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Supreme Court Restricts President’s Recess Appointment Power

constitution-preamble-gavel

In most cases, the Constitution requires that all appointments to Federal Agencies, Cabinet Departments, and of course the Judiciary be made by the President and approved by the Senate by a majority vote. For the most part, this is how the vast majority of Federal appointees have obtained their position since the beginning of the Republic. At the same time, though, the Constitution does provide another method for appointment that allows the President to make appointments when Congress is not in session, with the provision that the appointment would only last until the end of the then-current session of Congress unless the Senate confirms the appointee. For a long period of time, this provision made sense given the fact that Congress only met for brief periods of time and there were gaps that would last months or longer during which the Senate would not be in session, but that fact has become less and less common in the modern era. Thanks to air, auto, and rail transportation, Congress is rarely out of session more than a couple weeks or a month, and can easily be called back to Washington on short notice.

Notwithstanding the fact that the rational for the Recess Appointments power has long ago faded away, it has remained in the Constitution and has increasingly become a point of contention between the President and Congress, especially when the two branches are controlled by different parties. During the Bush Administration, for example, President Bush used the Recess Appointment power to name John Bolton as United Nations Ambassador when Democrats used legislative procedures to block his appointment. While Republicans threatened at the time to change filibuster rules to allow nominations to go forward, that never happened. When Barack Obama became President, though, Republicans remembered what their predecessors had done and used the filibuster and other means to block Presidential appointments. After about two years of this, President Obama responded by making appointments to the Consumer Fraud Protection Bureau and National Labor Relations Board that Republicans had been blocking, and that’s when the legal battle began.

Making the claim that there were serious Constitutional problems with these appointments, challenges were filed to new rules drafted by the NLRB which asserted that the rules were invalid because the appointments were unconstitutional. While I was initially skeptical of the arguments that these cases were making, in January of last year, the Court of Appeals for the D.C. Circuit handed down a ruling finding the appointments to be unconstitutional and the argument made by the Court was quite persuasive. Later in 2013, the Supreme Court accepted the case for appeal. Hearings were held in the matter in January, and today the Court handed down a unanimous ruling that, effectively, severely restricts the President’s ability to make Recess Appointments when Congress, or even just the House of Representatives, is controlled by the other party:

WASHINGTON — The Supreme Court on Thursday said President Obama had violated the Constitution when he bypassed the Senate to appoint officials to the National Labor Relations Board during a brief break in the Senate’s work.

But the larger message of the court’s majority opinion, written by Justice Stephen G. Breyer and joined by its four more liberal members, was that there is a role for recess appointments so long as they are made during a recess of 10 or more days.

Justice Antonin Scalia agreed with the result in the case but issued a caustic concurrence from the bench. “The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” he said.

The decision affirmed a broad ruling last year from a federal appeals court in Washington that had called into question the constitutionality of many recess appointments by presidents of both parties.

The immediate practical significance of Thursday’s decision was undercut by the Senate’s recent overhaul of its filibuster rules and by the Senate’s confirmation of a different slate of nominees to the labor board. Republican filibusters had frustrated the Obama administration and prompted its recess appointments.

But the constitutional ruling, involving the balance of power between the president and the Senate, was nonetheless momentous.

The Constitution’s recess-appointments clause says, “The president shall have power to fill up all vacancies that may happen during the recess of the Senate.”

Analyzing that language, a three-judge panel of the appeals court last year said that presidents may bypass the Senate only during the recesses between formal sessions of Congress. Two of the judges went further, saying that presidents may fill only vacancies that arose during that same recess.

The case arose from a labor dispute involving a soft-drink bottling company, Noel Canning. The labor board ruled against the company, saying it had engaged in an unfair labor practice by refusing to enter into a collective bargaining agreement.

The company appealed, arguing that the labor board had been powerless to rule because a majority of its members had been appointed during a 20-day stretch when the Senate was convening every three days in pro forma sessions without conducting any business. Since the members of the board were not properly appointed, the company argued, its ruling was void.

In asking the Supreme Court to review the appeals court’s ruling in the case, National Labor Relations Board v. Noel Canning, No. 12-1281, the Obama administration sought an answer to only the broader questions decided by the appeals court. But the Supreme Court, acting on the suggestion of the company that had won before the appeals court, agreed to answer a narrower question, too: whether the president may make recess appointments when the Senate is convening every three days in pro forma sessions.

Lyle Denniston summarized the opinion:

Whatever those who wrote the original Constitution might actually have intended by what they wrote in that clause, the Court majority said the real clues to its meaning are found in some two centuries of “compromises and working arrangements” between the branches of government at opposite ends of Pennsylvania Avenue in Washington.

The split within the Court was as vivid an example as can be given of constitutional pragmatism winning out over constitutional formalism, and a very clear illustration of how the Constitution gets some of its most basic meaning from experience rather than from logic or hard-and-fast legal rules.

It thus was absolutely no surprise that the majority opinion would have been written by Justice Stephen G. Breyer, who has established himself as the most pragmatic of the Justices, and that the dissent would have been written by Justice Antonin Scalia, long recognized as the devotee of a Constitution of rules rooted in Founding era understandings.

Both recited passionately from their opinions, for nearly a half-hour Thursday morning, as the Court announced its much-awaited ruling on National Labor Relations Board v. Noel Canning — a run-of-the-mill workplace dispute that had mushroomed into a deep and fundamental inquiry into how best to interpret the Constitution.

Here is how the Court interpreted that clause governing presidential appointments during Senate recesses — contrasted, on each point, with what the Court rejected:

First, the president may make a temporary appointment when the Senate is in recess between its annual sessions when it takes a formal break or during interruptions of one of its annual sessions, provided that the Senate actually has made itself unavailable for at least ten days. The Court turned aside the idea that this power would exist only when the Senate was formally out of town between annual sessions.

Second, the president may make a temporary appointment when the Senate is in recess, even if the vacancy arose before the Senate became unavailable and remained unfilled when it took a recess. The majority refused to embrace the notion that the power applied only to a government post that became vacant during a recess, and had to be filled during that recess.

