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…
The article continues at HotAir.com