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Supreme Court of the United States
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.

U.S. Const'n, Art. II, sec 2, cl. 3

There's a lot to unpack in a constitutional clause like that: does "that may happen" mean only vacancies which open up during the recess can be filled, or that any vacancies which may have been created at any point may be filled during the recess? Any what's a "recess," anyway, and who gets to decide?

The Supreme Court of the United States heard oral arguments this morning on these questions, in review of a 2013 D.C. Circuit opinion which had held that "the recess" meant "only when Congress says it's in recess" and that the power only covered those vacancies which were created during the recess period itself. And it doesn't sound good for the presidency.

See, in early 2012, President Obama was frustrated by Republican efforts which stymied his ability to fill vacancies on the National Labor Relations Board (NLRB), a five-member board which needs three to have a quorum. With the Board down to two members, the president made recess appointments of three new members on January 4, 2012, during a period when the Senate was mostly away, just holding pro forma sessions to keep the constitutional lights on (much as Dem Senators had done to President George W. Bush to frustrate his recess appointment powers). The Noel Canning company, subject to one of the new NLRB's first enforcement actions, sued to block its effect citing what they perceived as the illegitimacy of the NLRB's new appointees, and the D.C. Circuit agreed.

Please read below the fold for more on recess appointment power.

The argument in many ways is an argument over what modes of constitutional interpretation matter most, and how you view them may depend on whether you see this as Obama v. Senate GOP or Any President v. Any Senate. Do we strictly rely upon the constitutional text and the actions of the early presidents in behaving under such a clause, reading it as only having meaningful power for an era in which the Senate couldn't be haled back for months at a time when away on recess—as Justice Ginsburg asked, "If we look back historically, Congress met and they met continuously. And then they went on horseback back home and they were away for 6 months, even 9 months. Today, there's nothing like that. The inter-session recess could be an hour. So what do we do with that?"

Or as Justice Kagan asked:

General, would you agree that this clause now is not mostly used to deal with emergencies arising from congressional absence? That most modern Presidents -- and I say this sort of going -- going back to President Reagan, Presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President thinks ought to be approved?

You know, absence in this day and age -­ this is not the horse and buggy era anymore. There's no real -- there's no such thing truly as congressional absence anymore. And that makes me wonder whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.

Or, as Justice Breyer asked ...
JUSTICE BREYER: The most surprising thing to me that you have said, and it's important, is not just the view of language at the time of the framing, but what the purpose of this clause was. I mean, this is a very well-briefed case, and I have looked at them.

I have read them, actually.


... I cannot find anything, so far, and I may have missed it -- I'm asking -- I can't find anything that says the purpose of this clause has anything at all to do with political fights between Congress and the President. To the contrary, Hamilton says that the way we're going to appoint people in this country is Congress and the President have to agree.

Now, that's a political problem, not a constitutional problem, that agreement. And it was just as much true of President George Bush, who made six appointments that happened previously, as it is with President Obama, who's made four. All right? So -- so where -- and he says this clause is a supplement, a supplement, to the basic clause to take care of the timing problem. So, what have I missed? Where is it in the history of this clause, in its origination, that it has as a purpose to allow the President to try to overcome political disagreement?

How much do we defer to the more prolonged history of practice by presidents of both parties under the Clause under which it was clearly understood that any vacancies, regardless of when they occurred, could be filled via recess appointment given the Senate's inability to advise-and-consent? (See, e.g., the briefs filed by the Solicitor General and amicus Constitutional Accountability Center, or historical documents going at least as far back as a July 7, 1792 opinion by Attorney General Edmund Randolph that this was a power for "a case of necessity only; as where the Officer has died, or resigned during the recess, or a person appointed during the Session shall not notify his refusal to accept, until the recess.")

The Court has three options, basically: (1) the Clause is only valid for vacancies which arise during a recess; (2) the Clause is only valid during recesses which the Senate agrees are recesses; or (3) pro forma sessions do not disrupt the recess, and these appointments were valid. As to why I think it's Door #2, let's focus on a few telling excepts from today's argument. You may find other passages persuasive. Solicitor General Don Verrilli, defending the Administration, faced blunt questions from Justice Kagan, who herself served as SG and in the White House:

GENERAL VERRILLI: ... A stable equilibrium [] has emerged over the course of this country's history between the two branches. After all, what we are advocating for here is the status quo. It is the equilibrium that has emerged since Congress -- since the Senate started taking lengthy intra-session recesses, Presidents started making recess appointments during those recesses.