Both of those parts of the decision went in favor of presidential authority to fill vacant posts.

Third, in the only part of the ruling decidedly against presidential prerogative, the Court barred the president from filling a vacancy when the Senate is holding what it, by its own action, treats as a working session even if it does no real work and shuts down fully every three days. That is too short to be treated as a recess.

On this point, the Court refused to second-guess the Senate’s view that, in that situation, it is available, so no recess appointments can be made no matter how “empty” the Senate chamber may actually be during such pro forma meetings. The Court did say that the Senate must have the option, during such a brief gathering, of actually doing some legislative business, whether or not it actually does.

Over and over again, the Breyer majority opinion stressed that history was the Court’s guide, and it found what it treated as overwhelmingly compelling evidence that the working understanding between Congress and presidents has been that the recess appointment power would be exercised as the Court found authorized by the Constitution.

That opinion was joined in full by Justices Ruth Bader Ginsburg, Elena Kagan, Anthony M. Kennedy, and Sonia Sotomayor.

The Scalia dissenting opinion roundly criticized the majority for providing constitutional cover for a massive seizure of presidential power, existing only because Congress had not done enough to resist it. The ruling, the dissenters said, would do long-term damage to the idea that the Constitution does not allow one branch of the federal government to trammel another branch’s basic powers.

The Volokh Conspiracy’s Will Baude offers his own observations:

2. The majority reached all three of the questions presented, even though it only needed to resolve the “pro forma” question in order to resolve the case. That seems to have surprised some observers. And while I can’t say I like what the majority had to say about all three of those questions, I think resolving all three was the right thing to do. As I discussed here, the circuit split over the other issues would have persisted without the Court’s ruling, and resolution of that split is important.

3. The majority appears to leave open “the separate question of whether
new offices are vacancies within the meaning of the Clause.” In other words, when Congress first creates an office that requires Senate confirmation, can the first person ever to hold that office be a recess appointee? In a well-researched student note in the NYU Law Review, Amelia Frenkel argues not: the word “vacancy” presupposes a previous occupation. I believe that issue would have been raised in the case of Richard Cordray, had the challenge been made during his recess appointment. It may still be made in the future.

(…)

5. Justice Scalia quotes, at length (pp. 40-41), the 1863 Senate reportrebuking the executive’s interpretation of the recess appointments clause. He says “[the majority] relegates the 1863 Judiciary Committee report to a pair of anodyne sentences in which it says only that the committee ‘dis­agreed with’ Wirt’s interpretation. (With like understatement, one could say that Shakespeare’s Mark Antony ‘disagreed with’ Caesar’s detractors.)” I’m glad to see the document get more attention. As I noted here, it may be one of the most neglected important documents about historical interpretations of the Recess Appointments Clause.

The impact that this decision will have on appointments depends to a large degree on the political circumstances at given point in time in the future. Under the current situation where the Senate is in the control of the President’s party, there will be little actual impact thanks largely to the filibuster rule changes that Harry Reid pushed through last year. Under those rules, a cloture vote for all nominations except Supreme Court appointments requires only 51 votes rather than 60 that had been required before, and which is still required for legislation and Supreme Court appointments. Using this rule, the Senate has moved forward at a rapid pace to approve a host of nominations at the Cabinet, Sub-Cabinet, and Judicial level that had been held up for most of 2013 if not longer. While there are still some legislative methods that Republicans could use to if not block at least delay appointments, the filibuster change makes getting most appointments approved much easier for the President.  The situation becomes different, though, if the Senate falls into the hands of a party other than the one of the President. If that happens, then the Senate and can use the pro-forma session method to prevent the President from being able to make recess appointments almost entirely. Similarly, if the filibuster change that Reid implemented is ever reversed, then the minority party would be able to use the filibuster to block appointments just as Republicans were doing up until November of last year.

This is a long opinion — over 100 pages including the concurrence and appendix — and there will be much written about it in the days, weeks, and months to come. There will likely also be additional litigation over some of the unanswered questions in this issue, especially if we continue on our current course of increased antipathy between the Executive and Legislative Branches. On the whole, though, it seems as though the Court got the result right. As I noted above, the Recess Appointment Power was created to deal with a very real problem in the late 18th Century that continued well into the 19th Century, the fact that Congress was often out of session for long periods of time and that the need would inevitably arise for the President to make an appointment during that period. With modern transportation and the fact that Congress is in session far more frequently than it used to, though, the need for those types of legitimate emergency appointments has decreased significantly. Instead, the power has turned into a weapon that the Executive has used to make end runs around the Senate when it was being stubborn about confirming a nominee. More importantly, the idea that the appointments the President made here were made with the Senate was “out of session” was utterly absurd and would have essentially meant that a President could make a recess appointment any time Senators weren’t actually on the floor even if they had just recessed for a day or a few hours. Obviously, that isn’t what the Recess Appointment Power was created for, and the Court was right to place restrictions on the President’s ability to do that.

Here’s the opinion:

NLRB v. Canning by Doug Mataconis

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. KM says:

    @Doug:

    For a long period of time, this provision made sense given the fact that Congress only met for brief periods of time and there were gaps that would last months or longer during which the Senate would not be in session, but that fact has become less and less common in the modern era. Thanks to air, auto, and rail transportation, Congress is rarely out of session more than a couple weeks or a month, and can easily be called back to Washington on short notice.

    Or could telecommute. Video conferencing, just sayin’…..

    Why do we even bother keeping Recess at all? In this century, with this technology, there’s no real reason for long periods of no active work. There should never be a need for the President to have to circumvent Congress to appoint like this since Congress can and should be able to appoint in a reasonable swift fashion. By all means, take your vacations and holidays but there shouldn’t be significant period when nobody’s doing their job.

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  2. Matt Bernius says:

    If that happens, then the Senate and can use the pro-forma session method to prevent the President from being able to make recess appointments almost entirely. Similarly, if the filibuster change that Reid implemented is ever reversed, then the minority party would be able to use the filibuster to block appointments just as Republicans were doing up until November of last year.

