Supreme Court hints it may limit president's recess-appointments power

[Judi Lynn]

Source: Los Angeles Times

Supreme Court hints it may limit president's recess-appointments power
Justices appear likely to rule against the long-standing practice of filling high-level posts during Senate recesses.

By David G. Savage
January 13, 2014, 10:31 p.m.

WASHINGTON — The Supreme Court hinted Monday it may move to limit a presidential power used since the days of George Washington to fill high-level vacancies during Senate recesses.

A top Obama administration attorney ran into sharp skepticism from justices while defending the presidential power, granted in the Constitution, to bypass the Senate and make recess appointments when lawmakers are not in session.

Use of this power has grown more controversial in recent decades as both Republican and Democratic presidents have clashed with Senates controlled by the opposing party. The Obama administration says many of its nominees to agencies and courts in recent years have been blocked by Republican filibusters for political reasons. Republicans say Democrats did the same thing during the George W. Bush administration.

In recent times, most presidents have relied at one point or another on recess appointments to break partisan deadlocks and see their nominees seated temporarily. But Monday's oral arguments marked the first time the law has been debated at the Supreme Court.








Read more: http://www.latimes.com/nation/la-na-scotus-recess-20140114,0,2559267.story#ixzz2qMpq5FpG

[Fridays Child]

1. But, à la Bush v. Gore, the decision will not be intended for broad application.

Somehow, they will write the majority opinion so narrowly that it will never impinge on the right of any future (gods forbid) Republican president to make recess appointments. I can see it coming. The ruling will apply only to Kenyan Muslim Socialist presidents.

[tomm2thumbs]

3. +++ What you said +++ /nt

[rpannier]

11. When the decision is rendered you just have to read the fine print

Void when a Republican is elected to the presidency
Until then, this decision cannot be reviewed.

[former9thward]

20. Nonsense.

Even the Justices appointed by Obama questioned the practice.

[Live and Learn]

2. Hmm, what happened to the all powerful precedent standard? nt

[Ikonoklast]

4. Funny how Republican justices love judicial activism when they are the ones doing it.

And hate precedent when it doesn't jibe with their radical agenda.

[former9thward]

22. Kagan is a Republican Justice???

[onenote]

5. What Supreme Court precedent?

This was always going to be a tough case. The Supreme Court has never ruled on the scope of the recess clause.

[Live and Learn]

6. Oh, I don't know,

how about the one that seemed to be fine since the founding fathers used it? Guess they didn't know what they really wanted and have been waiting all this time for the Supreme Court to decide.

[pipoman]

8. i suspect the argument is

That recess appointments in the 18th and 19th centuries were necessary because of inability to communicate during recesses.

[onenote]

16. See post #15

[Demeter]

7. If the Supremes do such a stupid, government blockage thing

they will have to be removed, en masse, shipped to Gitmo, and tortured for treason.

They will have shut down the Executive branch entirely. If that isn't destroying the government, and thwarting the will of the governed, the People, then nothing is.

[mtasselin]

9. Of course

They see the hand writing on the wall that it could be a long time before a republican is elected president. They are protecting their own and some where down the road they will change their ruling. I have to ask why does the Supreme Court hear to many cases, I can't believe that was the intent by our founding fathers.

[Gman]

10. Obama should defy the SCOTUS citing separation of powers

I think he would have a solid case. Let them make the next move.

[onenote]

15. How would the President "defy" the SCOTUS?

And who would decide this supposedly 'solid case'?
Even if there was a way for the President to "defy" the Supreme Court, there is absolutely no chance he would attempt to do so. This case was always going to be a tough one for the administration to win. There is zero Supreme Court precedent on the question of the scope of the recess clause. There is no historical precedent for applying it where the Senate is holding "pro forma" sessions and has not declared itself to be in "recess." Indeed, the fact that there was no historical precedent for recess appointments under these circumstances is why this tactic was used to good effect by our side during the Bush administration to prevent him from making recess appointments for the last couple of years of his term. If Bush had made such a recess appointment in the face of the Democratically controlled Senate's "pro forma" sessions, we would have screamed bloody murder. And it was because there was no precedent on the issue that President Obama decided to take a chance when he made recess appointments in circumstances where the Senate was meeting in pro forma sessions.

