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Fri Jan 25, 2013, 10:55 AM

Court: Obama appointments are unconstitutional

Source: Associated Press

WASHINGTON (AP) ó A federal appeals court has ruled that President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel.

The U.S. Court of Appeals for the D.C. Circuit says Obama did not have the power to make recess appointments earlier this year to the National Labor Relations Board.

Obama claims he acted properly because the Senate was away for the holidays. But the court says the Senate technically stayed in session when lawmakers gaveled in and out every few days for so-called "pro forma" sessions.

GOP lawmakers used the tactic specifically to prevent Obama from using his recess power to fill vacancies in an agency they claimed was too pro-union.

Read more: http://bigstory.ap.org/article/court-obama-appointments-are-unconstitutional

83 replies, 9719 views

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Reply Court: Obama appointments are unconstitutional (Original post)
jsr Jan 2013 OP
democrat_patriot Jan 2013 #1
malthaussen Jan 2013 #6
onenote Jan 2013 #7
malthaussen Jan 2013 #11
onenote Jan 2013 #25
malthaussen Jan 2013 #31
PoliticAverse Jan 2013 #35
SugarShack Jan 2013 #46
PoliticAverse Jan 2013 #48
onenote Jan 2013 #61
kestrel91316 Jan 2013 #51
onenote Jan 2013 #59
William Seger Jan 2013 #54
Nye Bevan Jan 2013 #57
SemperEadem Jan 2013 #21
SoapBox Jan 2013 #41
wordpix Jan 2013 #82
lsewpershad Jan 2013 #2
Robb Jan 2013 #4
Ed Suspicious Jan 2013 #34
24601 Jan 2013 #73
sinkingfeeling Jan 2013 #3
PoliticAverse Jan 2013 #12
onenote Jan 2013 #18
PoliticAverse Jan 2013 #33
dixiegrrrrl Jan 2013 #78
onenote Jan 2013 #17
msanthrope Jan 2013 #22
MADem Jan 2013 #30
onenote Jan 2013 #40
MADem Jan 2013 #43
budkin Jan 2013 #47
former9thward Jan 2013 #64
onenote Jan 2013 #65
former9thward Jan 2013 #66
dixiegrrrrl Jan 2013 #79
markpkessinger Jan 2013 #74
onenote Jan 2013 #77
PoliticAverse Jan 2013 #5
olegramps Jan 2013 #8
olegramps Jan 2013 #15
onenote Jan 2013 #42
spooky3 Jan 2013 #63
JohnnyRingo Jan 2013 #9
Hard Assets Jan 2013 #10
madrchsod Jan 2013 #28
Hard Assets Jan 2013 #36
PoliticAverse Jan 2013 #53
Hard Assets Jan 2013 #60
madrchsod Jan 2013 #55
ReRe Jan 2013 #13
appleannie1 Jan 2013 #14
99th_Monkey Jan 2013 #16
RC Jan 2013 #20
mostlyconfused Jan 2013 #44
msanthrope Jan 2013 #19
yellowcanine Jan 2013 #39
madrchsod Jan 2013 #23
Hawaii Hiker Jan 2013 #24
liberal N proud Jan 2013 #26
onenote Jan 2013 #37
PoliticAverse Jan 2013 #27
Nye Bevan Jan 2013 #58
EC Jan 2013 #29
onenote Jan 2013 #32
EC Jan 2013 #38
Igel Jan 2013 #81
budkin Jan 2013 #45
Freddie Stubbs Jan 2013 #49
budkin Jan 2013 #56
PoliticAverse Jan 2013 #50
Politicub Jan 2013 #52
nolabels Jan 2013 #62
judesedit Jan 2013 #67
onenote Jan 2013 #70
another_liberal Jan 2013 #68
onenote Jan 2013 #69
another_liberal Jan 2013 #71
onenote Jan 2013 #72
24601 Jan 2013 #75
another_liberal Jan 2013 #76
NYC Liberal Jan 2013 #80
Igel Jan 2013 #83

Response to jsr (Original post)

Fri Jan 25, 2013, 10:57 AM

1. 3...2...1....impeachment papers being filed?

