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Words fail.  In more ways than one.

Disappointing. Troubling. Absurd.  

It’s a surprise to hear that The U.S. Court of Appeals declared President Obama’s January 2012 recess appointments unconstitutional.  

Chief Judge David Sentelle of the D.C. Circuit said in the ruling that the National Labor Relations Board appointments and Richard Cordray’s appointment to head the Consumer Financial Protection Bureau are invalid.  All of the appointments are important and necessary.  I will address the issues that lead to Cordray’s appointment to keep the focus of this diary tight.

The main features of Sentelle’s decision are:

•  The Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012.

•  The recess appointments clause of the U.S. Constitution is limited to intersession recesses, not  intra-session adjournments.

•  An interpretation of ‘the recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the president free rein to appoint his desired nominees at any time he pleases.

 The court dismissed concerns about lengthy position vacancies.  “If some administrative inefficiency results . . .  that does not empower us to change what the Constitution commands.”

Sentelle’s decision doesn't challenge the legality of recess appointments.  Article 2 Section 2 of the Constitution provides for them.  Sentelle’s decision says the recess appointments were unconstitutional because the Senate was conducting pro forma sessions at the time.

The practical and sensible Americans who are still a majority don’t give a good goddamn about the definition of a pro forma session, a regular session, or a recess.  They just want their elected officials to do their J. O. B.

This mess was made by the thinkers who came to Washington as the Republican freshmen of the 112th Session of Congress.

They came up with a plan.  In a June 15, 2011 letter to Speaker John Boehner, House majority leader, Eric Cantor, and House majority whip, Kevin McCarthy, 78 representatives requested that “all appropriate measures be taken to prevent any and all recess appointments by preventing the Senate from officially recessing for the remainder of the 112th Congress."  Denial of the Senate’s request for a recess would force the Senate into pro forma sessions and recess appointments would be disallowed.

This was a new twist on the strategy the Democrats in the Senate used in 2007 when pro forma sessions kept President Bush from making recess appointments. It was the Senate's decision to do so at the time. Now the scheme would escalate the gamesmanship to an unprecedented level by imposing a House decision on the Senate and stepping on the executive branch’s authority.

Here’s an excerpt from the letter:

We thank you for your shrewd and strategic leadership in preventing the Administration from making recess appointments during the last Senate break.  We respectfully request all appropriate measures be taken to prevent any and all recess appointments by preventing the Senate from officially recessing for the remainder of the 112th Congress.

Let me begin by saying that under normal circumstances, the House of Representatives should not involve itself in nomination fights [no kidding]. The Founding Fathers clearly intended the Senate to handle the nominees through a vetting process. However, when liberal lobbyists, unions, and community organizers direct the White House to subvert the will of the Senate, extraordinary steps must be taken to return transparency to our government and sanity to our political appointees.

That is why patriots like Representatives Tom Marino, Ben Quayle, Allen West, and 73 other freshmen have joined my efforts to hit the “kill switch” – a provision the Founding Fathers gave the House to utilize when the Senate’s advice and consent is being circumvented by a hostile Administration. This kill switch comes in the form of adjournment resolutions.

The winter holiday recess came after a nasty hair pulling between President Obama and the Republican leadership in the House over the extension of unemployment benefits and the payroll tax reduction.  Both were set to expire and there was the usual last minute horse trading which left Boehner and Cantor looking rather glum.  
Republican losers.
The President returned from his holiday and announced the recess appointment.  It will be up to the Supreme Court to decide whether the Senate was in pro forma sessions or not, considering the Republican transgression which was intended to unlawfully restrict the Constitutional power of the executive.

It has been argued that the denial by the House of the Senate’s recess request triggered Article 2  Section 3 of the Constitution which says the President can adjourn the Congress if the Houses can't agree on a Time of Adjournment.  

Donald Ritchie, the Senate's official historian, says several presidents have used a constitutional provision that allows them to convene a session of Congress.  He goes further:

"But there is this other provision that says, well, if the two houses themselves can't agree on an adjournment, the president can adjourn Congress," Ritchie says. "It's just that no president has ever exercised that constitutional authority."
Clearly the Republicans were jeopardizing the integrity of their own “advice and consent” responsibility in their refusal to consider any nominee to head the CFPB.  At the Senate Banking Committee hearing in September 2011, Sen. Richard Shelby, the ranking Republican gave the following statement:
Senator SHELBY. Thank you, Mr. Chairman. I do not think it will surprise anyone to hear that we believe that today’s hearing is quite premature. We do not believe that the
Committee should consider any nominee to be the Director of the Bureau of Consumer Financial Protection until reforms are adopted to make the Bureau accountable to the American people [he means the GOP's wealthy donors].

Earlier this year, Mr. Chairman, 43 of my Senate colleagues and I sent a letter to President Obama expressing our serious concerns about the Bureau’s lack of accountability. We also proposed three reasonable reforms to the structure of the Bureau. We had hoped to work with the majority to address this issue before the President nominated a Director.

Unfortunately, neither the President nor the majority has made any effort to work with us to improve the accountability of the Bureau. Instead, the President has nominated Mr. Cordray to be the first Director. It is regrettable that the President and the majority
have chosen to ignore our request rather than work with us to improve the Bureau’s accountability.

Sen. Sherrod Brown’s remarks during the same hearing are pertinent:
Sen. Sherrod Brown: I called the Senate historian recently and asked him when was the last time or was there a time when the Senate actually—when a minority in the Senate pledged to block a nominee because that party actually opposed the agency’s very existence. When was the last time that a group of Senators—44, as Senator Shelby points out—signed a letter threatening a filibuster implicitly, saying they will not confirm somebody until we get our way, until we change the law, the structure of the agency? Never happened before until right now. It is unprecedented. And that kind of partisanship is why people are so unhappy with their Government. They see a dysfunctional Government that simply cannot do this.
The Republicans’ extortionist tendencies were on display if unrecognized in the confirmation hearing episode.  They wanted to make changes to the CPFB which had been legally established with the passage of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act.   They couldn't do it by the rules.  It would have required the passage of new legislation and the President’s signature and they didn't have the votes, for one thing.  As they have done and continue to do, they resorted to ugly coercive demands to have what they want or there would be some form of hell to pay.  

Dodd-Frank passed in the House on June 30 2010 with a 237-192 vote along party lines.  It passed in the Senate, 60-38, on July 15 2010 on a cloture vote because the Republicans were filibustering.  That’s more than fair.  

The President’s nominee should have been confirmed or rejected in a proper confirmation hearing but Sen. Shelby said Cordray was “dead on arrival’ as soon as the announcement was made.  Cordray’s nomination was filibustered on Dec 8 2011.  The Democrats had 53 votes and they were all in favor.  But it wasn’t enough.  The 45 Republicans who voted “no” prevailed.

Sen. Shelby spelled out his position clearly and on camera.  This isn’t advice and consent.  Cordray's qualifications were never even considered.

Yesterday, President Obama announced Cordray's renomination.   I won't predict anything.  I'll wait and see.  Please proceed, Republicans.

9:24 AM PT: There is some reference material that I should have linked.  This is a Congressional Research Service report that was issued a year ago after the recess appointments.  It goes into much greater detail  than this diary.

