme Court, but the justices did not address that issue and were rather focused on the legitimacy of decisions by a government agency that did not have a quorum of members.
In the 1938 case of Wright v. United States, the Supreme Court held that, even when the Senate was concededly in a three-day recess, it had not prevented the president from vetoing enacted bills because the Secretary of the Senate remained available to receive the veto message.
Under the view that Mr. Obama made the appointments during a three-day recess, his critics contended that his move gutted the confirmation process, establishing a precedent that future presidents could use routinely to install officials without legislative consent if the Senate chamber is briefly empty.
Similar(56)
He suggested a one-day recess for reflection.
Congress is out next week for the President's Day recess.
A vote is expected before the Memorial Day recess.
President Obama should concurrently renounce the three day recess myth underlying Senate pro forma sessions announcing a simple test: If the Senate is not sitting as a deliberative body able to provide timely confirmation consent, the Executive may fill any vacant federal office.
As I explain in the National Law Journal and in prior posts, the congressional pro forma obstruction strategy is based on the specious premise that there exists a three day recess minimum to trigger the president's Article II, Section 2 recess appointment authority.
Sign me up! Sunday Recess?
Give recess appointments to Craig Becker and Mark Pearce during the Presidents Day recess so the NLRB can do its job.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com