Will the courts rein in Obama's illegal recess appointments?
One would hope so, but nothing is certain when so many courts are besotted with ideological judges who can find any excuse to empower this president.
Some legal experts, including those who have sided with President Obama on other constitutional issues, think there is a good chance the courts could overturn his recent recess appointments.
Legal experts said courts could invalidate Obama's appointments to the Consumer Financial Protection Bureau (CFPB) and National Labor Relations Board (NLRB) because there is scant precedent on the issue.
"It's untested ground. If I were a judge, I could write out an opinion either way. There's no clear precedent," said Charles Fried, a constitutional expert at Harvard Law School who served as solicitor general under former President Reagan.
The Justice Department has argued that the pro forma sessions the Senate has held since Dec. 17 do not constitute genuine sessions of work and that the upper chamber has been, for all practical purposes, on vacation.
But Fried, who has sided with the Obama administration on challenges to the constitutionality of healthcare reform, said courts might not be willing to judge what qualifies as working sessions of the Senate, especially considering how much time the chamber spends on quorum calls lately.
"A court might very well say that we don't want to start saying something the Senate calls a session is not a real session because not a lot of senators are around," Fried said. "One might say that this whole year is one which is not a real session."
On the plus side, federal courts tend to shy away from getting themselves mixed up in these tussles between the executive and legislative branches of government. If the senate wants to say it's not in recess, then there are many judges who would want to let it go at that and effectively strike down the appointments.
But there are also judges who wish to expand the power of the courts and this would seem to present them with such an opportunity. If the courts end up siding with the administration, the president will have been handed a new power not granted in the constitution. At the very least, it makes a mockery of the senate's "advise and consent" role.