I have just had the privilege of reading John Yoo’s perceptive remarks on the recess appointment, and think that within the framework of the current law, he has to be correct that it is for the Senate and not for the President to determine whether the Senate is in session. The usual view in all cases is that the internal rules of each institution govern its operations, and for the President to say that the Senate is not in session when the Senate says that it is, introduces a set of constitutional confrontations that we would be far better off doing without.
The difficulties here, moreover, will start right from day one because the conflict over who is in charge will manifest itself long before any law suit can take place. Any order from Richard Cordray (one of my ablest former students, with whom I have serious policy differences, to no one’s surprise) will be ignored by those people who say that his appointment is not valid. Given the huge powers associated with the office, the number of regulations that it churns out, and the number of demands that it makes for information and cooperation, the fights will be instantaneous, numerous, and the outcomes will be inconsistent.
We have just seen that the Supreme Court had held that the National Labor Relations Board cannot operate with only two members, which is one sign that the question of legitimate appointments is an issue that will not go away in this age of increased polarization. This issue will likely reach the Court if there is no political solution, and it will surely highlight the genuine divisions over the structure of Dodd-Frank, where the Republicans rightly point out that the act vests too much power in one person for too long a time, given the 5-year term of office.
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