We are fast abandoning the fundamental jurisprudence of our law that legislatures make general rules and courts apply them to specific circumstances.
A short follow up to yesterday’s post on Recess Appointments.
One way to think about how odd the change in the law of recess appointments (from original meaning to modern practice) has been is to think about it in reference to technological and social change. We now live in a world where, due to a tremendous reduction in transportation costs and other factors, recesses are much shorter. In the old days, they could be 6 – 9 months. These days they rarely exceed one month, and are often much shorter. This change should have reduced the need for recess appointments. Instead, the modern law of recess appointments has expanded the opportunity for Presidents to make such appointments. The only reason for this is to allow him to avoid the Senate’s advice and consent role.