    Correct me if I’m wrong, but declaring recess is *not* up to the Senate. If I remember correctly, both the Senate and the House have to agree to declare a true recess. So as long as the minority party controls either institution, its very difficult to designate a true recess.

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  3. CSK says:

    Really OT, but Howard Baker has died.

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  4. Scott says:

    Bottomline: The executive branch needs to be able to execute. The hold up of appointments to thwart legitimate business of Government (which was voted and funded for) is also subversive. The trouble really began when so many executive positions are appointed. One solution is to greatly reduce the number of appointments.

    I can also see the executive branch just working around the whole mess by not filling the appointment at all and putting someone “unofficially” in charge with all the authority of an appointed official. This is not good business practice either but you still have to execute legitimate business.

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  5. @Matt Bernius:

    Yea, the House basically controls the Senate’s calender. Although that’s really only an issue in situations where the two chambers are controlled by opposing parties as is the case now.

    Like or Dislike: Thumb up 3 Thumb down 0

  6. Matt Bernius says:

    @Doug Mataconis:
    Correct, but it essentially also demonstrates that there is only one real scenario (in our present political climate) where recess appointments will possibly happen: when a single party controls both the Presidency and *both* houses of Congress. Provided that the minority controls either branch, they are effectively able to prevent Congress from ever going into recess.

    And to your point, if the party controls both the Presidency and the Senate, under the new rules, they have little need to actually go into recess to get appointments through.

    Like or Dislike: Thumb up 2 Thumb down 1

  7. al-Ameda says:

    Justice Antonin Scalia agreed with the result in the case but issued a caustic concurrence from the bench. “The majority practically bends over backwards to ensure that recess appointments will remain a powerful weapon in the president’s arsenal,” he said.

    Not any more, not with this malevolent Republican Congress.

    Like or Dislike: Thumb up 6 Thumb down 6

  8. anjin-san says:

    @ CSK

    Howard Baker may well have died of a broken heart form observing today’s GOP. Always liked Baker. A smart, solid guy & a straight shooter.

    Like or Dislike: Thumb up 3 Thumb down 5

  9. C. Clavin says:

    As Doug notes…it’s essentially a moot point because of the filibuster reforms that Reid made.
    Remember that this entire kerfuffle was caused by Republicans filibustering every nominee…in effect refusing to do their job. Thus the recess appointments.
    Now nominees are being processed at a steady rate and the recess appointment to get around a dysfunctional Republican Party is no longer required.
    Is the fact that the appointments were ruled unconstitutional grounds for impeachment? Only the insane have an answer for that.

    Like or Dislike: Thumb up 3 Thumb down 3

  10. C. Clavin says:

    @C. Clavin:
    Of course if the Republicans get the Senate Majority in November then they will be able to effectively shut-down every and all Obama nominees. Given their complete disinterest in doing the nations business, I’m sure they will.

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  11. Robert Levine says:

    This is a good example of how much context matters. Obama’s recess appointments were a response to the fact that Republican filibuster of nominees to the NLRB and CFPB were designed to effectively nullify the laws those bodies administer. If one believes in the rule of law, it’s hard to justify a minority of the Senate – or even a majority – making it impossible for certain laws to be administered. And, if the shoe were on the other foot, I doubt conservatives would be so happy.

    Like or Dislike: Thumb up 3 Thumb down 1

  12. Pinky says:

    In the words of Drew Carey, “if democracy doesn’t give me what I want, what good is it?”

    The idea that the rule of law should be flouted because it was really tough on the president is insulting. The DC Circuit Court found that the NLRB appointments were unconstitutional, 3-0. They only disagreed on the extent to which they should set limits. The Supreme Court ruled that the appointments were unconstitutional, 9-0. They disagreed only on what the rules should be for recess appointments. Of the 12 judges who heard this case, not one of them even alluded to the possibility of these appointments being constitutional. Our President is a Constitutional lawyer. He showed contempt for the document and his oath to it.

    I don’t believe that this rises to the level of an impeachable offense. I still find it reprehensible.

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  13. Robert Levine says:

    @Pinky: “The idea that the rule of law should be flouted because it was really tough on the president is insulting.”

    The point is not that “it was really tough on the President.” The point is that the notion of nullifying a law by refusing to allow the President to appoint those bodies designated by the law to administer it is really tough on the rule of law.

    The appointments were a stretch legally. Should the President never do anything that a court might rule unconstitutional? My guess is you’d find some of your favorite presidents did just that. Presidents are more likely to do so when they believe that another branch of the government is itself behaving in a way not envisioned by the Constitution. Does the inability of the NLRB to function not fall within the president’s responsibility to make sure the laws are executive faithfully?

    I find the whole episode just one more example of how governance in this country is going off the rails. There is a kind of cold civil war going on, and it should worry everyone who cares about this country. Partisanship above principle usually ends badly.

    Like or Dislike: Thumb up 6 Thumb down 0

  14. bill says:

    @C. Clavin: maybe obama will actually negotiate something instead? could happen, should have by now.

    Like or Dislike: Thumb up 2 Thumb down 0

  15. An Interested Party says:

    The idea that the rule of law should be flouted because it was really tough on the president is insulting.

    And the practice of the Republicans in Congress of denying a straight vote on the President’s nominees is also insulting…

    maybe obama will actually negotiate something instead?

    Oh please…ACA itself was negotiated…that’s why there was no public option in the final bill…this notion that the President supposedly doesn’t negotiate is bull$hit…indeed, part of his problem is that he has tried to negotiate with Republicans and they have done nothing but set up roadblocks against him…rather than even trying to be bipartisan, he should have played the game as they have…

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  16. KansasMom says:

    I was on SCOTUSBLOG when the decision was handed down and they quoted Scalia saying that recess appointments were an anachronism and the text of the constitution was clear. Just curious, but couldn’t the same argument be made regarding the 2nd amendment?

