Obama recess appointments unconstitutional

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**whembly**

This is interesting... I wonder what the fallout would be?

Seems the implications extends further than the current NLRB:
http://www.washingtontimes.com/news/2013/jan/25/federal-court-obama-broke-law-recess-appointments/#ixzz2J0RX4bOq

n a case freighted with major constitutional implications, a federal appeals court on Friday overturned President Obama’s controversial recess appointments from last year, ruling he abused his powers and acted when the Senate was not actually in a recess.

The three-judge panel’s ruling is a major blow to Mr. Obama. The judges ruled that the appointments Mr. Obama made to the National Labor Relations Board are illegal, and the board no longer has a quorum to operate.

But the ruling has even broader constitutional significance, with the judges arguing that the president’s recess appointment powers don’t apply to “intrasession” appointments — those made when Congress has left town for a few days or weeks.
The judges signaled the power only applies after Congress has adjourned sine die, which is a legislative term of art that signals the end to a long work period. In modern times, it means the president could only use his powers when Congress quits business at the end of a year.

“The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments,” the judges wrote.
“Recent presidents are doing no more than interpreting the Constitution. While we recognize that all branches of government must of necessity exercise their understanding of the Constitution in order to perform their duties faithfully thereto, ultimately it is our role to discern the authoritative meaning of the supreme law.”

The case is likely to end up before the Supreme Court, and it turns on the definition of what the Constitution means when it says “recess.”

Last January Mr. Obama named union lawyer Richard Griffin and Labor Department official Sharon Block, both Democrats, and a Republican, NLRB lawyer Terence Flynn, to the labor board using his recess powers. He also named Richard Cordray to head the new Consumer Financial Protection Bureau, using those same powers.

Noel Canning, a bottling company, sued the NLRB, arguing that a rule issued by the new board was illegal since the recess appointments were unconstitutional. Senate Republicans, led by Minority Leader Mitch McConnell, joined in the suit.
The appeals court panel, which sits in Washington, D.C., was skeptical of Mr. Obama’s case during oral argument in early December, with Chief Judge David B. Sentelle and Judge Thomas B. Griffith peppering the administration lawyers with questions.
The Constitution gives the president the power to nominate judges and executive branch officials, but the Senate must vote to confirm them before they take office. Article II, Section 2 of the Constitution grants the president powers “to fill up all vacancies that may happen during the recess of the Senate.”

Those powers have produced centuries of give-and-take, with senators regularly slow-walking nominees and the White House looking for ways to get its way — including the recess appointment.

Mr. Obama’s move, though, appeared to break new ground by acting at a time when the Senate was meeting every third day, specifically to deny him the chance to make appointments.

The problem is the word “recess” has several meanings in legislative-speak. It can mean a short break during the day, it can mean a break of days or weeks for a holiday, or it can mean the end of a yearly session.

The president argued that even though the Senate was convening every three days, the pro forma sessions didn’t allow any business, and nearly every senator was absent from the chamber, signaling that the Senate wasn’t able to perform its confirmation duties and should be considered essentially in recess.

**Mattman154**

Call me a moron, but can I get that in simple folk speak?

**djones520**

Mattman154 wrote:
Call me a moron, but can I get that in simple folk speak?

The Senate is required to approve cabinent appointments. If they are in recess, then the president can appoint them without approval. Obama used his ability to appoint them through such a method, while the Senate was not actually in recess.

At least thats what I gathered.

**Ahtman**

Obama did what many Presidents before him has done, and made appointments while congress was on vacation, or Recess Appointments. The only thing here is the squabble over whether or not Congress was actual in recess when he did it. The White House felt they were, and Congress (well the Republicans in Congress) are saying it wasn't during an official break so then he can't use his Executive authority to make the Recess Appointments.

At least that is how I understand it at the moment, I haven't delved to deep into the specifics. I just know that Recess Appointments happen frequently and that whichever side is holding up the proceedings that makes it necessary to make them in the first place complain every time as well. It is like the fillibuster, each side complains about it, but no one does anything about it because they want to be able to use it if they are ever on the other side of it.

**Kilkrazy**

If you read to the end of the argument, the Senate was meeting once in three days, allegedly to prevent the President from making any appointments, presumably while not approving any of his suggestions.

Is this the Republican controlled senate obstructing the Democratic controlled presidency?

**Frazzled**

Yes the issue was the Congress was not actually in Recess when he did it.

**djones520**

Kilkrazy wrote:
If you read to the end of the argument, the Senate was meeting once in three days, allegedly to prevent the President from making any appointments, presumably while not approving any of his suggestions.

Is this the Republican controlled senate obstructing the Democratic controlled presidency?

The Republicans have not controlled the Senate since 06'. So no.

**KalashnikovMarine**

djones520 wrote:
Kilkrazy wrote:
If you read to the end of the argument, the Senate was meeting once in three days, allegedly to prevent the President from making any appointments, presumably while not approving any of his suggestions.

