MSNBC announcing that the Supremes narrowed Presidential power to make recess appointments.
Last edited Thu Jun 26, 2014, 12:34 PM - Edit history (2)
Source: MSNBC
Read more: http://www.nbcnews.com/politics/supreme-court/supreme-court-narrows-presidents-recess-appointment-power-n141601
Opinion should be available soon.
Finally, a SCOTUS decision I agree with. Notwithstanding actions by Bush, the Constitution is pretty clear on this. I know it will make things harder for Presidents, but you don't amend the Constitution by ignoring it.
ETA: Link and opinion both available now. Thanks to AuntofTriplets for both a link and the reminder to include it in the OP.
Second edit.
Relevant Constitutional provision, just for kicks:
tularetom
(23,664 posts)if a republican is elected president.
BumRushDaShow
(129,662 posts)alsame
(7,784 posts)won't have the guts to do what the GOP did with their maneuvering to make sure the Senate is never out of session.
NYC Liberal
(20,138 posts)The move blocks Bush's ability to make recess appointments, which would allow his choices to serve out the remainder of Bush's term.
alsame
(7,784 posts)that! I guess we'll be playing this game from now on.
NYC Liberal
(20,138 posts)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.
alsame
(7,784 posts)MSNBC explaining this.
Yo_Mama
(8,303 posts)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.
merrily
(45,251 posts)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.
merrily
(45,251 posts)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.
NYC Liberal
(20,138 posts)merrily
(45,251 posts)rurallib
(62,465 posts)merrily
(45,251 posts)leftyohiolib
(5,917 posts)how is it harder and is the nlrb appointment staying
rurallib
(62,465 posts)leftyohiolib
(5,917 posts)rurallib
(62,465 posts)thought I could be of help.
hope you have as good of a day as you can at work
leftyohiolib
(5,917 posts)merrily
(45,251 posts)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.
leftyohiolib
(5,917 posts)merrily
(45,251 posts)It's unusually specific about recess appointments.
onehandle
(51,122 posts)former9thward
(32,097 posts)That would include the Obama appointees.
merrily
(45,251 posts)j/k I'd eat every shoe in my closet if all four of them are.
merrily
(45,251 posts)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.
IronGate
(2,186 posts)throwing the race card.
It was a unanimous decision, which means that Pres. Obama's appointees voted to limit also.
onehandle
(51,122 posts)Why?
Got anything to say on this?
http://bigstory.ap.org/article/high-court-limits-presidents-appointments-power
Other that playing the race card?
DesMoinesDem
(1,569 posts)merrily
(45,251 posts)NYC Liberal
(20,138 posts)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 :
I believe this is the first time the Court has made a definitive ruling on that issue. It's been a question for a long time and never concretely resolved.
merrily
(45,251 posts)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.
merrily
(45,251 posts)Last edited Thu Jun 26, 2014, 11:13 AM - Edit history (1)
merrily
(45,251 posts)Exposethefrauds
(531 posts)Just keep the senate open on paper yet do no work
Gridlock at it finest
merrily
(45,251 posts)I hate gridlock, too, but I am more concerned about the 60 vote rules.
rurallib
(62,465 posts)blocking an appointment takes only 40 votes in the senate which hardly seems democratic.
merrily
(45,251 posts)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.
Swede Atlanta
(3,596 posts)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.
merrily
(45,251 posts)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.
tomm2thumbs
(13,297 posts)'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?
NYC Liberal
(20,138 posts)Essentially, if the Senate wanted to recess for a few weeks, the House could refuse to consent to that.
tomm2thumbs
(13,297 posts)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....
NYC Liberal
(20,138 posts)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:
tomm2thumbs
(13,297 posts)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.
NYC Liberal
(20,138 posts)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.
tomm2thumbs
(13,297 posts)I could see a lame duck in the final months doing some real damage if they were of the Tea Party ilk
merrily
(45,251 posts)NYC Liberal
(20,138 posts)adjourn. Never happened before.
merrily
(45,251 posts)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.
merrily
(45,251 posts)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.
leftyohiolib
(5,917 posts)i
merrily
(45,251 posts)leftyohiolib
(5,917 posts)merrily
(45,251 posts)My eyes betray me all the time. My typing, too.
former9thward
(32,097 posts)"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.
Igel
(35,374 posts)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.
former9thward
(32,097 posts)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.
merrily
(45,251 posts)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.
merrily
(45,251 posts)Separation of powers applies to the Courts vs. the Legislature vs. the President.
I realized that after I wrote it -- my bad
merrily
(45,251 posts)greatauntoftriplets
(175,755 posts)merrily
(45,251 posts)greatauntoftriplets
(175,755 posts)merrily
(45,251 posts)maddogesq
(1,245 posts)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.
merrily
(45,251 posts)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.
truebrit71
(20,805 posts)...
merrily
(45,251 posts)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.
truebrit71
(20,805 posts)My reply was in response to the last sentence in your post.
merrily
(45,251 posts)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.
maced666
(771 posts)He got cooked, told what he did was unconstitutional.
merrily
(45,251 posts)Reply 53? Apparently, he didn't get cooked at all, just won yet another game of 24 dimensional chess.