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Response to democrat_patriot (Reply #1)

Fri Jan 25, 2013, 11:01 AM

6. It's only a matter of time.

They'll find some pretext sooner or later. I would bet at least a nickle on it. Maybe even a quarter.

-- Mal

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Response to malthaussen (Reply #6)

Fri Jan 25, 2013, 11:03 AM

7. I'll take the bet. Double or nothing?

The fascination with impeachment here is fascinating. Its not going to happen. And its certainly not going to happen based on this decision since dozens of recess appointments made by presidents of both parties don't meet the constitutional test adopted by the court here.

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Response to onenote (Reply #7)

Fri Jan 25, 2013, 11:08 AM

11. Okay by me.

They impeached the last Dem for no good reason. Why not this one? Really, why are you so sure that a House where the majority is a bunch of extremist obstructionists won't impeach the Prez sooner or later? Especially given that their "mission" before the election was to "Make Obama a one-term President?" Are they just going to shrug their shoulders, say "Oh, well," and move on?

-- Mal

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Response to malthaussen (Reply #11)

Fri Jan 25, 2013, 11:28 AM

25. Oh, I don't doubt that some whackjob may introduce an impeachment resolution

But it will never make it to the floor. Did you know that starting with LBJ, an impeachment resolution has been introduced against every president, Democrats and Republicans, except Ford and Carter? Given that history, its actually surprising that no one has introduced an impeachment resolution against President Obama.

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Response to onenote (Reply #25)

Fri Jan 25, 2013, 11:38 AM

31. Yes, that is surprising about Mr Obama

I think the GOP must have really thought they would be rid of him after the last election.

Note: I don't think an impeachment resolution will pass the House, but I'll be seriously amazed if they don't try to bust Mr Obama for something.

-- Mal

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Response to onenote (Reply #7)

Fri Jan 25, 2013, 11:49 AM

35. And even if there is an impeachment it won't be one followed by a conviction

as the Democrats have a comfortable Senate majority (54+Sanders).

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Response to PoliticAverse (Reply #35)

Fri Jan 25, 2013, 01:07 PM

46. no, but it mars up and distracts an entire term, like clinton and monica, for nothing.

 

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Response to SugarShack (Reply #46)

Fri Jan 25, 2013, 01:10 PM

48. I think a silly impeachment would likely cost Republicans in the following elections. n/t

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Response to SugarShack (Reply #46)

Fri Jan 25, 2013, 03:12 PM

61. Did the introduction of impeachment resolutions against LBJ, Bush I, Bush II, Truman, and Hooer

"mar up and distract" their entire terms? No. And the filing of an impeachment resolution against President Obama, which would be par for the historical course, is not going to do that either because the repub leadership will not even allow it to get out of committee. Their not nice people, but their not totally stupid.

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Response to onenote (Reply #7)

Fri Jan 25, 2013, 01:25 PM

51. The House can impeach for any reason or no reason at all. If they have the votes to do it, they will

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Response to kestrel91316 (Reply #51)

Fri Jan 25, 2013, 02:54 PM

59. They had more votes during the President's first term and didn't do it.

Could they? Sure. Will they? No.

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Response to onenote (Reply #7)

Fri Jan 25, 2013, 01:45 PM

54. "Dollars to doughnuts"

I had a high school teacher who like to use that phrase to say he would take short odds. But I bought a doughnut at 7-11 the other day... these days, that would mean an even bet.

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Response to onenote (Reply #7)

Fri Jan 25, 2013, 02:09 PM

57. Me too. I think the Repubs remember how impeaching Clinton turned out for them. (nt)

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Response to democrat_patriot (Reply #1)

Fri Jan 25, 2013, 11:24 AM

21. it'll be another colossal waste of taxpayer money

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Response to SemperEadem (Reply #21)

Fri Jan 25, 2013, 12:06 PM

41. Bingo!!!!!!!!!

...and yet the Lemmings of America will ignore it.

BUT...the sky-rocketing price of Chicken Wings before Super Bowl?????

OUTRAGE!