    Like or Dislike: Thumb up 3 Thumb down 3

  17. Robert Levine says:

    Also interesting to note (as a commenter on another blog did) that, in the case when SCOTUS ruled that the NLRB needed to have three members, one of the questions CJ Roberts asked was why the Obama administration hadn’t used recess appointments to get around Republicans filibustering nominations.

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  18. Yolo Contendere says:

    The constitution also says nothing about all the stupid Senate rules, it just says “advice & consent”. So fine. If we no longer need recess appointments because we don’t have to wait for the horses to bring congress back into town and into session, we shouldn’t have to wait for the horse’s asses to get their shit together and take a vote. The President ought to be able to stroll down to the Senate, walk in, and ask “I’d like to appoint this person to this post, what do y’all think?”, and walk out the door after counting the ayes. Or maybe do it via Skype. Modern originalism, baby.

    Like or Dislike: Thumb up 2 Thumb down 1

  19. Pinky says:

    @Robert Levine:

    Should the President never do anything that a court might rule unconstitutional? My guess is you’d find some of your favorite presidents did just that.

    Agreed. My inclination is to give presidents some wiggle room. That’s why I’ve said I don’t find this an impeachable offense. But it’s not a case of the system going off the rails; it’s a case of this particular president acting unconstitutionally, fully aware of the fact.

    Like or Dislike: Thumb up 0 Thumb down 0

  20. Pinky says:

    @An Interested Party:

    And the practice of the Republicans in Congress of denying a straight vote on the President’s nominees is also insulting…

    Tu quoque? Both sides do it? No. There’s a difference in kind between the Senate doing what it legally can against the President, and the President violating the Constitution against the Senate.

    Like or Dislike: Thumb up 2 Thumb down 0

  21. C. Clavin says:

    http://www.newyorker.com/online/blogs/newsdesk/2014/06/supreme-court-recess-appointments-power-noel-canning.html

    …it is worth looking at the Federalist No. 76, in which Alexander Hamilton discusses the Presidential appointments power. Hamilton did not have an especially high estimation of the legislative branch. But even he assumed, on the part of Congress, a degree of good faith and rationality—of “virtue and honor”—that is, today, hard to find on Capitol Hill. Hamilton thought it “not very probable” that the Senate would block a Presidential nominee unless there were “special and strong reasons for the refusal.” That improbable event is now routine.
    What the founding generation did not (and probably could not) imagine was obstruction as the first and sometimes the only order of business; what they did not foresee was a Senate faction that does not believe, as they believed, that “the true test of a good government is its aptitude and tendency to produce a good administration.” The prevailing idea on the right today is that no government is a good government, and that members of Congress discharge their patriotic duty not by producing, but by precluding, a good administration…

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  22. Jenos Idanian #13 says:

    The issue was actually remarkably simple. Who decides when Congress is in recess or not — Congress or the president? Separation of powers says it would be insane to delegate that power to the president.

    The historical context of this is pretty simple. Bush 43 was having trouble with some of his preferred appointments, so he started using the recess appointments to get around the Senate. To counter that move, the Democrats running the Senate started holding these pro forma sessions to keep Bush from doing that any more — and Bush respected it. Obama, on the other hand, simply decided that Congressional rules or no, he could decide when Congress was in session or in recess.

    Fun historical trivia: Senator Barack Obama not only supported the pro forma sessions, he was an active participant in the ploy to keep Bush from making recess appointments.

    Like or Dislike: Thumb up 1 Thumb down 2

  23. Jenos Idanian #13 says:

    @KansasMom: I was on SCOTUSBLOG when the decision was handed down and they quoted Scalia saying that recess appointments were an anachronism and the text of the constitution was clear. Just curious, but couldn’t the same argument be made regarding the 2nd amendment?

    Feel free to make the argument. But note that Scalia voted that the recess appointments clause might be anachnonistic, but still valid. Similar arguments are made about the 3rd Amendment — the one about Quartering. If you want to change them, there are several ways to change them.

    Here’s a hint: unlike with gay marriage, “find a judge to rule in your favor” is NOT one of those options. The approved methods actually require public support, either directly or through elected representatives.

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  24. al-Ameda says:

    @Jenos Idanian #13:

    Here’s a hint: unlike with gay marriage, “find a judge to rule in your favor” is NOT one of those options. The approved methods actually require public support, either directly or through elected representatives.

    Exactly right.
    When you want to deny a specific class or group of people equal protection under the law it’s always advisable to go to the people. It’s very wrong when the judicial branch (aka, a not approved option) invalidates voter-approved discrimination.

    Like or Dislike: Thumb up 3 Thumb down 1

  25. Pinky says:

    @C. Clavin: And?

    Like or Dislike: Thumb up 0 Thumb down 0

  26. Jenos Idanian #13 says:

    @al-Ameda: The courts gave us Dred Scott and Plessy v. Ferguson.

    Congress gave us the Civil Rights Act. (Lyndon Johnson did it with the Republicans, because the Democrats were the fiercest opponents, by the way.)

    But on the subject at hand… if you wanna change the rules, go ahead and amend the Constitution. The procedures are spelled right out – see Article V.

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  27. Grewgills says:

    @Jenos Idanian #13:

    Congress gave us the Civil Rights Act. (Lyndon Johnson did it with the Republicans, because the Democrats were the fiercest opponents, by the way.)

    and what party are those fiercely opposed Democrats in now?

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  28. Jenos Idanian #13 says:

    @Grewgills: and what party are those fiercely opposed Democrats in now?

    Considering that most, if not all, of them are dead, I’d say they’re still Democrats, voting in Chicago and other Democratic strongholds.

    (Showing my math: the Civil Rights Act was passed in 1964 and the Voting Rights Act was passed in 1965, and you have to be 25 to be in Congress, that means that the youngest person to vote for either would have been born no later than 1939, which would make them at least 74 now — and most likely a lot older. So yeah, statistically speaking, I’d say most of them are dead.)

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  29. Jenos Idanian #13 says:

    @Grewgills: OK, now you’ve got me a little obsessed here. To vote in 1964, they’d have to be elected in 1962, which would push the birth date to 1937.