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Comment Preferences

  •  Thank you for a clear explanation of the decision (20+ / 0-)

    I knew that the appeals court wan't the final word, and that there where some controversial points in their decision. Thank you for breaking the points down. Now I better understand the process and the controversy.

    A conservative is a man with two perfectly good legs who, however, has never learned how to walk forward. Franklin D. Roosevelt

    by notrouble on Sat Jan 26, 2013 at 08:31:00 AM PST

    •  You're welcome. Glad you found it informative. / (6+ / 0-)

      "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

      by leftreborn on Sat Jan 26, 2013 at 09:01:42 AM PST

      [ Parent ]

      •  Question: (1+ / 0-)
        Recommended by:

        wouldn't this decision invalidate the "intrasession" recess appointments of past presidents? after all, this decision was not limited do the specific actions of President Obama but rather invalidated a whole class of recess appointments, namely those that briefly occur during the same session of Congress.

        anyone know of some good bush or Reagan appointees we can now try to throw out? ;)

        You never trust a millionaire/Quoting the sermon on the mount/I used to think I was not like them/But I'm beginning to have my doubts -- The Arcade Fire

        by tomjones on Sat Jan 26, 2013 at 11:34:56 AM PST

        [ Parent ]

        •  No, not at all (2+ / 0-)
          Recommended by:
          Lujane, peacestpete

          In those cases, Congress really did recess, leaving town for an extended period of time. This meant that the President was well within his right to make recess appointments, and no body disagrees with that.

          In this case, Obama took the position that just because the senate gavels in every three days for one minute in pro forma sessions does not mean that it is really in session. After all, no work is done, and no work could be done since only two senators are there.

          Therefore, as the senate was functionally in recess,  Obama decided he could go ahead with recess appointments. And that had not happened before, probably because the pro forma sessions intended to stop recess appointments only started in 2007.

          This was always a gamble. I guess we will find out soon if it paid off or not.

          "A government that robs Peter to pay Paul can always depend on the support of Paul." - George Bernard Shaw

          by Drobin on Sat Jan 26, 2013 at 01:27:04 PM PST

          [ Parent ]

          •  Not quite. (0+ / 0-)

            From the New York Times write up:

            In a ruling that called into question nearly two centuries of presidential “recess” appointments that bypass the Senate confirmation process, a federal appeals court ruled on Friday that President Obama violated the Constitution when he installed three officials on the National Labor Relations Board a year ago.
            But the court went beyond the narrow dispute over pro forma sessions and issued a far more sweeping ruling than expected. Legal specialists said its reasoning would virtually eliminate the recess appointment power for all future presidents at a time when it has become increasingly difficult to win Senate confirmation for nominees.

            “If this opinion stands, I think it will fundamentally alter the balance between the Senate and the president by limiting the president’s ability to keep offices filled,” said John P. Elwood, who handled recess appointment issues for the Justice Department during the administration of President George W. Bush. “This is certainly a red-letter day in presidential appointment power.”

            Mr. Obama has made about 32 such appointments, including that of Richard Cordray, as director of the Consumer Financial Protection Bureau. President Bill Clinton made 139, while Mr. Bush made 171, including those of John R. Bolton as ambassador to the United Nations and two appeals court judges, William H. Pryor Jr. and Charles W. Pickering Sr.

            Nearly all of those appointments would be unconstitutional under the rationale of the United States Court of Appeals for the District of Columbia Circuit. It ruled that presidents may bypass the confirmation process only during the sort of recess that occurs between formal sessions of Congress, a gap that generally arises just once a year and sometimes is skipped, rather than other breaks throughout the year. Two of the three judges on the panel also ruled that presidents may fill only vacancies that arise during that same recess.

   to take another crack at my question? :)

            You never trust a millionaire/Quoting the sermon on the mount/I used to think I was not like them/But I'm beginning to have my doubts -- The Arcade Fire

            by tomjones on Sat Jan 26, 2013 at 02:14:41 PM PST

            [ Parent ]

        •  tom - no GWB recess appointments are still (0+ / 0-)

          in office. Recess appointments expire at the end of the term of Congress in session at the time of the appointment . There are no recess appointments serving except for those appointed by the current administration.

          "let's talk about that"

          by VClib on Sun Jan 27, 2013 at 11:35:54 AM PST

          [ Parent ]

    •  Other Views.... (5+ / 0-)
      Recommended by:
      Bensdad, LilithGardener, Lujane, Thumb, chmood

      Worth a look:

      Bmaz (Emptywheel):

      Here is the next glaring trouble spot from today’s Canning decision. Just yesterday, Obama formally nominated Richard Cordray for regular confirmation as head of the CFPB. It was a nice little ceremony carried on television and everything. And then Harry Reid, Carl Levin, Pat Leahy and the old school Senate Democrats went out and killed every possible ability for Obama to actually get Cordray through the Senate Republican filibuster gauntlet when they refused to meaningfully reform the filibuster (see: here and here).

      Actions have consequences, and so do crustacean like inaction and fear as exhibited by the Old School Dems and the White House. You think the Senate No Men led by Mitch McConnell were obstructive of the CFPB and NLRB before? Just wait until now when they smell the agencies’ blood in the water.

      Surely the Obama Administration will correct all this with a request for en banc consideration by the DC Circuit or an appeal to the Supreme Court, right? Well, no and yes. The DC Circuit effectively does not do en banc considerations in the first place, and even if they wanted to (they won’t) they may not even have enough active judges to pull it off (note that DC Circuit is down yet another active judge since that article was written).

      Yves Smith:
      A ruling by the Washington, DC federal appeals court in Noel Canning v. NLRB pretty much ends the ability of presidents to make recess appointments, a measure that has been used since 1867. The suit successfully challenged a NLRB rulemaking on the grounds that three of the five directors were recess appointments which meant the NLRB lacked a quorum to give it authority to act. Georgetown law professor Adam Levitin believes this decision will stick:

      The DC Circuit’s held on two separate grounds that the NLRB members were not validly appointed. All of the NLRB members in question were appointed as so-called “recess” appointments by the President, meaning that they were appointed without the advice and consent of the Senate. First, the DC Circuit held that these appointments were invalid because they were appointed under the Recess Appointments power at a time when the Senate was not in recess. And second, the DC Circuit held that the appointments were invalid because the Recess Appointments power only applies to vacancies that arise during a recess, not vacancies that are continuing during a recess, and the vacancies in question arose before the (non-)recess. The ruling is based on the DC Circuit’s close textual reading of the Recess Appointments clause of the Constitution (in particular, the use of the term “the Recess” instead of “a Recess”), but is also butressed by policy arguments.

      While I don’t like the result of the decision, it doesn’t read as a strained or flagrantly political decision (unlike Business Roundtable v. SEC, say), even if the panel was all GOP appointees. I assume the decision will get appealed and would think there’s a reasonable chance that certiorari will be granted by the Supreme Court, but there’s a real chance that the decision will stand either because certiorari won’t be granted or because the Supreme Court will affirm.

