Charles Fried - a former Solicitor General who has argued that health care reform is constitutional - thinks the court may be unwilling to find Obama's recent recess appointment constitutional since they probably will not want to step into the debate about what is and is not a session of Congress:
“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.”