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Response to democrat_patriot (Reply #1)

Sat Jan 26, 2013, 11:42 AM

82. if repugs do that, prepare for a huge backlash

I know lots of people in DC who will be hopping mad

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Response to jsr (Original post)

Fri Jan 25, 2013, 10:58 AM

2. What now?

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Response to lsewpershad (Reply #2)

Fri Jan 25, 2013, 10:59 AM

4. Next stop, USSC.

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Response to Robb (Reply #4)

Fri Jan 25, 2013, 11:46 AM

34. Yes. I think that was the point all along. To get an definitive ruling on the shitty tactic of

the senate gavel-ling in and our and calling it "in session". It's bullshit and I hope the supremes feel the same way I do.

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Response to Ed Suspicious (Reply #34)

Fri Jan 25, 2013, 06:52 PM

73. How you, I, or anyone on the court feels about it is not relevant. What matters is what was meant

by the words adapted in the Constitution - including as changed if the provisions being examined were affected by any of the 27 amendments.

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Response to jsr (Original post)

Fri Jan 25, 2013, 10:58 AM

3. So, were all those GW Bush recess appointments illegal as well? Does that mean John Bolton

never was in the UN?

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Response to sinkingfeeling (Reply #3)

Fri Jan 25, 2013, 11:09 AM

12. I don't believe the Senate was doing 'pro forma' sessions to prevent the Bolton appointment

which is what is at issue here.

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Response to PoliticAverse (Reply #12)

Fri Jan 25, 2013, 11:21 AM

18. Actually, this decision is so broad it would invalidate the Bolton appointment

The court didn't limit itself to the issue of pro forma sessions. It holds that only true intersession recesses can trigger the recess clause (and only vacancies that occur during a recess can be filled with a recess appointment).

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Response to onenote (Reply #18)

Fri Jan 25, 2013, 11:41 AM

33. Yes I see it ruled not on the validity of the 'pro forma' sessions, but on the meaning of 'Recess'

('the Recess') itself concluding as you point out only true intersession recesses count (rendering the
specific 'pro forma' issue moot).


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Response to PoliticAverse (Reply #33)

Fri Jan 25, 2013, 07:34 PM

78. It could mean that ALL of his recess appointments in 2012 session were illegal.

That's the problem.
If the current appointment is now ruled illegal, so are all the rest.

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Response to sinkingfeeling (Reply #3)

Fri Jan 25, 2013, 11:20 AM

17. This one is going to the Supreme Court

Its a dramatically broad ruling that goes against the grain of several decades of practice. To answer your question, yes, the Bolton appointment was "unconstitutional" under this decision. Under this decision, recess appointments can only be made in intersession recess, not intrasession recesses, no matter how long. And recess appointments can only be made if the vacancy being filled actually occurred after the recess began.

Dozens upon dozens of recess appointments made by presidents of both parties fail under this reading of the recess clause. Other circuit courts have reached contrary decisions. So with a split in the circuits and an issue that is fairly significant, I would be shocked if the SCOTUS doesn't take up the issue. How it comes out is hard to predict. Probably 5-4 one way or the other.

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Response to onenote (Reply #17)

Fri Jan 25, 2013, 11:24 AM

22. Indeed--this is a good analysis. This decision is sweeping. nt

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Response to onenote (Reply #17)

Fri Jan 25, 2013, 11:35 AM

30. Very good summation, onenote.

I agree with your sense that it's a crapshoot as to how SCOTUS will rule.

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Response to MADem (Reply #30)

Fri Jan 25, 2013, 12:05 PM

40. Thanks. Of course, the facts won't stop some RW idiots from claiming Obama did something heinous

The fact that other presidents have done the same thing, including Saint Ronnie, will be of no concern to them.

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Response to onenote (Reply #40)

Fri Jan 25, 2013, 12:09 PM

43. Indeed...it gets frustrating! nt

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Response to onenote (Reply #40)

Fri Jan 25, 2013, 01:07 PM

47. Go check any comment thread on any news site about this... they are out in full force

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Response to onenote (Reply #17)

Fri Jan 25, 2013, 03:44 PM

64. Why would other circuits have ruled on this issue?

Any challenges to presidential appoints would go through the DC circuit.

