For some reason, law professors tend to be a little more respected than their gun-for-hire brethren who will argue any position if the money is right. Harvard law professor Lawrence Tribe is a liberal, but he’s also a respected legal theorist.
And like your average run of the mill lawyer, he can be bought. In defense of President Obama’s recent “recess” appointments, Tribe wrote an OpEd for The New York Times which included some interesting legal theories.
In support of Obama, Tribe asserts that the president's power to deem the Senate to be "in recess" and then make recess appointments "is clearly stated in the Constitution" and is further supported by "past practice."
What about when there was a Republican in the White House?
But against Bush, Tribe argued that "[t]he text, structure, purpose, function, and pre-1921 history of the Recess Appointments Clause all confirm . . . that the President may not make recess appointments during intra-session Senate breaks."
In support of Obama, Tribe argues that intra-session recess appointments are especially justified when the Senate is deliberately "frustrat[ing] presidential appointments."
But against Bush, he argued the opposite: recess appointments are all the more illegitimate when the nominee in question already had been the subject of Senate debate yet "failed to obtain enough votes to go forward under Senate rules."
Read the whole thing over at The Weekly Standard. Like the Times editorial page, Professor Tribe is partisan, not principled.