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Appeals Court Declares Obama Recess Appointments Unconstitutional

law-gavel-lights

A little more than a year ago, President Obama made a series of appointments to positions that had been lingering in the Senate for quite some time utilizing his power under Article II, Section 2 Clause 3 of the Constitution to make appointments while Congress was in recess that would last until the end of the then-current term of Congress. On the same day, Obama used this power to appoint Richard Corday as head of the newly-formed Consumer Financial Protection Bureau and then to make three appointments to the National Labor Relations Board. Almost immediately, interested parties began filing lawsuits alleging that the recess appointments were unconstitutional because Congress was not really in recess during the time that the appointments took place. Instead, utilizing a tactic that Democrats first engaged in during the Bush Administration, the House refused to consent to a joint adjournment as required by the Constitution, meaning that the Senate was required to hold “pro forma” sessions, which basically consisted of gavelling the body in and out of session in an event that typically lasted less than five minutes. At the time, I was skeptical of the arguments that were being made in these lawsuits largely because the Recess Appointment clause doesn’t specify how long Congress must be out of session for a such an appointment be effective. Today, though, a panel of the Court of Appeals for the D.C. Circuit ruled that the recess appointments were unconstitutional:

A federal appeals court ruled on Friday that President Obama violated the Constitution when he made three recess appointments to the National Labor Relations Board last January.

The three-judge panel of the United States Court of Appeals for the District of Columbia Circuit held that Mr. Obama did not have the power to bypass the Senate and make the appointments.

The Obama administration has repeatedly asserted that the appointments to the N.L.R.B. were legitimate because he made them when the Senate was away during a 20-day holiday recess a year ago. The appeals court strongly disagreed, ruling that the Senate was technically in session because it was gaveled in and out every few days as part of a tactic that created “pro forma” sessions.

Both Republican and Democratic lawmakers have used the tactic of “pro forma” session to block presidents from making recess appointments.

The court’s decision also raises doubts about the legitimacy of Mr. Obama’s recess appointment of Richard Cordray to head the Consumer Finance Protection Bureau.

Mr. Cordray’s appointment, which is being challenged in a separate lawsuit, was also made last January under the same recess circumstances. On Thursday, Mr. Obama announced he was again nominating Mr. Cordray to that position, voicing hope that Senate Republicans would not block confirmation this time, as they did with the previous nomination of Mr. Cordray.

Many Republicans and business associations have derided the labor board under Mr. Obama, saying it has become a tool of organized labor. But many Democrats and labor unions have responded that Mr. Obama’s appointments had merely restored ideological balance to the board after it had favored business interests under President George W. Bush.

The Obama administration is likely to appeal Friday’s ruling to the United States Supreme Court.

But if the ruling is upheld, it would invalidate scores of decisions that the labor board has made since last January.

The board would be left with just one validly appointed member — its chairman, Mark Gaston Pearce — who was confirmed by the Senate. Under a 2010 Supreme Court decision, the labor board, which has five seats, is authorized to issue decisions only when it has three or more sitting members.

In its opinion, the Court goes through a rather extensive analysis of the Constitutional clauses in question, as well as the history of the use of Recess Appointments in the years after adoption of the Constitution and concludes that the Recess Appointment power is limited to only those times during which there is a gap between one Session of Congress and another:

The Clause sets a time limit on recess appointments by providing that those commissions shall expire “at the End of their [the Senate's] next Session.” Again, the Framers have created a dichotomy. The appointment may be made in “the Recess,” but it ends at the end of the next “Session.” The natural interpretation of the Clause is that the Constitution is noting a difference between “the Recess” and the “Session.” Either the Senate is in session, or it is in the recess. If it has broken for three days within an ongoing session, it is not in “the Recess.”

It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions. Cf. Virginia v. Tennessee, 148 U.S. 503, 519 (1893) (interpreting terms “by reference to associated words”). Confirming this reciprocal meaning, the First Congress passed a compensation bill that provided the Senate’s engrossing clerk “two dollars per day during the session, with the like compensation to such clerk while he shall be necessarily employed in the recess.” Act of Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71.

Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board. When the Federalist Papers spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.” The Federalist No. 67, at 408 (Clinton Rossiter ed., 2003). For there to be an ”ensuing session,” it seems likely to the point of near certainty that recess appointments were being made at a time when the Senate was not in session — that is, when it was in “the Recess.” Thus, background documents to the Constitution, in addition to the language itself, suggest that “the Recess” refers to the period between sessions that would end with the ensuing session of the Senate.

The implications of this ruling if it stands is really quite extraordinary. When the Constitution was drafted, it was understood that there would be long gaps between the end of one session of Congress and the beginning of another. Indeed, for most of the early years of the Republic, the gap between the end of one Session of Congress, typically in December, and the beginning of the other on March 4th was months at a time. Partly, this was due to the state of transportation at the time, of course, but there was also the fact that there simply wasn’t nearly as much to do in the 18th and 19th Century as there is today. This isn’t the situation for the modern Congress, of course. While recesses are frequent during the year, it’s not uncommon for a Congressional session to last for almost all of a calendar year. In fact, under the law, a Session of Congress does not end until just before Noon on January 3rd of the calendar year following a Presidential or mid-term election. The “recess” between the 112th and 113th Congresses, for example, was a matter of mere minutes. If this holding stands, then it would effectively mean that a President really wouldn’t have a Recess Appointment power any more because there isn’t really much of a recess between one Congress and another.

