The Atlantic article on the contraception mandate linked to this interesting analysis of the recess appointments issue, but it deals with a broader concern about the intent of the founders. Were they creating an effective government administration or not? The author says that they were, and I would tend to agree.
Such is the Myth of the Anti-Government Constitution. In Francisco’s narrative, it is not merely that the Framers wanted to avoid re-creating a monarchy. They actually sought to make it difficult for government to function. If the Senate can’t come to terms with the president, then liberty demands that the government be paralyzed.
Judge David Sentelle’s opinion for the D.C. Circuit dismissed the possibility that his interpretation might impede the president in his constitutional obligation to “take Care that the Laws be faithfully executed.” He writes: “[I]f some administrative inefficiency results from our construction of the original meaning of the Constitution, that does not empower us to change what the Constitution commands.”
The anti-government myth, however, is at best only part of the story. And that is the side I tried to present as a counter to Francisco’s narrative. The Framers’ institutional design was intended to create an effective government. “[T]he true test of a good government,” Alexander Hamilton wrote in Federalist 68, “is its aptitude and tendency to produce a good administration.”