      There is a little more here than presented.  Timing of this with Harry Reid's agreement with the Turtle is precious.
  •  Tipped and rec'd for clarity and information. (10+ / 0-)

    I pray daily that these non-stop Republican Cheaters stop prospering off the backs of the American middle class.

    Best. President. Ever.

    by Little Lulu on Sat Jan 26, 2013 at 08:42:08 AM PST

    •  It seems clearer that there's a pattern of (5+ / 0-)

      behavior when they can't have their way by the normal process they get coercive.  That could become a legal matter of its own.

      "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

      by leftreborn on Sat Jan 26, 2013 at 09:04:14 AM PST

      [ Parent ]

      •  I disagree (4+ / 0-)

        Obama clearly knew he was stepping out of bounds when he made these appointments. Had this been done during the Bush administration, you would have been calling for impeachment.

        •  Please. This old saw again? Bush never (3+ / 0-)
          Recommended by:
          leftreborn, indie17, bobatkinson

          should have been allowed to be sworn in the first time, let alone continue in his stolen position once his torture approval became public knowledge.

          This is about Rethuglicans changing standing laws to shut down a government oversight agency that protects consumers, as well as thwarting a duly elected president in appointing a director to head a legislated agency that PROTECTS CONSUMERS.  What about this doesn't make it clear who Rethuglicans are busy protecting, as in corporations/credit card companies that are busy hiding language to rip consumers off?

          How pathetic that any American would want to turn the Rethuglican mandate to dismantle our democracy into an excuse to impeach a president who is clearly working his ass off to help/protect the majority/middle class in this country.  Just pathetic and so easily duped.

          Best. President. Ever.

          by Little Lulu on Sat Jan 26, 2013 at 09:28:36 AM PST

          [ Parent ]

          •  Nice rant (0+ / 0-)

            And I don't particularly disagree with you. But it doesn't change the fact that the administration was overstepping in this particular case.

            That's how the law works.

            •  Not necessarily (10+ / 0-)

              If the Diarist is correct, then the President has the authority to make the appointments in the face of a Senate that is merely being obstructionist, rather than questioning and confirming, or not, on a vote.

              Clearly both branches have responsibilities here, and if the Senate is seeking only to subvert the constitutional powers of the Executive, that is a power grab at least equal to that which they are accusing the President of.

              I hope that the quality of debate will improve,
              but I fear we will remain Democrats.

              Who is twigg?

              by twigg on Sat Jan 26, 2013 at 09:48:01 AM PST

              [ Parent ]

              •  It's not the diarist. It's a Senate historian who (8+ / 0-)

                was interviewed on NPR.  Not that he's the last word.  Anything can be rebutted.  But it's interesting when you start to dig around there are some legal minds out there who say that the House had no business getting itself in the middle of confirmation hearings.  The Constitution gives that the Senate only.  The freshmen who signed the letter maybe don't know how things work?  Never read the Constitution?  

                The Republicans in the Senate are almost as bad.  They hijacked the confirmation process to change the law that was legally passed and signed by the President.  Congress has a process for changing laws.  It doesn't involve extortion or sinking an important appointment without even bothering about his credentials.  

                I think the weather changed between 2011 and now.  We see the Republicans trying to negate and election results and force their policies in unorthodox ways.  

                "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

                by leftreborn on Sat Jan 26, 2013 at 10:13:13 AM PST

                [ Parent ]

              •  twigg - the President can't end run the Senate (0+ / 0-)

                regardless of how obstructionist the Senate may be. What the Court said was that appointments are a political process and the Senate and the President need to work it out.

                While the DC Court went well beyond the original issue at hand I think it may force the SCOTUS to rule on broader issue of recess appointments. As they say bad facts make bad laws. I would not be surprised to see the SCOTUS agree with the DC Court. Going back decades every President has implemented an end run around the Senate which was not why the recess power was placed in the Constitution.

                "let's talk about that"

                by VClib on Sun Jan 27, 2013 at 11:42:06 AM PST

                [ Parent ]

        •  How do you know what Obama knew? And how do (2+ / 0-)
          Recommended by:
          Lost and Found, artmartin

          you presume to know what I would have done in a hypothetical situation?

          You don't know either.  You just have a biased opinion with nothing to support it and you can't distinguish it from real facts.  

          You're welcome to your opinion.  I don't mind people who disagree.   Your statements are illogical and they leave no opening for dialog.  

          Too bad.

          "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

          by leftreborn on Sat Jan 26, 2013 at 09:30:43 AM PST

          [ Parent ]

          •  See coffeetalk's comment below. (0+ / 1-)
            Recommended by:
            Hidden by:

            And feel embarassed about willfully misleading people here.

          •  Obama knew because he was in the Senate (3+ / 0-)
            Recommended by:
            Victor Ward, Justanothernyer, Bensdad

            when the Senate did exactly the same thing with respect to President Bush, to prevent President Bush from making recess appointments.  

            See here.  

            Sometimes, especially when both houses of Congress are not controlled by the same political party as the President, the Senate or House leadership will seek to block any potential recess appointments by not allowing the Senate to adjourn for more than three days, blocking a longer adjournment that would allow recess appointments to be made.[31] For example, during the last two years of the George W. Bush administration, Senate Majority Leader Harry Reid prevented any further recess appointments. Bush promised not to make any during the August recess that year, but no agreement was reached for the two-week Thanksgiving break in November 2007. As a result, Reid did not allow adjournments of more than three days from then until the end of the Bush presidency by holding pro forma sessions.[32][33] Prior to this, there had been speculation that James Holsinger would receive a recess appointment as U.S. surgeon general.[34]
        •  Wrong and wrong (3+ / 0-)
          Recommended by:
          leftreborn, LilithGardener, artmartin

          It isn't clear that President Obama knew what was in session and what was pretending to be in session. Bush wouldn't have had to do this, since Democrats do a better job of confirming (or choosing to not confirm) nominees.

          •  And it's pretty easy to check the numbers on this (4+ / 0-)
            Recommended by:
            Eyesbright, leftreborn, indie17, artmartin

            Just in case anyone wants to suggest that the Dems are just as bad as the GOP. They aren't.

            •  It's important to look at the details. As I (2+ / 0-)
              Recommended by:
              indie17, artmartin

              recall, the Democrats filibustered a number of Bush's judicial
              nominees and there's more to it than just the count.  There were valid reasons to put the brakes on new appointees because there was a stream of judges who were being let go when they refused to go along with the agenda.  It led to the resignation of Alberto Gonzales.  Confirming Bush's nominees would have been an approval of practices that were very objectionable and maybe even criminal.

              The Republicans aren't holding up nominations for any such reason.  They're worried that an effective regulator will clamp down on the criminal element.  They aren't professing any good intentions.  They're up to no good.

              "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

              by leftreborn on Sat Jan 26, 2013 at 12:48:23 PM PST

              [ Parent ]

              •  Unfortunately, how many filibusters there are (2+ / 0-)
                Recommended by:
                Victor Ward, VClib

                has nothing to do with the meaning of Article II, Section 2, clause 3:  

                The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
                The Constitution sets one standard for when recess appointments are allowed, and that does not vary depending on how obstructionist Congress is, or is not, being.