That began in the Civil War days. It's continued to the present. The President -­

JUSTICE KAGAN: General, I think that's a really strong argument, but I have to say I'm not sure it applies consistently throughout each of the three claims that you make. Because if you are going to rely on history and on the development of an equilibrium with respect to what "happens" means, and if you are going to do that again with respect to whether intra-session recesses are included, then it seems to me you also have to look to history and the development of an equilibrium with respect to Congress's definition of its own power to determine whether they are in recess or not.

In other words, your third argument about pro forma sessions, the history is entirely on the Senate's side, not on your side. And if we're going to take a kind of continuing practice and the development of equilibrium seriously, you might win on questions 1 and 2 and then lose on question 3.

Justice Kennedy and others are seized on the question of whether the president could declare pro forma sessions to be recessional in nature:
JUSTICE KENNEDY: Your argument is, it seems to me, in search of a limiting principle. A lunch break, a one-day break -- you've -- you've thought about this -- a 3-day break, a 1-week break, a 1-month break; how do you resolve that problem for us?

GENERAL VERRILLI: I think the -- the way we resolve that problem is by looking to the Adjournment Clause. We think if it's a break that is sufficiently short, that it wouldn't require the -- wouldn't require the one House to get the consent of the other, but that's a de minimis recess and that's not a recess in which the President would have authority -­

JUSTICE SOTOMAYOR: Is that 3 days?

JUSTICE KENNEDY: And what about the pro forma sessions, then? They don't -- or correct me if I'm wrong. They don't require the consent of the other house.

GENERAL VERRILLI: Well, but the problem with the pro forma sessions, I think, Justice Kennedy, is in thinking about the length of recess, we would submit, and this is based on the formal dictionary definition of "recess" at the time of the founding and now, which is "a suspension of business," the recess was from January 3 when the session started until January 23. And the reason I think that -­-­

JUSTICE KENNEDY: So -- so you think there's no recess during pro forma sessions?

GENERAL VERRILLI: There is a recess. And the reason is because the Senate has issued a formal order that no business shall be conducted and that's a formal -­

CHIEF JUSTICE ROBERTS: Well, let's just talk -- let's focus on that. What if, instead of saying "No business shall be conducted," the order said, "It is not anticipated that any business will be conducted." Does that suffice to eliminate that period as a recess?

GENERAL VERRILLI: I think that it's a -­ that's a different case and I think, concededly, a significantly harder case for the Executive because here -­

CHIEF JUSTICE ROBERTS: Yeah. Well, it's difficult and harder, but it also suggests that you're just talking about a couple of magic words that the Senate can just change at the drop of a hat. So maybe the point is not that significant.

As for Noel Francisco, who represents Noel Canning, the interruptions were fewer, the soliloquies longer on how a ruling in his client's favor isn't a big deal:
I would, though, like to address the practicality issue. I talked about how there have only been four recess appointments to the Article III that are potentially invalid since 1960. I likewise don't think, if you were to rule in our favor on the first two questions, that it would be particularly disruptive to the Executive Branch either.

If you look at the government's appendix, I would hazard to say that most of those officials probably don't exercise much, if any, agency rule-making or adjudicatory power at all. But as to those who do, going forward the government can solve the problem through agency ratification of past decisions. Going backward, there are a variety of doctrines that would limit anybody's ability to actually challenge those past actions, including, for example, the APA's 6-year statute of limitations on challenging final agency action, various finality rules that would prohibit a party from raising an issue that they could have but failed to raise in an earlier proceeding, and various justiciability doctrines, like mootness, standing, and, Your Honor, the de facto officer doctrine, at least outside of the context of direct appeal.

I think this constellation of issues probably explains why this is the first time this issue has reached this Court in 225 years. This is not to say that a ruling in our favor on the first two questions wouldn't have any past impact. It would undoubtedly have some. But as this Court's decisions in cases like Chadha and Booker and Blakeley make clear, this Court has never shied away from enforcing the strictures of the Constitution simply because it could have some impact on prior cases.

Similarly, Miguel Estrada, for Senate Republicans:
For the reason that I started out by outlouding -- by outlining -- excuse me -- the Senate's official records do show that the Senate was in session on each date, and therefore, the Senate does have an official view.

