So much for the solution to make Obama's non-recess appointments legitimate

Akhil Reed Amar and Timothy Noah tried this week to show how Obama could make his appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board legitimate. Their plan was to have 51 Senators sign a letter saying that they supported the nontraditional appointments.

Personally I don't see the problem with the Senate refusing to go out of recess. The constitution gives the president the power to make recess appointments when the Senate is not in session to make sure that important tasks keep occurring, but the constitution explicitly refers to vacancies that open up during these recesses. That wasn't true with any of these appointments. The Senate has the power to disagree with the president on whether these appointments are really crucial.

In any case, Amar and Noah's plan, no matter how far fetched, has a more practical problem. It appears only one Democrat Senator supports Obama's recess claim (Democratic Sen. Tom Carper of Delaware).

The reason why their idea is farfetched is that the Senate doesn't make this decision based solely on a majority vote. Now if they had changed the rules before Obama made his non-recess appointment, that would be one thing, but the Supreme Court shouldn't care that a nominee could have gotten through using a different set of rules than those that were in place at the time.