                And I suspect the SCOTUS will tell us whether the D.C. Circuit opinion was correct about the meaning of Article II, Section 2, Clause 3.  

        •  Um..... Here's the history of recess (1+ / 0-)
          Recommended by:

          appointments from Wikipedia (please note how many were made by GW Bush as opposed to Obama):

          "Presidents since George Washington have made recess appointments. Washington appointed South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. Because of Rutledge's political views and occasional mental illness, however, the Senate rejected his nomination, and Rutledge subsequently attempted suicide and then resigned.
          New Jersey judge William J. Brennan was appointed to the Supreme Court by President Dwight D. Eisenhower in 1956 through a recess appointment. This was done in part with an eye on the presidential campaign that year; Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern Catholic on the court. Brennan was promptly confirmed when the Senate came back into session. President Eisenhower, in a recess appointment, designated Charles W. Yost as United States ambassador to Syria.[6] Eisenhower made two other recess appointments, Chief Justice Earl Warren and Potter Stewart.

          George H. W. Bush appointed Lawrence Eagleburger Secretary of State during a recess in 1992; Eagleburger, as Deputy Secretary of State, had in effect filled that role after James Baker resigned.

          According to the Congressional Research Service, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of January 5, 2012, President Barack Obama had made 32 recess appointments."

  •  You need to know a couple of things (12+ / 0-)

    First, the use of pro forma sessions specifically to prevent the President from making a recess appointment was used by Majority Leader Reid during the last two years of the Bush administration.  President Bush respected the pro forma sessions and did not make recess appointments during that time.  President Obama made the determination that the Senate was recessed despite the Senate's contention that it was not recessed, and made recess appointments.  President Obama certainly was aware when he did that, that his actions would be challenged in Court.

    Second, the "adjourment" thing is not relevant.  As the opinion makes clear, "recess" and "adjournment" are not the same thing.

    Third, the question revolves around Article 2, Clause 3 of the United States Constitution, which allows recess appointments during "the recess" of the Senate.  The Court needed to decide whether they could determine what the Constitution meant by "the Recess of the Senate."  It concluded that, by "the Recess" the Constitution was referencing the recess between sessions of Congress (which used to be six to eight months long).   That is a broad ruling, and will be criticized, I think.  It remains to be seen if the SCOTUS will overrule it.

    By the way, if the Court had concluded that the Constitution left it up to another branch of government to determine when the Senate was in "the Recess," it then the question would have been which branch of government got to decide when the Senate was in "the Recess" -- the Senate (which determined the Senate was not in "the recess") or the President (who determined the Senate was in "the recess).   That may be a fallback position -- that "the Recess" is not limited to between sessions of Congress, but the Senate gets to decide when it is in recess.  The Court concluded it made no sense to conclude that the Constitution gave the President the power to decide when the Senate was in "the Recess" because then Presidents would have complete power (by waiting for some break and declaring the Senate to be in "the Recess) to avoid the Constitutional requirement that the Senate confirm presidential appointments.

    •  Thank you for the actual clarification (1+ / 0-)
      Recommended by:

      This diary is propaganda designed to whip up a response - not to actually inform.

    •  Turning the constitution on its head (2+ / 0-)
      Recommended by:
      OldDragon, chloris creator

      the point of forbidding one house to adjourn on its own is to keep them from going home without getting essential work done

      yet Congress is using it to do the opposite:  Going home (except for one senator) while at the same time preventing any work from getting done.

      I'll omit the side note on the obvious uselessness of the requirement to stay in session.

      the purpose of the second amendment is to promote a well-regulated militia, in the same sense that the purpose of the first amendment is to promote a well-informed electorate.

      by happymisanthropy on Sat Jan 26, 2013 at 09:20:59 AM PST

      [ Parent ]

      •  The opinion acknowledges that (5+ / 0-)

        the Senate may deliberately be avoiding confirming the President's appointments.  That would mean the Senate is not doing its job.  The Court concluded, however, that this does not change the Constitution, specifically Article 2 clause 3.  The Court concluded that the fact that the Senate is not doing its job does not allow the President unilaterally to determine that he can make appointments without having the Senate confirm them (bypassing the Constitutional "advise and consent" provision) by unilaterally declaring that the Senate is in "the recess" even if the Senate, by its own rules, is not in "the recess."  

        •  But does the senate get to say (1+ / 0-)
          Recommended by:
          chloris creator

          "For our own internal purposes, we're in recess, but for the executive branch's purposes we're still in session?"

          I guess you're going to say yes.

          Humans shouldn't be disarmed, for the same reason that cats shouldn't be declawed.

          by happymisanthropy on Sat Jan 26, 2013 at 09:39:18 AM PST

          [ Parent ]

          •  That is exactly what the court said. (0+ / 0-)

            And I suspect the Supreme Court will likely pass on this question as well, unfortunately.

          •  Actually, what the Senate said is (5+ / 0-)

            "for our purposes, we're adjourned, but not in recess."

            "Adjournment" and "recess" are two different things.  (You can adjourn for lunch,or adjourn for the evening  -- does that count as "the Recess" under Article 2, clause 3, allowing the President to make a recess appointment without the advice and consent of the Senate?)   According to Senate precedent, established under Sen. Reid during the Bush administration, the Senate was not in "the Recess" if an adjournment lasted for less than three days.  Under Sen. Reid, the Senate had a session every three days to prevent President Bush from making recess appointments during the last two years of his term.  When Senate Republicans did the same thing to President Obama, President Obama made the recess appointments anyway.  

            He clearly knew this challenge was coming.  

            The SCOTUS may backtrack some on this opinion, and hold that it doesn't have to be an intersession recess (as this opinion says), but it does have to be a recess under Senate rules -- i.e, the Constitution, by giving the Senate full authority to make its own rules, gives the Senate the authority to say when it's in recess.  That would be a less dramatic ruling, but it would still invalidate these particular appointments by President Obama.

            •  'cept the Senate doesn't, cause the House vetoed (3+ / 0-)
              Recommended by:
              k88dad, indie17, Bensdad

              it.  Which is the whole pt: A majority of Senators, i.e., the Senate, wanted to recess,but could not bc Rs in the House said so. IOW, the Senate did not determine when it was in recess, the House did.  Which would be just as unconstitutional under your view... except the Constitution says it can.

              Also, Art. I, Sec. 7, last clause literally requires POTUS to approve an recess (but not adjuornment), though it can be overriden by 2/3rd vote of both Houses.  So, again, the Senate does not decide
              for itself.

              The question here is backward: It is not when it is in recess. It is: can it only be an adjournment when it is explicitly done in a way that the Senate can not do business of any kind (the pro forma part) for what could, if upheld, be an entire Congressional term?  Or is there a pt where reality overtakes semantics?

              In many other areas of Constitutional law, SCOTUS has had no problem answering that question against the literal words of the Constitution.  War making, the 1st Amendment ('no law', yeah riiiight), the mess the 11th A 'fixed', come immediately to mind.

              •  I'm not sure that (2+ / 0-)
                Recommended by:
                Victor Ward, VClib

                Article I Section 7 requires the President "to approve a recess."  

                At any rate, we'll know whether intrasession recess appointments are constitutional, one way or the other, when the SCOTUS takes this up.  As the CRS report notes,

                What Is a “Recess”?