But from the practical point of view, we do know that the Senate has a view on these things. And how do we know? The president's party controls the Senate. If the Senate wanted to recess, Rule 22nd of the Senate says that's not a debatable proposition.

If a majority of the Senate wants to recess, even before the evolution of the filibuster, non-debatable proposition. So the Senate says, which is controlled by the president's party, says, we want to recess, we want to go away, we don't care if the president has this power. They vote for that. House says no. What happens then?

Article II, Section 3 of the Constitution, the fight goes to the president, and it is in that event that the president gets to adjourn them until such date as he shall see proper.

So if the Senate had any view that it wanted to recess, they could have had a vote, and the issue would have ended up in the White House, in the lap of the president. He had plenary constitutional power to give himself an inter-session recess by terminating the session and have a real recess appointment power if he could find somebody whose vacancy had actually arisen at the time.

But this is the cockeyed way of going about the instruments of the Constitution. There is no power in the Constitution to use the Recess Appointments Clause to overcome the opposition of the Senate to the president's nominees. And for all that we hear about today, which has to do with how the heaven will fall, and the parade of horribles, there is no parade, and there is no horrible. The only thing that will happen is that the president, heaven help us, will be forced to comply with the advice and consent that the appointments power -- excuse me -- the Appointments Clause actually calls for. That was not viewed as an evil by the Framers. That was what the Framers unanimously agreed was going to be the principal means for appointments for the principal officers of the union.

I do think that Noel Canning wins this one, given that the Senate was technically convening pro forma sessions during this period, but that the Court's not going to go the further step of saying that vacancies must be created during a recess for the recess appointment power to be allowed. They don't have to go that far for this case, and the Chief Justice might even get unanimous opinion that whatever the recess power contemplates, as long as someone shows up in the Senate that day it's not really in recess. Your constitutional mileage may vary.

Originally posted to Adam B on Mon Jan 13, 2014 at 01:19 PM PST.

Also republished by Daily Kos.

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Comment Preferences

  •  Full, brief disclosure (36+ / 0-)

    Noel Francisco and I overlapped in law school for two years, and we have a lot of friends in common; I haven't spoken to him since the mid-90s, FWIW, but if we ran into each other on the street I'd at least say hi.

  •  If they adjudicate (6+ / 0-)

    that the pro forma sessions are constitutional what happens to the recess appointments of the President and preceding presidents.  Do they become void?

  •  The argument over the word "the" is absurd (5+ / 0-)

    The district court found meaning in the fact that the Constitution says "the Recess of the Senate" rather than "a Recess":

    Then, as now, the word “the” was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) (defining “the” as an “article noting a particular thing” (emphasis added)). ​ ​​As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.” This is not an insignificant distinction. In the end it makes all the difference.
    The court suggests that this means that the only "recess" worthy of the name is that which occupies the gap between Congressional sessions, of which there are usually two per 2-year Congress. The problem with this reasoning is that two sessions per Congress typically means two gaps per Congress: the one between the first and second session, and the one that begins at the end of the second session and lasts until the first session of the next Congress. These two gaps are clearly qualitatively different: one is intra-Congress, the other is inter-Congress. (Depending on how you interpret it, that latter gap may itself comprise two "recesses": one that begins when the outgoing Congress adjourns and ends on January 3 at 11:59:59 AM, and a second one that begins at noon on January 3 and ends when the incoming Congress is gaveled into session.)

    The idea that the use of the definite article can denote a single recess is therefore nonsensical: if there exists only one recess that earns the title "the Recess," then which recess is it? The district court's logic must invalidate all recess appointments made between either the first and second sessions, or between the second outgoing session and the first incoming session. It can't allow both.

    Moreover, as Language Log noted last year, the Constitution elsewhere creates an office of "President pro tempore [of the Senate], in the Absence of the Vice President." Interpreting this as requiring a distinction between "the [a]bsence" and merely "an absence" of the Vice President leads to absurd conclusions.

    A more logical interpretation of Article 2, Section 3 is that Congress can take one of two states: it can be in session, or it can be in recess. As there is only one recess state, the use of the definite article--"the Recess of the Senate"--can properly refer to this state, but does not by itself place any restrictions on when or how often this state can occur.

    The term that must be defined here, therefore, is not the word "the," but the word "recess."

