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More on Recess Appointments

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The Obama Administration has filed its certiorari petition in the recess appointments case, previously discussed in this post.  Lyle Denniston has this post at SCOTUSblog.

The case arises from President Obama's unprecedented assertion of the authority to make "recess appointments" when he decides the Senate is actually in recess, even though the Senate itself conducts "pro forma" sessions so as not to be in recess.

The petition assails the Court of Appeals decision on its overbroad holding but curiously omits any significant defense of the President's remarkable assertion at the root of the case.  The three subheads of Reasons for Granting the Petition are:

A. The President's Recess-appointment Authority Is Not Confined to Inter-session Recesses
B. The President May Fill a Vacancy That Exists During a Recess of the Senate, Even If the Vacancy Did Not First Arise During That Recess
C. The Court of Appeals' Decision Would Have Serious and Far-reaching Consequences

All of those things could be true and yet the judgment below, even if not the opinion in its entirety, would still be obviously correct.

As discussed in my previous post, I think this is one of those rare circumstances where a summary affirmance is in order.

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Mr. Denniston's post was rather tendentious.

Here's the lead:

"The Obama administration asked the Supreme Court on Thursday to restore the President’s power to fill vacancies in government posts when the Senate is out of town. The petition argued that the D.C. Circuit Court got it wrong in January in sharply curtailing that authority."

I didn't realize that, historically, Presidents had the ability to recess appoint when the Senate is "out of town."

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