                Generally, a recess is a break in House or Senate proceedings. Neither chamber may take a break
                of more than three days without the consent of the other.7  Such consent is usually provided through a concurrent resolution. A recess within a session is referred to as an intrasession recess.  In recent decades, Congress has typically had 5-11 intrasession recesses of more than three days,  usually in conjunction with national holidays. The break between the sine die adjournment of one  session and the convening of the next is referred to as an intersession recess. In recent decades, each Congress has consisted of two 9-12 month sessions separated by an intersession recess. The period between the second session of one Congress and the first session of the following  Congress is also an intersession recess.

                Recent Presidents have made both intersession and intrasession recess appointments. Intrasession  recess appointments were unusual, however, prior to the 1940s, in part because intrasession recesses were less common at that time. Intrasession recess appointments have sometimes  provoked controversy in the Senate, and some academic literature also has called their legitimacy  into question. 8  Legal opinions have also varied on this issue over time. In general, however, recent opinions have supported the President’s use of the recess appointment authority during  intrasession recesses.9  Intrasession recess appointments are usually of longer duration than intersession recess appointments. (See below, “How Long Does a Recess Appointment Last?")

                In other words, there has been no real answer.  Presumably the SCOTUS will provide one.  
                •  On further review, you may be right re: Sec. 7, (0+ / 0-)

                  since para 3 states that Adjournement is the only "Order, Resolution or Vote to which Concurrence of" each House is necessary that is excepted from requiring Pres approval or override.

                  But, if so, then 'recess' in Art. 2 means the same as adjournement in Art 1, as the CRS article says, bc, unless I'm missing it, I don't see the word 'recess' in Art. 1 applied to the Congress.

                  OTOH, that would mean if there is a difference bt 'adjournment' and 'recess', then by Sec. 7, para. 2 it would require POTUS approval or override (since para. 1 already covers legislation).

          •  It would then be proper (0+ / 0-)

            for the President to say ..

            "Okay then, for your own internal purposes, I am appointing these folk, to these positions".

            I hope that the quality of debate will improve,
            but I fear we will remain Democrats.

            Who is twigg?

            by twigg on Sat Jan 26, 2013 at 09:52:38 AM PST

            [ Parent ]

            •  It's a constitutional question (2+ / 0-)
              Recommended by:
              Victor Ward, VClib

              that's why it went to the Courts.  And the SCOTUS will tell us (1) what "the Recess" means under Article 2, clause 3, and (2) if the Constitution is not clear on what "the Recess" is, whether the Senate or the President get to say when the Senate is in "the Recess" -- i.e., if it's a "political question" (an issue that the Constitution leaves in the sole discretion of one branch of government) and, if so, which branch gets to decide it.

    •  I added an update with a link to a source document (1+ / 0-)
      Recommended by:

      at the Senate website.

      "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

      by leftreborn on Sat Jan 26, 2013 at 09:26:19 AM PST

      [ Parent ]

      •  You should have linked the opinion (5+ / 0-)

        which is here.  That way people could see for themselves what it says.

        The CRS -- what you linked -- expressly acknowledges that the question of when the Senate is in "the Recess" under Article 2, Clause 3, is a question that has never been answered:  

        The Constitution does not specify the llength of time that the Senate must be in recess before the  President may make a recess appointment. Over time, the Department of Justice, through Attorneys General and Office of Legal Counsel Opinions, has expressed differing views on this question, and no settled understanding appears to exist. In 1993, however, a brief submitted by the Department of Justice in the case Mackie v. Clinton implied that the President may make a recess appointment during a recess of more than three days.
         In doing so, the brief linked the minimum recess length with Article I, Section 5, clause 4 of the U.S. Constitution. This “Adjournments Clause” provides that “Neither House, during the Session of Congress, shall,  without the Consent of the other, adjourn for more than three days.”  

         Arguing that the President  had made the appointment at issue in the case during a recess of sufficient length, the brief stated:

        If the recess here at issue were of three days or less, a closer question would be presented.  The Constitution restricts the Senate’s ability to adjourn its session for more than three days  without obtaining the consent of the House of Representatives.... It might be argued that this  means that the Framers did not consider one, two and three day recesses to be constitutionally significant.…
        Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.

         The logic of the argument laid out in this brief appears to underlie congressional practices, intended to block recess appointments, that were first implemented during the 110th  Congress. (See below, “Can Congress Prevent Recess Appointments?”)  Between the beginning of the Reagan presidency in January 1981 and the end of December 2011, it appears that the shortest intersession recess during which a President made a recess appointment was 11 days,  and the shortest intrasession recess during which a President made a recess appointment was 10 days.

        What the CRS report that you linked makes clear that, when President Obama made these recess appointments in a situation when there was NOT an adjournment of more than three days, he clearly was "pushing the envelope" and doing something that was, at the very least, questionable as a constitutional matter.  At the very least, he knew it would be challenged.  He might ultimately win, he might ultimately lose, but he clearly knew that there was were questions about  (1) whether, when he made these recess appointments, the Senate actually was in "the Recess" contemplated by the Constitution; and (2) whether he could constitutionally make the determination that the Senate was in "the Recess" for purposes of Article 2, clause 3, when the Senate determined it was not in "the recess."

        Because President Obama's actions raised the issue (as he certainly knew they would), the SCOTUS ultimately will have to decide the question now.  

        •  Don't cherry pick and omit the most relevant (2+ / 0-)
          Recommended by:
          happymisanthropy, Eyesbright

          parts on pp. 11-12 under the headings "Practices Implemented Unilaterally by the Senate" and "Senate Practices Necessitated by the Absence of House Consent to Adjourn."

          The important point is that the House insinuated itself into the confirmation process and it has no role in it.  The representatives even said in the letter, "Let me begin by saying that under normal circumstances, the House of Representatives should not involve itself in nomination fights.  But they did it anyway and they put it in writing.  

          When the House and Senate couldn't agree on an adjournment Article 2 Section 3 gave the President the right to do so.  That's NPR interviewing a Senate historian.  I'm just a reporter.

          “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.”

          "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

          by leftreborn on Sat Jan 26, 2013 at 09:57:08 AM PST

          [ Parent ]

          •  You are really confusing things. (3+ / 0-)
            Recommended by:
            Victor Ward, VClib, Bensdad
            When the House and Senate couldn't agree on an adjournment Article 2 Section 3 gave the President the right to do so
            You are confusing "adjournment" with " the Recess."  That's where you are going wrong.  

            The Constitution uses two different terms -- "adjournment" and "the Recess" -- and we have to presume that was deliberate and meaningful.  In other words, the people who wrote the documents used the different words to mean different things (that's a basic principle of interpreting the constitution or any law).  The part about recess appointments does not use the word "adjournment."   Instead, it deliberately uses the word "the recess," as  follows:  

             The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
            This has to do with what that provision means by "the Recess."  A Recess is NOT an adjournment.  The Senate "adourns" every night.  The Senate rules define "adourn" as " A motion to adjourn in the Senate (or a committee) ends that day's session."

            The question is what is "the Recess" under the recess appointments clause, and who gets to say what "the Recess" in that clause of the Constitution means.

