D.C. Circuit guts president's recess appointment power

[abelenkpe]

D.C. Circuit guts president's recess appointment power

http://www.dailykos.com/story/2013/01/25/1181987/-DC-Circuit-guts-President-s-recess-appointment-power

U.S. Constitution, Article II, Sec. 2, Cl. 3:

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.

There are three major ramifications to the D.C. Circuit's decision to deem void the president's appointments to the NLRB, which is sure to be appealed to the Supreme Court:

It means that all orders entered by the NLRB during the past year are void. They are down to one valid member and can’t do anything. We will see if yesterday's fiddling with the Senate rules has any effect on the president's ability to get permanent appointees confirmed.

It also means that Richard Cordray's simultaneous recess appointment to head the Consumer Financial Products Bureau is also likely invalid, and it has been challenged as well.

It greatly circumscribes the recess appointments power, as a general matter.

(more at link)

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[graham4anything]

1. Thanks Ralph Nader. You made this possible.

[RandiFan1290]

3. .

[graham4anything]

4. Before 2000, there was no problem getting votes on nominees

since 2000 every democratic nominee is blocked

put 2 and 2 together
Ralph Nader made this all possible with his collusion with the republican party

because of course, Gore and Bush were the same

I guess, if you like Nader and believe it, then these things shouldn't annoy one because they are for things like this.

Agian, thanks Ralph Nader. I blame you.

[RandiFan1290]

6. I live in Palm Beach County

My vote for Gore was not counted.

You should know that.

[graham4anything]

8. 10 million less voters voted in 2000 thanks to the lies of Ralph Nader

Florida would not even have been needed, had this a-hole not done what he did(and he was financed by republicans.)

the theft meme was convienient to not blame Nader

However, after charts showed the # of voters in modern elections, 2000 had 10 million less voters. Because Ralphie said both sides are the same, don't bother to vote.

This theft made 100% possible by Ralph Nader.

it wasn't the chads, it was Ralph Nader.
Everything that happened during and after election day was directly related from that.

(not to mention NH's 4 electoral votes would have given Gore 270 without Florida.

[RandiFan1290]

9. I know you are obsessed with Nader

But I know what Choice Point is.

I'm not gonna play with you anymore

[Gidney N Cloyd]

5. :-)

I'm not necessarily agreeing with you but I love that graphic.

[RandiFan1290]

10. Wise kitty is wise. nt

[ananda]

2. Boy, this is a bad business.

..

[Lionessa]

7. The title isn't exactly true, it's more like they determined that the recess didn't exist.

Had the Senate actually recessed I don't think this would be a problem, but they played a game to avoid actually recessing. Seems to me Obama needs to learn not to announce his recess plans in advance that way the Senate can't play games with the recess, though why in the world didn't Reid go ahead and recess so this wouldn't be an issue? Reid is really a much bigger problem than I realized even a few days ago.

[onenote]

12. Actually, the court went much farther than that.

It said that only recesses that occur between sessions at the end of the year create a "recess appointment" opportunity and that only vacancies that actually occur during the recess can be filled with a recess appointment.

Historically, there was a significant lapse of time between the adjournment sine die at the end of one Congress and the start of a new Congress. As recently as the mid-2000s, Congress often adjourned around Thanksgiving or Christmas and then reconvened for a new session on January 3. On occasion, Congress would stay in session pretty much right up to the beginning of the next Congress. No "pro forma" stuff -- a real session. But, and it pains me to have to admit it, the Democrats figured out that if they didn't adjourn for more than three days they could argue that there was no recess long enough for bush to make a recess appointment. The tables were turned in 2012 when the House, controlled by the repubs, refused to assent to the Senate recessing and stayed in pro forma session, in an effort to block President Obama from making recess appointments. Neither side is completely innocent in their efforts to thwart the exercise of the recess appointment power.

In any event, to fully appreciate the significance of the court's ruling, consider that the majority (probably the vast majority) of the recess appointments made during the past five administrations (and maybe more) were not made at the end of the year. They were made during the month long August recess or during shorter holiday recesses. And the vast majority of recess appointments involved vacancies that existed prior to the commencement of the recess. Corday, for example, was named to fill a vacancy that had existed since the CFPB was created -- while Congress was in session. So under the court's ruling, the appointment of the first head of the CFPB could NEVER have been made via recess appointment, whether it was a three month recess at the end of the session of Congress or a two minute recess between the first and session of Congress.

Finally, as alluded to above, the reason that Reid didn't adjourn the Senate sine die was that the House wouldn't let him. This isn't a problem when you control both houses of congress, but when control is split, the game of push and pushback has a lot of moves.

[Lionessa]

14. Aha, thank you for the more detailed explanation.

[onenote]

15. No problem. Going forward the decision raises a host of issues.

Between March 2009 and January 2012, President Obama made around 30 or 40 recess appointments. All but a handful were "intrasession" appointments -- made in March, July, August. Even the Corday and NLRB appointments were intrasession appointments, coming as they did during a short recess after the new Congress had been called into session the day before.

All of the recess appointments made prior to the NLRB and Cordray appointments have expired, but there is a question as to whether any of the actions taken by the couple of dozen intrasession recess appointees from 2009 and 2012 are subject to collateral attack on the grounds that at the time those actions were taken, the official taking them was not validly appointed. That raises questions of statutes of limitations that I haven't had the time to research (nor am I likely to -- I have other things tod do!) Depending on how that issue is settled, some or all or none of those decisions could be open to attack. Similarly, the many decisions made by the many recess appointees made by other presidents could be called into question unless there is some point in time at which it simply became too late to challenge the decision.

One further irony of all of this is that, if you recall, there was discussion of whether the President could make a recess appointment in the momentary space between the adjournment of one Congress and the convening of the new Congress a second or two later. People argued that would be ridiculous and that it would be impossible to time it precisely to fall in that almost existential space. But taken at face value, the court decision today would seem to indicate, if you could somehow establish the action was taken at precisely the right moment, the recess appointments made in that second or two window would have been valid, but only if the recess itself only occurred at that very moment as well.

In short, its a mess.

[octoberlib]

11. I just went through the judges of the circuit court to see who appointed them

Most were appointed under Reagan and Shrub. 3 by Clinton.

[onenote]

13. The three judges ruling in this case were appointed by Reagan, Bush I and Bush II.