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The Supreme Court as of 2010
The Supreme Court heard arguments in National Labor Relations Board v. Noel Canning, a challenge to President Obama's recess appointment of three NLRB members in January 2012, when the Senate had recessed for its holiday break. Reports from the arguments suggest the Court is hostile to the administration's arguments supporting this executive power.
A ninety-three-minute hearing on the Constitution’s grant of power to the president to make short-term appointments to fill vacancies was at times a somewhat anxious exploration of whether history or constitutional text should govern the extent of that power.  On balance, text seemed to be winning out, and that appeared to favor the Senate more than the White House.

Perhaps the most unfortunate moment for presidential authority was a comment by Justice Stephen G. Breyer that modern Senate-White House battles over nominations were a political problem, not a constitutional problem.  Senators of both parties have used the Constitution’s recess appointment provisions to their own advantage in their “political fights,” Breyer said, but noted that he could not find anything in the history of the clause that would “allow the president to overcome Senate resistance” to nominees. [...]

As the hearing unfolded, the only Justices who consistently asked questions or made comments that appeared to support presidential authority to act alone to make short-term appointments were Ruth Bader Ginsburg and Sonia Sotomayor.

The most hostile justice, not surprisingly, was Justice Antonin Scalia, who took a direct shot at President Obama. To read more about Scalia and this case, make the jump.

Scalia's hostility to President Obama was undisguised in Monday's argument.

During oral arguments, Scalia shot back at an argument by U.S. Solicitor General Donald Verrilli that the Constitution's recess appointments clause is ambiguous enough to validate Obama's temporary appointments.

"It's been assumed to be ambiguous by self-interested presidents," Scalia said, to "oohs" and laughs in the court room.

Coincidentally, Scalia's own son Eugene enjoyed a recess appointment from President George W. Bush to be solicitor at the Labor Department in 2001. That was one of the first of Bush's 141 recess appointments (Obama has had 26). Eugene Scalia's appointment wasn't at issue in Monday's arguments, but the problem with over two centuries of recess appointments, and what striking down Obama's would mean to that history, to sitting appointees, and to the judicial decisions that some of these appointees have made, are all questions the Court faces.

The justices suggest that they could narrowly upend Obama's appointments without having "a terribly severe impact because various doctrines would prevent the overturning of past decisions by judges and other recess-appointed officials." Given that the Senate did eventually confirm NLRB members, as well as Richard Cordray—the other controversial recess appointee made at the same time—it's not clear what legal effect the Court striking down those appointments would have. As always, though, arguments in the Court don't necessarily predict the actual decision.

Originally posted to Joan McCarter on Mon Jan 13, 2014 at 12:42 PM PST.

Also republished by Daily Kos.

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Comment Preferences

  •  Tip Jar (41+ / 0-)

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

    by Joan McCarter on Mon Jan 13, 2014 at 12:42:19 PM PST

  •  So, if they determine (8+ / 0-)

    recess appts. are verboten, then what does that mean for retroactive decisions going back decades (centuries?) regarding stuff that might be important?  If none of the Black guy's appointments are legal/constitutional -- is there a separate provision for the white guys' and if not, what exactly does that mean?

    It would be lovely if someone who got paid, which isn't me, went through every recess appointment and all the matters decided by them and let us know what an unconstitutional deciderer means.

    " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

    by gchaucer2 on Mon Jan 13, 2014 at 12:48:05 PM PST

    •  The issue at hand is not (13+ / 0-)

      that recess appointments are forbidden, but rather does the President have the power to make a 'recess' appointment when the Senate says it's not in recess.

      The President says he does - but will SCOTUS believe that remains to be seen.

      Look, I tried to be reasonable...

      by campionrules on Mon Jan 13, 2014 at 12:51:16 PM PST

      [ Parent ]

      •  That is indeed the point (5+ / 0-)

        and since this is about all that is said in the Constitution:

        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 does that mean?  What does recess mean?  Manipulation of "rules" over the centuries by both houses don't necessarily meant that those manipulations are constitutional.  If a body cannot conduct business -- e.g. no quorum -- is it in recess?  

        " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

        by gchaucer2 on Mon Jan 13, 2014 at 01:02:02 PM PST

        [ Parent ]

        •  Is this really the argument (3+ / 0-)
          Recommended by:
          coffeetalk, Sharon Wraight, dinotrac

          you want the Executive Branch to make: If a body cannot conduct business -- e.g. no quorum -- is it in recess?  

          Imagine the Bush presidency deciding to do that, we'd be outraged!! Impeachment!!!

          This is not rocket science, Congress gets to make it's own rules about how they govern, the Executive branch can attempt to 'interpret' them but runs the risk of getting smacked down by SCOTUS - as will almost certainly happen in this case.

          It's not like a Senate recess is some sort of nebulous thing. They even have a formal notification process - to the House - that's constitutionally mandated.

          Look, I tried to be reasonable...

          by campionrules on Mon Jan 13, 2014 at 01:14:26 PM PST

          [ Parent ]

          •  I don't think I actually (4+ / 0-)

            wrote what you attribute to me.  I am asking what the definition of recess is and how it will affect prior recess appointment business.

            The Bush Administration and practically every other administration did do exactly that.  What is your point?  I just find it "odd" that it is now a Constitutional issue when the Black guy did it.

            " My faith in the Constitution is whole; it is complete; it is total." Barbara Jordan, 1974

            by gchaucer2 on Mon Jan 13, 2014 at 01:27:44 PM PST

            [ Parent ]

            •  definition (3+ / 0-)

              As defined by the Congressional Research Service

              The Constitution provides that neither chamber may adjourn for three days or more without the consent of the other. The two houses consent to each other’s sine die adjournment by adopting a concurrent resolution, called an “adjournment resolution.” They use a similar vehicle to allow each other to suspend their daily sessions for three days or more without terminating their annual session. Such a suspension is called a “recess of the session,” an intrasession recess, or, more
              formally, an “adjournment for more than three days” within a session.
              To avoid the need for a
              concurrent resolution, a chamber may hold pro forma sessions on such a schedule that no break of
              three days or more occurs
              .
              Bold and italics mine

              Note the italics, Seems to me that this is precisely what the Senate was doing, holding "pro-forma sessions" so that no break occurred and therefore no recess occurred and thus PO's appointments would be null and void.

              You will note that nowhere does the President get to define when Congress has recessed or not.

              Honesty may be the best policy, but it's important to remember that apparently, by elimination, dishonesty is the second-best policy.

              by fauxrs on Mon Jan 13, 2014 at 03:23:49 PM PST

              [ Parent ]

              •  Objectively, I think "pro forma" is bullshit (1+ / 0-)
                Recommended by:
                Patango

                I mean, it's "pro forma," as in just for show, not real.

                But then it's just a question of how much of a time gap there has to be between actual session bouts for it to be a "recess" under the Constitution.

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

                by Simplify on Mon Jan 13, 2014 at 05:59:36 PM PST

                [ Parent ]

              •  Technically (0+ / 0-)

                I believe the Senate was holding pro forma sessions not because they wanted to, but rather because the House would not concur with their desire to recess, and therefore they were unable to do so.

                The Democratic Senate probably would have recessed had it been given the chance.

                Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

                by Phoenix Rising on Tue Jan 14, 2014 at 06:21:03 AM PST

                [ Parent ]

            •  Exactly! Why didn't SCOTUS (1+ / 0-)
              Recommended by:
              Patango

              smack down all the other presidents over the last 30 years who had so many f*g more recess appointments than Obama has?

        •  They have been out to lunch for years (1+ / 0-)
          Recommended by:
          Patango

          I would consider them in recess.