  •  At very least... (2+ / 0-)
    Recommended by:
    trueblueliberal, Eyesbright has to refer to the recess between the two annual sessions and break between one Congress and the next.  I don't think anyone would claim it means the daily recess to take lunch.  I'm also fairly confident that a vacancy that already exists when the Senate goes to recess can be construed as occuring during the recess.  Also, add this to the list of things no other President was ever given a hard time for.

  •  Quorum could be used as an argument. (2+ / 0-)
    Recommended by:
    Eyesbright, Nova Land

    One nearby Senator who assumes the chair long enough to gavel it in and out of session does not really a session make.  I would argue that no session truly took place if no quorum is present, which constitutionally is a majority.  Since the Dems have a majority they could deny quorum by staying away.  If you really want to think outside the box you could get the Vice President involved and argue that the Senate is only in session when he says it is, which is his prerogative as the President thereof.

  •  Couple of questions: 1) have there been (2+ / 0-)
    Recommended by:
    Eyesbright, Nova Land

    "recess" appointments made by presidents other than Obama during recesses in which pro forma sessions occurred? and
    2) if the Supreme Court chooses your option 1 or 2, what happens to the decisions that have already been made by people who now are no longer considered valid appointees?

    What a mess. The Senate filibuster extremists have really damaged the ability of the government to function.

    While Democrats work to get more people to vote, Republicans work to ensure those votes won't count.

    by Tamar on Mon Jan 13, 2014 at 01:42:30 PM PST

  •  i'd agree with petitioners' position, (3+ / 0-)
    Recommended by:
    N in Seattle, Eyesbright, Nova Land

    if there were some recognition of a right to a vote on nominations.  The Senate's simultaneous power to convene pro forma sessions and unlimited power to set rules of its proceedings, i.e. filibusters, takes away separation of powers:  the powers have to be shared, and the Senate isn't playing nicely.  Pro forma sessions that are solely to prevent vacancies from being created or filled would be one thing, if there were a practical ability to hold a vote.  But Attorney Estrada is incorrect that there is opposition "of the Senate," as a collective body.  The textual argument is one thing, but the use of this appointment power by all of the Caucasian Presidents is a useful safety valve for another act unintended by the framers, the filibuster, but one immune from judicial review.  You can't build a railroad like this.

    Besides, under the existing regime, these appointments are temporary anyway.  The Senate can't be too bent out of shape, here.   (This is also one reason why, by contrast, judicial recess appointments might not be Constitutional - Judges serve during good behavior.)

    By the way, I read the advice and consent power to create a right to an up or down vote, unless there's a procedural objection to voting:  I think it was ok to filibuster Roberts because of his excessive claims of executive privilege which prevented full consideration of his views.  Alito?  If you can't get the votes against someone who voted for a spousal notification provision and who thinks his current colleague shouldn't have been enrolled at Princeton . . . new senators needed.

    Difficult, difficult, lemon difficult.

    by Loge on Mon Jan 13, 2014 at 01:44:19 PM PST

  •  Maybe one of the most important news items of (2+ / 0-)
    Recommended by:
    Eyesbright, Nova Land

    the day, so thank you for doing this.

    As I recall, there was a twist in this episode that I thought made a difference, but it escaped attention. Or it's a hair that no one cares to split except me.

    In the first tea party session of Congress, around June 2011, a group of 78 freshmen sent a letter to Speaker Boehner proposing a scheme to prevent the President from making recess appointments.  The letter, which was posted on the House website, suggested that the Senate could be prevented from recessing because it had to request permission from the House to do so and the permission could be denied.

    That would make the conditions of this recess different than the earlier cases when the Senate decided on its own not to recess to block GWB's appointments. In my mind it was pertinent because the House insinuated itself into a process of advice and consent in which it has no Constitutional role.

    There is no existence without doubt.

    by Mark Lippman on Mon Jan 13, 2014 at 01:51:11 PM PST

  •  The silver lining of this... (1+ / 0-)
    Recommended by:
    MGross that thanks to the Dems having the cojones to nuke the filibuster, this issue is kind of moot.

    The NLRB's board is filled, courts are getting new judges, the GOP's cockblocking has been halted.

  •  arrggghhh ... "General" (2+ / 0-)
    Recommended by:
    erush1345, Nova Land

    Damn, I detest the appellation "General" when referring to the Solicitor (or Attorney) General.

