Thursday, August 04, 2005
More on Recess Appointments and the Constitution
I was going to post this as an update of my eariler post on this subject, but it has dropped so far down the page that I didn't think anyone would see it.
Anyway, Marty Lederman over at Balkinization, has an excellent post up regading the unconsitituionality of the Bolton appoinment, as well as intrasession recess appointments in general. My only quibble with the piece is that it cites and links to the amicus brief filed by Sen. Ted Kennedy regarding the recess appoinment of Judge Pryor. The problem with the Kennedy brief is that its wishy-washy. Instead of arguing that "all intrasession recess appointments are unconsitutional" it tries to justify certain types of intrasession appoinments, including arguably Bolton type appoinments that occur during the August recess. You can't have it both ways, the argument should be that "all intrasession appointments are unconstitutional," but that's yet another post.
In addition, I thought I would, for my conservative friends, point out this law review article by Michael Rappaport, a conservative law professor from San Diego and co-author of The Right Coast . The article is called "The Original Meaning of the Recess Appointments Clause" and can be found here or in the UCLA Law Review. I think he makes the conservative, originalism case for no intrasession recess appointments quite convincingly.
Anyway, Marty Lederman over at Balkinization, has an excellent post up regading the unconsitituionality of the Bolton appoinment, as well as intrasession recess appointments in general. My only quibble with the piece is that it cites and links to the amicus brief filed by Sen. Ted Kennedy regarding the recess appoinment of Judge Pryor. The problem with the Kennedy brief is that its wishy-washy. Instead of arguing that "all intrasession recess appointments are unconsitutional" it tries to justify certain types of intrasession appoinments, including arguably Bolton type appoinments that occur during the August recess. You can't have it both ways, the argument should be that "all intrasession appointments are unconstitutional," but that's yet another post.
In addition, I thought I would, for my conservative friends, point out this law review article by Michael Rappaport, a conservative law professor from San Diego and co-author of The Right Coast . The article is called "The Original Meaning of the Recess Appointments Clause" and can be found here or in the UCLA Law Review. I think he makes the conservative, originalism case for no intrasession recess appointments quite convincingly.
# posted by mouldfan : 9:44 AM
