Ahtman wrote:

 Frazzled wrote:
Besides, whats good for the goose is good for the gander.

If that were true than he would be able to make recess appointments just as every Republican President before him has done. They won't get rid of recess appointments because they will want to be able to do it if when they get a Republican in the White House. Not that it would work, because if this holds up then the Dems will just do what the Republicans are doing, and we are back to our reps acting like a bunch of petulant children only out to spite each other above all else.

 Frazzled wrote:

 Mannahnin wrote:
Yeah, this is Congress basically saying the President can never make recess appointments again, because we're just never technically going to be in recess.

Works for me. If Obama doesn't like it he can suck it. Each House has the power to set its own rules. Not unilateral decisions of the Executive branch. Else every weekend means he can appoint the cabinet and avoid the Constitutional requirement of Advice and Consent forever.

 Ahtman wrote:

 Frazzled wrote:
Besides, whats good for the goose is good for the gander.

If that were true than he would be able to make recess appointments just as every Republican President before him has done. They won't get rid of recess appointments because they will want to be able to do it if when they get a Republican in the White House. Not that it would work, because if this holds up then the Dems will just do what the Republicans are doing, and we are back to our reps acting like a bunch of petulant children only out to spite each other above all else.

 Mannahnin wrote:

 Frazzled wrote:

 Mannahnin wrote:
Yeah, this is Congress basically saying the President can never make recess appointments again, because we're just never technically going to be in recess.

Works for me. If Obama doesn't like it he can suck it. Each House has the power to set its own rules. Not unilateral decisions of the Executive branch. Else every weekend means he can appoint the cabinet and avoid the Constitutional requirement of Advice and Consent forever.

Every weekend is three days long now? Nice! Do I get tomorrow off? You know he hasn't done that, or shown any signs of doing anything like that.

 KalashnikovMarine wrote:
This law suit came out of the Democrat controlled senate I believe...

Dogma wrote:
It is the Republican controlled House preventing Congress as a whole from adjourning, and thereby forcing the Senate to hold pro forma sessions.

 Frazzled wrote:

 Ahtman wrote:

 Frazzled wrote:
Besides, whats good for the goose is good for the gander.

If that were true than he would be able to make recess appointments just as every Republican President before him has done. They won't get rid of recess appointments because they will want to be able to do it if when they get a Republican in the White House. Not that it would work, because if this holds up then the Dems will just do what the Republicans are doing, and we are back to our reps acting like a bunch of petulant children only out to spite each other above all else.

Thats not accurate and you know it.

1. He still can.
2. However, like Bush, once Reid put this plan into action, he can't do it during proforma sessions.

If he doesn't like it he should run for the Senate, and change the rules. until then suck it Executive Dog! Congress decides! muahahaha

Separation of Powers, its such a pain...

 djones520 wrote:
And if the President doesn't get the oppurtunity to ever again, then maybe it's for the better.

 djones520 wrote:
I'd rather have someone who everyone agrees

 Frazzled wrote:

Its extremely simple. Each branch sets its own rules.

 dogma wrote:

 Frazzled wrote:

Its extremely simple. Each branch sets its own rules.

No, only the Legislative branch does that.

 Frazzled wrote:

Incorrect.
SCOTUS sets its rules as well.
The executive branch sets its own hours.

 dogma wrote:

 Frazzled wrote:

Incorrect.
SCOTUS sets its rules as well.
The executive branch sets its own hours.

All actions of the Executive and Judiciary can be overturned by Congress. Because Congress is at the behest of the people, the Executive and Judiciary can do as they please.

 Ahtman wrote:

 djones520 wrote:
And if the President doesn't get the oppurtunity to ever again, then maybe it's for the better.