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Response to former9thward (Reply #64)

Fri Jan 25, 2013, 03:52 PM

65. The 11th Circuit ruled on the recess appointment of Pryor to the 11th Circuit

Also, while the statutes creating many federal agencies provide that the agency's decisions are appealable to the DC Circuit, they sometimes allow for appeals to be brought elsewhere. For example, appeals of NLRB decisions can be brought in DC Circuit or in the circuit where the alleged unfair practice occurred or the circuit where the employer is located. The case wasn't directly challenging the recess appointment -- it was challenging the validity of an action taken by the NLRB on the grounds that the agency didn't have a validly appointed quorum.

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Response to onenote (Reply #65)

Fri Jan 25, 2013, 04:05 PM

66. Thank you.

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Response to onenote (Reply #65)

Fri Jan 25, 2013, 07:51 PM

79. So it also means ALL NLRB actions in 2012 are in question

since, according to the court, they did not have a legal quorum....as i understand it.

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Response to onenote (Reply #17)

Fri Jan 25, 2013, 06:58 PM

74. And given the 5-4 conservative majority . . .

. . . what are the odds they will overturn the decision? Practically nil, I think.

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Response to markpkessinger (Reply #74)

Fri Jan 25, 2013, 07:10 PM

77. Unclear

For example, the members of the court generally are concerned about the existence of vacancies on the court. While recess appointments are rarely used to appoint judges, it does happen (for example, Judge Pryor was a bush recess appointment and Judge Gregory was a Clinton recess appointment). The DC circuit decision would make it virtually impossible to use recess appointments to fill vacancies.

That being said, while I wouldn't be surprised if a majority of the SCOTUS rejects the dc circuit's reasoning in whole or in part, they could still end up invalidating the NLRB (and also the Cordray) recess appointments without causing too much disruption to the future use of recess appointment power by agreeing that while the power applies to intrasession recesses, the Senate was not actually in recess at the time of these particular appointments.

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Response to jsr (Original post)

Fri Jan 25, 2013, 11:00 AM

5. It was inevitable the courts would be deciding this...

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Response to jsr (Original post)

Fri Jan 25, 2013, 11:04 AM

8. What was the makeup of the court? It seems ever decision is decided by party affiliation.

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Response to olegramps (Reply #8)

Fri Jan 25, 2013, 11:17 AM

15. Well I answered my own question: 6 Republican and 3 Democratic appointments; 2 vacancies.

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Response to olegramps (Reply #8)

Fri Jan 25, 2013, 12:06 PM

42. For this decision: one Reagan nominee, one Bush I and one Bush II.

Three judge panel.

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Response to onenote (Reply #42)

Fri Jan 25, 2013, 03:37 PM

63. Well, well, well. 3 of 3 Republican appointees who didn't like a Dem's appointments

to the NLRB, no less. How surprising is that?

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Response to jsr (Original post)

Fri Jan 25, 2013, 11:06 AM

9. Too "pro-union"?

It's the dept of labor. It's supposed to look out for workers, not the corporations.

Does the Chamber of Commerce appoint people who give voice to the hourly employees? I guess the republicans want to see appointees who argue for lower wages and decreased benefits from within the Dept of Labor.

Tell them what they keep reminding us: That Bush isn't president anymore.

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Response to jsr (Original post)

Fri Jan 25, 2013, 11:07 AM

10. Wrong.

 

On to the Surpreme Court.

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Response to Hard Assets (Reply #10)

Fri Jan 25, 2013, 11:31 AM

28. good luck with that bunch

well they did give unions the sames rights as the business community.

money is power and that`s why they want a pro-business labor board. regulate unions out of exsistance.

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Response to madrchsod (Reply #28)

Fri Jan 25, 2013, 11:52 AM

36. Fat Tony and Uncle Tom is due to expire soon.

 

Roberts knows this. He understands when he must go and announce his retirement shortly.

His title of Chief Justice won't be there much longer.

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Response to Hard Assets (Reply #36)

Fri Jan 25, 2013, 01:34 PM

53. Unless he dies, quits, or is impeached, he will remain Chief Justice. n/t

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Response to PoliticAverse (Reply #53)

Fri Jan 25, 2013, 03:01 PM

60. Roberts has health issues

 

And it's best that he quietly resign while he's still alive.

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Response to Hard Assets (Reply #36)

Fri Jan 25, 2013, 01:56 PM

55. that`s true....