    But they could have been appointed after the election, which would bring the date back to 1939, so I’ll stick to that.

    And now I’m looking to see if any current Members of Congress were in office back then, and… holy crap, John Dingell was there, and he was part of the 30% of Democrats who voted aye. Doesn’t look like any others are still around, though.

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  30. al-Ameda says:

    @bill:

    @C. Clavin: maybe obama will actually negotiate something instead? could happen, should have by now.

    How do you negotiate with a political party that wants no part of compromise?

    Republicans: Repeal ACA or we’ll shutdown government
    Obama; No.
    Republicans: Repeal ACA or force a default on American debt securities.
    Obama: No.
    Republicans: Okay then, we’re going to conduct repeated votes in an attempt to repeal ACA.
    Obama: Alright, go ahead, I can’t stop you.
    Republicans: We’re suing you for making that decision without consulting us.

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  31. Grewgills says:

    @Jenos Idanian #13:
    Nice attempted diversion, Bravo! Now, let’s pretend for a moment that you actually want to talk about this rather than try to deflect criticism from your original point.

    The original House version:

    Southern Democrats: 7–87 (7–93%)
    Southern Republicans: 0–10 (0–100%)
    Northern Democrats: 145–9 (94–6%)
    Northern Republicans: 138–24 (85–15%)
    The Senate version:

    Southern Democrats: 1–20 (5–95%) (only Ralph Yarborough of Texas voted in favor)
    Southern Republicans: 0–1 (0–100%) (John Tower of Texas)
    Northern Democrats: 45–1 (98–2%) (only Robert Byrd of West Virginia voted against)
    Northern Republicans: 27–5 (84–16%)

    You will note that the split is not so much along party lines as along regional lines. The North overwhelmingly voted for and the South overwhelmingly voted against. After that vote, party affiliation began a rapid shift in the South, at least for national elections. In what party did those Southern Democrats that did not reject their bigoted votes on the CRA end up? Where did the majority of the voters that supported that bigoted vote on the CRA end up? In what party will you find most of the people that still think that the CRA should not have been passed? I’ll give you a hint: it doesn’t support your original inference.

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  32. Grewgills says:

    @Jenos Idanian #13:

    John Dingell was there, and he was part of the 30% of Democrats who voted aye.

    That is incorrect. You might want to find better sources for your assertions.

    In the House:
    Southern Democrats: 7–87 (7–93%)
    Northern Democrats: 145–9 (94–6%)
    Total 152- 96 (61.3% in favor)

    In the Senate
    Southern Democrats: 1–20
    Northern Democrats: 45–1
    Total 46-21 (68.7% in favor)

    The Senate version, voted on by the House:[19]
    Democratic Party: 153–91 (63–37%)
    Republican Party: 136–35 (80–20%)

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  33. Grewgills says:

    @Grewgills: @Grewgills:
    Source and source

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  34. Grewgills says:

    @Grewgills: @Grewgills:
    and source

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  35. Jenos Idanian #13 says:

    @Grewgills: I didn’t keep track of my original source for the 30% figure, and can’t find it again, but I think I know where it came from: the final vote on the final version of the bill. And I did make an error.

    More Democrats voted against the bill than for it, and I got the percentages reversed. In the Senate, the percentage was 31.34% supporting the Bill; in the House, it was 37.3%. So Dingell was part of that 37.3%. And depending on how you calculate it, the Democrats supporting it were either 36% (raw numbers) 34.3% (weighted).

    Again, a totally irrelevant diversion (if briefly entertaining).

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  36. Pinky says:

    @Grewgills:

    . In what party did those Southern Democrats that did not reject their bigoted votes on the CRA end up?

    A few switched parties. Most didn’t. The shift from Democat to Republican had been taking place in the South since the 1920′s, with the new Republicans emerging in the middle class. The Old South stayed Democratic, and most of the old southern Democratic leadership eventually lost their seats. There were maybe three who switched parties.

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  37. Jenos Idanian #13 says:

    @Pinky: Don’t harsh the narrative there, Pinky. After the Civil Rights Act, nearly all the segregationist Democrats fled to the Republican Party (which had overwhelmingly supported the Act), and nearly all the anti-segregationists (integrationists?) switched to the Democratic Party (who had fought the bill tooth and nail).

    But all this is a diversion — an interesting one, but still a diversion — from the actual topic at hand: it took a unanimous ruling from the Supreme Court to get Obama to accept that Congress, not he, gets to decide when Congress is or is not in session.

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  38. Pinky says:

    @Jenos Idanian #13: Yeah, I know the narrative. White hippies passing out drugs, burning draft cards, and lighting fires on college campuses, and the Southerners felt alienated from them due to…racism.

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  39. Grewgills says:

    @Jenos Idanian #13:

    More Democrats voted against the bill than for it, and I got the percentages reversed. In the Senate, the percentage was 31.34% supporting the Bill; in the House, it was 37.3%. So Dingell was part of that 37.3%.

    Again, no. I sourced my numbers. More Democrats voted for all versions of the bill than against it. More Republicans also voted for the bill than against it. The split was regional moreso than by party affiliation. Republicans had a greater percentage support for the CRA because the Democrats had more Southern members than did the Republicans. Your numbers are indeed reversed, but not in the way you thought. 37% of Democrats voted against the final bill.

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  40. Grewgills says:

    @Pinky:
    The transition had begun earlier, in the 30s and continued until the 80s, by which time it was nearly complete. The Democrats were the party of the South, now the Republicans are the party of the South. The supporters of the CRA had almost all moved to the Democratic party by the 80s and those against the CRA had almost all moved to the Republican party by that same time*. There is a reason African Americans moved from being Republicans to being Democrats and contrary to the Republican narrative it isn’t entitlements.

    * This is in reference to national elections. On a local level, old labels lasted longer.

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  41. Grewgills says:

    @Jenos Idanian #13:
    Sarcasm doesn’t further your point when you are dead wrong. Again, regardless of the evidence presented to you I expect that you will not ”cheerfully admit you are wrong and apologize.”