    They are, in reality, the general solicitor and general attorney of the United States. The word "general" is an adjective, a description, not a title or honorific.

    On this, if on little else, I agree with William Safire. His July 20, 2003 Sunday column lays it out clearly:

    How did rule-abiding citizens, dutifully using the plural ''attorneys general,'' get into this bind? What turned these civilian appellations into martial arts? Is it right and proper to call an attorney general ''General''?

    The answer is no. Any attorney general, national or state, who demands to be called ''General'' is guilty of nominally impersonating an officer, an offense almost as horrendous as aggravated mopery.

    That the plural is "attorneys (or solicitors) general" cinches it. In English, only nouns take the plural.

    Safire also delineates the etymology of the term "attorney general", which clears demonstrates his (and my) point:

    Herz tracks the earliest use in English to a 1398 certificate from the Duke of Norfolk's four attorneys general. ''The general indicated that these agents could act for their principal on any matter.'' According to the O.E.D., such a wide-ranging counsel in the reign of Edward IV in the 15th century -- who was not assigned to a particular court -- was called ''the king's general attorney.'' A century later, Shakespeare had his Duke of York warn Richard II that if the king were to ''call in the letters patents that he hath/By his attorneys-general to sue/His livery . . ./You pluck a thousand dangers on your head.'' By 1717, Thomas Blount's Law Dictionary made clear the difference between an attorney general, ''appointed to manage all our affairs or Suits,'' and ''Attorney Special or Particular . . . imployed in one or more Causes particularly specified.''

    That's the way it is in America today. In the Department of Justice, criminal attorneys and civil attorneys work under a general attorney breezily called ''the A.G.'' He's an attorney, not a general. You can call the Army's judge advocate general ''General,'' because that's his or her rank. But don't call the Navy's judge advocate general that, because he or she is by statute a rear admiral and gets called ''Admiral.'' Call the surgeon general ''Doctor.'' Call the solicitor general ''Solicitor General,'' or if that's too big a mouthful, in the present case a simple ''Mr.'' or ''Ted'' will do.

    Alas, this bastardization of the language has been institutionalized. As we see in Adam's diary, the mistake is uttered by Justice Kagen (herself a former Solicitor General). Even worse, the transcript erroneously awards the rank to the current Solicitor General.

    I know the genie is out of the bottle, that these repeated errors won't be corrected. But I don't have to like it or accept it.

    I'll always be UID:180, even if Markos tries to pry it away.

    by N in Seattle on Mon Jan 13, 2014 at 02:47:39 PM PST

  •  I suppose the Executive could define a recess (3+ / 0-)
    Recommended by:
    Sparhawk, Eyesbright, Nova Land

    as in the middle of the night when no one is around.  Heads are exploding on the Left trying to reconcile a power grab by the Executive versus as this as attack on Obama. The Right too is in quandary. They want the Executive to have more power but don't want to give it to Obama.    What to do, what to do....

    If I comply with non-compliance am I complying?

    by thestructureguy on Mon Jan 13, 2014 at 02:52:06 PM PST

  •  I can haz back (0+ / 0-)

    all John Bolton's decisions as UN Ambassador?

  •  Good to see another legal diary from you Adam (2+ / 0-)
    Recommended by:
    thestructureguy, Nova Land

    It's been a while. As always, your analysis is thorough and appreciated. There have been several topics recently that we really could have used your voice on.

    And I agree with you, it's Door #2.

    Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

    by Pi Li on Mon Jan 13, 2014 at 02:55:37 PM PST

    •   To my knowledge, no other president has tried to (0+ / 0-)

      people under the recess clause while the senate is still technically in session.  so technically the senate is still in session, even though they are not doing anything, thus there is no recess.  however, recess can be when the house and senate go on vacation for the holidays or summer, not just when the congress turns from year to year or old congress to new. this decision would only apply to the appointments obama made, and any future appointments, it cannot apply retroactively, after all what's past is past. Course this is the same court that gutted section 5 of the civil rights act and oked citizens united, so no guaratee they'll make a reasonable decision.

      •  Bush (1+ / 0-)
        Recommended by:
        Adam B

        Bush did not end up making any recess appointments durning pro-forma sessions, but he did make clear that he believed he could when he decided to pocket veto a bill during a recess with pro-forma sessions. If was covered here at the time:

        I guess this would be included in whatever "the past is the past" reasoning the court may come up with

    •  Thanks (3+ / 0-)
      Recommended by:
      Eyesbright, VClib, Pi Li

      Honestly, just a combination of a busy workload and there not being that much to write about.  (It's only my second diary since Election Day.)