Of course, the ultimate fate of this ruling remains unclear. The 11th Circuit Court of Appeals rejected a challenge to a Recess Appointment by President George W. Bush, arguing that the Constitution does not set a minimum amount of time for a “recess” that would trigger the appointment power. The D.C. Circuit addresses that ruling in its opinion and disputes it fairly well I must say, but it’s unclear how the Supreme Court is going to view a case like this. When it does come before them, and I suspect it will, it will a case of first impression dealing with a Constitutionally significant dispute between the two political branches of government. If the D.C. Circuit’s ruling is upheld, then it essentially means that everything that the NLRB did after January 4, 2012 was invalid. The same would apply to the actions taken by Richard Corday’s actions at the CRPB. The impact of such a decision is not something that even the Court’s most conservative Justices will take likely. It’s possible that the D.C. Circuit is correct about this, their opinion is certainly very persuasive, but this issue isn’t resolved by any means and I wouldn’t believe any legal analyst who said they knew for sure how it was going to turn out in the end.

Here’s the opinion:

Canning v. National Labor Relations Board et al by dmataconis

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:

    Worth remembering that the entire episode was triggered by the reflexive opposition of the Republican Douche Bags Party.

    Like or Dislike: Thumb up 11 Thumb down 5

  2. rudderpedals says:

    The DC circuit tailored fancy cloak out of moldy oldies to conceal what is a plain and simple form-over-substance result.

    Like or Dislike: Thumb up 7 Thumb down 3

  3. Argon says:

    @C. Clavin:
    That is correct. They deliberately eliminated recess to block appointments. It wasn’t passive position. … Not that such would necessarily carry weight in a Constitutional argument.

    Like or Dislike: Thumb up 6 Thumb down 3

  4. C. Clavin says:

    It’s also comical that a body that barely works at all….is never in recess.

    Like or Dislike: Thumb up 11 Thumb down 1

  5. mantis says:

    Okay, is there any legal way to get around the fact that one party is using the Senate to effectively nullify legislation through their refusal to allow recess appointments to see a vote? They don’t like bodies like the CFRB and the NLRB, the structure of which came from legislation passed by previous Congresses, but they can’t legislate them out of existence so they render them useless by blocking their ability to function. So effectively, they are using the filibuster to block legislation long since passed and made into law. Seems to me that’s an issue the court should consider as well.

    Like or Dislike: Thumb up 15 Thumb down 2

  6. Blue Galangal says:

    And how will the Supreme Court view the recess appointments of judges who are still serving?

    Like or Dislike: Thumb up 11 Thumb down 1

  7. scott says:

    The real issue is the excess of required Senate approvals for sub-cabinet positions. These are barriers to good governance. I also think that if this came out two days ago, the rule changes on the filibuster would be much greater.

    Like or Dislike: Thumb up 6 Thumb down 2

  8. Anderson says:

    John Elwood at the Volokh blog should be considered by anyone who finds this decision “persuasive.”

    The problem IMHO is combining a narrow reading of the Recess Appointments Clause — narrower than it’s been read since, what, the 1820s? — with a broad view of the Advice & Consent Clause, which allows the Senate to leave nominations twisting in the wind for years.

    Typical D.C. Circuit bullshit.

    Like or Dislike: Thumb up 11 Thumb down 3

  9. john personna says:

    Indeed, for most of the early years of the Republic, the gap between the end of one Session of Congress, typically in December, and the beginning of the other on March 4th was months at a time. Partly, this was due to the state of transportation at the time, of course, but there was also the fact that there simply wasn’t nearly as much to do in the 18th and 19th Century as there is today.

    Hey, the can doesn’t kick itself.

    Like or Dislike: Thumb up 3 Thumb down 0

  10. stonetools says:

    So far as I can tell, this would abolish recess appointments altogether . End game: Supreme Courts grants cert and overrules, Roberts writing for the court

    Like or Dislike: Thumb up 6 Thumb down 0

  11. Brummagem Joe says:

    And wouldn’t it render suspect all the judgements by those Bush recess appointed Judges

    Like or Dislike: Thumb up 7 Thumb down 2

  12. Brummagem Joe says:

    @Blue Galangal:

    It’s not just a question of the still sitting judges it’s the actions of all recess appointed judges……..defendants found guilty in these courts must be lining up with petitions.

    Like or Dislike: Thumb up 5 Thumb down 2

  13. BenR. says:

    I have never heard the argument..but..as I read the Constitution, the vacancy must have occurred
    while the Senate is in recess for the President to be able to make the appointment.

    Like or Dislike: Thumb up 1 Thumb down 0

  14. David M says:

    @BenR.:

    I don’t think that has been the case for a long, long time.

    Like or Dislike: Thumb up 1 Thumb down 1

  15. Brummagem Joe says:

    BTW Doug on a totally different subject …….how are those predictions of double dip recessions working out for you on the day the S & P broke 1500 for the first time since 2007…….I can’t quite remember whether you made five or six such predictions over the last four years……LOL

    Like or Dislike: Thumb up 8 Thumb down 2

  16. stonetools says:

    Emptywheel over at FDL thinks that the Supreme Court will affirm for the most part. If that’s so, then Scott is right-filibuster reform becomes essential.Any Democrats that thought that the Senate could limp along with a 60 vote super-majority requirement is going to realize that Republicans can in effect prevent federal agencies they don’t like from operating by not filling positions.
    I don’t see that the Senate Democrats can allow that to happen, so reluctantly, they will revisit the filibuster. One simple fix may be to just carve out an exception for executive appointments.I think most of us filibuster haters would accept that.

    Like or Dislike: Thumb up 2 Thumb down 0

  17. Just Me says:

    The real issue I think is the abuse of filibuster when it comes to appointments.

