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Judge David Sentelle
Judge Sentellle, providing hackery for over 3 decades.
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. - U.S. Constitution, Article II, Section 2, Clause 3
On January 25, 2013, a three judge panel of the US Court of Appeals for the District of Columbia Circuit issued  a decision (PDF) that was, in my view,  stunning in its partisan hackery. What it does, in essence, is eliminate the President's power to make recess appointments, despite the text of Article II, Section 2, of the Constitution.

The DC appeals court panel thrust itself into the political struggle between President Obama and the Republican caucus  in the House (this is due to the need for both houses of Congress having to agree to an adjournment (or recess?)  regarding the power of the President to name members of his Administration. It did so by legitimizing the Republican minority's use of the filibuster to prevent the President from naming members of his Administration subject to confirmation and delegitimizing the president's power to make recess appointments in response to Republican obstructionism.  

But why, you might ask, is the court's siding with the House, necessarily an act of partisan hackery? To me the answer is simple (as simple as thinking about Bush v. Gore): would this panel have issued this opinion if the president were a Republican and it was a Democratic House thwarting (through failing to agree to an adjournment of Congress)  the president's appointment power? Would THIS panel have ruled that a Republican president's recess appointments were invalid? Would it have even heard the case? I believe the answers are obvious: No. Never. No how. No way. YMMV.

Ok fine, you might say, the motivations were partisan, but what about the opinion itself? Does it hold up? Does it make sense? Well, here is the cherry on top - the opinion is not just partisan, it  is "originalist" partisan hackery.

I'll explain why I think so on the other side as I review the reasoning in the decision.

The pernicious use of the the word "originalism" to describe right wing extremism in the judiciary is something many thoughtful legal scholars have been attempting to grapple with. In a rather ironic blog post at Balkinization, Jason Mazzone writes:

Originalism's proponents on the Court (and in the academy) don't seek to "identify the original intent of the framers" because (a) their focus is on original public meaning not intent and (b) the framers' views/intent are not decisive in determining that meaning. Moreover, it takes a remarkable obtuseness to conclude that originalists believe eighteenth-century meaning can "resolve any modern controversy." Just the opposite: originalists often say that the Constitution is entirely silent on an issue presented--abortion, say--and resolution of it must therefore be left to the political process. [Emphasis supplied.]
This is a laughably naive, to put it charitably, description of "Originalism's proponents on the [c]ourt." (Perhaps Mazzone is speaking only of the Supreme Court, but if so, that is an incredibly narrow reading of where the "Originalism"  school resides.) For example, one of the Federalist Society's leading lights is  David Sentelle, chief judge of the D.C. Circuit. Let's see how he practiced originalism in the recess (I deliberately use the lower case for "recess" for reasons that will soon become apparent) appointments case:
The Board contends that despite the failure of the President to comply with Article II, Section 2, Clause 2, he nonetheless validly made the appointments under a provision sometimes referred to as the “Recess Appointments Clause,” which provides that “[t]he 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.” Id. art. II, § 2, cl. 3. Noel Canning contends that the putative recess appointments are invalid and the Recess Appointments Clause is inapplicable because the Senate was not in the recess at the time of the putative appointments and the
vacancies did not happen during the recess of the Senate. We consider those issues in turn.

A. The Meaning of “the Recess”

Noel Canning contends that the term “the Recess” in the Recess Appointments Clause refers to the intersession recess of the Senate, that is to say, the period between sessions of the Senate when the Senate is by definition not in session and
therefore unavailable to receive and act upon nominations from the President. The Board’s position is much less clear. It argues that the alternative appointment procedure created by that Clause is available during intrasession “recesses,” or breaks in the Senate’s business when it is otherwise in a continuing session. The Board never states how short a break is too short, under its theory, to serve as a “recess” for purposes of the Recess Appointments Clause. This merely reflects the Board’s larger problem: it fails to differentiate between “recesses” and the actual constitutional language, “the Recess.”

It is this difference between the word choice “recess” and “the Recess” that first draws our attention. When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. District of Columbia v. Heller, 128 S. Ct. 2783, 2788 (2008). Then, as now, the word “the” was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) (defining “the” as an “article noting a particular thing” (emphasis added)). Unlike “a” or “an,” that definite article
suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.” This is not an insignificant distinction. In the end it makes all the difference. [Emphasis supplied.]

Contra Mazzone's assertion, this is the "originalist" alchemy -- "we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution." Its application is absurd in almost every case. It is especially so as implemented by Judge Sentelle. Consider the words of the clause he purports to be interpreting:

 

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.
What is the significance of the capitalization of the words "Power," "Vacancies," and "End." Does it implicate the reasoning in this case? I think it does. It indicates that the use of capitalization in the text of the Constitution in this clause is meaningless.

What of the use of the article "the" before the word "Recess?" Let's consider the first words of Article II:

The executive Power shall be vested in a President of the United States of America.
The executive power shall be vested in the President. The executive power  includes "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 battle of the "thes."

But that "the" does not concern Judge Sentelle, at least not in this case (if you doubt Sentelle would not think very highly of the executive "the" if it came to, say, warrantless wiretapping, you do not know Sentelle very well.)

Does Judge Sentelle rest his surmise as to "the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution" on anything besides the use of the article "the" and the capitalization of the word "Recess"? Well he pretends to at least:

Six times the Constitution uses some form of the verb “adjourn” or the noun “adjournment” to refer to breaks in the proceedings of one or both Houses of Congress. Twice, it uses the term “the Recess”: once in the Recess Appointments Clause
and once in the Senate Vacancies Clause, U.S. Const. art. I, § 3, cl. 2. Not only did the Framers use a different word, but none of the “adjournment” usages is preceded by the definite article. All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.
No. seriously, that's what Sentelle's say makes his conclusion "inescapable." Well, let's check his work shall we? As to the use of "adjourn" or "adjournment," here is how the Constitution uses those words:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. [...]

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. [Emphasis supplied.] - Art. I, Section 5.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. [Emphasis supplied.] Art. 1, Section 7.
[The President ...]  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 [...] [Emphasis supplied] -Art. II, section 3.
It is inescapable that it takes an originalist partisan hack of epic proportions to say that these usages in the Constitution prove a gawd damn thing.

