if a republican is elected president.

won't have the guts to do what the GOP did with their maneuvering to make sure the Senate is never out of session.

that! I guess we'll be playing this game from now on.

Scalia wanted the narrower interpretation that says you can only do recess appointments inter-session (not during holiday breaks, for example).

And there's also a narrow interpretation that says the Constitution only allows for appointments for vacanies that happened while the Senate was in recess, and not vacancies that happened before the recess but then continued after adjournment. The Court rejected that too.

MSNBC explaining this.

This was a constitutional balance of powers issue, and no, this will not be rolled back.

PS: Breyer wrote the opinion.
http://www.supremecourt.gov/opinions/13pdf/12-1281_bodg.pdf

It's Breyer, Kennedy, Ginsburg, Sotomayer & Kagan, concurring Scalia, Roberts, Alito & Thomas.

whole cloth. Otherwise, the Constitution is pretty specific.* And this was a unanimous decision.

*On the issue of recess appointments. On other topics, it couldn't be vaguer.

recess appointments, but I see where in the Constitution they got 3 days.

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.

how is it harder and is the nlrb appointment staying

thought I could be of help.

hope you have as good of a day as you can at work

I don't know what the nirb is. By any chance, do you mean NLRB?

My guess is that the opinion is specifically says something about the impact of the decision on prior appointment because both Bush and Obama made them. If you say they were all void from the jump (or ab initio, as courts like to say) that would wreak havoc.

It's unusually specific about recess appointments.

That would include the Obama appointees.

j/k I'd eat every shoe in my closet if all four of them are.

It's hard to argue with the unusually specific language of the Constitution on this matter.

Back in 2004, Kerry said that he recognized that Bush had the power to make all the recess appointments that Bush was making. As soon as I heard that, I called Kerry's office to express my opinion that Kerry should not have conceded that point because that is not what the constitution says.

In those days, the people in Kerry's office who dealt with the public were almost invariably snotty and/or dismissive, very superior, in their own minds. It got better after Kerry lost the election. I've never understood the point of paying customer relations people who piss off the public.

Anyway, snotty guy in Kerry's office, I hope you remember my call.

throwing the race card.
It was a unanimous decision, which means that Pres. Obama's appointees voted to limit also.

Why?
Got anything to say on this?

http://bigstory.ap.org/article/high-court-limits-presidents-appointments-power

Other that playing the race card?

recess appointments are allowed for both inter-session (between formal sessions) and intra-session (shorter breaks within a session). However, the purpose of recess appointments is to allow the government to continue functioning when the Senate is not available. So while recess appointments are allowed during those shorter breaks, a 3-day break is far too short to trigger a "recess" in the Constitutional sense. There are no appointments that can't wait 3 days for the Senate to return.

They also ruled that :

bit. That would make it easy for a President to wait for any kind of break, then BAM. Twenty recess appointments. However, the Constitution says that the appointment has to be confirmed (or not) when Congress is back in session. So, upon re-convening, Congress would be free to make the President go back to the drawing board.

Basically, the Supremes just wrote a 3 day rule into the Constitution, instead of leaving it to the political process, as they should.

Last edited Thu Jun 26, 2014, 11:13 AM - Edit history (1)

Just keep the senate open on paper yet do no work

Gridlock at it finest

I hate gridlock, too, but I am more concerned about the 60 vote rules.

blocking an appointment takes only 40 votes in the senate which hardly seems democratic.

a combination of the faux filibuster rule and the 60 vote rule. And lord knows how many other votes that would have helped the majority of Americans a great deal died the same way.

Besides, with the 60 vote rule, kabuki is all too easy and voters' holding anyone accountable for their yeas and nays on substance is not. Which is exactly why I don't think it will ever change, absent a Constitutional amendment. Kabuki and lack of accountability are too dear the hearts of both of the largest parties.

If I had to choose--and I never will have to--I'd rather have that amendment than overruling Citizens. All the things Citizens supposedly allowed for the first time were either going on already or could have gone on if one followed the right steps, funneled money through the right entities, etc.

For example, the same donors who funded the Citizens United movie could have funded a film studio instead of a PAC and made the same movie And Hillary had donors from China in 2008 so the foreign money thing was not new either. But the decision is politically convenient.

The real issue is public funding of campaigns, and no other money, period. Oh, and no lobbying. But, now, laws addressing either of those things would require a Constitutional amendment. That's what citizens' did. But our money-loving Congress was never going to put either of those things on the tably for an amendment anyway.

Citizens is a shibboleth, IMO.

Obviously the need for recess appointments has been exacerbated with the current "opposition" Congress. Some of that may have now been mitigated when Reid changed the filibuster rule.

So perhaps these recess appointments were needed given the no, no, no posture of the Senate prior to the filibuster change.

But as a general matter my understanding is the reason the recess appointment power is included in the Constitution was that in the early days of the republic, Congress may have very short legislative sessions and long gaps between when the Congress was in session.