Perhaps, but that really isn't the issue. This isn't a referendum on Recess Appointments, nor has it been. The Republicans want to be able to make Recess Appointments so the idea of getting rid of them isn't even on the schedule. They just don't want Obama to make any.

 djones520 wrote:
I'd rather have someone who everyone agrees

Have you seen our Congress? You could put up the most qualified person in the world and they would deny them out of spite, not statesmanship. Then they'll do it again. This is assuming they even allowed it to come up for a vote or to get out of committee. I am not just referring to the current session or administration either. There have been other points of hyper-partisanship, and it is never pretty.

 Frazzled wrote:

You argued only the legislative branch sets its own rules. SCOTUS sets its own term and internal rules. Clearly the WH sets its own working hours, which is the only issue of relevance.

 whembly wrote:
Hopethetically speaking... if Congress is never in recess, thus forcing the Executive Branch to go through the "Advise and Consent" process for those cabinet members... is that a bad thing?

 Ahtman wrote:

 whembly wrote:
Hopethetically speaking... if Congress is never in recess, thus forcing the Executive Branch to go through the "Advise and Consent" process for those cabinet members... is that a bad thing?

If they actually did that, no, but that isn't what ends up happening in reality. A President, regardless of party, can 'advice and consent" all day, but if an opposition party is dead set against confirming anyone that is brought before them, it doesn't really matter. They will not allow a vote, not let it get out of committee, or just vote against whoever it is, not because of who the nominee is or their qualifications, but because of who nominated them.

 dogma wrote:

 Frazzled wrote:

You argued only the legislative branch sets its own rules. SCOTUS sets its own term and internal rules. Clearly the WH sets its own working hours, which is the only issue of relevance.

Both do it by convenience alone. Congress could force the Executive and the Judiciary to "work" if they so desired, or were so able.

 whembly wrote:

Maybe an government shutdown is needed to get their collective head out of their asses...

 Ahtman wrote:

 whembly wrote:

Maybe an government shutdown is needed to get their collective head out of their asses...

I blame the citizens for a)being inactive in their government and b) voting in the people that are there. They didn't inherit the positions, we put them there.

 Frazzled wrote:
Can we keep it shut for a while? Is there an expiry date where I don't have to pay taxes any more?

 Ahtman wrote:

 djones520 wrote:
I'd rather have someone who everyone agrees

Have you seen our Congress? You could put up the most qualified person in the world and they would deny them out of spite, not statesmanship. Then they'll do it again. This is assuming they even allowed it to come up for a vote or to get out of committee. I am not just referring to the current session or administration either. There have been other points of hyper-partisanship, and it is never pretty.

 Frazzled wrote:

Please denote what secton of the Constitution permits Congress, on its sole perogative, to change when SCOTUS is in session. This should be interesting.

 Frazzled wrote:
SCOTUS has a 200 year history of not meddling. It will note decide what Congress's rules are, not unless it wants serious backlash, like removal of its authority.

 djones520 wrote:

 Ahtman wrote:

 djones520 wrote:
I'd rather have someone who everyone agrees

Have you seen our Congress? You could put up the most qualified person in the world and they would deny them out of spite, not statesmanship. Then they'll do it again. This is assuming they even allowed it to come up for a vote or to get out of committee. I am not just referring to the current session or administration either. There have been other points of hyper-partisanship, and it is never pretty.

I think your a bit off on that one. John Kerry, the man who tried to illegally negotiate our surrender to the Vietnamese, is about the be made Secretary of State. If there was anyone that would be shut out due to pure spite, that would be the man. Instead he's going to spend the next 4 years trying to surrender to everyone else. This is where i'd insert a comment about the french, but apparently the mods don't like that.

 Breotan wrote:

 Frazzled wrote:
SCOTUS has a 200 year history of not meddling. It will note decide what Congress's rules are, not unless it wants serious backlash, like removal of its authority.

I don't know about this. Congress also has a 200 year history of deligating responsibility whenever and whereever possible.

The NLRB Decision and the Step to Tyranny That Was Thwarted
There has been some talk about the big NLRB decision that came down last week, but too much of the coverage got lost in the minutae of the ruling. Too many thought the issue was about the technicalities of when the Senate was in recess.

