Bill Poser of Language Log
the plain meaning of the [recess
appointments] clause renders most recess appointments
unconstitutional, why has this illegal practice been permitted to
continue for so long and, apparently, without much controversy?
To me, this seems like another example of what Barnett calls
presumption of constitutionality.
The wording of the clause has been construed to allow for the
broadest amount of executive wiggle room, just as McCulloch v. Maryland construed the necessary and proper
clause so as to give Congress broad leeway in determining the
necessity and propriety of its own legislation.