    I have always thought (both when democrats did it and republicans) that presidents should be able to appoint who they want as part of winning an election. I think simple majority should be all that is required. However I am not convinced either party is willing to give up the ability to filibuster appointments.

    Like or Dislike: Thumb up 4 Thumb down 0

  18. Dave Schuler says:

    In all likelihood this will be subject to Supreme Court review. We might want to wait for that before venturing opinions.

    Like or Dislike: Thumb up 1 Thumb down 0

  19. michael reynolds says:

    @Dave Schuler:

    In all likelihood this will be subject to Supreme Court review. We might want to wait for that before venturing opinions.

    Wait before opining? Have you met the internet?

    Highly-rated. Helpful or Unhelpful: Thumb up 16 Thumb down 1

  20. stonetools says:

    @michael reynolds:

    He wants to take all the fun out of this Internet forum thingy :-(.

    Like or Dislike: Thumb up 2 Thumb down 0

  21. Jenos Idanian #13 says:

    God dammit, don’t those judges know that Congress is recessed when the President says they are? It’s right in the Constitution. (New Revised, “Evolving Paradigm” Edition.)

    Bush was stupid. He waited until Congress said it was in recess, and when they didn’t (thanks to Harry Reid), he didn’t make the appointments anyway. He should have just done what Obama did and say that Congress is in recess when he says they’re in recess.

    Like or Dislike: Thumb up 2 Thumb down 12

  22. Tsar Nicholas says:

    Sentelle – Reagan
    Henderson – H.W. Bush
    Griffith – W. Bush

    Elections have consequences. At various levels.

    It’s nearly been 20 years since I had to care about justiciability issues, e.g., political questions, standing, separation of powers, etc., but I would have punted this. Judges determining agency appointments is a very slippery slope. There’s “mission creep” written all over this one. And I say that despite the obvious fact that Obama here was getting in touch with his inner monarchist tendencies and Obama’s NLRB and CFPB are unmitigated disasters.

    In any case, what’s sort of funny about all this, however, is that Harry Reid came up with this whole non-recess, recess procedure. Specifically to block W. Bush’s recess appointments. The Dems have been hoisted upon their own petards. I doubt they’ll even grasp the irony.

    Going forward, though, as alluded to above, if I were on the SCOTUS I’d reverse this ruling. Again, it’s too much of a slippery slope. The Prez should get to seat his agency, cabinet and judicial nominees and appointees. If not in the ordinary course and scope then via the recess procedure. The Senate either should piss or get off the pot. And when democracy gets too diffuse and fractured it becomes a lesser democracy. If I were Obama I’d have done the same thing.

    Like or Dislike: Thumb up 5 Thumb down 2

  23. Jeremy R says:

    @Tsar Nicholas:

    Sentelle – Reagan
    Henderson – H.W. Bush
    Griffith – W. Bush

    Elections have consequences.

    Not any more — at least when the electorate votes in a Dem Pres. Senate Republicans have blocked Obama’s D.C. Circuit noms.

    Like or Dislike: Thumb up 8 Thumb down 0

  24. edmondo says:

    So if the Senate refuses to confirm a head for the appropriate departments this year, does ObamaCare cease to exist?

    Like or Dislike: Thumb up 2 Thumb down 2

  25. Moosebreath says:

    @Jenos Idanian #13:

    “[Bush] waited until Congress said it was in recess, and when they didn’t (thanks to Harry Reid), he didn’t make the appointments anyway.”

    Does the name John Bolton ring a bell? Or any of the others appointed by W? Even your standards, Jay Tea, that was silly.

    Like or Dislike: Thumb up 9 Thumb down 1

  26. NickTamere says:

    @Moosebreath: Or Sam Fox, where Bush “bypassed” the Senate confirmation process by nominating him, but then realized he wasn’t going to be confirmed so they withdrew the nomination, then waited until recess and snuck him in using a recess appointment. Constitutional scholars and good government advocates were livid, as were the Democrats, but since no republicans were willing to buck the party they instituted a “no recess” rule to prevent anyone else from being snuck past the confirmation process. Once Obama was elected Republicans refused to even hold a vote on nominees (or offices) they don’t like nor go into recess at all. If republicans refuse to call their representatives up and call them out on the fact that they’re putting party before country this will not change.

    Like or Dislike: Thumb up 3 Thumb down 0

  27. Dazedandconfused says:

    Just another google-fu tea-leaf:

    The writer of this decision was the guy whose opinion was reversed in Boumediene v. Bush. I recall a feeling of relief when that happened. Seemed an indication the Supreme Court might be conservative, but they weren’t completely nuts.

    http://en.wikipedia.org/wiki/David_B._Sentelle

    Like or Dislike: Thumb up 0 Thumb down 0

  28. Jenos Idanian #13 says:

    @Moosebreath: You see, Moose, Congress was actually in recess when Bolton was appointed. Congress said so.

    @NickTamere: Same thing with Fox. Bush waited until Congress was officially recessed when he made that appointment. And it looks like Fox’s main “sin” was giving money to the Swift Boat Veterans for Truth, and did a pretty good job as ambassador.

    It was Harry Reid in 2007 that first used the tactic of not officially recessing long enough to allow recess appointments, after both Bolton’s and Fox’s appointments.

    So, you’re mad because Republicans are taking Harry Reid’s tactic and using it? Is that what put sand in your knickers? Whiny, worthless jackholes.

