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onenote

(42,383 posts)
3. Yes, Sentelle is a hack. But to a certain degree, this is a case of what goes around comes around
Sat Jan 26, 2013, 11:19 AM
Jan 2013

I've posted several analyses of the court's decision and expressed my opinion that its reasoning will be reversed at least in part by the SCOTUS. But the analyses in the esquire blog linked in the OP leaves out one salient fact: like it or not, it was the Democrats that started the practice of using pro forma sessions to prevent the exercise of the recess appointment power. It was in 2007 and we controlled the Senate and wanted to block chimpy from making recess appointments. And we succeeded, for which I am grateful. But the problem with these sorts of tactics is that both sides can play. So, when we regained the White House and wanted President Obama to be able to make recess appointments to overcome Senate filibusters of nominations to agencies like the NLRB and the CFPB, we ran into a Constitutional dilemma: the Constitution clearly states that neither the Senate nor the House can adjourn for more than 3 days without the consent of the other body. Since the repub controlled House wasn't going to consent to the Senate adjourning for more than 3 days, we had to shift gears and take the position that the same pro forma sessions we had relied on to block recess appointments by chimpy now were ineffective when used to block President Obama. That's not the strongest position to be arguing from, unfortunately. And its why, I suspect, that the SCOTUS will reverse some or all of the DC Circuit's overly narrow reading of the recess appointments clause, but will still end up finding that the appointments made by President Obama did not occur during a recess.

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