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Response to jsr (Original post)

Fri Jan 25, 2013, 11:11 AM

13. Is the Senate required to...

... notify the Executive when they are away as to whether they are in or out of pro-forma session?

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Response to jsr (Original post)

Fri Jan 25, 2013, 11:14 AM

14. Other presidents have been doing it for years.

PRESIDENT OBAMA HAS MADE FAR FEWER RECESS APPOINTMENTS THAN ANY RECENT PRESIDENT | Despite the inevitable conservative complaints that President Obama is engaged in some kind of massive overreach by recess appointing Richard Cordray as the nationís chief consumer financial protection watchdog, the truth is that Obama has used his recess appointment power very sparingly. After todayís appointment, President Obama will have made a total of 29 recess appointments. By comparison, George W. Bush made 171 recess appointments; Bill Clinton made 139 recess appointments; George H.W. Bush made 77 recess appointments; and Ronald Reagan made 243. When you divide these numbers by the number of years each man spent in the White House, it reveals that Obama is far and away the least likely president to invoke this power:

http://thinkprogress.org/justice/2012/01/04/397589/president-obama-has-made-far-fewer-recess-appointments-than-any-recent-president/

There is a chart going back to Reagan, who made the most.

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Response to jsr (Original post)

Fri Jan 25, 2013, 11:19 AM

16. Hopefully tweeking the Senate filibuster rules will help on this front

Harry Reid? Can you hear me?

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Response to 99th_Monkey (Reply #16)

Fri Jan 25, 2013, 11:23 AM

20. Naa, he's too busy hugging McTurtle in victory over the filibuster.

 

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Response to RC (Reply #20)

Fri Jan 25, 2013, 12:29 PM

44. What they are doing to the filibuster is a defeat for both parties

not a victory. Reducing the ability of the minority to have its voice heard is a problem for the repubs now, and will be a problem for the Democrats some time in the future. If/when the senate flips, we'll end up wishing they'd not changed any filibuster rules.

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Response to jsr (Original post)

Fri Jan 25, 2013, 11:23 AM

19. Shit. This is bad. nt

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Response to msanthrope (Reply #19)

Fri Jan 25, 2013, 12:04 PM

39. Not necessarily. Not the last word on this.

And the SCOTUS is very cautious about interfering with Presidential powers and the recess appt process is clearly Constitutional. I don't think they will be very impressed with the "pro forma" sessions.

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Response to jsr (Original post)

Fri Jan 25, 2013, 11:26 AM

23. well there goes what is left of any protection for unions

the republicans will block anyone he puts up for the labor board. so the labor board will basically cease to function.it`s getting really hard to tell who`s sticking the knife in the back of the labor movement.

i guess the song "smiling faces" says it all.

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Response to jsr (Original post)

Fri Jan 25, 2013, 11:28 AM

24. There are 4 openings on the DC Circuit - President Obama needs to fill these

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Response to jsr (Original post)

Fri Jan 25, 2013, 11:28 AM

26. So was it unconstitutional for bu$h to make recess appointments?

Despite the inevitable conservative complaints that President Obama is engaged in some kind of massive overreach by recess appointing Richard Cordray as the nationís chief consumer financial protection watchdog, the truth is that Obama has used his recess appointment power very sparingly. After todayís appointment, President Obama will have made a total of 29 recess appointments. By comparison, George W. Bush made 171 recess appointments; Bill Clinton made 139 recess appointments; George H.W. Bush made 77 recess appointments; and Ronald Reagan made 243. When you divide these numbers by the number of years each man spent in the White House, it reveals that Obama is far and away the least likely president to invoke this power:



http://thinkprogress.org/justice/2012/01/04/397589/president-obama-has-made-far-fewer-recess-appointments-than-any-recent-president/


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Response to liberal N proud (Reply #26)

Fri Jan 25, 2013, 11:58 AM

37. some, if not most of them, probably.

One would have to look at the circumstances of each recess appointment (or set of appointments) to determine whether they would pass the constitutional test adopted by the court of appeals in this case. If (and only if) the appointment was made during an "intersession" recess (not the more common "intrasession" recess) and the vacancy being filled occurred during that recess, then it would be constitutional.

