Obama's recess appointments bet sours

[Pryderi]

Another fucking case of IOKIYAR???! I seem to remember a few Bush recess appointees like...John Bolton!!

While the president surely suffered an unexpectedly bad result, the D.C. Circuit’s opinion Friday is far from the last word on the subject. The administration could ask the full bench of the appeals court to take up the case. The Justice Department could also try to take the case to the Supreme Court.
Several lawyers said Friday that one of Obama’s best hopes at the moment is that the very expansiveness of the D.C. Circuit’s decision will undermine it.
“If this ruling is upheld, as a practical matter, it will negate the president’s recess appointment power. He won’t have it any more,” said one prominent D.C. lawyer who asked not to be named to avoid complicating cases handled by his law firm. “It really is a big deal.”

Read more: http://www.politico.com/story/2013/01/obamas-recess-appointments-bet-sours-86756.html#ixzz2J5Z0R2RB

[spanone]

1. President George W. Bush made 171 recess appointments.

http://abcnews.go.com/Politics/obamas-abuse-power-argument-recess-appointments/story?id=18317935

[onenote]

2. and most of them would be invalid under this decision

but I only know of one bush recess appointment that was challenged in court -- judge pryor's appointment to the 11th circuit. The appointment was challenged in the 11th circuit and was upheld by that court. Which means there is a split in the circuits on interpreting the recess appointments clause, which means that the Supreme Court is nearly certain to review the DC Circuit decision. Plus, there were other challenges to NLRB decisions made by the recess appointees brought in other parts of the country that haven't been decided. Those cases are not bound by the decision in the DC Circuit. They could reach the same conclusion or an opposite conclusion.

This isn't over. However, my best guess as to the outcome in the supremes is that (1) the SCOTUS, by a 6-3 vote reverses the DC court's decision that a recess appointment can only be made to fill a vacancy that was first created after the recess began but (2) by a 5-4 vote upholds the DC circuit's decision that recess appointments can only be made during "intersession" recesses. That would still be a radical departure that would be inconsistent with decades of practice. But it would allow the court to avoid the question of deciding the status of "pro forma" sessions.

If the court doesn't uphold the second half of the DC circuit's decision, it will have to decide what constitutes a "recess" -- is there a minimum length of time that the Senate must not be in session and, if so, does the calling of pro forma sessions "restart" the clock each time? That's a hard one for the court to decide since it more directly injects them in to the business of Congress. For example, the reason that the Senate was calling pro forma sessions rather than recess for more than three days is that the Constitution doesn't allow either house to adjourn for more than three days during a session of Congress without the consent of the other and the republican controlled house had made it clear it would not consent to the Senate adjourning for more than three days. In addition, neither party has "clean hands" in this fight: it was our side that started the practice of using pro forma sessions to block bush from making recess appointments (as was openly acknowledged by our side at the time).

Anyway, we'll see how it turns out eventually.

[Pryderi]

3. Fingers crossed n/t