  •  a superior diary (3+ / 0-)
    Recommended by:
    Sparhawk, VClib, Kasoru

    Covering the real questions involved in this case. I don't see much hope for the Presidents case, the Senate was clearly in session under Senate rules holding "pro-forma" sessions in lieu of the required permission from the House to recess for more than 3 days.

    The fact that these sessions were probably held merely to prevent recess appointments is I think, irrelevant to the case, since no rule of congress or violation of the constitution appears to have been committed.

    Honesty may be the best policy, but it's important to remember that apparently, by elimination, dishonesty is the second-best policy.

    by fauxrs on Mon Jan 13, 2014 at 03:40:15 PM PST

  •  President has no case (0+ / 0-)

    The recess appointment rule is an anachronism dating back to the time when it was hard to get the Senate together in one place. Now it's really easy.

    I supported the Dems when they invented this way to stop Bush recess appointments, so I would be a hypocrite to turn around and argue against the right of similar blocking of Obama's nominees.

    The President doesn't get to do whatever he wants. The Senate has an absolute and plenary power to vote up, down, or just fail to consider the President's nominees for any reason or no reason. If the President wants his nominees confirmed, he can do what the other 43 presidents have done and use politics, call out his opponents, horse trade, or do anything else within his considerable powers. If people are worried about Republican "obstruction" then vote them out next time.

    (-5.50,-6.67): Left Libertarian
    Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

    by Sparhawk on Tue Jan 14, 2014 at 06:49:09 PM PST

    •  No you wouldn't... (1+ / 0-)
      Recommended by:
      Peace Missile
      I supported the Dems when they invented this way to stop Bush recess appointments, so I would be a hypocrite to turn around and argue against the right of similar blocking of Obama's nominees.
      you would be a typical DK member.
    •  43 presidents? (0+ / 0-)

      Obama is the 43rd man to hold the office, so there have only been 42 others.  And I'm not sure Harrison had a chance to make any appointments.

      Regardless, though, the other 42 presidents didn't have to deal with an opposition party systematically refusing to permit up-or-down votes on any and all appointees.  Calling out his opponents hasn't worked.  Horse trading hasn't worked.  Thanks to gerrymandering, voting them out doesn't work.  The only remaining option is a government that cannot function.

      I realize libertarians would probably be okay with that, but most of us aren't.  The government was constructed under the assumption that those elected (particularly appointees to the Senate) would be reasonable, intelligent adults.  Since that's no longer the case, we need to fix the way the Advice and Consent clause works.

      And since we can't do that by amendment, we've got to do it any damn way we can find.

      •  Re (1+ / 0-)
        Recommended by:
        Regardless, though, the other 42 presidents didn't have to deal with an opposition party systematically refusing to permit up-or-down votes on any and all appointees.  Calling out his opponents hasn't worked.  Horse trading hasn't worked.  Thanks to gerrymandering, voting them out doesn't work.  The only remaining option is a government that cannot function.
        Then that's how it is. The duly elected Republicans have that power. Get them voted out if you can. If you can't, they are expressing the will of their constituents, which is just as valid as yours.

        The Senate has plenary power here, the President doesn't.

        And since we can't do that by amendment, we've got to do it any damn way we can find.
        This attitude truly and completely pisses me off, the idea that because some branch of government doesn't act like you want them to act, the President has some right to gain say them.

        The Constitution doesn't require anyone to pass any legislation or act like your idea of "reasonable adults". The President put forth a nominee. The Senate doesn't want to vote on it, as is their plenary right. Tough.

        (-5.50,-6.67): Left Libertarian
        Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

        by Sparhawk on Tue Jan 14, 2014 at 07:54:28 PM PST

        [ Parent ]

        •  If you make an argument that all th other (0+ / 0-)

          presidents had to do something some way, to defend your position it be required of the current one...

 have to be prepared to accept being made look like an utter fool when it's pointed out that not only don't you even know how many presidents there have been, but, no, not all the other presidents had to do the thing the same way. Not at all.