        •  Except it was more than 3 days, the time bt raisin (3+ / 0-)
          Recommended by:
          k88dad, Eyesbright, indie17

          g and lowering the gavel, i.e., to 're-ajourn' or confirm the 'continued' adjuornment, to be specific.  Which federal court's have held to be sufficient for valid recess appointment.

          The bottom line is that the semantic minutae is akin to the number of angels dancing on a pin and, with a normal SCOTUS, as irrelevant.  Of course, with Scalia, Alito, UncleTom, Kennedy and - likely Roberts - this is hardly a normal Court.

    •  Oh, and (1+ / 0-)
      Recommended by:

      If "recess" and "adjournment" are totally different things, why do we say

      Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
      is controlling over recesses as well as adjournments, but its companion clause
      If the two Houses cannot agree on a date for adjournment, the President may adjourn both Houses to such a time as befits the circumstances.
      Is not? I can't see how, in the context of the Constitution only, "recess" means anything other than "period of adjournment."  And no, I do not accept that the Senate gets to redefine what the words in the Constitution mean.

      Humans shouldn't be disarmed, for the same reason that cats shouldn't be declawed.

      by happymisanthropy on Sat Jan 26, 2013 at 10:01:02 AM PST

      [ Parent ]

      •  It is a basic principle of constitutional (5+ / 0-)

        analysis (and statutory analysis, for that matter) that the use of different terms is intentional.   Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 570–71 (1840) (plurality opinion)  (“In  expounding  the  Constitution  of  the United  States,  every word  must  have  its  due  force,  and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added.”); Marbury v. Madison, 5 U.S.  (1 Cranch) 137, 174 (1803) (“It cannot  be  presumed  that  any clause in  the  constitution  is intended to be without effect . . . .”).

        Basically, if the Constitution had intended for the President to be able to declare the Senate adjourned, and that --- in and of itself -- allowed him to bypass the Constitutional requirement that the Senate confirm his appointees, then why didn't the Constitution use the same word for (1) adjourning the Senate; and (2) making appointments?  Why didn't the Constitution say that the President could make appointments without Senate confirmation "during an adjournment of the Senate" rather than saying, as it did, "during the Recess of the Senate"?  

        And it makes no sense that, whenever the President doesn't think the Senate will like a nominee, the President can simply adjourn the Senate and make and bypass the constitutional requirement that the Senate confirm his nominee.  Why would he EVER seek Senate confirmation?  Why not just continually make "adjournment" appointments?

        At any rate, the question you raise -- do "adjournment" and "the Recess" as used in the Constitution mean the same thing -- is EXACTLY the kind of question the courts -- ultimately the SCOTUS -- are supposed to answer, because it's a question of constitutional interpretation.  

    •  There is a standard for when the Senate is in (0+ / 0-)

      recess, if I had to guess it would be when a quorum could not be assembled(the Senators being out of town).  It will be an interesting argument in any case.

  •  What a mess (3+ / 0-)
    Recommended by:
    OldDragon, LordMike, Mistral Wind

    O man is this going to snowball! How many judges and officials in the last 50 years have been appointed improperly according to this decision? And what of their decisions?  Prisoners rejoice. The gamesmanship continues and escalates. The GOP wants to impeach, and with this I expect the process to begin this month.  

  •  The Repug/Tea Party war against the rest of us... (3+ / 0-)
    Recommended by:
    MRA NY, a2nite, indie17

    ...has taken many forms.  The debt limit was an attempt at destroying the economy and winning in the chaos that would ensue.  Long voting lines in blue areas was another attempt.  The filibustering Repug Senators yet another.  The  gerrymandering of the Electoral College one more.  And now this.

    We are at war with a powerful minority who feels like a trapped rat.  And they will do anything to hurt us even destroy whatever is left of a true democracy.

    It is not business (or politics) as usual my friends.

    Daily Kos an oasis of truth. Truth that leads to action.

    by Shockwave on Sat Jan 26, 2013 at 09:44:30 AM PST

    •  When you put all these bits and pieces together: (3+ / 0-)
      Recommended by:
      Shockwave, indie17, bobatkinson

      the letter the House Republican freshmen wrote, and the other pieces they put in writing to brag about what they did,  the nuance that the House involved itself in the nominee confirmation process when the Constitution specifically included the Senate and excluded the House, it opens up some interesting questions that law experts will argue about for decades.  

      I think this is a huge story but it might be too in the weeds wonky for most people.

      "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

      by leftreborn on Sat Jan 26, 2013 at 10:01:13 AM PST

      [ Parent ]

  •  Subverting the will of the Senate - what a claim (2+ / 0-)
    Recommended by:
    leftreborn, bobatkinson
    However, when liberal lobbyists, unions, and community organizers direct the White House to subvert the will of the Senate, extraordinary steps must be taken to return transparency to our government and sanity to our political appointees.
    A perverse twisting of what has actually transpired. The White House would have loved to hear the will of the Senate loudly expressed, by way of up or down votes.

    By hold or by filibuster, the admission of nominations to a simple vote of approval was blocked - one that would be decided by a majority. Representing the will of Senate.

    By parliamentary chicanery by the House the White House is precluded from engaging in recess appointments - until there is a slim 3-day window for such action.

    Now, a court, stacked with justices nominated by Republican presidents, lead by an ideologue with a career defined by partisanship tries to shut that door. Not just for this President, but for any future holder of that office.

    It would have been good, at the outset, to hear that will of the Senate expressed. But, instead we have a trap of the Congress' collective making holding that will prisoner. The DC Circuit court throwing away the key.

    •  This decision won't be final. It's pretty rigid (2+ / 0-)
      Recommended by:
      a2nite, zapus

      and ignores prior decisions.  I read somewhere that the judge was appointed to fill the slot that Scalia had when he advanced to the Supreme Court.  If they were looking for a clone they sure found one.

      "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

      by leftreborn on Sat Jan 26, 2013 at 11:11:55 AM PST

      [ Parent ]

      •  The question may end up dealing with the heart of (2+ / 0-)
        Recommended by:
        indie17, leftreborn

        this matter, namely whether the Senate's duty to advise AND consent, is a set of affirmative obligations, that is, the Senate must on appointments speak up and say yes or no, and cannot simply refuse to act, especially when the refusal is an alternative route to negate the legislation creatiing the office, without actually voting to do so. The court here skated over that one but it is the heart of the matter here.

        •  That had to be addressed and I'd nudge it a bit (0+ / 0-)

          farther.  First, it's hard to believe that the Constitution would make provision for the President to fill a vacant position when the Senate isn't available to confirm his nominee, and at the same time allow the Senate to negate one of the powers that the Constitution specifically assigns to the executive branch.  'Advice and consent' is a process that is either completed or not.  I understand that the Republicans have another agenda that they're trying to piggyback onto the confirmation process.  But there's a legitimate way for them to pursue what they want and this isn't it.

