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View Diary: Court ruling threatens not just 200 labor board cases, but recess appointment power (63 comments)

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  •  Let's simplify this. (6+ / 0-)

    The DC Circuit made two holdings:
    1.  Recess power can only be used for vacancies which are initiated during a recess.
    2.  Because of the pro forma sessions, this wasn't a recess.

    The Supremes could agree on #2 without agreeing on the more radical #1, strike down these appointments while otherwise affirming some realistic recess appointment power.

    •  You said it better. (6+ / 0-)

      I would add to #1 "and a recess is only intersession."

      I suspect option #2 is more likely, if I had to make a guess.  

    •  This is where I see it going and agree with you (0+ / 0-)

      I think they will affirm recess powers but nullify said recess appointments.

      Will be interesting though to see where Kennedy will put himself in that question.

      --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

      by idbecrazyif on Mon Jan 28, 2013 at 08:43:19 AM PST

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    •  They could also decide... (0+ / 0-)

      that "Pro Forma sessions were really meaningless but were a good bluff that worked for a few years until President Obama challenged it."

      And a pony.

      I screwed up with a careless uprate so I'm a "No Rate" pariah. When I give a comment "+4 n/t", please consider that a recommend. (That's my workaround to participate here). DK haiku, one complete thought in a title field. Roar louder! NR since 3/7/12.

      by Josiah Bartlett on Mon Jan 28, 2013 at 11:13:21 AM PST

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    •  But even so... (0+ / 0-)

      The question still remains, "what is a recess?"

      "pro forma" sessions are not actual sessions as no business is ever conducted during these sessions. So if there is no business conducted then that in itself could be considered a "recess".

      To avoid a "recess" the Congress must be able to conduct business on any particular day. The whole concept of having "recess appointments" is because the Congress is unable to approve an appointment at a particular time. Tying up the Executive or Judicial appointments by Congress not being able to conduct business is the reason for these recess appointments in the Constitution. That is the reason for it being there.

      Semantics aside, Congress really shouldn't be trying to play this game. It is more likely to bite them in the ass. They have been playing fast and loose with the legal wordings surrounding the Congress for decades. Letting the SCOTUS decide how the Congress is to operate is asking for trouble.

      "I think it's the duty of the comedian to find out where the line is drawn and cross it deliberately." -- George Carlin, Satirical Comic,(1937-2008)

      by Wynter on Wed Jan 30, 2013 at 04:54:44 AM PST

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      •  Wynter - its the executive branch that is game (0+ / 0-)

        playing. The Constitution requires that the President's appointments be approved by the Senate. The recess feature was put in place when the Senate would be in recess for months at a time. It was never contemplated that it would be used to end run the confirmation process which has been routinely done for at least 70 years that I am aware of. Obtaining approval of Presidential appointments is an issue of politics, not law. I think the SCOTUS will state that the Congress is in recess when it says it is, and isn't in recess unless it says it is, and Congress decides the recess issue, not the POTUS. It will not declare, as the DC Court did, that recess appointments can only be made between session of Congress, but will affirm that the appointments made while Congress was in pro-forma session are not valid.

        "let's talk about that"

        by VClib on Wed Jan 30, 2013 at 08:02:55 PM PST

        [ Parent ]

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