Over at National Review, John Yoo (who you will likely remember from the Bush administration) has an interesting rebuttal to Larry Tribe’s defense of Obama’s recent recess appointments. There’s quite a bit to go through in both articles, mostly because Tribe takes so many wild swings at this particular pinata, seeming somewhat desperate to latch on to some constitutional footing which would justify the moves.

Tribe’s first point -and this one is a serious stretch – is that Article II requires that the president “take care that the laws be faithfully executed.” Apparently, since legislation was passed creating the consumer protection agency and – long before that – the NLRB, then if they aren’t properly staffed they can’t enforce the law. Ergo, the President can pretty much throw out the rule book and appoint at will. Yoo responds:

Fourth, and most eye-opening, is Tribe’s claim that because the president has the duty to execute the laws, he must have the power to appoint Cordray because he needs him to execute the laws. This cannot be right; if so, it would actually require that Congress not just create but also fund executive branch positions. Suppose Congress decided it did not want to make any financial provision for Cordray or for some other government body — under Tribe’s theory, the president one supposes could just take the money out of the Treasury to pay for it. The president, it seems, could appoint someone to any open executive branch position without Senate consent, if the president feels it is important enough.

Even though I am a supporter of presidential power, I also believe that the Framers intended each branch to control its own formal constitutional authorities and functions (which is, in fact, why I defend the presidency so strongly on foreign affairs and national security). And the core power of Congress is the power of domestic legislation and the power of the purse. Congress has the power to decide what the size and shape of the federal government is to be and whether to pay for it — that is the real check on the presidency. Presidents have generally respected those limits, except during time of greatest emergency (such as the outbreak of the Civil War). Obama goes beyond anything any president has before, for reasons that are obviously partisan rather than where the national safety demands it. It is a waste of presidential authority, and one I think that will haunt Obama.

That sums it up pretty well. The question of when Congress actually stands in recess is a bit more complex, but Yoo addresses that also. The framers of the Constitution, for all of their wisdom, actually did leave a few extremely arcane items in the document which lead to much debate in the modern era. One example which often comes to mind is the President’s power of the pardon, as laid out in Article II Section 2. Pardons are to be used in cases of “offenses against the United States” except for impeachment. That phrase may have been perfectly understandable in the 18th century, but it’s nearly unique in the documents of the time. The portion in question today relies on the phrase “… during the recess of the Senate” in much the same way, without providing any concrete guidelines as to how that’s defined.

Unfortunately for Tribe, and as noted by Yoo, if the terminology isn’t clear enough, the answer would seem to be found in Article I Section 5, which reads in part, “Each House may determine the rules of its proceedings…” The final arbiter of what passes for a recess would seem to be the legislative branch, not the executive.

Of course, all of this skips past the original vision of the power of recess appointments which I’ve long opposed in the modern era. Yoo notes the same issue, which is that the founders were making these rules in a time when Congress would frequently be out of town, scattered around the country, and it could take extraordinary measures to gather them all together on short notice. That justified the occasional recess appointment, but it’s simply not the case today. Unfortunately, absent a constitutional amendment, there’s no getting around it.