Reid’s plan to block Bush’s recess appointments.

[cal04]

“Senate Majority Leader Harry Reid has a little trick up his sleeve that could spell an end to President Bush’s devilish recess appointments of controversial figures like former United Nations Ambassador John Bolton.” U.S. News reports:

We hear that over the long August vacation, when those types of summer hires are made, Reid will call the Senate into session just long enough to force the prez to send his nominees who need confirmation to the chamber. The talk is he will hold a quickie “pro forma” session every 10 days, tapping a local senator to run the hall. Senate workers and Republicans are miffed, but Reid is proving that he’s the new sheriff in town.

http://thinkprogress.org/2007/05/20/reids-plan-to-block-bushs-recess-appointments/

Bush's Summer Hires Targeted

Senate Majority Leader Harry Reid has a little trick up his sleeve that could spell an end to President Bush's devilish recess appointments of controversial figures like former United Nations Ambassador John Bolton. We hear that over the long August vacation, when those types of summer hires are made, Reid will call the Senate into session just long enough to force the prez to send his nominees who need confirmation to the chamber. The talk is he will hold a quickie "pro forma" session every 10 days, tapping a local senator to run the hall. Senate workers and Republicans are miffed, but Reid is proving that he's the new sheriff in town.

http://www.usnews.com/usnews/politics/washingtonwhispers/070520/bushs_summer_hires_targeted.htm?s_cid=rss:site1

[NMDemDist2]

1. awesome! K&N n/t

[wakemeupwhenitsover]

2. K & R. n/t

[BlooInBloo]

3. How, *precisely* does that *prevent* gw from making recess appointments?

I believe, for example, that gw has continued making recess appointments even while Congress is in session.

[havocmom]

8. It is used during a recess in the Senate

If Reid keeps calling sessions to order every so often, he thwarts the practice

http://www.sourcewatch.org/index.php?title=Recess_appointment

[Atman]

47. Did you miss the word "recess?"

Bush has not and can not make "recess" appointments if there is not a recess. That is why Reid wants to keep the Senate in session. And it's not Congress, it's the Senate that confirms these appointments, so only Reid has to keep a few Senators around to stay in session and deny Bush the "recess" appointment option.

.

[Democrats_win]

4. Good! To not do this would be malpractice: allowing the incompetence to spread.

[R_M]

5. I don't understand why there has been so much nay saying...

about Reid. He has the balls to spar with the GOP. I highly approve of the work he is doing! :dem:

[malaise]

6. I love it

Go Harry!

[williesgirl]

7. So much for a "quickie" Gonzo replacement! Go Harry - recommended

[havocmom]

9. LOL Harry's gotta keep Wolfowitz and Gonzales from switching offices

;)

[NV Whino]

10. Good for him

I've wondered why they didn't do this before. I mean, fool me once, shame on you. Fool, me twice, shame on me. Fool me thrice, we keep congress in session.

[JimDandy]

52. Ditto!! n/t

[EFerrari]

11. Harry Reid is one tough customer. I'm glad he's on our side.

lol

[wakeme2008]

12. I am lost

nowhere did I see anything about WHY 10 days. Couldn't Bush do one, the next day after a "pro-forma" session????????

[WilliamPitt]

29. Learn the system.

[crikkett]

36. you're a sweetheart this morning.

The Senate's FAQ at shows it isn't a clear-cut issue, my dear.
http://www.senate.gov/reference/resources/pdf/RS21308.pdf

How Long Must the Senate Be in Recess Before a President
May Make a Recess Appointment?

The Constitution does not specify the length of time that the Senate must be in recess
before the President may make a recess appointment. Over the last century, as shorter
recesses have become more commonplace, Attorneys General and the Office of Legal
Counsel have offered differing views on this issue. Most recently, in 1993, a Department
of Justice brief implied that the President may make a recess appointment during a recess
of more than three days.7 Appointments made during short recesses (less than 30 days),
however, have sometimes aroused controversy, and they may involve a political cost for
the President. Controversy has been particularly acute in instances where Senators
perceive that the President is using the recess appointment process to circumvent the
confirmation process for a nominee who is opposed in the Senate.

Is There Any Difference Between Recess Appointments Made
Between Sessions and Those Made During a Recess Within a Session?