          We the People have to make a difference and the Change.....Just do it ! Be part of helping us build a veteran community online. United Veterans of America

          by Vetwife on Mon Jan 13, 2014 at 04:52:44 PM PST

          [ Parent ]

      •  If you read the comments (8+ / 0-)

        and questions of the justices, it looks pretty certain that recess appointments will be a thing of the past after theiur ruling.

        “To be candid, the Senate is always available” now, liberal Justice Ruth Bader Ginsburg said. “It can be called back on very short notice.”

        “This is not the horse-and-buggy era any more,” Kagan said. “There’s no such thing truly as congressional absence any more. And that makes me wonder whether we’re dealing here with what’s essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.”

        And, those are the more liberals members of the court!
        •  Well, (20+ / 0-)

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

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

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

          [ Parent ]

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

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

            It is really no longer necessary, as you say.

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

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

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

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

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

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

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

                [ Parent ]

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

                  It was designed with a certain amount of state sovereignty.

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

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

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

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

                  "let's talk about that"

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

                  [ Parent ]

                  •  Hypothetically (0+ / 0-)

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

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

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

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

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

                    [ Parent ]

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

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

                      "let's talk about that"

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

                      [ Parent ]

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

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

                        I'm aware of the history.

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

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

                        [ Parent ]

                •  As others said (0+ / 0-)

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

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

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

              Beer Drinkers & Hell Raisers

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

              [ Parent ]

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

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

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

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

            [ Parent ]

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

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

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

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

            [ Parent ]

            •  Obsolete (0+ / 0-)

              As in, no longer useful in everyday practice.

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

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

              Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

              by Phoenix Rising on Tue Jan 14, 2014 at 06:26:52 AM PST

              [ Parent ]

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

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

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

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

            It's really pretty juvenile.

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

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

            [ Parent ]

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

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

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

            "let's talk about that"

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

            [ Parent ]

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

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

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

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

              [ Parent ]

  •  Is there no recourse to the People (1+ / 0-)
    Recommended by:
    fcvaguy

    when ideology drives the Court, and one party attempts to steal power away from our elected President?

    This is a blatant move by right-wing Supreme Court judges to weaken Obama.

    How could this sort of political powerplay even be legal?

    I just don't get it...

    I have decided to stick with love. Hate is too great a burden to bear. Martin Luther King, Jr.

    by cyeko on Mon Jan 13, 2014 at 12:58:36 PM PST

    •  Um ... Justices Kagan, Ginsburg and Breyer ... (9+ / 0-)

      certainly aren't right-wingers, and their questions seemed to indicate that they have problems with the administration's position. The text of the constitutional provision ("the" recess of the Senate rather than "a" recess of the Senate) would seem to support the argument that the recess the Constitution is talking about is between Sessions of the Congress. The provision seems to be directed to situations where the Senate CAN'T exercise its advise and consent function, not those where it WON'T do so.

      Bin Laden is dead. GM and Chrysler are alive.

      by leevank on Mon Jan 13, 2014 at 01:14:46 PM PST

      [ Parent ]

      •  Obama has made 18 (5+ / 0-)

        Bush made 171 in his eight years in office.

        I call bullshit when I see it.

        I have decided to stick with love. Hate is too great a burden to bear. Martin Luther King, Jr.

        by cyeko on Mon Jan 13, 2014 at 02:56:40 PM PST

        [ Parent ]

        •  dems are weak and go belly up (0+ / 0-)

          they could have used the same gimmick to avoid those, like the cons used here, but they didn't.

          Power to the Peaceful!

          by misterwade on Mon Jan 13, 2014 at 06:52:03 PM PST

          [ Parent ]

        •  So you think Justice Ginsburg, Kagen and Breyer .. (2+ / 0-)
          Recommended by:
          VClib, Justanothernyer

          are right-wingers? Because that's the inescapable "logic" of your position.

          How many of Bush's recess appointments were made when the Senate was having even pro forma sessions every day or two? How many of them were challenged in the Supreme Court?

