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Subject:  Re: Court: Owebama abused his power Date:  1/25/2013  4:39 PM
Author:  SooozFool Number:  1855292 of 2204002

IIRC the Bush appointments were made when the Senate was actually in recess. Obama's weren't. Harry Reid held the Senate over and they never were actually in recess.

You may be thinking of the more common type of recess appointment, not the particular type made by Bush that was challenged in 2004 and the NLRB appointments Obama made.

The Bush appointment challenged in the 2004 11th Circuit decision was made during a long weekend in February, not during a recess between Congresses. The Obama NLRB recess appointments were also not made between Congresses.

That's the key distinction here, and the 11th and DC Circuits are in conflict over the propriety of such appointments, according to Scotusblog:

"Strictly curbing the President’s power to temporarily fill government posts to keep an agency in operation, the D.C. Circuit Court ruled Friday that the constitutional authority to fill a vacancy can only be used when one Congress has ended and before a new Congress comes to town, or when there is a formal break at the end of one session, but not during any other mid-session break."

"[A] two-to-one majority [also] ruled that the vacancy-filling power only applies to vacancies that actually open up during a formal recess, between sessions or between Congresses. Because lower courts are split on both issues, this historic controversy over the constitutional separation of powers is likely to go on to the Supreme Court."
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