But this is not the height of the hackery. Sentelle's reasoning on the impermissibility of "intrasession" recess appointments reaches new heights of absurdity:

The structure of the [Recess Appointments] Clause is to the same effect. The Clause sets a time limit on recess appointments by providing that those commissions shall expire “at the End of their [the Senate’s] next Session.” Again, the Framers have created a dichotomy. The appointment may be made in “the Recess,” but
it ends at the end of the next “Session.” The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in “the Recess.

It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions. [Emphasis supplied.]
There are many "universally accepted" truths (not just the ones identified by Jane Austen) but never before have I seen such a shameless application of "everybody knows" logic in a supposed legal opinion. In fact, no one knows this and to put a point on it, the Framers certainly did not know how many "sessions" future Congresses would hold. In fact, the text of the Constitution leaves the question of how the Congress is run to, you guessed it, future Congresses. Article I provides, in pertinent part:
Section. 4.

[...] The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Section. 5.

[...] Each House may determine the Rules of its Proceedings [...]

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. [Emphasis supplied.]

Didn't Judge Sentelle emphasis the importance of the word "the?" Doesn't the phrase "the Session of Congress" mean that there shall be only one Session for each Congress? Doesn't this require Judge Sentelle to state that in fact, the president has no recess power at all, except for the period between the ending of "the Session" of one Congress and the beginning of "the Session" of the next Congress? And doesn't that mean that the President's recess appointments would have a duration of weeks?

That seems an "inescapable conclusion" of application of Judge Sentelle's interpretive methods. There is no "universally acknowledged" truth of 2 or 3 sessions of each Congress. There is "the Session" and "the Recess" between Congresses of a few weeks.

Violating the tenets of originalism by straying from the text, Judge Sentelle piles specious argument after specious argument on his absurd and inconsistent interpretation of the text of the Constitution. He argues that historic practice supports his view because for the first 80 years of the Nation, no President made a recess appointment. Of course, what Judge Sentelle means is that for the past 160+ years, presidents have routinely made intrasession recess appointments.

In one of Judge Sentelle's more brazen bits of disingenuousness, he cites to Federalist 67 for supposed support of his interpretation.  In Federalist 67, Hamilton was answering the Sentelles of his day, the anti-federalists, and their absurd argument that the Constitution provided the power to the president to appoint Senators!

Here the writers against the Constitution seem to have taken pains to signalize their talent of misrepresentation. [...] Attempts so extravagant as these to disfigure or, it might rather be said, to metamorphose the object, render it necessary to take an accurate view of its real nature and form: in order as well to ascertain its true aspect and genuine appearance, as to unmask the disingenuity and expose the fallacy of the counterfeit resemblances which have been so insidiously, as well as industriously, propagated. [...] They so far exceed the usual though unjustifiable licenses of party artifice, that even in a disposition the most candid and tolerant, they must force the sentiments which favor an indulgent construction of the conduct of political adversaries to give place to a voluntary and unreserved indignation. [...]

In one instance, which I cite as a sample of the general spirit, the temerity has proceeded so far as to ascribe to the President of the United States a power which by the instrument reported is expressly allotted to the Executives of the individual States. I mean the power of filling casual vacancies in the Senate. [Emphasis supplied.]

I feel about Judge Sentelle what Hamilton felt about his intellectual opponents - an unreserved indignation for the unscrupulous tactics he employs. A less contemptuous analysis of the errors of Judge Sentelle is provided by Peter Shane:
For all the controversy surrounding these appointments, they were clearly constitutional if either of two things is true.  They were constitutional if, despite the pro forma sessions, the Senate was in recess from December 20 until January 23.  If that hiatus amounted to a “recess” for purposes of Article II, Section 2, then the President’s exercise of his appointment prerogative was permissible.  The appointments would also be constitutional, of course, if the three-day hiatus between January 3 and January 6 was a “recess” for constitutional purposes.  The President had plausible arguments either way.

This is not a slam dunk legal issue.  The Justice Department’s Office of Legal Counsel had issued a well-reasoned opinion asserting the permissibility of the appointments.  For his part, Charles J. Cooper, a former OLC head under President Reagan, provided a thoughtful rebuttal in testimony to the House Education and Workforce Committee.

What is striking, therefore, about the D.C. Circuit opinion is not its bottom line, but the scope of its reasoning.  Despite a pretense of constitutional modesty, the court decided the Recess Appointments issue — which the appellant had not raised to the NLRB itself — on the broadest possible ground. The court decided not that the Senate’s pro forma sessions prevented it from having a sufficiently long recess or even that its conceded three-day adjournment was too short to count as a recess. Instead, it held that recess appointments may occur only if the Senate is between sessions, for example, after it has adjourned for the first session of the 113th Congress, but before the 2nd session convenes.

Then, for good measure, two of three judges held the appointments impermissible because the NLRB seats did not actually become vacant during such an intersession recess. As they read the Constitution, unless an office actually becomes empty during a recess, it cannot be filled during a recess.  (As the third judge observes in a separate opinion, this second holding disregards about 190 years of contrary understanding by Congress and the Executive.)

[...] The court’s key defense of its interpretation of “recess” to mean only a recess between sessions is that no other interpretation would provide the courts an easy-to-implement bright-line rule.  It is worth noting, however, that – like many bright-line rules – this one makes little sense.  As recounted by Senate associate historian Betty K. Koed (and quoted by reporter Al Kamen), “At high noon on Dec. 7 1903,” the Senate president pro tem brought down the gavel to end one session of the Senate and then immediately brought a second session to order.  “In that moment between sessions,” she wrote, “during that split-second of time it took . . . to wield the gavel, President Theodore Roosevelt made 193 recess appointments.”  These appointments would have satisfied the D.C. Circuit’s bright-line rule.

Conversely, should the 2013 Senate, within a single session, now leave town for three months with key executive branch positions unfilled, the President – according to the D.C. Circuit – may do nothing.  I dissent.

This all makes sense. But I save my most significant objection for last - this dispute is a political question between the Congress and the President. The courts have no business deciding this issue. Shane details the politics:
On Wednesday, January 4, 2012, President Obama appointed three new members for the National Labor Relations Board.  He also named Richard Cordray to serve as director of the Consumer Financial Protection Bureau.  To do so, he invoked his recess appointments power under Article II, Section 2, paragraph 3 of the Constitution.  This is the power “to fill up all Vacancies that may happen during the Recess of the Senate.”