          You can't exactly say that the Supreme Court is treating Obama's recess appointments differently than Bush's when (a) they were made under different circumstances, or (b) the Supreme Court was never asked to rule on Bush's recess appointments.  Well, I guess you can SAY it, but if you're calling bullshit when you see it, you'd have to call it on your own point.

          I think that President Obama was justified in making these appointments, and I could certainly make a good faith argument that they were legal -- but it wouldn't be an argument that I would expect to win.

          Bin Laden is dead. GM and Chrysler are alive.

          by leevank on Mon Jan 13, 2014 at 08:16:56 PM PST

          [ Parent ]

    •  That is a tired old saw trotted out any time (3+ / 0-)

      somebody doesn't like a decision.

      It certainly got trotted out for Roe v Wade.

      When 7 justices out of nine are leaning the same way, it's hard to claim ideology is to blame.

      And, frankly -- what freakin' ideology even deals with the idea of when is the Senate recessed and when is it not?

      Doesn't seem like a conservative value.
      Doesn't seem like a progressive value.

      Maybe taking a good look at the Constitution and the history ain't such a bad idea.

      LG: You know what? You got spunk. MR: Well, Yes... LG: I hate spunk!

      by dinotrac on Mon Jan 13, 2014 at 06:01:46 PM PST

      [ Parent ]

    •  cyeko - did you hear the oral argument (2+ / 0-)

      We have Justices across the political spectrum who are critical. Don't see where you view this as partisan. There was never a case against GWB because when Harry Reid kept the Senate in proforma session for the last year and a half of GWB's term of office GWB never tried to make a recess appointment. He respected the proforma sessions. President Obama didn't.

      "let's talk about that"

      by VClib on Mon Jan 13, 2014 at 09:08:58 PM PST

      [ Parent ]

  •  Most ironic statement of the day (4+ / 0-)
    Recommended by:
    fcvaguy, demreplib33, dinotrac, Patango

    From politico: "'If you ignore the Constitution often enough, its meaning changes?' Scalia said sarcastically."

    •  I suppose this is how Scalia (3+ / 0-)

      tries to square his conscience. What a dick he is.

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

      by fcvaguy on Mon Jan 13, 2014 at 01:22:52 PM PST

      [ Parent ]

      •  It's a kind of solipsism I suppose. (0+ / 0-)

        To Scalia, the Constitution exists as only HE sees it.

        What is a moderate interpretation of the text? Halfway between what it really means and what you'd like it to mean?
        Link

        The Constitution is full of vague, archaic and sometimes even ambiguous phrasing (e.g. Art. I section VIII "provide for the common defense and general welfare").  Most scholars agree the phrasing was deliberately left open to interpretation.  Not based on the political preferences of non-Scalia judges, but in the context of its modern applicability to society.

        Antonin Scalia is a closed-minded man, appointed and (mostly) confirmed by those who think as he does.

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

        by Cream Puff on Tue Jan 14, 2014 at 07:47:48 AM PST

        [ Parent ]

  •  Well keep in mind that Brown v Board of (2+ / 0-)
    Recommended by:
    Sharon Wraight, bear83

    Education was decided by a recess appointment that would not be valid if SCOTUS rules against them so would that be negated as well and thus segregation in schools would be the law of the land again?

    You have watched Faux News, now lose 2d10 SAN.

    by Throw The Bums Out on Mon Jan 13, 2014 at 01:14:16 PM PST

  •  This is really good news (5+ / 0-)

    Does it serve mine or your political interests of the day, maybe not, but The executive branch has taken more and more and more power over the past few decades. We are long overdue for the courts to start to rein it in a bit. No Mr. President (this one or any other) you don't get to decide when the Senate is or is not in session, they do. Not a partisan issue which is why it looks like it may be a lopsided decision.

    •  Maybe this is the real reason (2+ / 0-)
      Recommended by:
      JJ In Illinois, bear83

      why Reid decided it was time for the filibuster to go for Presidential appointments.