Going back to Reagan, the length of the "intersession" recess has varied from as little as zero days to 3 months. Most of the time its been a month or two (depending on whether the adjournment occurred around Thanksgiving or around Christmas. Since 2007, there hasn't been an intersession recess that was longer than a couple of weeks.

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Response to jsr (Original post)

Fri Jan 25, 2013, 11:30 AM

27. Full text of the decision (.pdf)

Tiny url to bypass DU URL issues (with '$'): http://tinyurl.com/b5mwmhu

Full link (must cut and paste):
http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf

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Response to PoliticAverse (Reply #27)

Fri Jan 25, 2013, 02:19 PM

58. Thanks. An interesting read, and I think a pretty convincing argument (nt)

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Response to jsr (Original post)

Fri Jan 25, 2013, 11:32 AM

29. This I put on Ried's head too.

he's the one that made a deal with Mitchy boy to not close down the Senate giving Obama a chance at filling so many empty posts. The repubs won't approve judges, heads of dept. etc. - now that he has goofed up on the fillibuster, I wonder what he'll do about recesses and about all those candidates sitting around waiting for years to be confirmed.

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Response to EC (Reply #29)

Fri Jan 25, 2013, 11:40 AM

32. It wouldn't have mattered under this decision

Under this decision, any recess appointment made during an "intrasession" recess (such as a holiday recess or the August recess, etc) is invalid.

Under this decision, recess appointments are only valid if made during a true "intersession" recess (i.e., the recess between the first session of a Congress and the second session) and only if the recess actually occurred during the recess.

Back in the day, Congress actually adjourned for a while before a new session was started. These days, the old session often doesn't adjourn "sine die" until the same day as the new session begins.

Interestingly, this would suggest that the length of the recess isn't important. Just when it occurs. My guess is that the SCOTUS takes this and in a closely divided decision rejects the court of appeals' interpretation, clearing the way for intrasession recess appointments to fill vacancies occurring before the recess began, but then upholds the practice of holding "pro forma" sessions to skirt the application of the recess appointment clause in intrasession recesses.

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Response to onenote (Reply #32)

Fri Jan 25, 2013, 11:59 AM

38. I'm not sure this ruling will hold

because it would invalidate too much that has been done already under appointments for the last few decades. But the fact that Obama didn't have any chance at all is on Harry. Harry knew the repubs were going to stop almost all appointments and still did not allow a recess.

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Response to EC (Reply #29)

Sat Jan 26, 2013, 11:26 AM

81. The Senate needs permission to recess.

It wasn't given.

The Senate couldn't to into recess according to the terms of the Constitution.

The "deal" was on finding a way to implement not going into recess and still letting members leave town. The alternative was to require all the members to stay in town or continue to try to hold "real" sessions without a quorum. Eventually there'd be enough concern that the chair would be forced to implement proceedings to get AWOL members back to constitute a quorum, and the idea of Senators being escorted back to the Senate by deputies of the Senate would have made for humorous news stories.

This "deal" was standard. It was done under *, as well. Obama insisted that President Bush treat on pro-forma sessions as "real" sessions when he was Senator Obama but that he could treat pro forma sessions as non-sessions when he was President Obama. If not for this, no court case and no decision that bites everybody in the butt. Nobody liked the old rule but everybody had agreed on it, both (R) and (D). And even (I).

Unintended consequences form a very cogent bit of evidence against claims of omniscience.

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Response to jsr (Original post)

Fri Jan 25, 2013, 01:06 PM

45. Not good. Can this be appealed?

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Response to budkin (Reply #45)

Fri Jan 25, 2013, 01:15 PM

49. Yes

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Response to Freddie Stubbs (Reply #49)

Fri Jan 25, 2013, 02:07 PM

56. Good to hear.

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Response to budkin (Reply #45)

Fri Jan 25, 2013, 01:25 PM

50. It will likely end up with Supreme Court taking up the case as different circuits

have differing opinions on the recess appointment constitutionality.

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Response to jsr (Original post)

Fri Jan 25, 2013, 01:28 PM

52. Too late now, but this is another argument for filibuster reform

But our president is a smart man and a constitutional lawyer to boot.

