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View Diary: Supreme Court effectively kills presidential recess appointments (196 comments)

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  •  Hesiod - three points (8+ / 0-)

    First, the Congress gets to make its own rules. That was confirmed by the SCOTUS today, which wasn't surprising. The Constitution is clear on this issue.

    Second, the recess power was never intended to be an end run around the advice and consent function of the Senate.

    Three, other Presidents including GWB respected the "pro forma" sessions and didn't attempt to make recess appointments when the Senate was in pro forma sessions. President Obama invited this lawsuit when he challenged the Congress' ability to make it's own rules, something I found puzzling when he did it. It seemed to me that challenging the Congress and inviting a lawsuit was fraught with peril and the ability of President Obama and future Presidents to use the recess power.

    "let's talk about that" uid 92953

    by VClib on Thu Jun 26, 2014 at 11:08:42 AM PDT

    [ Parent ]

    •  Lots of things Obama does are strange. (2+ / 0-)
      Recommended by:
      VClib, Jacob1145

      But, since Harry Reid and the Senate refused to eliminate the filibuster for executive branch appointments, Obama forced the issue.

      Even so, Noel canning does not give Congress unlimited power to set it;s own rules. It actually imposes some limits, which may actually become extremely important down the road if the filibuster rule itself is challenged.

      •  Do you have specifics. (0+ / 0-)

        On how the opinion limits the power of Congress to set its own rules?

        I'm still reading the full opinion, but from the syllabus, the only thing I noticed in possible support of this view is

        When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares.
        However, that's not very limiting as I take it to apply to extreme cases where the Senate rules have boxed them into involuntary inaction.

        For example... Suppose, in an attempt to prevent midnight shenanigans of the minority, the Senate passed a rule that at least 40 Senators must vote to reconvene and conduct business, including changing rules. Then, suppose a tragic food poisoning problem in the Senate Cafeteria killed 80 Senators overnight. Now, under the rules, it would be impossible for the Senate to conduct business due to rules it is now impossible to change (at least until governors fill at least 20 of the open seats via appointments). A situation such as this seems to me to be what the court is speaking of here.

        I will continue reading the full decision...

        •  Here you go. (0+ / 0-)

          From Noel Canning, slip op at 34:

          The standard we apply is consistent with the Constitution’s broad delegation of authority to the Senate to de­termine how and when to conduct its business. The Con­stitution explicitly empowers the Senate to “determine the Rules of its Proceedings.” Art. I, §5, cl. 2. And we have held that “all matters of method are open to the determi­nation” of the Senate, as long as there is “a reasonable relation between the mode or method of proceeding estab­lished by the rule and the result which is sought to be attained”and the rule does not “ignore constitutional restraints or violate fundamental rights.” United States v. Ballin, 144 U. S. 1, 5 (1892).
    •  Not true of Bush: Bolton was a recess apt. I'm (0+ / 0-)

      sure there were others.

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