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

      by fcvaguy on Mon Jan 13, 2014 at 01:25:01 PM PST

      [ Parent ]

    •  This argument sounds good at first, but what (2+ / 0-)
      Recommended by:
      Sharon Wraight, northerntier

      does it have to do with appointments?

      There is a concerted longterm Republican campaign to fill all court vacancies with Federalist Society members or sympathizers.  This is a judicial coup.

      I'd argue that the rise in executive power is exceeded by the rise in judicial power.  Who gave them the right to rule on the constitutionality of all laws, anyway?

      •  We knew that all along (2+ / 0-)
        Recommended by:
        Sharon Wraight, northerntier

        That's why we better goddamn well win the White House in 2016 and 2020.  Hillary, Liz Warren, Biden, whomever.  The last Democrat to appoint a retrograde was JFK (that's when Eisenhower was picking liberal appointees, remember Earl Warren?).

        If any Republican gets the White House in 2016, we're screwed.  You might as well get in a Wayback Machine and have the Confederates win in Gettysburg.

      •  This is fundamental to our constitutional system (0+ / 0-)

        and has overwhelmingly yielded liberal results.

        •  Until 1973 when GOP strategized to pack the courts (1+ / 0-)
          Recommended by:
          hooper

          It was a deliberate, explicit decision, starting with creating new think-tanks to fund new research to be published in new peer-reviewed journals (for ideologically-inclined law-school professors to get tenure), creating new 'education' camps for the newly-appointed (or wannabe) lowest-level judges, etc. By the late-1990s more than 60% of all US judges attended these brain-washing camps, including the free-market pablum 'law and economics' sessions at George Mason U funded by Kochs' ilk.

          This marked a sharp break from previous history.

          How many future Justice William O. Douglas' have we missed out on, in this process? How many lawyers today, even liberal ones, are critical of Douglas' decisions because of the interpretations taught them by GOP-influenced 'research' and professors?

          Etc.

  •  FUCK the evil 5 & their whitesplaing double (1+ / 0-)
    Recommended by:
    Matt Z

    Standard.

    nosotros no somos estúpidos

    by a2nite on Mon Jan 13, 2014 at 01:20:01 PM PST

  •  today it wouldn't matter much one way or the other (2+ / 0-)
    Recommended by:
    Sharon Wraight, bear83

    now that the filibuster rules are gone - it seems the President can get Senate approval if he really wants it.

    But when the Senate and President are different parties?  Potentially, no appointees would ever be approved or allowed if there were to be no recess appointments.

    I like to think that Democrats are willing to govern and wouldn't stop everything - but we've already seen that Republicans are more than willing to bring everything to a screeching halt any way they can.  Not just willing, but eager to do so.

    Is the Senate in play in 2014 and could this stop all appointments for the last 2 years of Obama's term?

  •  interesting read (1+ / 0-)
    Recommended by:
    Simplify

    An interesting read on the original purpose of the recess appointment clause and what the founders thought of it.

  •  Either my reading comprehension sucks... (7+ / 0-)

    or people don't understand that the recess appointments in question were made when the senate was supposedly "in session" and thus the argument is that any recess appointments made are null and void. They are not equivalent to any recess appointments made by Bush, when the senate agreed it was in recess.

    The president contends that the senate was actually in recess because no business was conducted and that it was just a maneuver taken by senate republicans to prevent him from making appointments.

    This is actually probably the truth, but under the law it doesn't necessarily make him right. Unless someone can produce a law that says for congress to be in session "business must be conducted" because these last few years sure seem to contradict that.

    Much as I hate to admit it, I don't think the president has a foot to stand on here.

    Honesty may be the best policy, but it's important to remember that apparently, by elimination, dishonesty is the second-best policy.

    by fauxrs on Mon Jan 13, 2014 at 03:09:17 PM PST

  •  Why does this diary imply that this is (3+ / 0-)
    Recommended by:
    Sparhawk, dinotrac, Simplify

    a partisan action by the courts right wingers when the liberal justices seem almost equally skeptical of the administration's position?