    Like or Dislike: Thumb up 1 Thumb down 7

  29. Jenos Idanian #13 says:

    Basically, Obama’s attitude towards recess appointments is like his attitude towards the War Powers Act: if the law says he can’t do what he wants to do, then he just declares that the law doesn’t apply and does what he wants anyway. Prior presidents have found ways to work within the law or evade the letter of it; Obama just announces that the law doesn’t mean what it’s been presumed to mean from the outset.

    After all, who are we to argue with the former president of the Harvard Law Review and Constitutional Law professor lecturer? I certainly don’t have his credentials…

    Like or Dislike: Thumb up 1 Thumb down 8

  30. An Interested Party says:

    I certainly don’t have his credentials…

    You really didn’t need to strike that statement as it is quite true…your credentials seem more similar to those of your heroine, the former governor of Alaska…well, similar before she won elected office that is…

    Like or Dislike: Thumb up 5 Thumb down 2

  31. Jenos Idanian #13 says:

    @An Interested Party: That striking was an error I corrected; I only meant to strike out “professor.” So your sole response is already obsolete.

    I’d ask if you had anything to say about the substance of my comments, but I already know the answer…

    Like or Dislike: Thumb up 0 Thumb down 5

  32. Unsympathetic says:

    Doug:

    Check the argument on p. 50. Chief Justice Roberts asks why the recess appointment doesn’t work:

    http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1457.pdf

    Like or Dislike: Thumb up 0 Thumb down 0

  33. An Interested Party says:

    That striking was an error I corrected…

    That was very gracious of you to correct your error and in so doing, admit the truth…keep up the good work…

    Like or Dislike: Thumb up 2 Thumb down 0

  34. Jenos Idanian #13 says:

    @An Interested Party: Then let me lose my graciousness, if it gives you an excuse to hide behind feigned sarchasm.

    Bush: bad for making recess appointments while the Senate was in recess.
    Obama: good for making recess appointments while the Senate was not actually recessed.

    Just own your hypocrisy, IP. Revel in it.

    Like or Dislike: Thumb up 0 Thumb down 6

  35. Tony W says:

    @Jenos Idanian #13:

    Or Sam Fox, where Bush “bypassed” the Senate confirmation process by nominating him, but then realized he wasn’t going to be confirmed so they withdrew the nomination, then waited until recess and snuck him in using a recess appointment.

    There, maybe that will help. I quoted just the part of @NickTamere’s post above that is relevant to your ‘argument’.

    Like or Dislike: Thumb up 4 Thumb down 0

  36. OzarkHillbilly says:

    Scott Lemieux.

    Like or Dislike: Thumb up 3 Thumb down 0

  37. Rafer Janders says:

    @Jenos Idanian #13:

    Then let me lose my graciousness, if it gives you an excuse to hide behind feigned sarchasm.

    Sarchasm: the gulf containing the area between what is actually said and what the speaker really means.

    Like or Dislike: Thumb up 2 Thumb down 1

  38. Rafer Janders says:

    @Jenos Idanian #13:

    Then let me lose my graciousness, if it gives you an excuse to hide behind feigned sarchasm.

    Oh no, from what I read, there was nothing feigned about the sarcasm, it was entirely deliberate. It was only the politeness that was feigned….

    Like or Dislike: Thumb up 2 Thumb down 0

  39. Jenos Idanian #13 says:

    @Tony W: You are making my argument for me.

    Reid blocked Fox. Bush found a legal way to do it anyway. Reid responded not by declaring the appointment unconstitutional and filing suit, but by devising a way to keep Bush from doing it again. Therefore, tacitly acknowledging that what Bush did was constitutional.

    The Republicans are using Reid’s own tactic. Obama — who actually participated in Reid’s obstruction by keeping the Senate officially in session — got around it by asserting that he, as president, can decide when the Senate is in session and when it is not.

    Which is explicitly forbidden by the Constitution — Article I, Section 5. See also Article I, Section 7, Paragraph 3.

    Like or Dislike: Thumb up 0 Thumb down 3

  40. Jenos Idanian #13 says:

    @Rafer Janders: Yes, AIP was feigning sarchasm — he/she/it was taking my sarcasm as literal as a way of not addressing the points.

    Much like you are doing now.

    The annual neologism contest the Washington Post holds is one of their few positive contributions of the last few decades…

    Like or Dislike: Thumb up 0 Thumb down 3

  41. raoul says:

    To clarify someone’s post – the Constitution says the vacancies MAY occur during recess not must.
    By and large, the decision has a rather constrained contextual reading defying a common sense reading of the text.

    Like or Dislike: Thumb up 0 Thumb down 0

  42. rudderpedals says:

    Sentelle is a judicial activist bull in the china shop. Who the hell appointed this nudnik?

    Like or Dislike: Thumb up 2 Thumb down 0

  43. Sejanus says:

    @Tsar Nicholas: “Judges determining agency appointments is a very slippery slope. There’s “mission creep” written all over this one. And I say that despite the obvious fact that Obama here was getting in touch with his inner monarchist tendencies [...] If I were Obama I’d have done the same thing.”

    Classic Obama Derangement Syndrome. On the one hand you admit that the President is acting in a perfectly rational manner, yet since we’re talking about evil Kenyan socialist Barry Hussein Soetoro, you have to attribute his actions to evil motives.

    Like or Dislike: Thumb up 1 Thumb down 0

  44. Rafer Janders says:

    @Jenos Idanian #13:

    Yes, AIP was feigning sarchasm — he/she/it was taking my sarcasm as literal as a way of not addressing the points.

    No, AIP was feigning sincerity. The sarcasm comes about as a result of the feigned sincerity. If you’re feigning sarcasm, then you’re actually being sincere.

    Here, by contrast, AIP was feigning sincerity in order to create a sarcastic effect.