The majority Democrat Senate, in this case, had previously convened most recently on Tuesday, January 3, 2013 for a session that lasted 41 seconds.  These 41 seconds were devoted to two items.  The first was a reading by the Senate clerk of a letter from the Senate’s then-President Pro Tem, Senator Inouye.  The letter confirmed the appointment of Senator Mark Warner for the day to perform the duties of the Chair.  The second item was Senator Warner performing exactly one such duty.  Namely, he adjourned the Senate until its 29-second session on Friday, January 6.  Senators living close to D.C. had been performing these rituals at three-day intervals since December 20, 2011.  Their performances implemented a Senate order, adopted by unanimous consent on December 17, providing that the Senate would then adjourn but, until January 23, 2012, convene every three days for “pro forma sessions only, with no business conducted.”  The reason for this ritual was the decision of the majority Republican House of Representatives, under Article I, Section 5, Paragraph 4 of the Constitution to withhold its consent to a Senate adjournment of longer than three days.  The House Republicans were of the view that keeping the Senate on a three-day leash would prevent the President from making recess appointments and doing an end-run around the Senate Republicans’ filibusters. [Emphasis supplied.]

A political power grab by House Republicans is countered by presidential use of the recess appointment power. Who should decide this political power question? Jot the courts. This is not a case of an enacted law being violated by the president (see George W. Bush's violation of FISA.) This is not a president violating a constitutional right (see George W. Bush, and his violation of the habeas right.) This is not even a president acting inconsistently with the procedures set out in a duly enacted law (See Youngstown v. Sawyer.

Here the Constitutional provisions are vague, at best. The answer is unclear from the text. The argument was not raised by the party in interest (but it was raised by the Republican amici brief filed by Miguel Estrada). The challenged practice has a significant history.

What is different is the extraordinary political actions of the Republican Party in its attempts to thwart the exercise of presidential power by a Democratic president (who is, oh by the way, an African American.) this is a political dispute between the president and the Congress. There is no place for the courts in this.

Unless of course the court in question is stuffed with "originalist" partisan hacks like David Sentelle. Then there is no better time to get involved.

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Comment Preferences

  •  I haven't read yet - but I haven't heard a single (38+ / 0-)

    person address the most obvious question: How would Bush's many recess appointments have stood up to this ruling?

    Armanado?

    Okay, fine, I'll read.

    •  ALL THE MORE REASON (35+ / 0-)

      to have really reformed the filibuster when we had the chance.

      Now that the idiot partisan judiciary has stuck its fat nose into the matter the filibuster will be more of a golden tool to the GOP than ever.

      Let's hope this gets fast-tracked to the SCOTUS.  With the crazy/sane split on the court at 4/4, Anthony Kennedy's reason and common sense can be appealed to.

      Otherwise this birdbrained appellate decision could destroy government completely.

      I'm not sixty-two—I'm fifty-twelve!

      by Pragmatus on Sun Feb 03, 2013 at 01:06:48 PM PST

      [ Parent ]

    •  I agree (20+ / 0-)

      This is something ALL Presidents have done for a very long time.
      Why is it that "right now" with this President, its all of a sudden not copacetic?

      •  Under the legal precedents of (25+ / 0-)

        1. He's Black.
        2. He's "Democrat".
        3. See #1

        Where are all the jobs, Boehner?

        by Dirtandiron on Sun Feb 03, 2013 at 01:40:16 PM PST

        [ Parent ]

        •  I think you nailed it dirtandiron. All the rest is (2+ / 0-)
          Recommended by:
          Jeff Y, Dirtandiron

          a sugar coating waltz to cover up 1 and 2 and three.

          Our money system is not what we have been led to believe. The creation of money has been "privatized," or taken over by private money lenders. Thomas Jefferson called them “bold and bankrupt adventurers just pretending to have money.” webofdebt

          by arealniceguy on Sun Feb 03, 2013 at 08:07:03 PM PST

          [ Parent ]

      •  I don't think it is true that... (2+ / 0-)
        Recommended by:
        Sparhawk, nextstep

        ... "ALL Presidents" have done exactly this for a "very long time".

        This is distinct from the normal case of recess appointments where the Senate was in recess and claimed to be. In the NLRB case, the Senate said they were NOT in recess and were following procedures under their rules to avoid being "in recess". In effect, Obama overruled the judgement of the Senate (which is granted control over the rules they live under, including matters of adjournment) in an internal matter and declared that the Senate was in recess in order to gain access to the Executive's recess appointment powers.

        This situation creates a question of division of power which is most certainly a constitutional, rather than a political, issue and should be subject to the review by the courts.

        Suppose, for example, that Romney had won. If he simply declared the Senate "in recess" because they hadn't passed a bill in three days and then did a flurry of recess appointments, would that be a power grab that the courts should not address? I would think so.

        Harry Reid played much the same game of holding pro-forma sessions to prevent G. W. Bush from making recess appointments from late 2007 on to the end of his term. If Bush had not honored the Senate's judgement that it wasn't in recess and made recess appointments, ask yourself if you would have the same view as you do in the NLRB case.

        Has another president ever made recess appointments after declaring the Senate to be in recess when the Senate themselves said they were not in recess (and were carefully following procedures to prevent a recess)? I truly don't know the answer to this, but I'm quite certain this is NOT a normal practice that "ALL Presidents" have engaged in for "a very long time".

        Seriously, if the President gets to rule that the Senate is in recess based on her own criteria, there would be no reason for a President to go to the Senate for any appointments that serve at his pleasure (such as cabinet heads). Upon such a vacancy occurring, the President would just declare that the Senate was not in session (even if they were meeting at that very moment) and make a recess appointment 1 millisecond later. Although this appointment would only last through the end of the next session, the President could just "rinse and repeat" every session to reinstall the same person in the same slot.

