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View Diary: D.C. Circuit guts president's recess appointment power (333 comments)

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  •  Direct wording has (3+ / 0-)
    Recommended by:
    indie17, basquebob, Eric Nelson

    no bearing on whether something is a political question.

    •  So in response... (2+ / 0-)
      Recommended by:
      coffeetalk, indie17

      Is the ability of a house of Congress to write its rules at the beginning of each session a political question? The courts have had to resolve that question.

      The words of the Constitution have to have some meaning or else this past 200+ years have been an exercise in voluntary agreement.

      Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

      by Phoenix Rising on Fri Jan 25, 2013 at 10:56:09 AM PST

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      •  Yes it is (1+ / 0-)
        Recommended by:
        indie17

        The courts have never resolved that question to my knowledge.

        Do you have a case in mind?

        •  Indirectly... (0+ / 0-)

          Both Republicans and Democrats have pointed to US v. Ballin as setting limits and protections around the rule making of each house of Congress.

          Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

          by Phoenix Rising on Fri Jan 25, 2013 at 11:33:15 AM PST

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          •  What limits? (0+ / 0-)

            My recollection of Ballin is that it holds that the power of the houses of Congress to make rules is a plenary power, and that power exists whenever a quorum is present.

            "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

            by FogCityJohn on Fri Jan 25, 2013 at 11:55:24 AM PST

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            •  Yes (1+ / 0-)
              Recommended by:
              splintersawry

              The side-effect is that the court in Ballin made a ruling on how the House could determine its rules based on the Constitution, i.e. by majority. It didn't say that the House could determine what a majority is, only that it could set the rules for a procedure that would reasonably determine that a majority is present. I'm not exactly sure how you get from there to the Constitutional Option, but both Republicans and Democrats have argued that Ballin applies.

              In the same way, this court determined that "the recess" is the intersession recess according to the Constitution. It didn't decide that the Senate wasn't in recess because it was holding pro-forma sessions - that might have been a political question. Rather, it held that the President's power is limited to the period of time between the end of a session and the start of a new session.

              Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

              by Phoenix Rising on Fri Jan 25, 2013 at 03:03:09 PM PST

              [ Parent ]

              •  I think it's easy enough. (0+ / 0-)

                I think you get to the constitutional option from this language in Ballin:

                But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.

                The constitution provides that 'a majority of each [house] shall constitute a quorum to do business.' In other words, when a majority are present the house in in a position to do business. Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single [144 U.S. 1, 6]   member or fraction of the majority present. All that the constitution requires is the presence of a majority, and when that majority are present the power of the house arises.

                United States v. Ballin, 144 U.S. 1, 5-6 (1892)

                Rulemaking is a continuous power, always subject to exercise, and the power of a house of Congress to make rules arises whenever a majority is present.  

                "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                by FogCityJohn on Fri Jan 25, 2013 at 05:01:15 PM PST

                [ Parent ]

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