I came across this and thought it might pertain to this discussion. One wonders how the Justice Department could have misread this when they claimed the President's recess appointments were Constitutional.
Look It Up In Our Constitution!
FIRST: What does Our Constitution say about presidential ?appointments?? Article II, Sec. 2, cl. 2, says:
?he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone?[emphasis added]
Do you see? The constitutional scheme is that the President nominates ? the Senate confirms or rejects the President?s nomination. This is the ?check? which Our Constitution imposes on the President?s nominations. The purpose is to protect us from the loons, incompetents, or toadies whom various presidents have, from time to time, nominated.
NOW let us see what Our Constitution says about recess appointments. Article II, Sec. 2, last clause, says:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. [emphasis added]
Do you see? The Vacancy must have happened at a time when the Senate was already in Recess!
So! The President may not properly circumvent the Senate?s constitutionally granted power to reject his nominations by means of cheap gimmicks such as forcing the Congress to adjourn, or by waiting until Congress is in recess, to ?recess appoint? someone whom the Senate has already refused to approve!
http://publiushuldah.wordpress.com/2011/12/17/recess-appointments-by-the-president-what-our-constitution-really-says/