Is this the Republican controlled senate obstructing the Democratic controlled presidency?

The Republicans have not controlled the Senate since 06'. So no.

This. It's also a standard practice for any congress with any president. It allows them to ensure said Presidents can't use said recess power and make an end run around them. The democrats were big fans when it wasn't being used against them.

**whembly**

Correct... it's more of a Legislative vs Executive thing than Republican vs Democrats.

**Kilkrazy**

I thought this was news. It sounds quite routine.

**whembly**

Kilkrazy wrote:
I thought this was news. It sounds quite routine.

If it holds up... this is sorta big news...

From a historical perspective... no President has provoked the legislature to fight over recess appointments in the courts. Which meant that the executive branch had considerable gray area in which to operate, at least politically. I mean... really, it's intent was that back in the day, Congress would be in recess for a long time (horses only travels so far

) and this gives the Presidents some leeway so that Government day-to-day functions aren't impacted severely.

No more, if the SC doesn't do anything... future Presidents (and the present one) will now be at the Senate’s mercy.

This court's decision now holds that the recess appointment power exists only in the formal Recess between sessions... which in the case of these NRLB appointees... the Senate wasn't formally in recess, and thusly Obama's appointments were ruled unconstitutional.

According the the legal sites... if this stands, the recess appointment in general will all but disappear.

**Breotan**

whembly wrote:
No more, if the SC doesn't do anything... future Presidents (and the present one) will now be at the Senate’s mercy.

You mean the way it is supposed to be, per the Constitution? Also, the Senate will still go into recess so such appointments will still be available. It just means that shennanigans like calling a three day break a recess won't be given a pass.

whembly wrote:
According the the legal sites... if this stands, the recess appointment in general will all but disappear.

Possibly. What that actually means, politically, has yet to be realized.

**Ouze**

Breotan wrote:
whembly wrote:
No more, if the SC doesn't do anything... future Presidents (and the present one) will now be at the Senate’s mercy.
You mean the way it is supposed to be, per the Constitution?

No, like this part of the Constitution:

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.

The argument here is that the Senate wasn't actually in session by any reasonably definition. IIRC, they had a single junior member show up, gavel up a session, and 30 seconds later close it.

That all being said, I agree with the decision, though. First, the President doesn't get the decide whether Congress had a real session or not, they do. Yes, we all know those 30 second sessions were bs just to prevent appointments, but it's all in the game, baby. Recess appointments are garbage, whether it was Bush doing it 171 times, Reagan doing it 243 times or Obama doing it 40ish times. I guess this makes me a dirty intentionalist instead of a textualist but it IMO they clearly intended for that clause to be a relief valve in an age where it took forever to assemble a Congress in the age of horse-only transportation, not an end-run around gridlock.

I imagine the most hardcore Republicans here will be compelled to disagree with me, as I'm sure Scalia would, and argue the plain words of the Constitution make Obama's appointments legitimate, but so it goes. The main argument in my mind remains they define their sessions, even if that definition is wholly shenanigans.

**whembly**

Ouze wrote:
Breotan wrote:
whembly wrote:
No more, if the SC doesn't do anything... future Presidents (and the present one) will now be at the Senate’s mercy.
You mean the way it is supposed to be, per the Constitution?

No, like this part of the Constitution:

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.

The argument here is that the Senate wasn't actually in session by any reasonably definition. IIRC, they had a single junior member show up, gavel up a session, and 30 seconds later close it.

That all being said, I agree with the decision, though. First, the President doesn't get the decide whether Congress had a real session or not, they do. Yes, we all know those 30 second sessions were bs just to prevent appointments, but it's all in the game, baby. Recess appointments are garbage, whether it was Bush doing it 171 times, Reagan doing it 243 times or Obama doing it 40ish times. I guess this makes me a dirty intentionalist instead of a textualist but it IMO they clearly intended for that clause to be a relief valve in an age where it took forever to assemble a Congress in the age of horse-only transportation, not an end-run around gridlock.

I imagine the most hardcore Republicans here will be compelled to disagree with me, as I'm sure Scalia would, and argue the plain words of the Constitution make Obama's appointments legitimate, but so it goes. The main argument in my mind remains they define their sessions, even if that definition is wholly shenanigans.

By the plain words of the Constitution... I'd say Obama's appointments were legit.

That's why I thought this ruling was interesting....

And yes, the whole shenanigans is ridiculous.

Automatically Appended Next Post:

Breotan wrote:
whembly wrote:
No more, if the SC doesn't do anything... future Presidents (and the present one) will now be at the Senate’s mercy.
You mean the way it is supposed to be, per the Constitution? Also, the Senate will still go into recess so such appointments will still be available. It just means that shennanigans like calling a three day break a recess won't be given a pass.

True... I guess Obama felt he had to do what he did to avoid any ugly confirmation fights...

whembly wrote:
According the the legal sites... if this stands, the recess appointment in general will all but disappear.
Possibly. What that actually means, politically, has yet to be realized.