No, it is not. It was about safeguarding a major constitutional protection against tyranny.

Let’s start with the text of the Constitution itself. It starts with the appointments clause, which states that the President

shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law[.]

There’s another clause allowing for “inferior Officers” to be appointed by the President or people in the executive or judicial branch. Which is why if you want to be a receptionist in a courthouse, you don’t have to be confirmed by the Senate. But still for the upper eschelon of public officials, Supreme Court Justices, and so on, this is the general rule. If you want the job, you have to be nominated by the President and Confirmed by the Senate.

But there is also an exception:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

So let us turn to the facts of the case. The National Labor Relation Board was having trouble getting its business done because it lacked a quorum for much of its business due to vacancies. The Senate decided to take a break, but kept the session officially open by a pro forma trick. Here’s how the D.C. Circuit court described it:

At the time of the President’s purported recess appointments of the three Board members, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012.... The agreement stated that “no business [would be] conducted” during those sessions.

And of course the agreement not to do business was actually broken several times:

During the December 23 pro forma session, the Senate overrode its prior agreement by unanimous consent and passed a temporary extension to the payroll tax.... During the January 3 pro forma session, the Senate acted to convene the second session of the 112th Congress and to fulfill its constitutional duty to meet on January 3.

So in fact the Senate could come back and do work at any time if it was important enough, but for the most part it was Christmas break.

(By the way, wouldn’t you like to skip work a month every year around Chrismas? To borrow from Mel Brooks: “It’s good to be a Senator.”)


(This is how Ted Kennedy actually went through his day in the Senate.)

So the President decided that they were in recess and made recess appointments to the NLRB. That meant that they got to serve as long as the Senate was in session, which would be two years later. That is, the appointments were made in January 2011, and would end at the end of 2013. But one intrepid company which was on the reciving end of a negative decision of the NLRB decided to take issue with that. They said that the Senate was not actually in recess at the time, and that therefore the appointments were unlawful and since the negative decision couldn’t have been made without those appointments, that decision itself is unlawful. And late last week, a panel of the D.C. Circuit Court of Appeals agreed.

But what is really troubling is the arguments advanced by the President to justify this decision. First we get the idea that it is up to the President to determine when and if the Senate is in recess. From the opinion:

The fourth and final possible interpretation of “the Recess,” advocated by the Office of Legal Counsel, is a variation of the functional interpretation in which the President has discretion to determine that the Senate is in recess. See 2012 OLC Memo, supra, at 23 (“[T]he President therefore has discretion to conclude that the Senate is unavailable to perform its adviseand- consent function and to exercise his power to make recess appointments.”).

The second argument was about the word, “happens” in the recess apointments clause. To review, it says that the President can fill “Vacancies that may happen during the Recess of the Senate” (emphasis added). The Circuit Court captures the two positions well:

The company contends that “happen” means “arise” or “begin” or “come into being.” The Board, on the other hand, contends that the President may fill up any vacancies that “happen to exist” during “the Recess.”

Now, all that may sound esoteric, but if either of those arguments were accepted, this would be a revolution in our Constitution and a dangerous step toward tyranny. For instance, imagine that the President wishes to appoint a certain person to the NLRB that the Senate considers unacceptable, for any reason. If the President was allowed to decide for himself when the Senate was in recess, then the President could simply declare the Senate to be in recess and appoint his unacceptable candidate without the advice and consent of the Senate. Which raises the question: why wouldn’t the President just do that in all cases? Why would the President ever bother to get someone confirmed in any role covered by the appointments clause, if he can just call it a recess appointment?

Indeed, the recess appointment clause applies even to Federal Judges. So suppose the President wanted to appoint an unacceptable justice to the Supreme Court? Well, just declare the Senate to be in recess and you get to appoint one for up to two years. Now unlike the nine presently on the bench, such an appointment would not be for life, but only for up to two years, which is both good and bad from a President’s perspective. On one hand, because of a judge holds a lifetime appointment, the judiciary becomes one of the lasting influences the President can have. I mean Ronald Reagan hasn’t been President for over twenty years and indeed is no longer on this Earth, but two of his justices still sit on the Supreme Court (and even more in lower courts). Similar things can be said of Bill Clinton and both Presidents Bush.