          "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

          by leftreborn on Sat Jan 26, 2013 at 01:43:09 PM PST

          [ Parent ]

          •  Legalese is strange that way. (1+ / 0-)
            Recommended by:

            The decision being discussed turns in its entirety on the interpretation of the word 'the' ans in "the recess". "And is another magic word legally, and it means "Both of the items tied by it are required in the same way and stand in the same position.  It is at least theoretically possible that the premise of the language, given the words found in the Congressional Research Office report to the effect that in 1823 the equivalent of the AG said the language under discussion meant that the intention of the FFS was that all  jobs were intended to be be filled, not left standing vacant until XXX, that if the Senate does not advise and consent, that is, does nothing at all, the president may go forward.

  •  The question I have is why did Reid agree (2+ / 0-)
    Recommended by:
    Victor Ward, leftreborn

    NOT to recess?  If the Democrats control the Senate, why would we collude with the republicans in this fashion?  

    •  He didn't agree. Article 1 Section 5 of the (5+ / 0-)

      Constitution says:

      Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

      It has always been customary for each house to approve the others' recess until 2011 when the House Republicans got the bright idea to deny the Senate's recess.   But the Constitution also says that if the House and Senate can't agree on that, the President can go ahead and adjourn the Congress.  According to what some people say, he was operating on that principle when he made the recess appointments.  

      "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

      by leftreborn on Sat Jan 26, 2013 at 11:20:19 AM PST

      [ Parent ]

  •  Did the Appeals Court deliberately wait (1+ / 0-)
    Recommended by:

    until after the filibuster decision was (not) made?

    The GOP: "You can always go to the Emergency Room."

    by Upper West on Sat Jan 26, 2013 at 11:46:41 AM PST

    •  This part is precious - (0+ / 0-)
      If some administrative inefficiency results
      from our construction of the original meaning of the
      Constitution, that does not empower us to change what the Constitution commands.

      It bears emphasis that convenience and efficiency are not the primary objectives or the hallmarks of democratic government.

      The power of a written constitution lies in its words. It is
      those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government.

      He needs to be made to eat those words.

      "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

      by leftreborn on Sat Jan 26, 2013 at 12:16:17 PM PST

      [ Parent ]

      •  Sentelle (5+ / 0-)

        was one of the unholy three judges who fired Robert Fiske and hired Kenneth Starr because (in part) Fiske was not zealous enough in pursuit to the Clinton's for the death of Vince Foster.

        Back in Aug. 1994, a month before this, Sentelle had lunch with Senators Lauch Faircloth and Jesse Helms, both North Carolina Republicans, who were critics of Robert B. Fiske Jr.

        Here's a diary by Major6th from 2005 listing Sentelle's misdeeds to that date.

        Thanks.  You've inspired me to do a diary on Sentelle.

        The GOP: "You can always go to the Emergency Room."

        by Upper West on Sat Jan 26, 2013 at 12:29:58 PM PST

        [ Parent ]

        •  Thank you! (2+ / 0-)
          Recommended by:
          leftreborn, Val

          Cannot uprate this enough. I wish the media would actually regularly report the NAMES of judges and who appointed them. This had the sick smell of a right-wing decision all over it, and Sentelle is one of the sleaziest of them all.

          "I won't call for eight years."--Desmond Hume, "The Constant" (Lost), by Carlton Cuse and Damon Lindelof.

          by StanBlather on Sat Jan 26, 2013 at 01:08:17 PM PST

          [ Parent ]

        •  Do it! My goal is to set off a spark here and (1+ / 0-)
          Recommended by:
          Upper West

          there if possible.  Sentelle's story is coming out everywhere today.  It looks like he left a long trail of very partisan biased opinions.

          "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

          by leftreborn on Sat Jan 26, 2013 at 01:53:30 PM PST

          [ Parent ]

  •  However it is resolved, three things seem clear to (4+ / 0-)
    Recommended by:
    zapus, indie17, bobatkinson, Victor Ward


    ~the President and his advisors knew that by making these appointments he was testing the legality of the process, and that it would eventually have to be settled by the courts.  In this case, he threw down the gauntlet in the manner that the Left is always encouraging him to do.

    ~The GOP Senate abrogated their duty by refusing to consider Cordray's nomination at all.  His qualifications were never considered; they were protesting the agency itself, which was legally created through appropriate constitutional measures, and which they lacked the votes to overturn.  Now they are being asked to consider the nomination again.  I predict they will again refuse.  Clearly, in our Senate, the minority rules, unimpeded.

    ~The SCOTUS will certainly make this decision on political rather than legal grounds.  With this in mind, if they make a clear and complete ruling which defines the terms of a recess,  that ruling will apply no matter which party happens to be in the minority.  Therein lies the Democrats' only protection.

    "Why reasonable people go stark raving mad when anything involving a Negro comes up, is something I don’t pretend to understand." ~ Atticus Finch, "To Kill a Mockingbird"

    by SottoVoce on Sat Jan 26, 2013 at 11:53:23 AM PST

    •  One more thing - (3+ / 0-)
      Recommended by:
      scamperdo, zapus, bobatkinson

      In #2, I see possible consequences for the Republican caucus.  This may have been left deliberately for after the election.  I noticed something in the debt ceiling episode a couple of weeks ago.  Geithner sent a notification letter to Boehner as he did in the past, but the language was different.  There was an unmistakable suggestion that the administration considers Republican strategy to be straying over the line into the criminal.  

      It may be hard ball time. Finally.

      "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

      by leftreborn on Sat Jan 26, 2013 at 12:35:46 PM PST

      [ Parent ]

      •  Interesting (1+ / 0-)
        Recommended by:
        Victor Ward

        Really, criminal?  Do you have a link, and could you explain how the language was different?

        "Why reasonable people go stark raving mad when anything involving a Negro comes up, is something I don’t pretend to understand." ~ Atticus Finch, "To Kill a Mockingbird"

        by SottoVoce on Sat Jan 26, 2013 at 01:21:30 PM PST

        [ Parent ]

        •  Yeah I have the link. (1+ / 0-)
          Recommended by:

          It's on the Treasury website.

          I've been reading these letters for a couple of years and there is a distinct change.  "Irreparable harm" has been used before.  

          This part is not like anything I've ever seen:

          “Threatening to undermine our creditworthiness is no less irresponsible than threatening to undermine the rule of law, and no more legitimate than any other common demand for ransom. “
          This letter is the first instance of anyone in government, in writing, suggesting  coercion or extortion.  Look it up.  Threatening people with some harmful consequence if they don't give you what you want?  That's it exactly.  There was no point in dropping that before the election.  No worries about that anymore.  

          I have no proof of a connection but this letter was dated on a Monday and there was a brand new debt ceiling offer before the week was out on Friday.  

          These bastards are playing a long cat and mouse game.

          "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

          by leftreborn on Sat Jan 26, 2013 at 02:15:28 PM PST

          [ Parent ]

          •  Really fascinating. (1+ / 0-)
            Recommended by:

            I think you should diary this.  I wondered why the debt ceiling fight suddenly got shut down.
            Who do you think can stop the other unconstitutional behavior of the Republicans both in Congress and the state houses?  In the former case, they are steadfastly refusing to keep the from operating.  In the latter case, they're tampering with voting rights and electoral college rules and both seem to be borderline illegal.

