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Tue Jan 29, 2013, 10:24 AM

Judges and Harry Reid agree: Mitch McConnell runs the country Senate Democrats' epic filibuster cave


I am reasonably sure that I, at least, would have been perfectly fine with the D.C. Court of Appeals decision invalidating President Barack Obama’s recess appointments to the National Labor Relations Board if it had come during the Bush presidency. For obvious reasons. I can admit that. The “pro forma sessions” trick the GOP used to try to prevent Obama from appointing anyone to the NLRB was even originally a Democratic ploy designed to prevent Bush from making his own recess appointments. (Bush, obviously, wanted to appoint vile far-right ideologues to positions in agencies whose missions they were dedicated to subverting and sabotaging. Obama just wants to appoint competent people who are a bit liberal.)

But the decision doesn’t just invalidate appointments made during “recesses that don’t count as recesses because one guy showed up and banged a gavel and then went home.” It’s not, in other words, a decision limited strictly to stopping one instance of executive branch overreach. The court effectively ended the practice of recess appointments entirely:

But Friday’s opinion does much more than settle the question of whether recess appointments made under those unique circumstances are valid. The judges ruled that the founders only intended recess appointments to occur during the period between the end of one session of a Congress and the beginning of another — an “intersession recess” that typically occurs between the end of one calendar year and the beginning of the next. Furthermore, the judges ruled that Presidents may only make recess appointments to fill vacancies that arise during the same intersession recess.

If we’re talking “originalism” as something other than a silly ultra-literal reading challenge, it seems highly unlikely that the Founders intended for a minority of senators to have the power to totally prohibit the president from making any appointments, at all, forever. That is probably just not really something they imagined happening, and any interpretation of the rules of the Constitution that makes that a reality would seem to violate the intent of those wise men. It is “advise and consent,” not “petulantly refuse to advise or consent or hold a vote at all if such a thing would offend Lindsey Graham.” This is, as Scott Lemieux puts it, “loose construction for me, implausibly arid formalism for thee.”

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