The arguments are close, but it appears that even Ginsburg isn't buying the argument that the President can decide when the Senate is or isn't in recess. I predict that the decision on that issue is virtually unanimous against the President. And no President is going to "defy" a unanimous (or nearly unanimous) Supreme Court decision, even if there was some way to do so.

The more interesting question, going forward, will be on an issue that the Court probably doesn't need to decide but might -- whether the Constitutional provision limiting the recess appointment power to vacancies that "may happen during the recess" means that the power only applies to vacancies that first come about while the Senate is in recess or applies to a vacancy that arises while the Senate is in session and continues over into a period of recess. Although the least strained reading of the language probably supports the first, narrower interpretation, it is not unambiguous. In this instance, historical practice strongly supports the latter, broader reading. I suspect Scalia, Alito, and Thomas will support the narrower reading, but I'm hopeful that the rest of the court, even Roberts, will side with history on this, just as I expect them to side with history on the issue of appointments during a period of pro forma sessions.

[Gman]

21. You're right, there is no precedent. Therefore

I think it is a blatant infringement on the separation of powers. He should defy the decision and order the DOL to enforce any and all NLRB decisions that might be invalidated. He should use the IRS to make good any monetary awards and use any executive powers necessary to enforce all NLRB decisions.

If they want war we should give them war.

[onenote]

23. The stronger argument is that the President is violating the separation of powers

By deciding when the Senate is in recess.

And when the courts enjoin the DOL from carrying out the President's orders and they refuse that order from the court -- then what? You really want a "war" (or rather a constitutional crisis) over a decision that likely will have the support of a substantial majority of the court, including justices appointed by the President? I can't think of a worse idea. The public isn't going to rally to the President's side on this, particularly since the tactic of using pro forma sessions in an effort to block the exercise of the recess appointment power was invented by our side and there is zero historical precedent for using it the way the President used it.

Bad idea to start a war when you can't win it.

[bucolic_frolic]

12. This is a case about recesses

Incredibly GW Bush respected Democrats' pro-forma sessions

I think the Court is showing skepticism at what constitutes a recess

They will strike down Obama's appointments and leave the recess
question alone

Don't see how anyone can sue the Senate for creating pro-forma
sessions

So this will mean that the only time a President can get anyone he
wants appointed will be when his party has 60 plus majority in the
Senate

Any other time, recess appointments won't be allowed.

Such a ruling might actually force the parties to communicate
about appointments

and prevent the more extreme nominees from being appointed
unless the 60 threshold is reached

Of course we all know Obama appoints centrist moderates whereas
the next GOP President will be appointing Tea Party Crusaders

[Lefty Thinker]

14. You've forgotten the recent rule change

Except for Supreme Court nominations, the Senate has changed the rules on nominations to only require a simple majority for cloture.

[bucolic_frolic]

19. Think they're connected?

As if these strict constructionists on the Court are tinkering around
the edges of less well defined areas of the Constitution and Senate
rules to achieve some type of balance?

Nah!

[Lurks Often]

13. Even Justice Breyer, one of the most liberal of the Justices, appeared to be skeptical

of Executive Branch's arguments.

http://www.scotusblog.com/2014/01/argument-recap-an-uneasy-day-for-presidential-power/

Looks like both the liberal and the conservative wings of the Supreme Court are on the same page. Based on the link it looks like only Sotomayer and Ginsburg were sympathetic to the argument made by the Administration's lawyer.

[L0oniX]

17. SCOTUS GOP obstructionists in play?

[question everything]

18. But if the Senate now can confirm appointees without fear of a filibuster

will there then not be need for a recess appointment?

[blkmusclmachine]

24. The crime: presidenting while black.