Politically, I think this weakens the Executive Branch a bit since there's a clear delineation what the Pres can/cannot do.

**Ouze**

And that's a wholly reasonable interpretation, though I disagree with it. My feeling is it would be an interesting case for the SCOTUS, and I feel they absolutely positively would not grant it cert while it's tipped in the favor of the legislative, so they can avoid ruling. IMO they have shown very wide latitude to the Congress in these types of matters and would not wish to make a ruling that would show them as political partisans for one side or the other.

**Ahtman**

Ouze wrote:
I guess this makes me a dirty intentionalist instead of a textualist

I believe they make a lotion for that.

**dogma**

Kilkrazy wrote:
If you read to the end of the argument, the Senate was meeting once in three days, allegedly to prevent the President from making any appointments, presumably while not approving any of his suggestions.

Is this the Republican controlled senate obstructing the Democratic controlled presidency?

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

Automatically Appended Next Post:

Breotan wrote:
Also, the Senate will still go into recess so such appointments will still be available. It just means that shennanigans like calling a three day break a recess won't be given a pass.

Absent the traditional end of year break the period of time (recess) between sessions of Congress essentially ceases to exist, at least so long as one chamber does not agree to adjourn.

**Mannahnin**

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.

**dogma**

Ouze wrote:

The main argument in my mind remains they define their sessions, even if that definition is wholly shenanigans.

Depending on how the Supreme Court rules, it may well be that it also defines the sessions of Congress. And, really, that is my main point of disagreement with the ruling. By defining intrasession recesses as not really being recesses, the Appellate Court has effectively legislated Congressional procedure; which is way beyond its purview.

**Ouze**

Yeah, that's why my feeling is they can't punt it fast enough if it comes before them.

**azazel the cat**

djones520 wrote:
Mattman154 wrote:
Call me a moron, but can I get that in simple folk speak?

The Senate is required to approve cabinent appointments. If they are in recess, then the president can appoint them without approval. Obama used his ability to appoint them through such a method, while the Senate was not actually in recess.

At least thats what I gathered.

Close. The Senate claimed they were not actually in recess in principle, even if there were most definitely in recess in practice. In other words, the Senate claimed their office was open even though the lights were off and nobody was home, but the answering machine was still plugged in.

**d-usa**

There should be a simple rule that you are in recess unless there are 50%+1 members present. Poor junior member who has to hit the gavel while everyone else is at home...

**LordofHats**

d-usa wrote:
There should be a simple rule that you are in recess unless there are 50%+1 members present. Poor junior member who has to hit the gavel while everyone else is at home...

Omg he's talking sense! Stop him before its too late!

**azazel the cat**

d-usa wrote:There should be a simple rule that you are in recess unless there are 50%+1 members present. Poor junior member who has to hit the gavel while everyone else is at home...

So then everyone is in recess as soon as they've gone home for the day?

I understand your idea and think it's valid, but your phrasing kinda turns the Senate into one of those who-can-keep-a-hand-on-the-car-the-longest contests.

**d-usa**

azazel the cat wrote:
d-usa wrote:There should be a simple rule that you are in recess unless there are 50%+1 members present. Poor junior member who has to hit the gavel while everyone else is at home...

So then everyone is in recess as soon as they've gone home for the day? I understand your idea and think it's valid, but your phrasing kinda turns the Senate into one of those who-can-keep-a-hand-on-the-car-the-longest contests.

What is the current rule? Is there some sort of "have a session every 3 days" process?

**djones520**

d-usa wrote:
azazel the cat wrote:
d-usa wrote:There should be a simple rule that you are in recess unless there are 50%+1 members present. Poor junior member who has to hit the gavel while everyone else is at home...

So then everyone is in recess as soon as they've gone home for the day? I understand your idea and think it's valid, but your phrasing kinda turns the Senate into one of those who-can-keep-a-hand-on-the-car-the-longest contests.

What is the current rule? Is there some sort of "have a session every 3 days" process?

I'm not sure, but I think I found the part of the Constitution that lays that out.

Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

In order to be in recess, they'll need the approval of both Houses. The Senate cannot declare that they're adjourning and just take off, unless the House agrees as well.

As for when they need to be in session? No clue. I do know that those first few years they were almost in recess more then in session, but that was before flight and cars, so travelling from Georgia to Philly took quite a while.

**dogma**

djones520 wrote:

As for when they need to be in session? No clue.

At least once per calendar year, and otherwise at purview.

**Frazzled**

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. Besides, whats good for the goose is good for the gander. After all the idea came from Harry Reid.

Automatically Appended Next Post:

Ouze wrote:
Yeah, that's why my feeling is they can't punt it fast enough if it comes before them.

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.

**d-usa**

It would be too big a change to make it happen, but the chambers should be able to make their own recess.

**Ahtman**

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.