The conservative legal community loves Richard Epstein and John Yoo, Epstein because he’s the rare bird, the true academic with well-reasoned conservative beliefs, and Yoo because he’ll justify any damn thing they ask him to. But it’s a sign of the true weakness of the case against Obama’s recess appointments that (per Volokh) neither can frame a good argument on the subject. Epstein, for his part, argues that recess appointments may only be made for those vacancies that arise during the recess — a theory the 11th Circuit, no bastion of liberalism, has already rejected (see the update to our last post). And Yoo jumps right to the slippery slope argument — and a particularly absurd one at that. Because the recess appointment power relies on a discrete textual basis, there is literally no danger of an expansion of this power threatening any other institution (like the Supreme Court). Aside from being amoral, Yoo’s just not a good lawyer. Why in God’s name does he still have a job?!?
The Paucity of Real Arguments Against Recess Appointments