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View Diary: Another Court Eviscerates Recess Appointments (17 comments)

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  •  Actually, if this continues it might end up (5+ / 0-)

    taking down the entire thing.  Remember, there are tons of court decisions (including important ones like Brown v Board of Education) that were made by judges who were recess appointments.  If it can be successfully argued that a judge's decision is invalid because the judge was an illegal recess appointment then all the appeals including supreme court rulings based on such a judge's ruling also become invalid.  Could you imagine the chaos of having to go through all the case law for the past 200 years to eliminate anything that involved an illegally appointed federal judge?

    You have watched Faux News, now lose 2d10 SAN.

    by Throw The Bums Out on Fri May 17, 2013 at 02:16:53 PM PDT

    •  Yeah, but how many were appointed ... (3+ / 0-)
      Recommended by:
      Victor Ward, erush1345, Lujane

      during actual recesses, and how many during congressional "breaks"?  It's the latter that is the problem, not all of them.

      "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

      by Neuroptimalian on Fri May 17, 2013 at 02:45:41 PM PDT

      [ Parent ]

      •  I am pretty sure the original ruling was that (2+ / 0-)
        Recommended by:
        mookins, Lujane

        most "recesses" aren't, even the ones when everyone is gone for thanksgiving/christmas/etc.  In other words, only the time between when the old congress ends and the new one begins counts as a true recess.

        You have watched Faux News, now lose 2d10 SAN.

        by Throw The Bums Out on Fri May 17, 2013 at 03:07:53 PM PDT

        [ Parent ]

        •  TTBO - no court is going to go back (0+ / 0-)

          beyond the 112th Congress and invalidate anything. Recess appointments have a short tenure and only last until the end of the Congressional Session when the appointments are made.

          This decision is very different from the DC Circuit one. The Third Circuit made the ruling that Congress was in session when the President made these recess appointments and therefore he could not make a recess appointment at that time.

          "let's talk about that"

          by VClib on Sat May 18, 2013 at 08:16:07 AM PDT

          [ Parent ]

    •  I think the case only involves the current (2+ / 0-)
      Recommended by:
      TheDuckManCometh, Lujane

      administration. Could be wrong.

      In any case I would be interested to hear the reasoning that the fruits of past actions taken in good faith and legal under prevailing law were retroactively illegal.  

      •  Only the current administration .... (2+ / 0-)
        Recommended by:
        TheDuckManCometh, Lujane

        Inference being, prior administration appointments are presumptively valid because the president making the recess appointments was not ... black?

        At any rate, Teddy Roosevelt famously made 193 recess appointments during the clang of the gavel separating two sessions of the Senate. His action was controversial but not, to my knowledge, overturned.

        ad astra per alia porci

        by harrije on Fri May 17, 2013 at 03:09:41 PM PDT

        [ Parent ]

      •  Well, if the fruits of past actions by the CFPB (2+ / 0-)
        Recommended by:
        TheDuckManCometh, Lujane

        and NLRB taken in good faith and legal under prevailing law are retroactively illegal why wouldn't it apply to judges as well?  Sure, nobody has actually made such a case yet but if the precedent fits then it fits and someone will do so eventually.

        You have watched Faux News, now lose 2d10 SAN.

        by Throw The Bums Out on Fri May 17, 2013 at 03:10:33 PM PDT

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        •  I don't know of any judges appointed in recess (0+ / 0-)

          by this administration. Who are still serving. Who are they? What have they decided of significance to the commonweal?

          This rush to instill -- dare I say it -- fear on the basis of hypothesized retroactive nullification seems a little desperate.  

          •  Well I can find no logical reason (beyond the (0+ / 0-)

            fact that it hasn't been brought up in court yet) that retroactive nullification would be limited to this administration.  So unless the court pulls some kind of Bush v Gore weasel ruling either you have retroactive nullification based on illegal recess appointments or you don't.

            Can you make any case as to why it would not apply to previous administrations as well besides the fact that it would make a huge mess (which is not a valid argument in court).

            You have watched Faux News, now lose 2d10 SAN.

            by Throw The Bums Out on Fri May 17, 2013 at 10:30:33 PM PDT

            [ Parent ]

        •  Because recess appointments have a short tenure (0+ / 0-)

          there are no federal judges serving who have not been confirmed by the Senate.

          "let's talk about that"

          by VClib on Sat May 18, 2013 at 08:11:44 AM PDT

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          •  Yes but if the decision was made during the (0+ / 0-)

            recess appointment (before being confirmed by the Senate) and that recess appointment was illegal (because it wasn't a valid recess) then surely the decisions would be invalid.

            My point is that either decisions (whether made by a judge or the NCLB) made because of an illegal recess appointment are invalid or they aren't.  What administration they were made under shouldn't matter one bit.

            You have watched Faux News, now lose 2d10 SAN.

            by Throw The Bums Out on Sat May 18, 2013 at 08:51:19 AM PDT

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            •  TTBO - no they won't be invalid (0+ / 0-)

              There is no legal theory on which historical decisions would be overturned because they were decided by judges on the bench through recess appointments. Their appointments were valid based on the ruling law at the time. The SCOTUS the US has not yet even ruled on this issue and whatever they decide they will make it clear that it is NOT retroactive.

              "let's talk about that"

              by VClib on Sat May 18, 2013 at 08:55:31 AM PDT

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    •  TTBO - no one on any court has suggested (0+ / 0-)

      that any historical judicial decisions are invalid. All of the judges were later confirmed by the Senate and the state of the law, at that time, made their decisions binding.  

      "let's talk about that"

      by VClib on Sat May 18, 2013 at 08:24:35 AM PDT

      [ Parent ]

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