  •  In my view this case will not throw out all recess (0+ / 0-)

    appointments, just the ones made by obama while the Senate was in pro forma session. recess appointments can be made while congress is on holiday or summer break, if there are vacancies open- and to my knowledge there are still dozens of them in various courts and agencies through the government. if the president had simply done this while congress was on winter break, this likely doesnt get dragged before the SC.  but by doing this while the senate was technically in session, hes going to get a wrist slap..

    •  Maybe, although I won't be surprised if (0+ / 0-)

      the SCOTUS agreed with the DC Court of Appeals. I don't think there will be anything that will change the result of any cases already decided but recess appointment may be very restricted going forward.

      "let's talk about that"

      by VClib on Mon Jan 13, 2014 at 09:22:16 PM PST

      [ Parent ]

  •  Scalia's gonna need to keep his joke book updated (0+ / 0-)

    when the Ds plaster Cruz-Rubio or whatever 2016 ticket the Rs cobble together.

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Mon Jan 13, 2014 at 05:46:16 PM PST

  •  So, it's time to end all filibusters? (0+ / 0-)
  •  Joan, you're absolutely right... (2+ / 0-)
    Recommended by:
    bear83, northerntier

    They are hostile to Obama's recess appointments.  Bush jr. had more than twice the average yearly recess appointments as Obama and not word one from any of those losers about any of them. Not a peep....

    Obama has had fewer recess appointments than any president in the last 30 + years....

    •  That's not the point. (2+ / 0-)
      Recommended by:
      Adam B, Justanothernyer

      What's being questioned is whether the president can make recess appointments if congress is not in recess.

      Why wasn't congress in recess? They were doing this childish thing where they would start the day and then call it to a close, having given the power to call a session to someone who happened to still be there.

      So they were refusing to go into recess to prevent him from making "recess appointments." He made them anyway, and no one really said anything about it.

      THEN the appointees made a decision about a labor dispute and the loser in that decision decided to question the legality of the appointees, lawyered up, and brought the case to the SCOTUS.

      That's the point here. It has nothing to do with Bush.

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

      by New Jersey Boy on Mon Jan 13, 2014 at 06:19:28 PM PST

      [ Parent ]

  •  I recall comments calling the President a "coward" (0+ / 0-)

    for not using more recess appointments.  Now maybe those were saying that see the problem with relying on such appointments.  The problem was never the President being a "spineless coward" it was with idiotic Senate rules that allowed a single senator to put an anonymous "hold" on any nomination for no reason.

  •  OK, fine (1+ / 0-)
    Recommended by:
    HiKa

    I'm willing to accept that some practices involving recess appointments violate the Constitution.  (Not all.  It's pretty clear that the President can make a recess appointment when the Senate is not in session, and can't do it on weekends or holidays when the Senate isn't home.  But what about politically motivated situations where the Senate is technically in recess but practically off on vacation?)

    1. Where was Scalia when the Republicans did this?  I'm pretty certain there's nothing in the Constitution about "It's OK if you're a Republican."

    2. The liberal side is going to take a pass since nominations can't be filibustered any more.

    3. How was the filibuster ever constitutional?  Senator Mitchell Jefferson Davis Turtle is pretty clear that it's purpose was to give southern conservatives a veto over everything.

  •  All NLRB members have been confirmed by the Senate (1+ / 0-)
    Recommended by:
    Adam B

    They were all confirmed in July of 2013.  The only question left is what would happen with the decisions they made from jan. 2012 till june of 2013.

    There would probably be just more lawsuits

  •  Wasn't a problem until the black guy started (1+ / 0-)
    Recommended by:
    Sue B

    recess appointin' while black.

    Libertarianism is just Fascism with a facelift. Scratch the surface of Libertarianism and you will find the notion that corporations should rule supreme, just as it was with Fascism..

    by Walt starr on Mon Jan 13, 2014 at 06:23:04 PM PST

  •  If we had a truly independent judiciary, (1+ / 0-)
    Recommended by:
    northerntier

    The justices would say that they are not going to interfere with what has been done in the past, but it won't be done the same in the future.  Of course, idiot Scalia cannot see the rank hypocrisyof condemning and reversing actions that previously benefited himself and his son.