    Like or Dislike: Thumb up 1 Thumb down 0

  45. al-Ameda says:

    Conservative courts are just lovely, aren’t they?

    Great, we can look forward to the the opposition party in the Senate blocking as many appointments as possible. Republicans are celebrating this today – they won’t be when sometime in the future, minority Senate Democrats block President Ryan’s proposed appointments.

    Like or Dislike: Thumb up 1 Thumb down 0

  46. Moosebreath says:

    @Jenos Idanian #13:

    “Congress was actually in recess when Bolton was appointed. Congress said so.”

    Except, under the “logic” of the decision the post is discussing, it was not. It was still in session, and would be until it adjourned at the end of its session until the new Congress began their terms.

    Like or Dislike: Thumb up 6 Thumb down 0

  47. Tony W says:

    @Jenos Idanian #13:

    Bush found a legal way to do it anyway

    – as did Obama. Then the Republican judges declared it illegal.

    The goalposts have moved.

    Again.

    Like or Dislike: Thumb up 3 Thumb down 0

  48. Jenos Idanian #13 says:

    @Tony W: Sorry, Tony, just saying Obama’s move was legal doesn’t make it so. He appointed Becker and Pearce to the NLRB on March 27, 2010 as “recess appointments.”

    Just when did the Senate recess before that date, and on what date did they reconvene?

    The court said that only Congress can decide when it’s recessed, and they didn’t recess around that date. No recess, no recess appointments.

    Like or Dislike: Thumb up 0 Thumb down 2

  49. Justinian says:

    Tsar Nicholas made a comment

    The Prez should get to seat his agency, cabinet and judicial nominees and appointees. If not in the ordinary course and scope then via the recess procedure.

    There is one word wrong in the statement: his. Barak Obama made the same mistake in referring to the U.S. Secretary of State as “my Secretary of State.” These agencies, cabinet positions, and magistracies are not the President’s: they belong to the public.

    A history lesson. When Lucius Iunius Brutus overthrew the monarchs of Rome (and simplifying Roman history to fit inside a blog entry), he had to create a new government, and one that was decidedly not a monarchy. When people asked him what was this thing he had created, he replied: “It is a public thing.”— res publica in Latin, or republic as we say in English.

    Anyone who has studied the spirit of the times in which the Constitution was framed knows that people took the meaning of the word republic very seriously. And they knew enough Roman history to be aware of this very basic point.

    These offices are public offices. They do not belong to the President. The plain meaning and intent of the Constitution is that the offices be filled “by and with the advice and consent of the Senate.” For many years now, presidents of both parties have tried to skirt around the Senate requirement with the provision concerning recess appointments, and the Senate has counter-skirmished with daily pro forma meetings so that it is never actually in recess.

    As to the fact that 40 senators can block cloture and prevent a motion from arriving on the floor, that is the Senate’s business. How it does, or does not, grant consent to Presidential nominations is determined by Senate rules, like them or not. In my own opinion, if 40% of a deliberative body objects to a certain person holding a particular executive office, you might try for someone else.

    The “advice and consent” clause is an imporant mechanism for preserving the republican form of the federal government. All attempts at end runs around it, in my opinion, are efforts to institute a monarchical or even dictatorial form in its place.

    Like or Dislike: Thumb up 0 Thumb down 5

  50. Jenos Idanian #13 says:

    @Justinian: You make some interesting points, but there’s a simpler explanation for Obama’s use of “my.” He chose the Secretary, he appointed her (and, soon, him), and that makes the Secretary “his” in that sense.

    Yeah, there’s an element of what you speak about, but it’s not the whole thing. I’d argue it’s not even a major part.

    Like or Dislike: Thumb up 0 Thumb down 3

  51. Dazedandconfused says:

    The Senate rules as they now stand assume, even depend, on a level of honor and honesty. When nominees are held up for months and then passed unanimously, its a fair indication there is something amiss. There is a lot more evidence of that, as you know. It can be argued that the starving parts of government of personnel in order to undermine them, parts that have been established and signed into law by previous, or even the current, legislative bodies, is neither honest nor honorable.

    The conclusion that our recent presidents are engaging in a plot to establish a monarchy because they have sought work-arounds to keep our government functioning seems a forced one to me. Even pre-determined.

    Like or Dislike: Thumb up 5 Thumb down 0

  52. Rafer Janders says:

    @Justinian:

    In my own opinion, if 40% of a deliberative body objects to a certain person holding a particular executive office, you might try for someone else.

    You mean, in other words, that if a minority objects to a certain policy or person, they should get their way instead of the majority — isn’t that completetly undemocratic?

    So if the 60% of the voters elect candidate A, but 40% of the voters elect candidate B — should that mean that candidate A loses????

    Like or Dislike: Thumb up 3 Thumb down 0

  53. Jenos Idanian #13 says:

    @Dazedandconfused: he Senate rules as they now stand assume, even depend, on a level of honor and honesty.

    Sorry, you don’t get to take the moral high ground in defense of the party that has done NOTHING about the malfeasances of Tim Geithner, Charlie Rangel, and especially Mel Martinez.

    Like or Dislike: Thumb up 0 Thumb down 4

  54. Justinian says:

    @Rafer Janders:

    In reply to Rafer Jander’s post, immediately above:

    My post would probably have been stronger had I not mentioned this tangent, but cloture rules do interact with the advice and consent clause.

    The federal government operates by coercion. People do not gleefully have their paychecks garnished, comply with labyrinthine tax laws, or be fined, often heavily, for running afoul of any of the hundreds of thousands of regulations created by the federal government.