          Until the mythical and self imposed and entirely unconstitutional 60 votes required if someone just threatens, by proxy, mind you, to halt everything going forward... advice and consent worked VERY differently.

          To blithely dismiss this reality...

          ...speaks volumes.

          •  Re (0+ / 0-)
            If you make an argument that all th other (0+ / 0-)
            presidents had to do something some way, to defend your position it be required of the current one...
            Uh, sure.
            Until the mythical and self imposed and entirely unconstitutional 60 votes required if someone just threatens, by proxy, mind you, to halt everything going forward... advice and consent worked VERY differently.
            The Senate sets it's own rules. The President, in the words of Men In Black, can do precisely dick.

            Even if Senate rules change, that's their prerogative, not the President's.

            (-5.50,-6.67): Left Libertarian
            Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

            by Sparhawk on Wed Jan 15, 2014 at 06:59:32 PM PST

            [ Parent ]

            •  That wasn't your argument. Your argument was (0+ / 0-)

              that all the other presidents had to deal with the same situation and he had the same means of dealing with it as them.

              Untrue on the ridiculous face of it.

              And you have to make that argument, otherwise your position and motives come immediately into question.

              But, as to your shifted goalposts...

              ...yeah, he can do something about it, if the house and senate disagree, he can declare them in recess... it says so right fucking there...

              And, by making a recess appointment, hasn't he by definition done just that? Is there a formal way he has to tell them? Otherwise, by his other acts he has indicated he considers them in recess, and as its his power to put them in recess here... why imagine he was thinking he'd done otherwise?

              Also, the senate can't make its own unconstitutional rules. And any rule or set of rules (either house or senate can decide there's never a recess ever, consent is not possible even with a majority) that defacto moves the power of making appointments from the president to the senate has to be unconstitutional, because it ends with an unconstitutional result.

      •  gerrymandering can't be a factor as the Senate (0+ / 0-)

        confirms appointments.

        The most important way to protect the environment is not to have more than one child.

        by nextstep on Thu Jan 16, 2014 at 10:33:46 AM PST

        [ Parent ]

  •  Not to throw water on this, but isn't it a moot (0+ / 0-)

    point now that the Senate changed it's rules? I only see a problem if a president makes a recess appointment that was already defeated by the majority. And that may be another issue.

  •  The president can keep them in sesson (1+ / 0-)
    Recommended by:

    How would they like them apples?

    Article II
    Section. 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of
    and in Case of Disagreement between them, with Respect to the Time of Adjoumment, he may adjourn them to such Time as he shall think proper;
    And who gets to decide what is "extraordinary"?

    "If you pour some music on whatever's wrong, it'll sure help out." Levon Helm

    by BOHICA on Tue Jan 14, 2014 at 06:51:00 PM PST

  •  Adam B, I concur with your opinion here. (1+ / 0-)
    Recommended by:

    That said, I find it fascinating that the Supremes may look to the historical context of the writing of Art. II, sec 2, cl. 3 in coming to their ruling, that is, the fact that the members of the Senate had departed the Capital and that appointive offices could languish vacant during the weeks or months it might take to reconvene.

    Contrast that with their refusal to consider the Second Amendment in historical context. Is it not reasonable to presume that the crafting of that Amendment was influenced by the technological state of weaponry at the time? Would the founders have proscribed the government from denying citizens the right to walk down the street with semi-auto rifles and 100 round drums?

    Seems to me, if historical context be a strongly determinative factor, they'd view the 2A as the right to keep and bear muskets, period.

    In 2006 Obama explicitly and definitively ruled out a 2008 run for president and declared he would remain in the senate until his term expired in 2010. Can we please stop the "Warren won't run" bullshit?

    by WisePiper on Tue Jan 14, 2014 at 07:01:59 PM PST

    •  They actually did that analysis in Heller (2+ / 0-)
      Recommended by:
      WisePiper, Arctic Belle
      Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

      The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, §6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language37 (1794) (emphasis added).

      Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

      •  My speculation was not grounded in the (0+ / 0-)

        definition of "arms," but rather, would the founders have written the same amendment had they been able to conceive of what would fall within that definition a couple hundred years later. I really doubt it, in the same way I doubt they'd have worded the appointments article as they did, had they been able to conceive of hopping on a jet and traveling back to D.C. within  matter of hours.