Let's face it governing was a bit less complex then and as well many of the members of Congress were needed back on their farms, plantations and businesses.

So a President could have literally months during which the Congress wasn't in session to vote on nominations. That is no longer the case.

So this limitation, depending on what it is and the scope of the limitation, is probably a good thing overall.

And people without a plantationful of slaves couldn't leave their wives and kids and farms for weeks at the drop of a hat. Serving then was a sacrificial patriotism.

It is no longer so, but now we have jerks in Congress who are far less concerned about what happens to the country and Americans than they are about their own re-election.

But, if a Constitutional amendment is in order, it shouldn't be Bush or Obama or the SCOTUS that makes it.

'Here is the upshot of the decision. The President can make a recess appointment without Senate confirmation when the Senate says it is in recess. But either the House or the Senate can take the Senate out of recess and force it to hold a "pro forma session" that will block any recess appointment. So while the President's recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked.'

Does anyone know how the House can take the Senate out of recess? How does that not defeat the separation of their respective governmental powers within the Congress?

I suppose the same holds true that in a regular recess, members of the house could bring everyone back in session at regular intervals just to thwart any recess appointment at all?

I saw this in USA Today

Ronald Reagan made 232 recess appointments during his eight years in office. Bill Clinton and George W. Bush each made well more than 100. In 1903, Theodore Roosevelt made more than 160 recess appointments during one short break between congressional sessions.

I'm guessing this can cause a lot of sludge to form on the already gummy works of the People's business....

If the House and Senate cannot agree on when and how long to adjourn, the president intervene and adjourn them until "such Time as he shall think proper".

Article II, Section 3:

if... one side purposely decides to not agree... which is likely in cases of mixed control of the Congress

It actually sounds like that clause makes it possible for the President to step in and prevent one side from demanding stop-and-start sessions to prevent longer recess periods.

even with all of the partisan wrangling over the years.

Presidents are probably very hesistant to use it simply because of the appearance. Ordering Congress to adjourn -- even if Constitutional -- would not be a good image.

adjourn. Never happened before.

Last edited Thu Jun 26, 2014, 12:58 PM - Edit history (1)

I can understand why he would want them to re-convene, but not why he'd want them to adjourn. I'd better go look at Article 2. I never noticed.

Last edited Thu Jun 26, 2014, 01:03 PM - Edit history (1)

If they've already decided to adjourn, but cannot agree on how long, he can decide.

Seems dumb, but I guess someone has to break the tie and the SCOTUS shouldn't be the tiebreaker because it doesn't answer to the people, ever. (Another one we might want to revisit.)

ETA: The reason it's never been done in 225 years is probably because the two Houses have never tied. If they were even tempted to, they'd probably agree, just not to give the the President that power over them.

It would be very intrusive to force them to adjourn. Not really separation of Powers. And it could be abused very easily.

i

My eyes betray me all the time. My typing, too.

"Neither House, during a 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."

The Constitution is very specific on this. Obama tried an end run around it and even his own appointees went against him on it.

When he was a Senator, he had no problem whatsoever with pro forma sessions as a way to block Bush II's recess appointments. He rather liked them, in fact.

When he was President, suddenly he had a huge problem with pro forma sessions as a way to block his recess appointments. He rather thought them unconstitutional, in fact.

At no point that I'm aware of did he say he changed his mind, and the pro forma sessions that he had believed were not just okay but good had been unconstitutional. Perceived need often trumps moral principle. Or, rather, perceived need often is moral principle.

Each side blames the other for it but the fact is that either side can use things in the Constitution to block things from getting done.

Also, I'm over the Constitutional law professor trying to end run the Constitution. It pleases me less when a Democratic does it than when Bush did it.

Separation of powers applies to the Courts vs. the Legislature vs. the President.

I realized that after I wrote it -- my bad

And, I am wondering if the Prez did what he did to shed light on presidential power and the rampant mischief during the Bush years.

He is a former constitutional law prof yunno.

Same reason Reid changed the filibuster rule, but only for Presidential appointments.

BTW, I don't think he ever taught the whole constitution. He taught 14th amend. mostly Equal rights.

...

Do you also believe he ignored the Constitution on recess appointments purely to get the Supreme Court to clarify that he acted unconstitutionally under Article II?

Because that was what my reply was directed at.

My reply was in response to the last sentence in your post.

That post cited Obama's professorship to support the poster's theory that Obama deliberately messed up on recess appointments for the purpose of getting the Supreme Court to clear up any confusion about recess appointments. What he taught, however, had nothing to do recess appointments, though. If you read in context, that was my point.

(Not to mention that Presidents don't act unconstitutionally in the hope that the Supreme Court will point that out to the country.)

Actually, though, equal protection applies to the all the individual rights in the Bill of Rights, in the sense that you cannot treat one group differently than another group as to any of them, but, again, that is beside the point. I add it only for accuracy.

He got cooked, told what he did was unconstitutional.

Reply 53? Apparently, he didn't get cooked at all, just won yet another game of 24 dimensional chess.