    My own opinion is that a simple majority should not be able to coerce a free people of anything. That is why I never had any problem with the Senate’s cloture rule.

    As to the application to advice and consent, the same way of thinking still holds for me. A person I know who was inside a hospital’s administration told me: A state bureaucrat from the state capital will work with you to get a problem solved. With a federal bureaucrat, its adversarial from the get-go. These positions hold real power, often for making other people’s lives miserable.

    The Congress needs to find out how to have the federal government perform its functions in a way that 40% of the Senate—and very often 40% or more of the people—find objectionable.

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  55. Justinian says:

    @Rafer Janders:

    In reply to Rafer Jander’s post, immediately above:

    My post would probably have been stronger had I not mentioned this tangent, but cloture rules do interact with the advice and consent clause.

    The federal government operates by coercion. People do not gleefully have their paychecks garnished, comply with labyrinthine tax laws, or be fined, often heavily, for running afoul of any of the hundreds of thousands of regulations created by the federal government.

    My own opinion is that a simple majority should not be able to coerce a free people of anything. That is why I never had any problem with the Senate’s cloture rule.

    As to the application to advice and consent, the same way of thinking still holds for me. A person I know who was inside a hospital’s administration told me: A state bureaucrat from the state capital will work with you to get a problem solved. With a federal bureaucrat, its adversarial from the get-go. These positions hold real power, often for making other people’s lives miserable.

    The Congress needs to find out how to have the federal government perform its functions in a way that 40% of the Senate—and very often 40% or more of the people—do not find objectionable.

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  56. Justinian says:

    All:

    Sorry for the double post. I tried to do an edit (as I heard tell could be done), but instead got two different posts. Obviously the last sentence needed touching up.

    — Justinian

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  57. bk says:

    @Jenos Idanian #13:

    the substance of my comments

    Objection. Assumes facts not in evidence.

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  58. Jenos Idanian #13 says:

    @bk: Snark is fun, but when all you have is snark, it’s pathetic.

    In your defense, there really is no argument you can make. Obama’s assertion that he has the power to decide when Congress is or not in session is totally indefensible. So it’s no wonder that you won’t even try.

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  59. Rafer Janders says:

    @Justinian:

    My own opinion is that a simple majority should not be able to coerce a free people of anything. That is why I never had any problem with the Senate’s cloture rule….The Congress needs to find out how to have the federal government perform its functions in a way that 40% of the Senate—and very often 40% or more of the people—find objectionable.

    Sorry, but again that’s just a recipe for having the side with the least votes, the side that could not persuade others of the rightness of its cause, being able to impose its will on the majority.

    Let’s say that 60% of Senators want to cut people’s taxes or end a particular regulation — under your system, they couldn’t do it without the consent of the 40%, so in this case, the minority is able to “coerce a free people.” It’s completely undemocratic.

    (That’s not even getting into the fact that the Senate, by its structure, is already undemocratic, in that a small minority of voters from a few rural states has as many Senate votes as a much larger majority of diverse voters from large states).

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  60. Justinian says:

    @Rafer Janders:

    In reply to Rafer Janders, post of immediately above:

    Let’s say that 60% of Senators want to cut people’s taxes or end a particular regulation — under your system, they couldn’t do it without the consent of the 40%, so in this case, the minority is able to “coerce a free people.” It’s completely undemocratic.

    You do have a point. We are currently governed so much by laws already on the books that it now takes an act of Congress to get us any relief from them. Having to dodge hundreds of thousands of federal laws and regulations is now the “new normal.” It certainly wasn’t when the federal Republic was founded.

    The last time I checked, though, the federal government was still in a state of expansion. The No Child Left Behind Act seized local control of the public schools and placed it much in the hands of the federal bureaucracy, and no one, not even its most ardent supporters, ever advertised the recent legislation on health care to be a contraction of federal authority.

    I still believe that, as a general rule, for a law to have coercive authority over 100% of the country, it is not too much to ask that it have the support of at least 60% of the Senate.

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  61. grumpy realist says:

    @Justinian: Ah, another I-don’t-care-if-there-are-rat-turds-in-the-peanut-butter-provided-my-customers-don’t-know-about-them individual.

    I really wish that people like you could be dropped back into 1880 and be forced to deal with the consdequences of your so-called “freedom.” Or maybe into present-day China. Since it’s all for profit, I’m sure you don’t mind the fact that the cheap soy sauce you get is made from reclaimed human hair, right?

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  62. An Interested Party says:

    Sorry, you don’t get to take the moral high ground in defense of the party that has done NOTHING about the malfeasances of Tim Geithner, Charlie Rangel, and especially Mel Martinez.

    This, of course, isn’t the point…if Republicans in the Senate are going to gum up the works for no reason other than sticking it to the President, of course he is going to seek out ways to get around them…

    The Congress needs to find out how to have the federal government perform its functions in a way that 40% of the Senate—and very often 40% or more of the people—do not find objectionable.

    Oh but they have! That’s why we have deficits, because most people seem to want more spending and fewer taxes…

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  63. rudderpedals says:

    Spamfilter rescue request in aisle 13

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  64. Jenos Idanian Who Has No Pony Tail says:

    @grumpy realist: Those two were actually having a civil discussion before you decided to be an a-hole. Can’t you take a pill for that or something?

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  65. Jenos Idanian Who Has No Pony Tail says:

    @An Interested Party: You seem to think that if you keep saying how it’s the awful Republicans’ fault over and over, people won’t notice that 1) Obama broke the law to make those appointments, and 2) the Republicans are simply using a tactic developed by Harry Reid and actually used by then-Senator Obama.