        •  Please note that part of Sentelle's argument (4+ / 0-)
          Recommended by:
          simple serf, bear83, BYw, walkshills

          was that Presidents for the sixty or so years after 1789 did not apparently do this sort of thing, but have been doing it first a little and then a lot ever since. Sentelles placed a surprisingly large amount of weight on the non action in those first sixty years as a showing of what the FFs thought the clause meant, notwithstanding the quote from the 1823 equivalent of the AG saying that the purpose of the clause was that all government jobs should in fact be filled

      •  How is it that when a case can be decided (3+ / 0-)
        Recommended by:
        simple serf, bear83, edrie

        against Democrats, conservative judges do things that aren't done as a matter of course in making decisions - like introducing arguments that weren't made in the original filing, overturning inconvenient precedent and simply making their own precedent then ruling that the opinion can  not be used as future precedent?

        Republicans should never be in a position to appoint another judge to any bench in the country.  A girl can dream....

        "In this world of sin and sorrow there is always something to be thankful for; as for me, I rejoice that I am not a Republican." - H. L. Mencken

        by SueDe on Sun Feb 03, 2013 at 06:39:50 PM PST

        [ Parent ]

    •  It's germane to bring up Bush (4+ / 0-)

      since, when the Dems did the same sort of adjournment to prevent recess appointments, Bush refrained from the attempt.
      I feel certain that Armando must have published his objections at that time—perhaps he''' reprint them here.

      "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."
      http://en.wikipedia.org/...

      •  And interestingly enough (7+ / 0-)

        Bush still made 171 recess appointments that were not challenged in court.

        Including such luminaries as John Bolton.

        And apparently that occurred when Obama was in the Senate - and though he opposed Bolton's nomination, he said:

        The president is entitled to take that action, but I don’t think it will serve American foreign policy well.”

        Change will not come if we wait for some other person or some other time. We are the ones we've been waiting for. We are the change that we seek. Barack Obama

        by delphine on Sun Feb 03, 2013 at 02:52:31 PM PST

        [ Parent ]

      •  difference is (2+ / 0-)
        Recommended by:
        elginblt, Jeff Y

        Reid actually led the Senate at that time.

        Now the House - whioch has no business whatsoever in this affair - tries to force Reid's Hand.

        ______
        "Und wer nicht tanzen will am Schluss - weiß noch nicht dass er tanzen muss", Rammstein, "Amerika"

        by cris0000 on Sun Feb 03, 2013 at 02:53:39 PM PST

        [ Parent ]

    •  Unfortunately, this ruling would not apply (0+ / 0-)

      Democrats did not play the games that Republicans played.  Democrats recessed.  Republicans made sure that the Senate could not officially recess, in order to stop this President from filling the executive branch with his appointees, judges.  

      It's damn near close to treason.  I wonder what the Founding Fathers would have said about the likes of Sentelle, McConnell and their treasonous ilk.  

  •  Heads I win; Tails, you lose. (14+ / 0-)

    Notice: This Comment © 2013 ROGNM

    by ROGNM on Sun Feb 03, 2013 at 01:03:59 PM PST

  •  Nancy Reagan had a psychic and it is said Ronnie (12+ / 0-)

    often looked to her for advice on political matters so why shouldn't the SCOTUS depend upon channeling the Founders (or if Scalia is right, shouldn't they be called the Flounderers?)?
    Personally I am setting up a Founders' Psychic Hot Line so wingers can call in and find out what the original authors really intended

  •  wasn't Sentelle one of those (25+ / 0-)

    on the "three-judge panel" that kept the Whitewater investigation alive...well beyond any meaningful purpose to be served back in the 1990's? The votes always seemed to be 2-1 to...continue to persecute the Clintons for as long as possible...and to rack up a billion of about $50 million to support an ongoing partisan witchhunt?

  •  Of course, Reid threw away filibuster reform with (15+ / 0-)

    his last minute "compromise" to spare the Senate the ignominy of passing modest and sensible reform. Of course, we can only speculate, but it did seem that it would have passed, raising the specter that the Senate is really less than enthusiastic for voting on a progressive agenda and revealing where their hearts lie, now that the Dems hold a fairly significant majority. So, it's kabuki as usual  in Congress.

    "You can die for Freedom, you just can't exercise it"

    by shmuelman on Sun Feb 03, 2013 at 01:09:38 PM PST

    •  it's the worst of all possible outcomes (4+ / 0-)
      Recommended by:
      IreGyre, ardyess, Jeff Y, Lily O Lady

      ok, that was hyperbolic, but because the agreement expires after this session, it is guaranteed to be replaced by a new agreement when the Republicans take over... which gives Repubs exactly the excuse to nuke the filibuster and be done with it.  Just like Dems wrung their hands worrying about... gah!

      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 Sun Feb 03, 2013 at 02:13:10 PM PST

      [ Parent ]

    •  The reason is that too many Dems are also 1%ers (8+ / 0-)

      and totally devoted to protecting the interests of the plutocracy at the expense of the rest of us. I can't see how the system will be reformed as long as a significant number of Dems are bought and paid for by the same scum that completely owns the Republican party.

      "Mit der Dummheit kämpfen Götter selbst vergebens," -Friedrich Schiller "Against Stupidity, the Gods themselves contend in Vain"

      by pengiep on Sun Feb 03, 2013 at 02:14:17 PM PST

      [ Parent ]

      •  You are 100% right... Just look at my Senator, (2+ / 0-)
        Recommended by:
        walkshills, Lily O Lady

        Michael Bennet, who was originally nominated to the position rather than winning a primary. There were a large number of great, popular, progressive Dems in Colorado, but this fella, who never ran for office, got to fill Ken Salarzar's seat when he left to become Secretary of the Interior. Bennet worked for right-wing billionaire Philip Anschutz, and made millions as a Wall Street investment banker doing "restructuring." He originally voted against banking reforms and consumer protection from the mortgage industry, I forget his bullshit reasoning, but I think he has moved to more centrist positions due to pressure from being primaried by the progress Andrew Romanoff, who should have filled the vacant Senate seat, and because he was out of step with Colorado's progressive Democratic Party membership.

        "You can die for Freedom, you just can't exercise it"

        by shmuelman on Sun Feb 03, 2013 at 03:06:49 PM PST

        [ Parent ]

  •  This Sentellle nut is just like his hero Scalia (8+ / 0-)

    He makes his rulings based on the right wing politics at the time, even if that means doing a complete 180 from his past rulings. And then he covers up for that by saying that his thinking has "evolved".

    "I'm so happy 'cause today I found my friends, they're in my head. Light my candles, in a daze 'cause I found god." - Kurt Cobain

    by Jeff Y on Sun Feb 03, 2013 at 01:10:09 PM PST

  •  Wasn't there a real issue of fact? (6+ / 0-)

    Wasn't the Republican claim that the Senate wasn't really in recess?