        In 2006 Obama explicitly and definitively ruled out a 2008 run for president and declared he would remain in the senate until his term expired in 2010. Can we please stop the "Warren won't run" bullshit?

        by WisePiper on Tue Jan 14, 2014 at 10:22:14 PM PST

        [ Parent ]

  •  My prediction (0+ / 0-)

    It will be decided on a "Screw Obama" basis.  Funny think that it has never come up until there is a black President in the White House.

    And Uncle Thomas will write the decision just to rub it in.

    According to the Supremes the government is only supposed to work for the guys with the money.

    The sort of sophistry in these arguments means that as a practical matter, our democracy is gone.

    50 states, 210 media market, 435 Congressional Districts, 3080 counties, 192,480 precincts

    by TarheelDem on Tue Jan 14, 2014 at 07:12:22 PM PST

    •  No President tried this before (0+ / 0-)

      To make recess appointments while the Senate claimed it wasn't in recess.

      •  So we can't use... (0+ / 0-)

        the "But Bush did it first!!" excuse this time? Damn!

      •  To treat what the GOP caucus (0+ / 0-) doing as merely a political issue then places the whole onus for this failure on the Democratic Senate caucus's failure to dramatically change the Senate rules at the start of the session.

        These guys are destroying tha ability of Congress to govern through their legal nitpicking.  But then that's been the goal of the Federalist Society since the beginning.  Scalia, Thomas, and Kennedy tipped their hand in Bush v. Gore.  They  are totally about defending the Republican Party institutionally.

        No President has had to do recess appointments because of partisan attempts to prevent him from completely staffing his government and not on the mertis of the appointees.  It is the GOP that has abused process, not the President.  At it has not happened to any previous Democratic President.  Just the first black President.  Thinking that that is not what this appointments issue is about is naive.

        Our government processes are being sabotaged by these nitwits.

        50 states, 210 media market, 435 Congressional Districts, 3080 counties, 192,480 precincts

        by TarheelDem on Wed Jan 15, 2014 at 06:06:50 AM PST

        [ Parent ]

  •  Art II, Sec 3 - president can adjourn Congress (0+ / 0-)

    So what I think is interesting is Article II, Section 3 says the president has the following powers over Congress:

    [the president] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;
    Now when the GOP says that they are simply going to nullify, or not going to approve any appointees for the NLRB or the Consumer Protection Bureau, I'd argue that is pretty much an "extraordinary occasion".
    Now correct me if I am wrong, but when the NLRB appointees we recess appointed, it was in a situation where the Senate was wishing to recess, but the House (GOP) was the one gavelling in the pro forma sessions. Thus there was a "disagreement" between the House and Senate whether or not Congress was actually in session.
    Hell, the actual "pro forma" thing is a new development, thus "extraordinary", using the same logic that a lot of the Justices are using as above in this case.
    If I was arguing this case, I would argue, that when Harry Reid is trying to close shop and the House says no, all the president has to do is say they are adjourned. You could even pull some Bush-era "instant declassification" reasoning to say that the president doesn't even have to say this out loud.

    The Republican Party: The Bridge to Nowhere

    by flounder on Tue Jan 14, 2014 at 07:25:30 PM PST

  •  Verilli should be replaced he's got a kick me sign (1+ / 0-)
    Recommended by:
    J Orygun

    on his back and the so-called liberals are acting like Bully Scalia.
    This court is degenerating into Hollywood Squares.
    I hate the Supreme Court.

  •  For 100+ years there has been a power to overcome (0+ / 0-)

    the opposition of the Senate, it's called Recess Appointments which is in the Constitution.

    Why would the Supreme Court seek to resolve a fight between the executive and the legislative?

    Well they made Bush President, why not?

  •  I'll hazard an answer to Justice Breyer's question (0+ / 0-)
    So, what have I missed? Where is it in the history of this clause, in its origination, that it has as a purpose to allow the President to try to overcome political disagreement?
     Pre- planes, trains, and automobile-era Congressional recesses most likely were not without political sleight-of-hand. I would hazard a guess a handy political maneuver would be for an appointee to resign after the recess started, potentially denying the executive branch that portion of the power their vacated office represented for the next six months or so.
      The various colonies would have had some experience with this from their own early experiments in democracy, or perhaps stalling efforts by the crown.
      And, like the line-item veto, how is the filibuster of a candidate Constitutional? How can the Senate deny the Executive a vote for years on an appointment, yet never be "in recess" on its duties?

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