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Response to Politicub (Reply #52)

Fri Jan 25, 2013, 03:15 PM

62. Ever heard of winning all the battles but losing the war?

I don't see any political reform in the next four years but more than willing to bet it will have welled up big time in the next eight to twelve.

It has a lot to do with all resources on a grand scale and that in turn makes for the motivation. We are not at that point yet, at in the present the wealthy are just girding their loins.

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Response to jsr (Original post)

Fri Jan 25, 2013, 05:02 PM

67. And so are those of any appointees before him

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Response to judesedit (Reply #67)

Fri Jan 25, 2013, 05:16 PM

70. Not sure I follow. Can you explain what you mean?

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Response to jsr (Original post)

Fri Jan 25, 2013, 05:06 PM

68. Let's get a different Federal Court . . .

Let's get a different Federal Court, with different Judges, to rule on the Constitutionality of "pro forma" Senate sessions. That is what seems to violate both the spirit and the letter of the law.

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Response to another_liberal (Reply #68)

Fri Jan 25, 2013, 05:15 PM

69. This case doesn't hinge on the validity of pro forma senate sessions.

Ironically, one can read this court as allowing recess appointments to be made in a recess of any length, even one minute, if the recess is the one that occurs at the end of a session of Congress. The court invalidated the appointment not because Congress was still in session but because even if the pro forma session wasn't valid, the old session of Congress had ended, and the new session commenced, the day before. Thus, under the court's interpretation of the recess clause, no recess appointments could be made until Congress adjourned at the end of that session of Congress (and before it reconvened for the next one). On top of that, two of three judges held (the third said it wasn't necessary to reach the issue) that even during a "intersession recess" between the end of one session and the beginning of another, the recess appointment can only be used to fill a vacancy that first occurred after the recess began.

That's not to say that someone (and by someone, I mean someone with legal standing) could bring a declaratory ruling proceeding in a federal court somewhere else (and by somewhere else I mean somewhere that an actual case or controversy exists) seeking a ruling on the validity of some action taken by the NLRB.

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Response to onenote (Reply #69)

Fri Jan 25, 2013, 05:18 PM

71. Thanks for the clarification . . .

Thanks for the clarification. That's much better information than the article itself!

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Response to another_liberal (Reply #71)

Fri Jan 25, 2013, 05:40 PM

72. Its a very confusing situation. No one foresaw this result.

They may have foreseen the appointments being invalidated but not on grounds that could all but prevent recess appointments from ever occurring in the future.

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Response to another_liberal (Reply #68)

Fri Jan 25, 2013, 07:01 PM

75. The only federal court with justices is the Supreme Court. Federal district and circuit courts

have judges.

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Response to 24601 (Reply #75)

Fri Jan 25, 2013, 07:04 PM

76. Thanks for the correction.

I will edit my post accordingly. Thanks again.

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Response to jsr (Original post)

Fri Jan 25, 2013, 10:19 PM

80. Anyone remember when Bush signed the bill that didn't pass the House?

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Response to jsr (Original post)

Sat Jan 26, 2013, 12:58 PM

83. I don't think it'll stand.

It's silly.

1. I agree with "happen." You need a change of state, some endpoint to something. There's a counterexample ("Joe happened to be examining the meteorite's impact crater when a second meteor hit the same spot"). It's a usage not very likely to be in the Constitution, and may be recently innovated for all I know. It still means "arose" but leaves aside any information as to when the change occurred.

2. Their discussion of "the" is crap. Johnson presupposes knowledge about a thorny point of English grammar that was still actively argued 200 years later. See Enc's article published in Linguistic Inquiry in 1995 (give or take a couple yeas) for a nice summary of English definiteness, viewing "specificity" and "definiteness" as distinct categories. Contra the court, "The tiger is a ferocious beast" is not specific (except with respect to "tiger kind")--no individual, concrete tiger is involved, but neither is it true that all tigers are ferocious. "The tiger is a ferocious beast, but Tiny the circus tiger here is a coward" is perfectly fine. The kind is ferocious, the token at hand is timid. Compare "All tigers are ferocious beasts, but Tiny the circus tiger here is a coward" or "This tiger here is a ferocious beast, but Tiny the circus tiger is a coward"--you have to fight hard to get the nonsense reading that "Tiny the circus tiger" is coreferential with "this tiger." You really assume there are two tigers involved.

