While it seems quite possible that Congress will be willing to pass a law exempting Mattis from the requirement, a question is whether the requirement is constitutional.Details
Earlier this year, the Harvard Journal of Law and Public Policy published my article showing that the Constitution’s Recess Appointments Clause limits presidential vacancy appointments far more than President Obama (and most prior Presidents) have claimed. I posted earlier on the same subject here.
The issue is before the Supreme Court right now.Details
Historians and non-originalists argue that legal scholarship lacks the tools to identify original meaning. But that is, to a significant extent, because they misunderstand what originalist analysis seeks to do.Details
the Recess Appointments Clause — which allows the President to “fill up all Vacancies that may happen during the Recess of the Senate” — only allows the President to fill vacancies that arise between the Senate’s sessions.Details