President Obama's recent appointments

[Miguel Schor]

I'd like to follow up Scott's post with this article from Newsweek by Ezra Klein entitled "When Congress Fails to Do Its Job."  This is the url http://www.newsweek.com/id/235560/page/1.  The inability or unwillingness of Congress to act may be an example of our constitutional design working splendidly well by preventing the tyranny of the majority but it also facilitates a transfer of power to the executive branch.   Miguel


On Mar 28, 2010, at 8:09 AM, Gerber, Scott wrote:

> 3/28/10
> According to the attached NYTimes story, President O'Bama recently made a number of recess appointments.  Here's the story:
> http://www.nytimes.com/2010/03/28/us/politics/28recess.html?th&emc=th
> 
> I'd like to focus on Craig Becker's recess appointment to NLRB.  According to the NYTimes story, the Senate voted last month 52-33 not to end the filibuster over his nomination, yet the president appointed him anyway.  The primary constitutional arguments in the president's favor seem to be (1) the Constitution permits him to make recess appointments and (2) there seems to be majority support in the Senate for confirming Mr. Becker.  The primary constitutional argument against the recess apointment of Mr. Becker is that the Senate--including very recently--refused to end the filibuster over his nomination.
> 
> I'd be grateful for any thoughts the list may have on this issue.  For the record, I have no horse in this race, I'm simply asking a constitutional law question.
> 
> Thanks,
> Scott
> 
> 
> 
> *****************************
> Scott Douglas Gerber
> (on leave during 2009-10 at Brown University's Political Theory Project)
> Ella & Ernest Fisher Chair in Law and Professor of Law
> Ohio Northern University
> Ada, OH 45810
> 419-772-2219
> http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html
> 
> 
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