But the purpose of giving Article III judges (including the Justices of the Supreme Court) lifetime appointments is to insulate them from others’ influence and if a tradition begins of the President abusing he recess appointment clause, those judges would know that their term would expire within two years, so if they want to keep their jobs, they better rule the way the President wants them to.

And here’s the other thing. If the President is the one to make this determination of when the Senate is in recess, then it means that no one else has the power to contradict him. So even if it was plain as day that on a specific date the Senate was in session and even doing business, the President could still determine it is in recess under this radical approach and make recess appointments.

And as for the argument over what the word “happens” means, if the word “happen” is read to mean like the term “arises,” then it means that only when the vacancy opens up during a recess could a recess appointment be made. But the President wanted the court to say that if the spot was already vacant when the recess began (however you define recess) then the President could fill those positions with recess appointments. So again, the President could desire an unacceptable candidate for the NLRB—or the Supreme Court, for that matter—and simply stall until the next recess comes around and the appoint that person without worrying about the advice and consent of the Senate.

Bear in mind folks, this recess appointments clause was meant to be an exception to the rule. Most appontments were supposed to be made with the advice and consent of the Senate and the recess appointments clause was only meant as an emergency exception. And yet Obama, through his minions, was trying to use the exception to eviscerate the rule.

The irony of it all is that the recess appointments clause is made almost wholly obsolete by technology. So all those liberals—including Obama—who mock the Second Amendment as a relic of the past that has become obselite because of modern technology are clamoring to defend Obama’s abuse of another clause that truly is obselite. Back when the recess clause was written, travel around this country was difficult. Back then, Congress couldn’t have gotten together at the drop of a dime. Today, you can hop on a plane and be there within a day. Indeed, we could probably work out some kind of “telecommuting” option that allows Senators to vote while sitting on a beach somewhere. So back then it made sense to have this kind of exception, so the government could continue to function until the Senators made it back to Washington. But today it does not. But do you catch liberals like Obama saying it should be rendered inoperative because of changes in technology? Hell no! Instead we see Obama advocating that this obsolete exception swallow the non-obselete rule, backed up by the usual chorus of liberal institutions.

Which is not to say that I think that this obsolete recess appointments clause should be ignored. The correct way to deal with an outdated clause of the Constitution is amendment. But I also don’t think it should be given an unnatural interpretation that eviscerates the main rule either.

Now does this mean that I am saying Obama is a wannabe tyrant for attempting to take us one step closer to tyranny? Not necessarily. The explanation in actuality could be as simple as that Obama wanted the NLRB to get its work done and just got frustrated with the delays. What wise people have to understand is that the siren song of tyranny is often convenience. Our checks and balances are an enormous pain in the keister. It is deliberately so, but it creates the temptation in people of good faith to just take a shortcut. It whispers things like, “Hey, let’s just appoint them as recess appointments and let them get back to work... what’s the harm?” And even if every single appointment Obama made under this approach was a good person who served the public well, a precedent allowing the President to decide when the Senate was in recess would lie about “like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” And in the wrong hands this newly minted authority can be used to further undermine our Constitution. So you don’t have to believe that Obama is a tyrant-in-waiting to believe that his actions, if accepted by the Courts, would pave the road for tyranny.

For me the Second Amendment is justified as a defense of tyranny with this simple syllogism:

1) The Founders correctly believed we have a God-given right to rebell against tyranny should it arise,
2) The Founders correctly feared that it could arise here in America, in our Federal Government,
3) A rebellion without guns is unlikely to stand a chance,
4) Therefore the Founders granted us the right to bear arms, in order to allow us to exercise their God-given right of rebellion.

