Recess Ruling Ignores Growth of Government
Posted at 8 a.m. on Jan. 29
Noah Feldman disagrees with the recent ruling by the DC Circuit Court of Appeals that found that President Obama acted unconstitutionally when he made a number of recess appointments in early 2012, noting that “today’s government is totally different from the world the constitutional framers imagined.”
“Start with its size. When Thomas Jefferson took office in 1801, a dozen years into the history of the Constitution in action, he had a grand total of four full-time Cabinet officials… Senate confirmation was a matter of a few discussions among a handful of men… Today, confirming appointees takes forever. If recess appointments can’t fill jobs during the backlog period, then much of the executive branch will teeter along, rudderless.”
SCOTUSblog has a roundup of the many cases pending throughout the country on the same topic and predicts that “this core separation-of-powers issue seems sure to go to the Supreme Court, no matter how remaining cases turn out, since the D.C. Circuit ruling already is in conflict with other appeals courts on the basic constitutional questions at stake.”