    Democrats fled to the Republican Party (which had overwhelmingly supported the Act)…
    the Democratic Party (who had fought the bill tooth and nail).

    Both Northern Democrats and Northern Republicans overwhelmingly supported the bill (Democrats by a slightly larger margin). Both Southern Democrats and Southern Republicans fought the bill tooth and nail (the Southern Republicans were against by a larger margin). Check my cites above for the votes. At the time of the vote the Democrats were stronger in the South (ex-Confederacy). That is what accounted for the difference in support for the CRA between Democrats and Republicans, despite the narrative desired by Republicans. The Republicans are now the party of the South and so most of the anti civil rights legislation people are in the Republican party. Sorry to harsh your narrative dude.

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  42. Grewgills says:

    @Pinky:
    Do you really believe that dog whistle racism was not part of the Republican party’s ”Southern strategy”? I am not claiming that the politics of race was the only reason that Southern states shifted overwhelmingly to the Republican party, but you have to put on some pretty big blinders to think that it wasn’t part of the strategy.

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  43. Grewgills says:

    Would an admin please fish my first comment out of moderation.

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  44. Pinky says:

    @Grewgills: Let’s put it this way. A lot of things burned in the 1960′s – bras, draft cards, flags, college campuses, crosses, parts of Illinois, California, and Vietnam…you can’t write a fair history of the era, or the portion of the South that grew more Republican in that era, without talking about all of them. Race was a component of what was happening, but it was only a component. If I were a Democrat, I would really want to deemphasize the fact that my side ignited all those things. I’d also want to frame the narrative such that the South were the ones who fell away from the side of goodness. Nixon and Reagan carried Southern states and also Vermont and Idaho because the American people didn’t trust the Democrats in foreign or domestic policy. As you yourself point out, the shift in Southern voting began in the New Deal era. But the Southern baby-boomers were an important part of that shift. and they were voting on issues like abortion and school prayer. It’s a complicated story.

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  45. Grewgills says:

    @Pinky:

    you can’t write a fair history of the era, or the portion of the South that grew more Republican in that era, without talking about all of them. Race was a component of what was happening, but it was only a component.

    Certainly in any large movement like this there are multiple moving parts. The largest parts of the Southern strategy* revolved around racial politics and social conservative issues like abortion, (Christian) school prayer, etc. Those revolved around preserving tradition aka protecting white, male, Christian privilege.

    My initial comment was to point out that the assertions made by Jenos (and many others like him here and elsewhere) regarding political party and the CRA was grossly wrong on both facts and inference.

    * The Southern strategy adopted by the Republican party as opposed to all Republican politics.

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  46. Jenos Idanian #13 says:

    @Grewgills: Do you really believe that dog whistle racism was not part of the Republican party’s ”Southern strategy”?

    A lot of people like to quote Lee Atwater on the Southern Strategy. Oddly enough, most of them only cherry-pick out the part that supports their argument, and strategically omit the full context.

    See here for said context.

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  47. Grewgills says:

    @Jenos Idanian #13:
    Atwater is not the entirety of the Southern strategy and of course he is careful about how he speaks and of course he would claim that there was no racial element in Reagan’s use of the Southern strategy. Obviously Reagan going to Philadelphia Mississippi and delivering a campaign speech on states rights had nothing to do with racial politics. How could it?

    BTW, still waiting for you to cheerfully admit you were wrong about the voting tally for the Civil Rights Act. I won’t be holding my breath.

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  48. Grewgills says:

    @Jenos Idanian #13:
    That Atwater says that race was not an important issue in Southern politics in the 80s, that Southerners didn’t care about the Voting Rights Act in the 80s, and that his was the first generation that was not racist all require startling levels of ignorance or chutzpah. I’m betting on the latter.

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  49. Pinky says:

    @Grewgills: And your initial comment was wrong in its inference. The Bull Connor generation of the Democratic Party largely remained Democratic, and were voted out of office. But again, I understand why Democrats would rather talk about race than recess appointments.

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  50. Grewgills says:

    @Pinky:
    I made clear in my comments that I was speaking about national elections and the people that voted in them moreso than the elected officials. Bull Connor*, whose name is on the cornerstone of the building where my mother worked for the majority of her adult life, was a local politician, not a national politician. The voters in Alabama and throughout the South that sent those Southern Democrats to Washington that opposed the CRA were mostly voting Republican in national elections by the end of the 60s and were a unified block by the 80s. The one exception was Carter and that was because he was Southern and Baptist and coming on the heels of Nixon.
    I only brought up race in response to someone else bringing up race and making their argument with false information and false inference. That person hasn’t acknowledged that their facts were once again dead wrong and I suspect that they will not.

    On the recess appointments, the Republicans employed a gimmick to prevent Obama from appointing virtually anyone for years. Obama tried a gimmick in return and the courts shut him down. I’m fine with that, particularly since the filibuster rules have changed making both gimmicks largely irrelevant going forward.

    * I went to school with his granddaughter.

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  51. Pinky says:

    @Grewgills: I don’t know why, but there’s nothing that bothers me more than the “fixed it for you” comments that people put up. I guess I’m about to do one of those now: Republicans tried a constitutuional gimmick, Obama tried an unconstitutional gimmick. And you’re fine with both? I doubt that you’re fine with the former, and you shouldn’t be fine with the latter, even if the current Senate rules are different.

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  52. Jenos Idanian #13 says:

    @Grewgills: BTW, still waiting for you to cheerfully admit you were wrong about the voting tally for the Civil Rights Act. I won’t be holding my breath.

    Apparently you missed my admission of error above.

    I lumped all Democrats together, and counted just the final vote. You split out the Northern/Southern (more accurately, “former Confederate” and “the other 39 states,” including all those admitted after the Civil War). Differing methods, differing results.

    If you wanna get shirty about it, though, I originally defined it as “Democrats” and “Republicans;” you introduced the “Southern” and “Northern” subsets, and then accused me of dishonesty because I didn’t comply with your revised definition. So that could be considered dishonest, too.