    Not that I agree: "no quorum, no session" would seem like common sense.

  •  My understanding of this case, for your scrutiny (7+ / 0-)

    Republicans did something new this time: they didn't recess the Senate.  They gamed the definition of recess (forget the capitalization issue, by the way--that's just 18th-century convention) so they could be de facto in recess but not de jure.  Shame on Democrats for not thinking of this before.  I think the decision is OK because this is solely a de jure issue.  What does it mean?  It means, if it's upheld, that there will never again be a recess of the Senate during eras of divided government.  Would Republicans have lost had the case gone to a judge more sympathetic to our side?  Maybe, though I'm not sure.  Is this yet another example of Republicans being a lot more creative in their pursuit of power than Democrats have ever been?  Yes, I think that's fair to say, and as on countless other tactical questions we need to take a lesson from our objective superiors when it comes to the pursuit of power.  

    You know, I sometimes think if I could see, I'd be kicking a lot of ass. -Stevie Wonder at the Glastonbury Festival, 2010

    by Rich in PA on Sun Feb 03, 2013 at 01:15:46 PM PST

    •  No, because if Democrats did this, the court would (11+ / 0-)

      rule for Republicans.

      It's partisan hackery pure and simple.

      "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

      by zenbassoon on Sun Feb 03, 2013 at 01:17:27 PM PST

      [ Parent ]

    •  The Democrats did do this before (5+ / 0-)

      ...in 2007, to prevent Bush recess appointments (and I am fairly sure that Dems at that time were not posting articles like this one on DKos).

      Now it's sour grapes that the power is being used against them. Apparently it is too much to ask for a little consistency from someone somewhere.

      (-5.50,-6.67): Left Libertarian
      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

      by Sparhawk on Sun Feb 03, 2013 at 01:39:13 PM PST

      [ Parent ]

      •  So true (3+ / 0-)
        Recommended by:
        Rich in PA, Arctic Belle, nextstep

        In 2007, every few days during a holiday break, some Democratic senator would come to the chamber for a few minutes and bang a gavel and say a few words. The Senate stayed in session, and the House agreed, because the House was in Democratic hands. Bush could make no recess appointments then, like he did for Mr. Mustache, John Bolton, at the U.N.

        If the House must agree that Congress is not in session, I don't see a way around this issue this time. Obviously, the thing to do is to get the House back in Democratic hands in 2014. No small task.

        •  There is a way (3+ / 0-)
          Recommended by:
          Rumarhazzit, Samer, bear83

          if the houses can't agree on time of adjournment, the President can adjourn them.  Problem solved.

          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 Sun Feb 03, 2013 at 02:15:45 PM PST

          [ Parent ]

          •  Now that concept has a history... in England (0+ / 0-)

            and something that the founders would have recalled and found to be something to avoid in what they drew up...

            King Charles I became annoyed at parliament and had the power to prevent them reconvening... he could shut them down and reconvene them when it suited him.

            Separation of power demands that a king or president or head of state cannot tell a legislature when and if they can be in session. That they must have the power to decide independently or democracy is fatally weakened.

            Pogo & Murphy's Law, every time. Also "Trust but verify" - St. Ronnie (hah...)

            by IreGyre on Sun Feb 03, 2013 at 03:18:25 PM PST

            [ Parent ]

            •  Article II (2+ / 0-)
              Recommended by:
              Samer, bear83

              look it up.

              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 Sun Feb 03, 2013 at 03:22:23 PM PST

              [ Parent ]

              •  The king sidestepped parliament via long recess (0+ / 0-)

                just ruled without them... tried to change membership, get rid of those who did not play his game... the US constitution with ALL of the related articles on separation of power would have been worded with things like that bit of history in mind... to keep the pres from ruling without any interference from Congress... using whatever loopholes or exceptions etc.

                And of course parsing and fine tuning and the various related court rulings, laws and arguments ever since have shifted the balance and the details over the years...

                Pogo & Murphy's Law, every time. Also "Trust but verify" - St. Ronnie (hah...)

                by IreGyre on Mon Feb 04, 2013 at 03:55:34 AM PST

                [ Parent ]

        •  Dem house in 2014 isn't going to happen. Too (0+ / 0-)

          many Republican gerrymandered districts. And we stand to lose the Senate too.

          "Mit der Dummheit kämpfen Götter selbst vergebens," -Friedrich Schiller "Against Stupidity, the Gods themselves contend in Vain"

          by pengiep on Sun Feb 03, 2013 at 02:16:06 PM PST

          [ Parent ]

          •  Yes, (D)s are on defense, but the (R)s don't look (2+ / 0-)
            Recommended by:
            ardyess, bear83

            tons better than in 2012.

            We don't want our country back, we want our country FORWARD. --Eclectablog

            by Samer on Sun Feb 03, 2013 at 05:11:36 PM PST

            [ Parent ]

            •  We must take back the state legislatures. (1+ / 0-)
              Recommended by:
              Samer

              Even in blue states, Democrat voters  have a distressing habit of staying home for state legislative elections, leaving the GOP to turn out its reliable voters to elect state legislative majorities who then happily cut up Congressional districts after every census.
              We need to spend the next seven years concentrating on state elections.  Then we can take back the House.

              Get your facts first, and then you can distort them as much as you please -- Mark Twain

              by OnePingOnly on Sun Feb 03, 2013 at 08:39:29 PM PST

              [ Parent ]

      •  Right, and I agree (0+ / 0-)

        That the pro forma sessions, disingenuous as they are, can prevent recess appointments. However, the rest of the opinion flies against common sense and tradition. Vacant positions that arose outside of recesses have been filled during them since before 1830.

        Likewise, the recess appointment power has been held to apply during any lengthy recess. In theory, I think that recess appointments could be made during any break that lasts more than three days, because both houses must consent to such a break.

      •  There is no inconsistency, people argue for the (2+ / 0-)
        Recommended by:
        Sparhawk, starduster

        result they want.  The reasoning in arguments is using whatever one thinks might support the argument.