    Some are more than happy to turn a blind eye, but not everyone.

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  66. Just Me says:

    Keeping in mind that the Labor board vacancies occurred in 2007 and the democratically controlled congress refused to seat any of Bush’s nominations.

    My guess is Obama is going to lose at the SCOTUS level on his self declaration that the senate was in session. If SCOTUS does take up the case the executive might win on the narrowing of just when a recess appointment is allowed and what constitutes a recess but the courts are not going to give the president the power to declare whether the senate is in recess.

    That just isn’t going to happen.

    Obama overreached and he lost and he will likely stay lost.

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  67. al-Ameda says:

    @Just Me:

    Keeping in mind that the Labor board vacancies occurred in 2007 and the democratically controlled congress refused to seat any of Bush’s nominations.

    So, it appears that by this decision by a reliably conservative court, that Bush acted unconstitutionally in making his “recess” appointments too.

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  68. Dazedandconfused says:

    @Just Me:

    I can easily imagine a court ruling that the sum total of a 30 second ceremony by a few people doesn’t constitute “In session”, and a ruling that it is not does not inevitably result in the condition of the President having absolute power to decide the issue on any basis. They can even formally declare it Bullshitus Extremus, and bitch slap it into the dust-bin of history.

    They don’t call it the Supreme Court for nothing.

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  69. Just Me says:

    that Bush acted unconstitutionally in making his “recess” appointments too.

    Actually Bush didn’t make recess appointments to the labor board. Reid had begun his not in session but in session antics at this point to prevent Bush from making recess appointments. Bush may not have been happy, but he didn’t declare the non recess was actually a recess.

    Instead the board operated with two members. Then the were sued and lost and the SCOTUS said they had to actually have a quorum of 3 members (problem was that the democrats weren’t appointment Bush’s appointees either so the board decided to continue to operate with 2 members).

    Basically on this issue both sides have been playing hard ball with the other side since the vacancies first came to be in 2007.

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  70. Jenos Idanian #13 says:

    Thanks, Just, for the well-needed history lesson. I’d only add that one of the Senators who helped perpetuate the initial “in-session-but-not-in-session” stunts was the then-junior Senator from Illinois, one Barack H. Obama.

    Here’s how it ought to unfold, to anyone who has the slightest ability to read and understand the Constitution.

    1) Congress has the exclusive power to set its own rules of operation (Co-Equal Branches principle).

    2) Congress, therefore, is the sole arbiter of when it is or is not in session.

    3) The president has no authority to adjourn Congress, nor to declare when it is or is not in session (Separation of Powers, Co-Equal Branches principles).

    4) No House of Congress can adjourn without the consent of the other House (Article I, Section 5).

    Therefore, the president has no authority to declare Congress in recess or adjournment simply so he can make “recess appointments.” Like Bush, Obama has to wait until they actually recess or adjourn to do so.

    And if the Republicans do what Reid and Obama did back in 2007, then Obama has to just suck it.

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  71. al-Ameda says:

    @Just Me:

    Actually Bush didn’t make recess appointments to the labor board.

    As you know, I did not say that Bush made any recess appointments to the Labor Board.

    Bush did make recess appointments.

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  72. Jenos Idanian #13 says:

    @al-Ameda: Bush did make recess appointments.

    Let’s clarify that:

    Bush did make recess appointments while the Senate was in recess. Obama made recess appointments when the Senate was not in recess.

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  73. Wr says:

    @Jenos Idanian #13: If the senate declares itself to be a herd of zebras, does that mean the president has to pretend they have hooves and stripes? Although its clear you have no comprehension of this, words do have objective meanings. Either congress is in session or it is not… No matter what they say.

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  74. Just Me says:

    If the senate declares itself to be a herd of zebras, does that mean the president has to pretend they have hooves and stripes?

    This is just misdirection.

    The senate most certainly is in a position to declare itself in recess or not. The president has absolutely no authority to decide they aren’t in recess. The president may not like their tricks and games as to whether it is a recess, but he does not have the constitutional right to change it so he can make recess appointments.

    Obama is going to lose on that merit, he may in the end win on the others at the SCOTUS, but he isn’t going to win unilaterally deciding the senate isn’t in session when the senate says that it is.

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  75. Jenos Idanian #13 says:

    @Wr: Zebras… African animals that are both black and white. Are you making some kind of racist comment about Obama? Good lord, you’re disgusting.

    I thought I was being clear, but I forgot your incredible, virtually impenetrable stupidity. “Setting the rules of operation” is an exclusive power of Congress. “Declaring themselves to be of a completely different genus and species” is something that is totally foreign to the Constitution.

    Although, come to think of it, your little Zebra fantasy is actually rather reminiscent of the Obama EPA fining oil refineries for not using a gasoline additive that doesn’t actually exist…

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  76. wr says:

    @Just Me: “The senate most certainly is in a position to declare itself in recess or not.”

    Sure they are. They can also declare themselves to be lighter than air. That doesn’t mean we all have to look up towards the ceiling to find them.

    Is the senate in session if one senator pops by and says “I’m in session, bye” and leaves?

    Hey, I declare that I’m the third senator California. Does that work?

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  77. wr says:

    @Jenos Idanian #13: Oh, are you still alive on earth? I thought you’d moved to that alternate dimension where you were once right about something.

    And hey, how are those unskewed polls doing for you? You enjoying President Romney’s first term with that Republican-led senate?

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  78. Jenos Idanian #13 says:

    @wr: Still trying that old tactic of coming into the argument and trying to bayonet the wounded, you pathetic imbecile? I see you’ve upgraded your weaponry to a plastic spork, but it’s still ineffectual.

