The Paucity of Real Arguments Against Recess Appointments

The conservative legal community loves Richard Epstein and John Yoo, Epstein because he’s the rare bird, the true academic with well-reasoned conservative beliefs, and Yoo because he’ll justify any damn thing they ask him to. But it’s a sign of the true weakness of the case against Obama’s recess appointments that (per Volokh) neither can frame a good argument on the subject. Epstein, for his part, argues that recess appointments may only be made for those vacancies that arise during the recess — a theory the 11th Circuit, no bastion of liberalism, has already rejected (see the update to our last post). And Yoo jumps right to the slippery slope argument — and a particularly absurd one at that. Because the recess appointment power relies on a discrete textual basis, there is literally no danger of an expansion of this power threatening any other institution (like the Supreme Court). Aside from being amoral, Yoo’s just not a good lawyer. Why in God’s name does he still have a job?!?

One comment

  1. Epstein’s hit on the normative argument for why the Recess Appointment clause should be removed via amendment, though. Especially since the Eleventh Circuit’s established an incorrect precedent on the clause’s application.

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