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Analysis: Weighing Power Among Branches, U.S. Court Could Tip Against President

Publication Date: 
January 12, 2014
Joan Biskupic

Professor Michael McConnell uses historical precedent to argue against recent appointments made by President Obama for Reuters. 

When a prominent U.S. appeals court last year slashed President Obama's power to appoint government officials, many legal experts said the Supreme Court would be unlikely to let that surprising decision stand.

But that view may underestimate the allure of the lower court's reasoning to the dominant, conservative wing of the high court, which takes up the case Monday.


A group of professors led by Stanford Law Professor Michael McConnell takes issue, for example, with an administration claim that President Washington made at least two recess appointments to fill vacancies that had first arisen before recesses began.

McConnell, a former U.S. appeals court judge, counters with documents from President Washington to the Senate that the brief says demonstrate that the two vacancies actually arose during the recesses.

McConnell also argues that only in recent decades has it become commonplace for presidents to make "recess appointments" to vacancies occurring earlier during a session -- as opposed to during the formal recess break.