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View Diary: SCOTUS hostile to administration in recess appointments case (115 comments)

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  •  Well, (20+ / 0-)

    this is a good point. Perhaps the recess appointment clause has become obsolete. But, it sure grates me that they wait until we have a Democratic President who actually did about 1/3 the number of recess appointments as Bush, to make this kind of ruling.

    KOS: "Mocking partisans focusing on elections? Even less reason to be on Daily Kos."

    by fcvaguy on Mon Jan 13, 2014 at 01:21:16 PM PST

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    •  yes, I know what you mean (6+ / 0-)

      And, I never really thought about it before I read Kagan's comment, but that recess appointment clause was built in because Senators were so unavailable.

      It is really no longer necessary, as you say.

      •  I may be in the minority here (5+ / 0-)

        but I sure wish we could go back to the idea that this is a part time public service, the "good old days" when these folks had "real" jobs instead of their job being to raise the money to get elected again.

        •  But now we have (1+ / 0-)
          Recommended by:
          Cream Puff

          a population orders of magnitude larger, intercontinental ballistic missiles, international corporations, a planet-threatening human-made environmental crisis... Politics is professional now, and it's folly to try to make it otherwise. I mean, look at the Texas legislature.

          Having some legislative advisory body composed of a random draw of citizens would be a fine thing, of course. Perhaps that's what we could replace the grossly unrepresentative Senate with (also, nonpartisan redistricting commissions).

          Government and laws are the agreement we all make to secure everyone's freedom.

          by Simplify on Mon Jan 13, 2014 at 06:05:49 PM PST

          [ Parent ]

          •  It's a Republic (0+ / 0-)

            It was designed with a certain amount of state sovereignty.

            Your notion of the Senate being "grossly unrepresentative" only applies when viewing the US nationally.

            States rule.. not popular vote nationwide.  And, that won't change anytime soon.

          •  Can't change the Senate (0+ / 0-)

            It's even unclear that a new Constitutional Convention could change the way states are represented in the Senate. If you read the Constitution the guarantee that the small states won't lose their equal representation in the Senate is included with language unlike anything else. No changes can be made without their consent. It's baked deep in the cake.

            "let's talk about that"

            by VClib on Mon Jan 13, 2014 at 09:04:47 PM PST

            [ Parent ]

            •  Hypothetically (0+ / 0-)

              since spending bills have to originate in the House, a Large State cabal could only pass bills that financially penalize small states (short of violating the XIV amendment), and use that as leverage to get the small states to agree to Senate reform.

              Of course, such discriminatory funding bills would be killed in the current Senate, but it would deny small-state senators their cheap pet projects too.  It might be possible to forge a compromise by which, say, the largest states could add up to 3 more Senators based on census data.

              I have no illusions as to how likely this scenario is however.

              First they came for the slippery-slope fallacists, and I said nothing. The End.

              by Cream Puff on Tue Jan 14, 2014 at 07:36:44 AM PST

              [ Parent ]

              •  Cream Puff - the Senate isn't changing (0+ / 0-)

                It will be two Senators per state forever. The crafting of the upper chamber, which gave more power to the small states, was the compromise for the House being allocated by population. That was the deal and if not for that deal we wouldn't have the USA. It isn't changing.

                "let's talk about that"

                by VClib on Tue Jan 14, 2014 at 11:56:25 PM PST

                [ Parent ]

                •  I never said it was (1+ / 0-)
                  Recommended by:
                  VClib

                  I was only exploring a hypothetical by which small states could be arm-twisted into a constitutional amendment.

                  I'm aware of the history.

                  First they came for the slippery-slope fallacists, and I said nothing. The End.

                  by Cream Puff on Thu Jan 16, 2014 at 01:24:52 PM PST

                  [ Parent ]

          •  As others said (0+ / 0-)

            The Senate wasn't even really designed to represent the people. It's supposed to represent the states. It's the body where each state has equal power no matter it's size. I would absolutely oppose any change to that.

      •  JJ In Ill. says (0+ / 0-)
        but that recess appointment clause was built in because Senators were so unavailable
        I find the justices point odd , how can they predict the senate will always be able to convey from here on out thru history? There is always a chance of things getting screwed up

         80% of what DC does is old out dated and decrepit , they might have been trying to lead to something else ?

        Beer Drinkers & Hell Raisers

        by Patango on Mon Jan 13, 2014 at 07:26:31 PM PST

        [ Parent ]

    •  Maybe if some Dem activists (8+ / 0-)

      sued during the Bush administration.... Nah. Never would have reached SCOTUS in that case.

      "The NSA’s capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything. [...] There would be no place to hide."--Frank Church

      by Joan McCarter on Mon Jan 13, 2014 at 02:22:57 PM PST

      [ Parent ]

    •  Amendment (1+ / 0-)
      Recommended by:
      Patango

      Regardless of whether the clause is "obsolete," it's still in effect—as part of our social contract—until amended.

      Government and laws are the agreement we all make to secure everyone's freedom.

      by Simplify on Mon Jan 13, 2014 at 06:00:50 PM PST

      [ Parent ]

      •  Obsolete (0+ / 0-)

        As in, no longer useful in everyday practice.

        It's not that they're arguing it SHOULDN'T be there, the argument is that it serves no purpose in being there. As noted, the House and Senate are rarely ever in a true recess any more. They can return on a day's notice.

        If there were some massive emergency that shut the country down for an extended period, then perhaps the clause would be functionally useful, but that would invoke emergency executive authority anyway, and appointments would likely be the smallest of our worries.

        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 Tue Jan 14, 2014 at 06:26:52 AM PST

        [ Parent ]

    •  My understanding is that they avoided recess (0+ / 0-)

      by having one person start the day and then end it. I heard a recording of it on NPR.

      They were intentionally avoiding going to recess so Obama couldn't make recess appointments.

      But he made them anyway. And now the SCOTUS has to settle the disagreement.

      It's really pretty juvenile.

      "You don't have to be smart to laugh at fart jokes, but you have to be stupid not to." - Louis CK

      by New Jersey Boy on Mon Jan 13, 2014 at 06:08:22 PM PST

      [ Parent ]

    •  fcvaguy - there was no case brought (3+ / 0-)
      Recommended by:
      Justanothernyer, fcvaguy, Pi Li

      on this topic in the GWB era because when Harry Reid kept the Senate in "pro-forma" session GWB didn't try and make any recess appointments. He stopped.

      In my view there are two issues at hand in this case. First, does Congress or the Executive branch decide when the Senate is in recess? I think this one is very clear and it always surprised me that the Obama administration challenged this historic practice. The SCOTUS will side with Congress who makes its own rules. The second issue is when can a President make a recess appointment and I personally think the DC Court of Appeals got this one right. The recess appointment power was never intended to be an end run around the Senate, but in practice it has. This one would be a much more serious change in the historic use of the recess appointment powers but I wouldn't be surprised to see the DC Court of Appeals upheld or only slightly tweaked.  

      "let's talk about that"

      by VClib on Mon Jan 13, 2014 at 09:01:10 PM PST

      [ Parent ]

      •  you're probably right (1+ / 0-)
        Recommended by:
        VClib

        and all of this wouldn't be a problem if the Republicans hadn't abused their filibuster power the way they did. Perhaps with the change in the filibuster rules, this is no longer a problem.

        KOS: "Mocking partisans focusing on elections? Even less reason to be on Daily Kos."

        by fcvaguy on Tue Jan 14, 2014 at 05:31:51 AM PST

        [ Parent ]

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