George Will: Checking Obama's lawlessness
Monday's case concerns whether Barack Obama made recess appointments when the Senate was not in recess, and made them to fill vacancies that did not happen during a recess.
The Recess Appointments Clause was written when conditions made such a power crucial. Obama, however, contends that in today's world of instant communication and easy travel, he deserves a much larger - almost unlimited - recess appointment power.
If he really can refuse a "no" answer, then the Senate's role in the appointment process is vitiated. Now the court should apprise him of what he cannot do without Congress. Which means a Madisonian dialectic is occurring: The executive's usurpation of power has provoked the legislature, precipitating an overdue judicial intervention to clarify constitutional boundaries. The Constitution's text, and perhaps its original meaning, may be at odds with historical practice.
Woodrow Wilson provided the progressive template by disparaging the separation of powers as an anachronistic impediment to the presidential power requisite for the modern age.
George Will is a columnist for The Washington Post.
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