            "Why reasonable people go stark raving mad when anything involving a Negro comes up, is something I don’t pretend to understand." ~ Atticus Finch, "To Kill a Mockingbird"

            by SottoVoce on Sat Jan 26, 2013 at 02:27:43 PM PST

            [ Parent ]

            •  The states are a whole other ballgame. The feds (0+ / 0-)

              have only limited leverage like in Arizona where a civil rights suit is in its 8th month after two years of investigations.  

              The Wall Street mess was in a standoff but now things are happening.  One of the NY District Court Judges, Jed Rakoff, is challenging the SEC for being too lenient in its settlements with firms.  The SEC countersued and the head of it, Mary Schapiro, who Obama appointed in 2009.  Even more interesting, the head of SECs Enforcement Division, Khuzami, resigned a few weeks ago too.  This week that clown, Breuer, from the Justice Dept resigned.  

              If the Justice Dept ever gets a grip maybe it will file a suit against Boehner or McConnell.  I'm dreaming.  They definitely need to think about the possibility of facing charges.  

              "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

              by leftreborn on Sat Jan 26, 2013 at 03:00:30 PM PST

              [ Parent ]

  •  Hypocritical conservative judges. Not shocked. (2+ / 0-)
    Recommended by:
    a2nite, Thumb

    This was a nakedly political decision by three ultra-conservative justices.  

    What I find most humorous is this: when Bush recess-appointed William Pryor as a judge back in 2005 (or thereabouts) under nearly identical circumstances, a (different) group of ultraconservative judges on the Eleventh Circuit found that Bush had the power to recess appoint.  Basically accepted all of the arguments that the administration used here.

    Now, of course, when the Democratic president does the same thing, it's plainly, obviously unconstitutional.  Conservative justice: no matter the laws and facts, it's ok so long as the Republicans did it.

    Don't hold out much hope for the Supreme Court to reverse this.  5-4 against Obama.

    •  And if you read the recent decision (2+ / 0-)
      Recommended by:
      indie17, Thumb

      They address this Eleventh Circuit decision and spend a few pages arguing why it was wrong.  They should have just been honest and said "We distinguish that case because the President was a Republican then."

      •  Actually, that part increases the chances that (2+ / 0-)
        Recommended by:
        Victor Ward, VClib

        the SCOTUS will take the case and decide the issue once and for all -- for Presidents of all political stripes.  

        A conflict in the circuits is one of the main reasons that the SCOTUS will grant cert.  

        •  They'll take it, they just won't reverse. (1+ / 0-)
          Recommended by:
          Victor Ward

          Even without a circuit split there would have been a high chance.  Any circuit court decision striking down a federal statute or invalidating an executive branch action is usually ripe for cert, even without a split.   Can't have the President or the US Attorney's office unable to exercise power in the states covered by the appeals court, but exercise them elsewhere.

          Like I said in my first post though, the case will be granted and affirmed.

          •  I think there's a good chance you are right (2+ / 0-)
            Recommended by:
            Victor Ward, VClib

            Frankly, how do you define "the Recess" in that clause if it does not mean between sessions?  

            If you read the opinion, that's pretty much what they say -- there's no other definition of "the Recess" that makes Constitutional sense.  

            The President's lawyers are going to have to come up with a good, convincing Constitutionally-based definition of that term -- "the Recess --  if they want to argue that it means something other than intersession recess.   (It's similar to what I said about the Commerce Clause arguments re: the ACA -- to have it upheld under the Commerce Clause, the administration's lawyers had to come up with a good answer to the question, under your interpretation of the Commerce Clause, what can't Congress do under the Commerce Clause? And they didn't do that.)  

            The other alternative, I think, is for the SCOTUS to say, when Congress is in "the Recess" is a political question left to the legislative branch (since the Constitution delegates to the legislative branch the authority to make its own rules), which would be narrower, but would still invalidate the NLRB appointments.   I can't imagine the SCOTUS ruling that the question of when Congress is in "the Recess" for purposes of that provision is left to the discretion of the President.

  •  Yes. Lost in all of this is WHY.... (2+ / 0-)
    Recommended by:
    indie17, leftreborn

    ....these appointments were made in this way: The Republicans refused to allow and UP OR DOWN VOTE on the nominees.

    It should be very clear to absolutely everyone that the Republicans do not intend to allow any legislation out of Congress and that they will oppose any nominations that do not, like John Kerry's, open up a Senate seat.

    If you hate government, don't run for office in that government.

    by Bensdad on Sat Jan 26, 2013 at 01:10:46 PM PST

    •  The Constitution is all about separation of powers (0+ / 0-)

      with checks and balances.  If there was an issue with Cordray it would come out in the confirmation hearing and if the concerns were persuasive enough the Republicans could conceivably shake enough Democrats loose in an up/down vote.  But Shelby and a few others went on camera and said Oh no there's no problem with the nominee.  

      It's right there in the Congressional Record with Sherrod Brown's statement.  Since when is a confirmation hearing an opportunity to overturn or amend legislation.  

      Can you imagine the Democrats trying to trade an end to the Bush tax cuts in exchange for Condi Rice's confirmation as Secretary of State in 2005?

      "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

      by leftreborn on Sat Jan 26, 2013 at 02:22:31 PM PST

      [ Parent ]

      •  Yes, but...... (1+ / 0-)
        Recommended by:

        ......the coverage suggests that Obama just wanted to worm through his appointments when the fact of the matter is the Republicans made NO appointments. There were conflicting decisions on the legality of such interim appointments and so the Obama administration apparently thought it was worth the risk.

        I see your point: what's good for the goose is good for the gander. But it has to be seen within the overall context: The congressional Republicans are sabotaging the usual machinery of Congress.

        If you hate government, don't run for office in that government.

        by Bensdad on Sat Jan 26, 2013 at 02:27:17 PM PST

        [ Parent ]

        •  The coverage of news is pitiful. (1+ / 0-)
          Recommended by:

          That's why I started digging around on the House and Senate website.  Each roll call vote is linked to the bill, resolution,  nomination or whatever , and it's also linked to the pages from the Congressional Record with the transcripts from hearings and debates.  There's amazing stuff in there that never shows up on the news.  

          Obama got a legal opinion from the Justice Dept which is also online.  It gave a thumbs up to the recess appointments.  The rationale was that whatever the Senate was doing, it wasn't in regular session and available to confirm his nominees.  That's going more by the spirit of the Constitution.  Sentelle was going by the letter.  Some of the stuff he wrote was far from the real world.  

          "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

          by leftreborn on Sat Jan 26, 2013 at 03:10:48 PM PST

          [ Parent ]

  •  From March 2010 (1+ / 0-)
    Recommended by:

    Chief Justice Roberts: Why Isn’t Obama Making Recess Appointments To The NLRB?


    Chief Justice Roberts: "And the recess appointment power doesn’t work why?"

    Now the Chief Justice will get to answer his own question.

    •  Awesome. Bodes well for a SCOTUS decision. (1+ / 0-)
      Recommended by:

      How else could it come out any other way.  

      "Democracy is a life; and involves continual struggle." ---'Fighting Bob' LaFollette

      by leftreborn on Sat Jan 26, 2013 at 02:24:59 PM PST

      [ Parent ]

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