3. The problem is defining "session." I think of a "session" of Congress as extending from swearing in until the next Congress is sworn in, but I have a synonym in "the Congress" (usually with a # in front of 'Congress').

But if Congress is "in session" it's actively meeting or its adjourned, it's not in recess. That means I can say, "This session of Congress isn't in session." I think in the first 40 years of the Republic this would be deemed anomalous.

The court's parsing of "the Recess" is inane. It places an unsupportable burden of foreknowledge on both the Senate and the Executive. Looking at the political context of the day makes clear that the court's parsing isn't necessary to explain the historical facts they buttress their conclusions with.

I'll assume that there's no difference in usage in 'session' and 'recess' between the House and the Senate.

Take this year. The House and the Senate recessed in December. Was that the start of the intersession recess? In most years, sure. This year, no. But this was unknowable until a week later. Had they not reconvened, they'd have been in intersession recess. Obama could make recess appts. But since they did reconvene, Obama was retroactively barred from making intersession recess appointments. He couldn't know ahead of time.

Or perhaps by making an appointment that requires that the recess be intersession, he would have mandated that the session of Congress be over--thus barring Congress from reconvening?

Then again, the President would always be in charge. He could call the Congress back in session--presumably from "the Recess". Otherwise according this court the Congress is *already* in recess.

Yes, this becomes inane.

Here's my proposal. At the time, convening Congress was a bear. Moreover, the burden of administering a huge country and government with myriads of longwinded laws, scores of agencies, and reams of regulations wasn't so large. Required to be in session yearly (assuming that you could have a session of Congress not in session) there was no requirement to meet near the end of the term nor a requirement to meet longer than necessary.

They convene, a session starts. They recess, the session is over. The Congress remains the Congress. But all sessions are bounded by recesses. Once in session, you can't have more than one recess. For any session, there is a singular, specific, "the recess." That recess may not be between Congresses. It may be.

If the president makes a recess appointment it's because the Senate isn't around to deal with it. If the Senate wants, it can come back into session and deal with it. If it chooses to meet and leave the post vacant, then the position is vacant. The Senate has authority to make appts.--and that implies the authority to withhold them. If it chooses to not reconvene or doesn't have time to reconvene, then the issue is moot.

The way it works now strips the Senate of this power. If Obama (or *, or Clinton, or Bush I) makes a recess appt. the Senate is stuck with it for a year, until the "session" ends. It can't nominate another. It can only confirm a fait accompli. If the Senate refuses to confirm, then next (intersession) recess the prez re-recess-appts. the same person. The only option for the Senate is to have the outgoing Senate recess seconds before the new Senate is sworn in, and hope that the President doesn't sign his recess appointment during those seconds.

Any recess appointment, I think, could have been undone by simply (?) reconvening the Senate and then declaring recess 5 minutes later. This would be a stunning smack down of the President by the Senate. Moreover, reconvening Congress, for any President, was potentially perilous. It got the powerful Congress in the same town, able to pass laws and push him around. Any president not requiring something of Congress would have dreaded Congress' reconvening.

Result: You don't make controversial recess appointments unless you're damned sure that the recess is the last one before the new Congress. Or you make a recess appt fully aware that the Senate would confirm it, isn't planning on reconvening, and has no reason to reconvene. If you know the Senate is going to reconvene, why make the recess appointment?

The historical record is misinterpreted.

Still, it also leaves the definition of "recess" vs. "adjournment" up in the air. In this day and age you can adjourn and be home 3000 miles away during a 3-day adjournment. Harder to be 300 miles away during a 4-day recess in 1800. I don't see a way for the courts to make a definition that is unambiguous in its application and binding on Congress. "Sine die" might work. But it'll require tweaking, I think.

I also think that this points out a problem common to theoreticians. If you tweak part of a theory you really have to know what comes unglued at the other end. We've changed the interpretation of "session" and "recess" along the way and led to an accidental stripping of Constitutional authority from the Senate--and this court would restore it in ways that I think deprives the President of some of his Constitutional authority. But to fix this is going to make other things come unglued. Two hundred years' of tinkering has left a mess.

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