Just when you thought the news could news could not get any worse comes this…
Elizabeth Price Foley at Instapundit today argues that Barack Obama can indeed make a recess appointment to replace Justice Scalia on the Supreme Court because the US Senate, under the leadership of Mitch McConnell, scheduled a recess for over 10 days.
The appointment would last until the end of the 114th Congress, which occurs on January 3, 2017.
COULD OBAMA MAKE A RECESS APPOINTMENT TO REPLACE SCALIA?: The answer appears to be “yes,” because (once again), the GOP-controlled Senate voluntarily has left itself vulnerable to the exercise of such presidential power. Article II, section 2 of the Constitution gives the President power to fill vacancies “during the recess of the Senate”:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
There’s a lot of misinformation out there. For example, a report by Fox News mistakenly focuses on the Adjournment Clause of Article I, section 5, which merely states that neither House of Congress may adjourn for more than three days without the consent of the other…