This one appears headed to the courts.

First of all, there's a question whether a recess appointment can be made with someone who doesn't even have a pending confirmation in the Senate. Sam Fox's nomination had been pulled from the Senate by Bush.

But that's not the only legal problem with the recess appointment:

To fight the Fox appointment, Democrats are questioning the Bush administration's plan to have Fox serve in a voluntary capacity -- receiving no pay for his duties as ambassador. This is an important legal technicality, as federal law prohibits "payment of services" for certain recess appointments. However, if the recess appointee in question agrees that he or she will take an unpaid position and not sue the government at a later date for compensation, then the appointment can go forward, at least as the White House sees it.

So as long as Fox -- a multi-millionaire -- agreed not to sue the Bush administration later for not paying him, the White House would be comfortable with giving him an unpaid, "voluntary service" recess appointment as ambassador to Belgium.

But here's the rub that makes Democrats view Bush's recess appointment of Fox as a major-league no-no: Federal law prohibits "voluntary service" in cases where the position in question has a fixed rate of pay, as an ambassadorship does. That's how the Government Accountability Office, an arm of the Democratic-controlled Congress, interprets the law [...]

"How to reconcile this clear conflict between the pay restriction, which says that Fox cannot be paid, with the voluntary services provision, which says that the State Department cannot accept voluntary services from Fox?" queried one senior Democratic aide who asked for anonymity to speak frankly about the matter.

"That is the $64,000 question," he added.