Is today's rule change in anticipation of or in reaction to upcoming Supreme Court argument?

[morningfog]

Next month, the Supreme Court is hearing oral arguments in Channing v. NLRB. The case puts before the Court, for the first time, the question of recess appointments. It is a complicated and nuanced set of questions the Court has has asked for arguments on. Does a vacancy have to occur during an intersssion recess to trigger the recess appointment power of the President? Is the recess appoint power available only during intersession recesses or also during intrasession recesses as well? And finally, can recess appointments be made during the 3 day breaks of pro forms sessions?

No one knows how the Court will respond and the answers are not partisan based. The appointments at issue are 3 members of the national labor relations board by Obama during an intrasession recess. The appointments were made then because the repubs block it all. The decision from the Court, when it comes, could seriously effect the function of the government with respect to appointments, not just judicially.

This is the solution that arguably should have long ago been put in place. It will also survive and allow for appointments regardless of the Court's decision.

That's my take on the timing, anyway.

[Tx4obama]

1. In my opinion that issue has nothing to do with today's rule change

... other than they fact that IF the rules had been changed back then then Obama would have been able to have his nominees confirmed by the full senate the normal way.


The issue before the Supreme Court is more about to what constitutes an 'official recess'

The GOP has blocked the official adjournment of the Senate for years. It takes both the House and Senate to pass the resolution for adjournment when they take long breaks.

That is why the Senate has been forced to have a pro-forma every 3 days when the Senate is on vacation.

It is the White House's position that those pro-forma sessions are only for show and that the Senate is really in recess.

[morningfog]

2. The issue with the Supreme Court is a separation of powers question that turns on

what constitutes recess for the recess appointment clause.

The Court has a few ways to answer the question. If it holds that only intersession recesses count to trigger the recess appointment clause, then Congress could have the session end the second immediately before the next began. It could end the availability of recess appointments altogether. To a lesser degree the same would happen if the Court holds that the only vacancies that trigger the clause are those that occur during an intersession recess.

If it holds that intrasession recesses count, it will have to decide the length of recess that triggers the clause. If they say the three days in pro forma sessions is either not long enough or don't count as recesses, again the President would be blocked from making appointments.

If the Court rules one of those, or a combination of, those ways, the President's recess appointment power will be dead.

With those possibilities, it has forced Reid to help Obama get these appointments through without using the recess at all.