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On Friday the DC Circuit made public its ruling in the lawsuit involving the recess appointments President Obama made to fill the National Labor Relations Board. The three conservative judges found a novel interpretation of the Founding Fathers intent as to recess appointments and ruled against the Obama Administration.

The ruling finds that the power to make recess appointments refers only to vacancies that occurred during an inter-session recess. Any vacancies that carried into the inter-session recess (from intra-session vacancies or in-session vacancies) doesn't count. The inter-session recess occurs for a couple of weeks every two years after an election at about Christmas/New Years.

President Reagan made 240 recess appointments. Most of them would be improper under this interpretation. How many of those appointments (especially judges) are still on the job. Can they be removed for improper appointment. Would every decision they made in the last 30 years be voided out?

Bush2 also made more than 100 recess appointments. How many of them are still on the job? Can they be removed? And replaced by an Obama appointee? (assuming the Senate bothers to confirm anyone in the next four years)

The filibuster problem just exploded in Harry Reid's face. (it makes one wonder if the court delayed the release of this decision until after Reid capitulated on filibuster reform, or if the timing is just coincidental.)

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Comment Preferences

  •  None of Bush's recess appointments are (9+ / 0-)

    still "on the job," unless they were subsequently confirmed by the Senate.  Any recess appointments expire at the end of the next Congressional session:  

    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 part of the ruling that says a vacancy has to arise during the recess is based on the language:  "that may happen during the Recess of the Senate."  Way back when,  "the Recess" between Congressional sessions could often be six to nine months long, according to the opinion.

    As for whether the D.C. Circuit correctly held that use of the words "the Recess" in the Recess appointment clause of the Constitution, quoted above, refers to the recess between Congressional sessions, or means something else (and what that something else means), we'll have to wait until the SCOTUS weighs in.  

    •  Rats (1+ / 0-)
      Recommended by:
      DRo

      I was hoping past Republican appointees could be used as leverage in arguments.

      What about the decisions made by an improperly appointed official? Can those be struck down or reviewed?

      •  It depends on what the SCOTUS says (8+ / 0-)

        but I doubt they will go back and retroactively strike down stuff that has been done over the last hundred years.  

        This arose because of a specific challenge to an NLRB decision.  One of the bases for challenging that decision was that the Board members were improperly appointed.  There's a statute of limitations setting a time limit for challenging decisions like that.  If you don't act to challenge something like that within the time period, it becomes final and not subject to challenge.  

      •  yogi - any recess appointment lasts for a (1+ / 0-)
        Recommended by:
        Neuroptimalian

        maximum of two years, and typically shorter. They have to be confirmed by the Senate or their appointment expires at the end of the current congressional session.

        "let's talk about that"

        by VClib on Sat Jan 26, 2013 at 07:39:32 PM PST

        [ Parent ]

  •  On the federal bench alone (1+ / 0-)
    Recommended by:
    kurt

    there are over 80 vacancies, some dating to before Obama took the oath from the Chief Justice for the first time. One opening dates back to 2005 http://judicialnominations.org/...   If you look at this question from the opposite end, where the nominees have been obstructed, denied, held up and refused, it's not been at all about the next reasonable senate recess, but simply the secret hold of a senator, or an anonymous filibuster, or some other procedural objection, even animus, if I dare to make such a claim.

    With Justice Roberts on record as troubled by the judicial vacancies, and the turgid process of nominations being processed in the senate, as well as the historic precedent that came before the NLRB decision, it's hard to imagine how SCOTUS would not hear an expedited appeal in a favorable light...

    "There is power in speaking up. We know the face of unfettered gun proliferation. Now it’s time to see more faces of regulation and restraint." - Charles Blow

    by Beastly Fool on Sat Jan 26, 2013 at 03:45:30 PM PST

  •  Asdf (0+ / 0-)

    Um, a couple points.....

    1. Recess appointments last only for the current Congress. Then they must be confirmed or leave the position. So, to answer your question, "None."

    2" The court did not make that ruling. They ruled that certain specific nominations violated the procedure since technically Congress was not in "recess".

    Sadly, everything Communism said about itself was a lie. Even more sadly,, everything Communism said about Capitalism was the truth.

    by GayIthacan on Sat Jan 26, 2013 at 10:20:13 PM PST

  •  Imagine the ramifications... (0+ / 0-)

    ... if all the rulings and prison convictions of improper judges had to be reversed. Imagine the lawsuits from all the people illegally imprisoned.

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