    I said it once, I’ll say it again: Congress’ setting its own rules for how it operates is an enumerated and exclusive power. Now go find someone to explain what that means to you, ‘cuz there’s no way you have the necessary number of brain cells (7, I think) to grasp it yourself.

    But while you’re on your extended stay in Cloud Cuckoo Land, maybe you can pretend that Congress can declare you a semi-intelligent human being. That’s right up there with your racist “herd of zebras” and “lighter than air” flights of fancy.

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  79. Just Me says:

    Is the senate in session if one senator pops by and says “I’m in session, bye” and leaves?

    They can if the rules allow for it, and the senate sets its own rules. Not to mention the tactic is one Reid himself began when they wanted to block Bush from making Recess appointments.

    Now you can argue that the ability to call that a session is silly, and I might agree, but that doesn’t mean Obama has the authority to set new rules or declare the senate in recess if they say they aren’t.

    And what qualifies as being in or out of session is part of what the senate does-which is why the zebra and lighter than air comments are stupid.

    Obama is going to lose on his decision to decide the senate isn’t in session when they senate says it is-the WH just flat out isn’t given that power constitutionally.

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  80. wr says:

    @Just Me: “And what qualifies as being in or out of session is part of what the senate does-which is why the zebra and lighter than air comments are stupid.”

    The fact that a right-wing hack of a judge — one who claims that the entire federal regulatory system is unconstitutional, and is apparently willing to overthrow 150 of precedent to impose his beliefs on the country — claims this, and that you and the biggest moron on the internet agree simply does not make it true.

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  81. wr says:

    @Jenos Idanian #13: I’m sorry, are you still troubled that I don’t get into these conversations early enough? Many apologies, but some of us actually have jobs and deadlines. If I’ve got a book to rewrite in three days because a freelancer I hired didn’t deliver what I needed, I don’t have time to keep up with every one of your immortal posts. I guess you get plenty of breaks when you’re running the Slurpee machine, so that’s not a problem for you.

    But I don’t understand your self-pity about me bayoneting you while you’re wounded. It’s not my fault you can’t post a message without half a dozen people pointing out that you’re nothing but an insignificant troll. Don’t like it? Don’t troll.

    And how about those predictions? Any one of them come true? No? So why should anyone listen to you pontificate about how the Supreme Court will rule?

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  82. Jenos Idanian #13 says:

    @wr: The fact that a right-wing hack of a judge — one who claims that the entire federal regulatory system is unconstitutional, and is apparently willing to overthrow 150 of precedent to impose his beliefs on the country — claims this, and that you and the biggest moron on the internet agree simply does not make it true.

    “150 of precedent?” I presume you mean 150 years of precedent.

    So, just what was the precedent set back in 1862? Please, cite a few of these precedents that were “overthrown.” As has been repeatedly explained to you, Congress sets its own rules of operation, and “Obama is peeved that they won’t go along with him” is NOT grounds for overthrowing the 229 years of precedent that one has.

    Whoa… I just read what you said about having to “rewrite a book.” Considering the level of reading comprehension you show here, that’s a terrifying thought.

    I’m starting to wonder if you really are as stupid as you seem. Because you certainly show no ability to understand such concepts as Separation of Powers, Co-Equal Branches, Exclusive Powers, and Checks and Balances. I’m starting to think that you’re the one playing a role — the role of arrogantly stupid and ignorant and stubborn dolt to make your side look bad.

    Nah. You’re just that stupid.

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  83. wr says:

    @Jenos Idanian #13: Yes, Jenos, I’m stupid. That’s why I spent six months trumpeting Romney’s inevitable win and screaming about skewed polls.

    You’re wrong now, you were wrong then, and you’ll be wrong tomorrow.

    But you caught me on a typo. so I guess you’re really a supergenius.

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  84. Jenos Idanian #13 says:

    @wr: Geez, you’re stupid AND delusional. I don’t recall spending ANY time touting “Romney’s inevitable win,” let alone six months. I said Romney SHOULD win, based on their personal records, their personal integrity, and their philosophies, and I’m still of a mind that Romney would be better for the country and the world than Obama will. As Captain Tightpants said, “May have been the losing side. Still not convinced it was the wrong one.”

    And you still can’t make a coherent argument about how Obama had the right to declare the Senate in recess without their consent. Which is no big surprise; you’re not good at making coherent arguments about anything, really. You combine (totally unjustified) arrogance and general snottiness with delusions to come up with your blatherings. I’m reminded of something I read somewhere… lemme go Googling…

    Ah, yes… “Arguing with liberals is like playing chess with a pigeon. No matter how good I am at chess, the pigeon is just going to knock over all the pieces, crap on the board, and strut around the table looking victorious.”

    In your case, it’s so totally apropos.

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  85. Justinian says:

    @grumpy realist:

    In reply to grumpy realist, his post, and the three people who hit “like” for it:

    Ah, another I-don’t-care-if-there-are-rat-turds-in-the-peanut-butter-provided-my-customers-don’t-know-about-them individual.

    I should have known not to leave this blog unattended for several days. My reply is a bit late.

    My support of the 60% supermajority cloture rule in the Senate has elicited the remark block-quoted above. The cloture rule is as old as the Senate itself, and incidentally was 66% early in the Senate’s history. The sentiment in favor of the cloture rule has been sustained by hundreds of Senators throughout history, from 1791 to the present day.

    Really, I did not know that so many people don’t care if there are rat turds in the peanut butter provided their customers don’t know about them. The things a deductive chain of reasoning is able to uncover, though, for myself personally, I was unable to follow the argument.

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