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The Court in Recess

Yesterday, the DC Court struck down several of President Obama’s recess appointments:

In a ruling that called into question nearly two centuries of presidential “recess” appointments that bypass the Senate confirmation process, a federal appeals court ruled on Friday that President Obama violated the Constitution when he installed three officials on the National Labor Relations Board a year ago.

The ruling was a blow to the administration and a victory for Mr. Obama’s Republican critics — and a handful of liberal ones — who had accused him of improperly asserting that he could make the appointments under his executive powers. The administration had argued that the president could decide that senators were really on a lengthy recess even though the Senate considered itself to be meeting in “pro forma” sessions.

Recess appointments are intended for when Congress is out of session and there is a dire need. They are not intended to bypass the Congress, even when said Congress are acting like idiots and refusing to do their Constitutional duty. I commented on this a year ago. While chastising the Republicans for refusing to have hearing on necessary appointments, I said:

All that having been said, two wrongs do not make a right. The Democrats pulled this pro forma crap too. Had Bush responded this way, the halls of Congress would have been filled with the sighs of Democrats fainting from such an egregious abuse of the process. Barack Obama, as Senator, was not exactly screaming to end filibusters when he could have done something about it (he was not part of the Gang of 14).

All sides are acting like spoiled little children, playing a game of “he started it.” It’s shit like this that makes me go up to Washington with a 2×4 and start whomping any Senator who gets within range. I don’t give a shit who started it. It needs to stop.

Violating the rules again is not the way to stop it, though. The Republicans got through this when Bush was President by finding Democrats who would let judicial candidates through. Scott Brown, at least, has indicated he would allow votes to proceed and I’m certain other Republicans could be cajoled or shamed into it.

I am nervous about the potential consequences of this decision (actions taken by recess appointees could be ruled invalid, creating complete legal chaos). I also suspect this will go the Supreme Court before it’s decided once and for all (the 11th Circuit previously upheld Bush’s recess appointments). It basically removes the President’s power to make recess appointments since Congress is basically always in at least pro forma session these days. But it seems like the Courts are going to force our legislators and our President to act like adults and actually go through the Constitutional process that is their obligation and duty.

4 comments

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  1. hist_ed says:

    I am nervous about the potential consequences of this decision (actions taken by recess appointees could be ruled invalid, creating complete legal chaos).

    Why are you nervous about decisions by an unlawful board being reversed? That’s the way it’s supposed to work. Otherwise a President could appoint anyone for any position and let them run wild until a court overruled the appointment and then say “OK but Secretary Nader’s rulings on auto safety still are in force.” ALL of the decisions by this board MUST be reversed (as well as the idiotic consumer protection agency) or the rule of law in the country will take another sizable hit.

    They are not intended to bypass the Congress, even when said Congress are acting like idiots and refusing to do their Constitutional duty.

    Refusing to rubber stamp appointments is part of the Senate’s Constitutional duty.

    the 11th Circuit previously upheld Bush’s recess appointments

    Bush never attempted an appointment when Congress said it was in session. This does, apparently invalidate recess appointments by all presidents in living memory, but that is a good thing. The Senate is supposed to balance the power of the executive. This ruling moves the balance back a bit towards where it ought to be.

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  2. balthazar says:

    It basically removes the President’s power to make recess appointments since Congress is basically always in at least pro forma session these days.

    No, it really doesnt, The pres just has to wait until they actually recess in order to appoint.

    you do know that in like the first 100 years the recess appointment power was used exactly ZERO times right?

    In the next 50 years it was used like 3 times, since then, dozens and dozens. It was meant to appoint people to critical positions that were ESSENTIAL, when the Senate was in recess for months at a time. I find it amusing that because faster transit means that the Senate spends less time in recess, the Presidents have used the power even more.

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  3. Hal_10000 says:

    Why are you nervous about decisions by an unlawful board being reversed?

    You know all that stuff we’ve been saying about regulatory uncertainty? We may be about to buy a tanker of it. I’m not saying the decisions shouldn’t be reversed; I’m saying the consequences could be bad.

    Refusing to rubber stamp appointments is part of the Senate’s Constitutional duty.

    Agreed. So have hearings and a vote. Don’t tie them up forever in “filibuster”.

    No, it really doesnt, The pres just has to wait until they actually recess in order to appoint.

    But thanks to the pro forma sessions, I believe the last Congress was not out of session until the new Congress took over. I do agree we shouldn’t be having recess appointments. But parts of the government — parts we need like the courts — have been in danger of shutting down because Congress won’t hold hearings.

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  4. balthazar says:

    But thanks to the pro forma sessions, I believe the last Congress was not out of session until the new Congress took over.

    Ummmm yes, thats EXACTLY THE FUCKING POINT.

    THE RECESS, not A RECESS, or a shit break, or a smoke break. THE RECESS.

    Did you even really read the opinion?

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