    And yeah, I was mistaken — as I pointed out above, I cited a 30% figure when it was slightly over 31%. You wanna get snippy about 1.3%, then you get to defend changing the definition of the question and accusing me of lying because I didn’t comply with your after-the-fact redefining. That’s a pretty dishonest tactic right there.

    Alternately, we could just put this whole sidebar to rest and go back to the original topic — Obama deciding that he gets to decide when Congress is recessed and when it isn’t.

    I kinda hope you will — the “redefine the question and call the original answer a lie because it doesn’t fit the new question” tactic is the kind of thing I usually see from some of the regulars around here, and I thought you were above that.

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  53. Grewgills says:

    @Pinky:
    Republicans tried a constitutional gimmick to avoid their constitutionally mandated duty of advice and consent on presidential appointments in a petty effort to deny Obama a ‘win’ and to hobble some government agencies. Obama tried what turned out to be an unconstitutional gimmick to circumvent their gimmick. One was a legal trick to avoid doing something they should have been doing all along, the other was it turns out an unconstitutional trick to try and meet a constitutional obligation. I’m not fine with either, but am not much fussed about either. Both tricks have been made irrelevant by new senate rules, so it isn’t going to make much difference going forward and that leaves me not caring a whole lot. Every modern president has pushed the boundaries of executive power and there is rarely much push back. I didn’t initially think that the push back would be effective in this case. I was wrong, but the result is probably for the best. Executive power needs to be checked on occasion, I just wish it were done more for reasons other than petty partisanship.

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  54. Grewgills says:

    @Jenos Idanian #13:

    Apparently you missed my admission of error above…
    And yeah, I was mistaken — as I pointed out above, I cited a 30% figure when it was slightly over 31%. You wanna get snippy about 1.3%,

    You weren’t off my 1.3% or even 13%, you got the for and against figures entirely reversed. As I showed above and supported with three cites, the final Democratic vote in the House was 63% for and 37% against, so you were off by 31.7%. That is halving Democratic support and pretending it was a minority rather than majority support. That is not a minor point. You were WAY off and still won’t cop to it. The Democratic total in the Senate was 68.7% for, so in no way were Democrats overwhelmingly against the CRA unless you only count Southern Democrats. This isn’t a quibble over a couple percent, it is about a complete rewriting of history.

    then you get to defend changing the definition of the question and accusing me of lying because I didn’t comply with your after-the-fact redefining. That’s a pretty dishonest tactic right there.

    I introduced the Northern/Southern split because that is where the real split for and against the CRA lay. It wasn’t so much a difference between Democratic and Republican parties (63% vs 80% support), rather it was a regional split between the South and North (7% vs 89% support). That is the much more relevant split. At the time of the vote most of the South was Democratic, thus the lower total Democratic support for the bill. Now the South is solidly Republican and the people that want to preserve white, male, Christian privilege are much more at home in the party of the South.

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  55. Jenos Idanian #13 says:

    @Grewgills: Good lord, you’re right. I had the numbers reversed.

    I went back and saw the numbers were listed “yea-nay” form. I can only think that I am so conditioned to hearing sports reports where the higher number is always listed first, and simply passed that prejudice on to the chart in question without looking at the legend. I had the numbers exactly correct, and exactly backwards.

    The core point was accurate — Republicans in the House were more supportive than Democrats, as measured by percentages of the whole — but the Democrats were still far more in favor than opposition. Which, in retrospect, makes sense, as if a majority of Democrats in either House had been in opposition, it probably would have failed.

    So yeah, I had that set of numbers exactly backwards. And it took a couple of pushes from you to actually go and read the legend that I’d skipped over to look at the actual numbers. Thanks for pushing me until I actually saw what I was looking at.

    Still a trivial sidebar away from the actual issue here, though — Obama asserted that he had the authority to declare when Congress was in session or not, and it took going to the Supreme Court and all nine Justices informing him that he didn’t.

    I made a simple, stupid mistake, based on carelessness and letting a couple of my own prejudices keep me from thoroughly checking my points. Obama, on the other hand, as a former professor of Constitutional Law and a member of the Senate, let his frustration with his political opposition overwhelm what he should now, better than most people, are the basic laws and rules and principles of the United States Constitution. Does the guy honestly not understand the concepts of “separation of powers” and “co-equal branches,” or does he simply think they don’t apply to him?

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  56. Grewgills says:

    @Jenos Idanian #13:
    That the Democrats opposed the CRA is a pervasive myth on the right, I’m glad you’ve looked now and seen that it is just a myth and that the real split was North v South or more properly ex Confederacy vs ex Union.
    Re: the recess appointments, see my response to Pinky above and the responses of @Robert Levine: in the other thread.

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  57. Jenos Idanian #13 says:

    @Grewgills: That the Democrats opposed the CRA is a pervasive myth on the right, I’m glad you’ve looked now and seen that it is just a myth and that the real split was North v South or more properly ex Confederacy vs ex Union.

    I screwed up the actual numbers (and how), but as you see, the main time the 1964 Civil Rights Act is by liberals who want to claim credit for it, and to castigate conservatives as being the heirs of those who opposed it. Since that is the spectrum being used, it’s entirely fair and appropriate to bring up the actual percentages: Republicans offered significantly more support for the Act than Democrats.

    Note that your first argument wasn’t to bring up the Old Confederacy/the other 39 states dichotomy, but to ask “and what party are those fiercely opposed Democrats in now?” It wasn’t until we got into the nitty-gritty (and I totally misread the legend on the chart I was using) that you introduced the non-party distinction.

    BTW, I suspect we were using the same source…

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  58. Grewgills says:

    @Jenos Idanian #13:

    BTW, I suspect we were using the same source…

    That is one of the three that I linked above.

    the main time the 1964 Civil Rights Act is by liberals who want to claim credit for it, and to castigate conservatives as being the heirs of those who opposed it.

    It was liberals that passed it and social conservatives who opposed it. That is simply the truth. That split was not a strong party split in the mid 60s.