        The most important way to protect the environment is not to have more than one child.

        by nextstep on Sun Feb 03, 2013 at 03:21:25 PM PST

        [ Parent ]

  •  That was the first time I've read the boxquote (10+ / 0-)

    and actually the part that jumped out at me was 'that may happen during'.

    Given an 'originalist' twist of thought, to me, that seems to suggest the original framers couldn't conceive of a Congress that would let outstanding vacancies stay unfilled when they went on recess.  They seem to just be assuming any vacancies that came about prior to recess would be filled, and that only vacancies that occurred during the recess would exist during a recess.

    •  yes, great point. Just as (7+ / 0-)

      there is no mention of filibuster in the constitution.

      Perhaps they couldnt conceive tha a minority in the Senate would obstruct every appoinment if they did not have the votes to block these appointments.

    •  Not sure how this relates - but Congresses of old (1+ / 0-)
      Recommended by:
      kyril

      let Senate seats stay vacant for years, I think.

      Very cloudy - there was some big rule change sometime to stop this --- help?

    •  yes (3+ / 0-)
      Recommended by:
      A Citizen, twigg, ardyess

      Congress created the positions and requires the President to nominate candidates to to fill those positions. The role of the Senate is advise and consent, not obstruction.

      Should a minority faction in Congress wish to prevent certain functions of government from occurring it is incumbent upon them to submit a bill to eliminate that function and but it to a vote. At no time should a minority faction hold veto power over the President and both chambers of Congress.

      Others have simply gotten old. I prefer to think I've been tempered by time.

      by Just Bob on Sun Feb 03, 2013 at 02:16:54 PM PST

      [ Parent ]

      •  *put it to a vote* (1+ / 0-)
        Recommended by:
        ardyess

        Others have simply gotten old. I prefer to think I've been tempered by time.

        by Just Bob on Sun Feb 03, 2013 at 02:35:00 PM PST

        [ Parent ]

      •  Re (1+ / 0-)
        Recommended by:
        ardyess
        Should a minority faction in Congress wish to prevent certain functions of government from occurring it is incumbent upon them to submit a bill to eliminate that function and but it to a vote. At no time should a minority faction hold veto power over the President and both chambers of Congress.
        The Senate has unreviewable powers to set its own rules. In fact, a minority can obstruct in such a manner.

        (-5.50,-6.67): Left Libertarian
        Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

        by Sparhawk on Sun Feb 03, 2013 at 02:58:42 PM PST

        [ Parent ]

        •  Goes without saying, but (1+ / 0-)
          Recommended by:
          ardyess

          did you notice the word "should"?

          The point being that Congress is broken. This is not what the Founders had in mind. This is not what they designed.

          Others have simply gotten old. I prefer to think I've been tempered by time.

          by Just Bob on Sun Feb 03, 2013 at 05:22:55 PM PST

          [ Parent ]

        •  Well, a minority can obstruct... (2+ / 0-)
          Recommended by:
          ardyess, bear83

          ...only if the majority lets them by providing for it in the rules set by each term of the Senate by majority vote.

          Obviously, the majority of the Senators believe it's better (for someone, perhaps themselves) to allow such obstruction.

    •  Fire (0+ / 0-)

      Harry
      Reid.

      I don't want him in Congress at all now, but I sure as hell don't want him controlling the Senate Democrats.

      What a complete and total failure.

    •  I don't think this is as obvious as you do. (2+ / 0-)
      Recommended by:
      Sparhawk, Dr Erich Bloodaxe RN

      Recesses back in the early days of our government lasted six to nine months.

      Communication and travel of the time was slow. This made it difficult or impossible to convene the Senate rapidly (esp. if some senators were out of the country). During the winter, messengers would have had to travel by land (horses, walking, snowshoeing etc) and possibly by sea to find each Senator to notify them to reconvene. And, sometimes upon reaching where the Senator was thought to be, the messenger would discover that the Senator was, in fact, somewhere else by now -- resulting in a "chase" scenario. Upon receiving the notice, the Senator would have to, of course, travel back to Washington DC in the same conditions.

      Given this situation, it was probably obvious to the Founders that if a critical vacancy, such as Secretary of State, cropped up due to a death, it was impractical to wait for the Senate, even if they desperately wanted to, to advise and consent on a replacement quickly enough. So, the recess appointment was created. Note that this is very different from the Senate deciding, for whatever reason, not to fill a vacancy by confirming a nominee.

      The whole notion of recess appointments is of course virtually unnecessary now with modern communications, modes of travel, and professional full time politicians. About the only case I can think of that it makes sense would be if some sort of a state of emergency were declared because Senate was unable (perhaps due to an attack on the Senate that killed all the Senators for example), not just unwilling to act.

      The Constitution should probably be amended to eliminate the recess appointment except in extraordinary circumstances and any such recess appointment would terminate, unless the Senate decided to confirm it, perhaps two weeks after the Senate next convened (plenty of time for the Senate to confirm the appointment if they felt so inclined).

      •  I think you raise a lot of really good points (0+ / 0-)

        and certainly point out one of the most extreme ways in which society has changed since the time of the Founders.  There should probably be a host of amendments to address the change from extremely slow transportation and communication to instantaneous communication and extremely fast travel.

        Hell, I think we probably ought to even let officials 'Skype in', so they don't have to be physically present in DC for votes or debates, but only present in their home state or district offices.  Save a lot of government money on travel that way, and people who miss a lot of votes could actually 'attend'.  Set up a large monitor behind the podium, and whoever 'has the floor' shows up on the monitor.

    •  framers couldn't conceive (1+ / 0-)
      Recommended by:
      hrvatska

      I agree.  "May happen" seems clearly to mean that the vacancy occurs during the recess, not one that is left over from before the recess.  Unfortunately, I think the court got the Constitution right but ignored long standing practice.  There was also no notion of a filibuster back in 1787 and the founders probably never imagined that a minority of the Senate would prevent nominations even being voted on.

  •  Will this go to the supreme court? n/t (2+ / 0-)
    Recommended by:
    kyril, Mary Mike

    Republicans espouse individualism, Democrats embrace citizenship.

    by SpiffPeters on Sun Feb 03, 2013 at 01:22:48 PM PST

  •  And with the way Reid hobbled us.....this ruling (6+ / 0-)

    is just the beginning of 4 year discussions of "what could have been".  

    I am really disgusted in how the beginning of this year turned out and the lastly effect it will have on our President's second term.  