    Common sense is often hard to find. Conservatives have completely forgotten the concept.

    My wife, daughter and granddaughters should have more privacy in their doctor's office than I have buying another rifle or shotgun.

    by NM Ray on Mon Jan 13, 2014 at 06:45:07 PM PST

  •  Since appointments generally (0+ / 0-)

    cannot be filibustered anymore, the decision would have little practical effect.

  •  The Future (1+ / 0-)
    Recommended by:
    HiKa

    When SCOTUS rules in favor of the Republicans, just wait until the fun starts: Start Here:

    US Constitution Art2 Sect3 (emphasis mine):

    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; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
    I envision a majority opposite party Senate being convened repeatedly to consider 'extraordinary' items such as appointments.  Of course, this will just have to happen throughout campaign season.  Just let them keep getting to the airport and then get dragged back by the capitol police for another 'extraordinary' session.  

    Of course, the Majority party MUST SHOW UP for these little exercises. If they don't; the opposition party (headed by POTUS) quietly and surprisingly shows up as the majority in a session and runs the board as quickly as possible.  However most of the time, the party of POTUS will be back home campaigning.

    We haven't even gotten to the part where he can dismiss Congress (who's "them", another SCOTUS opportunity for debacle).  

    At least we'll certainly see majority only rule in the Senate, and the loss of comity.

    I do, however , look forward to the Senate looking like the Prime Ministers Questions sessions with Parliament much more often.  They WILL be handled much more roughly by POTUS with this decision.

    SCOTUS- Inciting civil war since 1857, revived in 2000

    ... the watchword of true patriotism: "Our country - when right to be kept right; when wrong to be put right." - Carl Schurz; Oct. 17, 1899

    by NevDem on Mon Jan 13, 2014 at 07:25:52 PM PST

  •  Moot point. (0+ / 0-)

    Case should be rejected as moot because the recess appointments were made because the Republicans were filibustering all the appointments, and now such filibusters are impossible. Even if the court rules the appointments invalid, Obama can now just re-appoint them, and the nominations will be confirmed, as the Republicans can no longer filibuster.

    Now, if they determine that the decisions of the board made when those invalid recess appointments are made, does that also invalidate the actions of people with recess appointments in previous administrations?

    Now, what I'd really love is a ruling that both invalidates recess appointments (without later Senate confirmation) and also forces an up and down vote on all appointments. Ideally, all Presidential appointments that are supposed to be confirmed by the Senate should require a YES or a NO vote. "No Comment" should not be an option.

    Workers of the world, unite! You have nothing to lose but your shackles. It is by the picket line and direct action that true freedom will be won, not by electing people who promise to screw us less than the other guy.

    by rhonan on Mon Jan 13, 2014 at 09:53:38 PM PST

  •  Is there any intellecutally honest person who (0+ / 0-)

    still believes that this court actually decides on the basis of noble principle and consideration of the constitution? The court majority is as much a collection of political hacks as  the team of prime time Fox News hosts is and as concerned with actual justice as Fox is with actual truth.

  •  Does it matter much anymore? (0+ / 0-)

    Reid's already gone nuclear.  Obama just has to re-nominate every recess appointment, who should sail through barring personal scandal.

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

    by Cream Puff on Tue Jan 14, 2014 at 07:25:14 AM PST

  •  SCOTUS hostile to the administration (0+ / 0-)

    Could have stopped right there. 'nuff said.

    Trust, but verify. - Reagan
    Vote, but Occupy. - commonmass

    When the rich have tripled their share of the income and wealth yet again, Republicans will still blame the poor and 3rd Way Democrats will still negotiate.

    by Words In Action on Wed Jan 15, 2014 at 08:44:04 AM PST

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