    Note that your first argument wasn’t to bring up the Old Confederacy/the other 39 states dichotomy, but to ask “and what party are those fiercely opposed Democrats in now?”

    And I stand by that. The North/South split affirms my argument, as the South rapidly hastened it’s movement away from the Democrats and to the GOP after the civil rights legislation and the Democratic party becoming associated as a driver of civil rights legislation. Honestly, if you are concerned with preserving white, male, christian privilege in the US, which party is a better fit for you?

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  59. Jenos Idanian #13 says:

    @Grewgills: “and what party are those fiercely opposed Democrats in now?”

    And I’ll repeat my earlier flippancy: since most of those fiercely opposed Democrats are now dead, if anywhere, they’re in Chicago and other Democratic strongholds, still voting for Democrats.

    Which brings us back to the beginning of the diversion, and I think once through it was enough. Instead, I’ll commit the heresy of going back to the original topic, and repeat myself:

    Obama, on the other hand, as a former professor of Constitutional Law and a member of the Senate, let his frustration with his political opposition overwhelm what he should now, better than most people, are the basic laws and rules and principles of the United States Constitution. Does the guy honestly not understand the concepts of “separation of powers” and “co-equal branches,” or does he simply think they don’t apply to him?

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  60. Grewgills says:

    @Jenos Idanian #13:
    I have replied to both. Your earlier flippancy ignores that despite the myth of the right that the CRA passed solely because it was ushered in by Republicans who remain the party of civil rights is demonstrably false. Civil rights was not a party issue until after the passage of the CRA and the subsequent Republican ”Southern strategy” used dog whistle racism to court those opposed to the CRA and other civil rights legislation.

    As to you saying I am distracting from the purpose of the post. You were the one that brought up the CRA and made the initial erroneous claim that started this with your comment here: @Jenos Idanian #13:

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  61. Jenos Idanian #13 says:

    @Grewgills: Gills, do I really need to go back into the “where is the civil discourse” thread? I made an error, you pointed it out to me, I admitted my error (slowly, I’ll confess, because it took me a little time to realize my error) and apologized and thanked you. And instead of moving on with the discussion, you want to harp on that error over and over again?

    Just what the hell are you trying to achieve with that? Do you even have a reason you want to keep re-hashing that again and again, even though you’ve achieved what any reasonable person would want, other than to continue to castigate me at the expense of discussing the original topic?

    I expect that from several of the regular a-holes here. I expect that and nothing else from the true idiots here. (Names available upon request.) But you tried to put yourself as actually interested in serious discussion, and showed some indicators of that.

    Should I consider that interest as just bullshit, to make yourself look better?

    Were I discussing things with those other idiots, I’d know the answer: they know Obama’s position was completely indefensible, so instead of trying to defend, they’d seize on any excuse to change the subject and attack; they’d take an admission of error as a sign of weakness and keep pounding on that point; they’d bring up past issues and pound those — all so they wouldn’t have to actually discuss the original topic.

    You’re hitting 2 for 3 there. Wanna go for the trifecta?

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  62. Grewgills says:

    @Jenos Idanian #13:
    You accused me of deflection and returned to your earlier flippancy. I merely pointed out that you were the one that opened the subject and reiterated why your earlier and renewed flippancy were off target.
    I have addressed the original subject and pointed to another comment that sums up my position as well. Rather than respond to either you are deflecting.

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  63. Jenos Idanian #13 says:

    @Grewgills: Yeah, I started the diversion. Cheerfully admitted. But now you’re the one wanting to keep up on it.

    As far as your having taken a stance… lemme go read up.

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  64. Jenos Idanian #13 says:

    @Grewgills: OK, found it. It was buried under the deluge of your comments on the sidebar.

    On the recess appointments, the Republicans employed a gimmick to prevent Obama from appointing virtually anyone for years. Obama tried a gimmick in return and the courts shut him down. I’m fine with that, particularly since the filibuster rules have changed making both gimmicks largely irrelevant going forward.

    The “gimmicks” are readily differentiated by pointing out that the Republicans’ “gimmick” was legal, and the president’s was illegal.

    Or is that too trivial for you to concern yourself with?

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  65. Grewgills says:

    @Jenos Idanian #13:
    Read further and read the comment I linked to, if you don’t understand my position.
    Every modern president has pushed the boundaries of executive power and test those pushes, Obama is no different in this regard from every president from at least Reagan forward. There was push back and his attempted expansion was curtailed and I’m fine with that and said it is probably for the best. Both the Republican gimmick and his are largely irrelevant going forward due to rule changes, so I am not so fussed about the situation.

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  66. Jenos Idanian #13 says:

    @Grewgills: So, you don’t see the difference between a Constitutional tactic by the Republicans and an Unconstitutional tactic by the president?

    Guess we agree to disagree, then.

    There were alternatives the Democrats could have taken. Reid’s change of the filibuster rules was perfectly valid. Obama’s asserting that he has the authority to decide when Congress is or is not in session, was invalid.

    It’s amazing that it had to go to the Supreme Court to establish that. One might think that a former member of Congress AND a professor of Constitutional Law would know that. And it makes one wonder just what the hell he actually taught in his classes.

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  67. Grewgills says:

    @Jenos Idanian #13:
    Republicans legally avoided their constitutional duty of advice and consent by filibustering every Obama nominee, even ones they suggested. That tactic though legal was harmful to a number of government agencies and the people they served. Deliberately preventing the NLRB to function to score political points is not something to be proud of.
    Obama also had a constitutional duty to get those offices filled so the agencies could do their jobs. He pushed too far to make that happen and was (rightly) pushed back. The system worked. Why are you still bothered?

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  68. al-Ameda says:

    @Grewgills:

    Obama also had a constitutional duty to get those offices filled so the agencies could do their jobs. He pushed too far to make that happen and was (rightly) pushed back. The system worked. Why are you still bothered?

    I’m guessing that he and other Republicans are still bothered because President Obama disrespected the Republican Party, and he seemed to be ‘uppity’ in so doing.

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