    "What could have been" will be on our minds, the entire time.

  •  So it's all about the meaning of the word "the"? (4+ / 0-)
    Recommended by:
    kyril, justiceputnam, ardyess, bear83

    Or its connotation?  Or maybe the context in which it is used?

    Humbug.

  •  Sounds to me Santelle is auditioning... (3+ / 0-)

    ... for a nomination to SCOTUS; if they can just get rid of these damn Democrats.

    A Poet is at the same time a force for Solidarity and for Solitude -- Pablo Neruda / Netroots Radio podcasts of The After Show with Wink & Justice can be found on Stitcher

    by justiceputnam on Sun Feb 03, 2013 at 01:57:33 PM PST

  •  another thing Sentelle got wrong, (12+ / 0-)
    Six times the Constitution uses some form of the verb “adjourn” or the noun “adjournment” to refer to breaks in the proceedings of one or both Houses of Congress. Twice, it uses the term “the Recess”: once in the Recess Appointments Clause
    and once in the Senate Vacancies Clause, U.S. Const. art. I, § 3, cl. 2. Not only did the Framers use a different word, but none of the “adjournment” usages is preceded by the definite article. All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.
    "adjournment" in the constitution, as you quoted in the diary, refers to the process of adjourning, not the period during which congress is adjourned.  
    Adjournment Ad*journ"ment\ (-ment), n. [Cf. f. adjournement,     OF. ajornement. See Adjourn.]
         1. The act of adjourning; the putting off till another day or time specified, or without day. [1913 Webster]

         2. The time or interval during which a public body adjourns its sittings or postpones business. [1913 Webster]

    The constitution uses "adjournment" only when it means #1.  When #2 is applicable, it uses the word "recess."

    Sentelle's argument is that, because "adjournment" is used for #1, it would have also been used for #2 because he says so.

    When they appear in the constitution,
    "adjourn" means to leave,
    "adjournment" means the process of leaving, and
    "recess" means the time they are gone.

    It's sufficiently clear, and the opposite of what he says.

    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 Sun Feb 03, 2013 at 02:08:51 PM PST

  •  The meaning of "the" (0+ / 0-)

    In this context, appears to be closer to its general meaning in "the weekend." For example, "In the event that an emergency arises during the weekend, the designated on-call employee will respond." It doesn't refer to a specific weekend.

    Someone (Jack Balkin?) mentioned that the OED has a longer discussion of "the" than Samuel Johnson's 1755 dictionary, and that its discussion includes many more examples of framing-era usage.

    Frankly, I'm surprised that the implications of this alternate meaning were not addressed in Judge Sentelle's opinion. Or perhaps they were, and I missed it?

  •  Super Bowl pick (0+ / 0-)

    San Francisco 49ers (-4).

  •  Definite and indefinite articles (1+ / 0-)
    Recommended by:
    jdsnebraska

    The argument that the definite article cannot be plural has no basis in the English language - quite the opposite, in fact.

    But if you're going down that road, the bit of article II that jumped out at me is, "The executive Power shall be vested in a President of the United States of America". Does this lack of specificity mean that the Constitution provides for there to be two presidents at once? A job share, or some sort of pope/antipope deal? Of course not. That would be ridiculous.

  •  I found the following document (0+ / 0-)

    to be somewhat helpful.  I have no idea how accurate it is.

    Recess Appointments: Frequently Asked Questions

  •  Not much of a problem (2+ / 0-)
    Recommended by:
    WillR, Sparhawk

    In my opinion, this is all wrongheaded from the get-go.

    The president has a power he may exercise, not generally, but only if a certain case obtains. Nothing in the Constitution gives the president the authority to determine when the Senate is in session; it is an independent body that gets to make its own rules and, however annoying to the president, is the sole authority as to whether it is or is not still in session. And for all the complaint that the Senate is maintaining only a nominal recess to prevent Obama exercising this contingent power, it is also the case that Obama is seeking to exercise this power in order to end-run the Senate. The whole thing is, in fact, merely a political comedy and no great crisis of Constitutional law.

  •  so, I propose the senate call (1+ / 0-)
    Recommended by:
    bear83

    a president's day adjournment
    and if the house doesn't agree, then

    [The President ...]  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

    maybe Adjournment til next
    December, and then call the Senate back after a short delay

  •  Borrowed Scalia's Ouija Board nt (0+ / 0-)

    There’s always free cheddar in a mousetrap, baby

    by bernardpliers on Sun Feb 03, 2013 at 03:09:14 PM PST

  •  What practical consequences (1+ / 0-)
    Recommended by:
    texasteamster

    ...come from validating previous recess appointments back to George Washington that might affect conservative interests?

    is there a case, for example, where a recess appointed judge extended the definition and powers of corporate personhood?

    Was John Marshall recess appointed, and would that undo Marbury v. Madison? (Likely no and no, but that is the sort of questions that folks need to be asking Judge Sentelle.)  Or is there a Bush v. Gore "this only applies to the Kenyan muslim socialist" disclaimer in the decision?

    50 states, 210 media market, 435 Congressional Districts, 3080 counties, 192,480 precincts

    by TarheelDem on Sun Feb 03, 2013 at 03:11:02 PM PST

  •  Test of Constitution proves him wrong (1+ / 0-)
    Recommended by:
    nicteis

    Long argument is not necessary.  The text of the original Constitution only contains the word "Recess" twice.  Once is the recess appointments clause.  The other time deals with appointment of senators, by the governors "during the Recess" of the state legislature.  First point, of course, is that since there is not any provision for "the Recess" of Congress the reference to it cannot be to something definite.  If the Constitution discussed Congress taking a recess, then "Recess would refer to that, but being left undefined it is ridiculous to argue the word refers to something specific, rather than just a time fitting its meaning, that is, when someone is taking a break.  Second point is that since there were at the time 13 states and each was free to set up its government as it wished, and to provide recesses, breaks, or whatever for its legislature as it wished, referring to "the Recess" of states cannot possibly be thought to refer to some specific event.  The parallel usage of the word "Recess" in these two contexts indicates that the same thing was meant both times - the legislature usually gets to vote but when it is on a break then the president or governor can act without waiting for the recess to end.