And of course I am distinguishing between legal rights and God-given rights. We don’t have a legal right to rebell. It is right to assume that no government has ever legalized its own destruction and certainly the Federal Government hasn’t done so. Instead the right is God-given and if its exercise is attempted, it will result in victory or imprisonment and execution.

One of the ways to attack that syllogism is to claim that tyranny could never happen here. But in the NRLB decision, we see advocates for creeping tyranny right in the midst of our Federal Government, proof that if we are not careful, tyranny can indeed happen here.

 Cryonicleech wrote:
There's so much partisan BS in that description that it's sickening to look at.

Americans blame the government for tyranny when it's their own lack of participation besides those members of radical political groups which leaves them where they're at. And then they have the nerve to complain that the system is too radical, and act as if the Congressmen have unfair monopolies when the people put them there in the first place.

If anything, the people either need to be more active or put more pressure on Congress.

Additionally, when a president is elected, it shouldn't be some conspiratory BS that got him in.

Politics have evolved to the point where sound bytes and harsh attacks are the only acceptable forms of communication, because anything else threatens a politician's standings with the constituents, who in turn don't pay much attention anyway.

As for the ruling, it still has to go to the Supreme Court.

I could see it becoming a fiasco for the president if it's ruled against him, and would most certainly hurt his standings.

But it's not like the Republicans like him anyway.

Even if it's ruled in his favor we'll hear the same sound bytes from both parties.

Washington would hang his head in shame. Or at least he ought to. Parties were never a good idea, honestly.

 whembly wrote:

 Cryonicleech wrote:
There's so much partisan BS in that description that it's sickening to look at.

Partisan how exactly?

 Ahtman wrote:

 whembly wrote:

 Cryonicleech wrote:
There's so much partisan BS in that description that it's sickening to look at.

Partisan how exactly?

Turning a disagreement about procedure into 'thwarting a step toward tyranny' is a pretty good indication that the author is either a) off their nut b) hyper-partisan or c) pandering those that fall into A and B. Either is a red flag that what you are about to read is going to be incredibly colored by personal opinion and virulent hyperbole.

Indeed, the recess appointment clause applies even to Federal Judges. So suppose the President wanted to appoint an unacceptable justice to the Supreme Court? Well, just declare the Senate to be in recess and you get to appoint one for up to two years. Now unlike the nine presently on the bench, such an appointment would not be for life, but only for up to two years, which is both good and bad from a President’s perspective. On one hand, because of a judge holds a lifetime appointment, the judiciary becomes one of the lasting influences the President can have. I mean Ronald Reagan hasn’t been President for over twenty years and indeed is no longer on this Earth, but two of his justices still sit on the Supreme Court (and even more in lower courts). Similar things can be said of Bill Clinton and both Presidents Bush.

But the purpose of giving Article III judges (including the Justices of the Supreme Court) lifetime appointments is to insulate them from others’ influence and if a tradition begins of the President abusing he recess appointment clause, those judges would know that their term would expire within two years, so if they want to keep their jobs, they better rule the way the President wants them to.

Now does this mean that I am saying Obama is a wannabe tyrant for attempting to take us one step closer to tyranny? Not necessarily. The explanation in actuality could be as simple as that Obama wanted the NLRB to get its work done and just got frustrated with the delays. What wise people have to understand is that the siren song of tyranny is often convenience. Our checks and balances are an enormous pain in the keister. It is deliberately so, but it creates the temptation in people of good faith to just take a shortcut. It whispers things like, “Hey, let’s just appoint them as recess appointments and let them get back to work... what’s the harm?” And even if every single appointment Obama made under this approach was a good person who served the public well, a precedent allowing the President to decide when the Senate was in recess would lie about “like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.” And in the wrong hands this newly minted authority can be used to further undermine our Constitution. So you don’t have to believe that Obama is a tyrant-in-waiting to believe that his actions, if accepted by the Courts, would pave the road for tyranny.