Obama Won’t Make Recess Appointments Today

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14. Because only once in history did a president make recess appointments

based on a recess of less than a second. Indeed, only twice in history has the recess appointment power been used during a recess of three or fewer days. Truman in 1948-49 made a relatively non-controversial recess appointment on the first day of a three day recess to give a new term to a member of the Civil Aeronautics Board whose term had expired. The only situation comparable to the one facing Obama dates back to 1903, when Teddy Roosevelt made over 150 recess appointments during the "constructive" recess that occurred in the fraction of time that occurred between the gaveling closed one session of Congress and the commencement of the next session in the next breath. Most of those appointments were, as a I understand it, military commissions.

In other words, to make a recess appointment under the current circumstances would be moving into largely uncharted waters and would, of course, set a precedent for the repubs to do the same thing down the road.