  •  I am not a constitutional scholar (0+ / 0-)

    nor do i play one on television, but it seems to me that if the Senate, which is obliged to advise and consent on Executive appointments, decides to filibuster those appointments, then they are putting themselves in recess for the purpose of that appointment.

    Why else would the Constitution have provided for recess appointments other than to continue the working of the machinery of government during times when the Senate can not act? I don't see much difference in Senators taking a break to travel back to their home states in their horse and buggy, or Senators tossing a monkey wrench into their own gears. In either case, the Senate cannot act on an appointment, and the Executive should be able to put someone on the job until such time as the Senate can act.

    I sincerely doubt the founding fathers had any intent of ever allowing any part of the machinery of government to be held hostage by a disgruntled minority.

    "The problems of incompetent, corrupt, corporatist government are incompetence, corruption and corporatism, not government." Jerome a Paris

    by Orinoco on Sun Feb 03, 2013 at 03:16:00 PM PST

    •  The Senate, if in Washington... (0+ / 0-)

      ...or reasonably "close" (as they are now due to electronic communication and jet planes), can act quickly (even if they have to reconvene unexpectedly from a recess).

      Thus, they can choose to act, or not to act.

      In the late 1700's, they could not act quickly if in recess.

      The Senate is also completely free, with a simple majority, to create rules that prevent obstructionism but they choose not to.

      I don't know what the Founders would have thought of this situation, but politics was also very nasty back then so I suspect they would not have been alarmed or shocked.

  •  Hackery? Really? (0+ / 0-)

    I didn't find anything about this statutory construction to be the least bit strained or irrational:

    When the Federalist Papers spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.” The Federalist No. 67, at 408 (Clinton Rossiter ed., 2003). For there to be an “ensuing session,” it seems likely to the point of near certainty that recess appointments were being made at a time when the Senate was not in session — that is, when it was in “the Recess.”  Thus, background documents to the Constitution, in addition to the language itself, suggest that “the Recess” refers to the period between sessions that would end with the ensuing session of the Senate.

    Many hands make light work, but light hearts make heavy work the lightest of all.

    by SpamNunn on Sun Feb 03, 2013 at 03:26:36 PM PST

  •  The law is the true embodiment of everything (0+ / 0-)

    that's excellent. It has no kind of fault or flaw and I miluds
    embody the law.
    'If the law supposes that... the law is a ass, a idiot'.
    If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience--Mr.Bumble

  •  Ultimate irony is filibuster has NO constitutional (2+ / 0-)
    Recommended by:
    Samer, bear83

    existence, and it would likely horrify the Framers that it could be used by the minority to usurp governance by preventing use of the Advise and Consent power.

    Sentelle, Aaron Burr... ah, the swet semll of the tyrannts using unclear Constitutional language to destroy majority rule.  

    Now, that's 'murkia!

  •  I agree it's hackery, but it may be technically (0+ / 0-)

    more correct than incorrect.

    I read the Federalist text, and it really does seem clear there that a recess was a time when most Senators had left town, that is, a more significant period than three days.

    Another relevant text is the Articles of Confederation, where a committee was specified which was to conduct the affairs of the nation when the Congress was not in session. Once again, this mechanism clearly was intended to refer to a period of time long enough so that most Members would not have been in town and so couldn't have discharged their duties.

    A third relevant detail is the conduct of the British Parliament, in which sessions ended by a formal ceremony called prorogation, which during colonial times usually involved a speech by the King and perhaps others. Again, this was a formal break in the operation of Parliament, not a brief intra-session pause.

    But what do I know. I think that the action of the Republican House or perhaps the compliance with it by the Senate ought to be found unconstitutional.

    •  On what grounds? (0+ / 0-)
      I think that the action of the Republican House or perhaps the compliance with it by the Senate ought to be found unconstitutional.
      What specific clause(s) of the Constitution do you find the House to be in violation of?
      •  Well, it was mostly just whining, but (0+ / 0-)

        I believe that in Article II, Section 3, where it states “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments”, it is mandated that the Senate give their “Advice and Consent” regarding presidential appointments; that is, they are not allowed simply to withhold it, as they have been. So, to the extent that the Senate (or the House) has refused to comply with that portion of the Constitution, I believe that their actions are unconstitutional.

        But, like I said, it was mostly whining.

  •  Taco Bell (0+ / 0-)

    If they were trying to get me to download a Spanish version of We Are Young they succeeded. If they want me to eat their food, they failed.

  •  Who is this guy (1+ / 0-)
    Recommended by:
    bear83

    to upend decades of political precedent and substitute his own personal preference?  That's outrageous.

    If anyone wanted an example of "judicial activism" that isn't the "I disagree so they're activist" variety, this is it.

    It's not even the NLRB appointments.  It's the assertion that there is only one recess, and that the President and Senate have been doing it wrong.

  •  I'm siding with the bad guy on this one (0+ / 0-)

    An intra-session recess makes as much sense as an intra-day night.

    Admittedly, the distinction between recess-recesses and discussion of the definite article seems over-wrought.  But these are rebuttals to some argument brought by the board which seem to have been disingenuous enough to merit such a pedantic response.

    I could barely make sense of the original posting: Originalism is used in this context to refute the ruling using good old-fashioned playground name-calling.  Partisan outrage does not seem like the right response to what started out as bad legal advice.

    I'd place my bets on section iii instead.  The decision by the House to withhold consent seems like an invitation for Obama to extraordinarily adjourn them and create a Recess that would be perfectly acceptable to Justice Sentelle.  And if Harry Reid didn't bring a vote for adjournment, then it seems he's the partisan hack... except for the wrong party.

    If the House refuses to vote for adjournment and the Senate can't call a vote because of the filibuster procedure, then the President should determine that the two chambers can't agree to adjourn.  An implicit disagreement, if you will, rather than an explicit one consisting of recorded votes.  But any judge who rules that lack of agreement does not constitute disagreement would be a much better target for these charges of partisan dysfunctionalism.

  •  It is clear to me. The Constitution makes it (0+ / 0-)

    Clear that they must maintain a majority number while in session and a majority is required to do business.

    Any adjournment of the majority in either house, of more than three days, by definition, is no longer in session. It is only considered an adjournemet with the approval of the other house of congress.

    So the Senate must maintain a majority to be in session and three days is the maximum amount of time they can ba adjourned and remain in session.

    It's clear to me.

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