Recent Presidents have made both intersession (between sessions or Congresses) and
intrasession (during a recess within a session) recess appointments. Intrasession recess
appointments were unusual, however, prior to the 1940s. Intrasession recess
appointments have sometimes provoked controversy in the Senate, and there is also an
academic literature that has drawn their legitimacy into question.9 Intrasession recess
appointments are usually of longer duration than intersession recess appointments. (See
above, “How long does a recess appointment last?”)

What Happens If the Nomination of Someone Holding
a Recess Appointment Is Rejected by the Senate?

Rejection by the Senate does not end the recess appointment. Payment to the
appointee may be prevented, however, by a recurring provision of the Transportation,
Treasury, Housing and Urban Development, the Judiciary, and Independent Agencies
Appropriations Act. The provision reads, “No part of any appropriation for the current
fiscal year contained in this or any other Act shall be paid to any person for the filling of
any position for which he or she has been nominated after the Senate has voted not to
approve the nomination of said person.”10 This provision has been part of this annual
funding activity for at least 50 years. As a practical matter, nominations are rarely
rejected by a vote of the full Senate.

[jobycom]

55. LOL! If you don't know, just say it!

:rofl:

[in_cog_ni_to]

13. ALRIGHTY THEN! WTG, Harry!

This is just FANTASTIC! The poor little repukes are miffed? Waaaaaaaaaaaaaaaah! Waaaaaaaaaaaaaaaaaah! Waaaaaaaaaaaaaaaaaah! Is there ANYTHING they don't whine about? NO!

Give 'em hell, Harry!

[MissWaverly]

14. I thought Sam Fox was appointed during 4 days recess

I think this is what Bush and Gonzo are waiting for the Memorial Day break.

[Hamlette]

16. I think Fox was appointed over the easter recess which was 8 days long

according to the senate calendar online. In the case of Evans v Stevens there is an excellent discussion on the recess appointment of Pryor to the circuit court during the President's day recess in Feb of 2004 which was 11 days long. The case notes that Sen Frist announced "I wish everyone a safe President's Day recess". In the discussion of what "recess" means the court noted other appointments made during short recesses and used as an example one made by Clinton during a 9 day recess.

I'm guessing Reid has read the case and is trying to get around it by not announcing a recess and/or breaking it up by sessions in between.

Here's the link to Evans but you might need a membership to get on to Lexis. http://www.lexis.com/research/retrieve/frames?_m=78c2bec649979ff1cf39f655ef869eef&csvc=fr&cform=free&_fmtstr=XCITE&docnum=1&_startdoc=1&wchp=dGLbVzb-zSkAz&_md5=2ee0268a47c72a1bb1ae5177c7c39b65

[MissWaverly]

23. this article is well worth a read, 7 working day recess/Fox appt.

George W. Bush supported up-or-down votes when he had a majority in Congress...Another example is the case of Sam Fox whose nomination as Ambassador to Belgium was withdrawn by President Bush on March 28, 2007 "less than an hour before the Senate Foreign Relations Committee gathered to vote" according to an article by AP's Sam Hananel. President Bush faced a newly-elected majority of Democrats in the Senate which would have voted the measure down in committee before it reached the floor. Even if the measure had come up for a vote, it is hard to know if there were enough Republican Senators to vote against invoking cloture.

Chris Dodd (D-CT) issued a statement, which said in part: "It is outrageous that the President has sought to stealthily appoint Sam Fox to the position of ambassador to Belgium when the President formally requested that the Fox nomination be withdrawn from the Senate because it was facing certain defeat in the Foreign Relations Committee last week. I seriously question the legality of the President's use of the recess appointment authority in this instance. I intend to seek an opinion on the legality of this appointment from the Government Accountability Office (GAO) and invite other Senators to join with me in that request. This is underhanded and an abuse of Executive authority -- sadly this behavior has become the hallmark of this administration."

Some argue it is time for the Congress to pass a statute limiting recess appointments. Consider though how Kalt summed up his response to my question about Fox; his nomination is "probably unconstitutional, but it would be hard to get the courts to take the case. Even if they did take it, the President might win. There is an argument that his action is constitutionally OK, and the history of recess-appointment court decisions is a history of the court allowing things that, to most experts, they should not have."

http://www.llrx.com/extras/recessappointments.htm

[upi402]

15. good! k/r n/t

[CatWoman]

17. GIVE EM HELL, HARRY!!!

:rofl:

[wakemeupwhenitsover]

18. Other posters raised good points asking how this would work

when dumbya appointed fox during a 4 day recess.

First, maybe Sen. Reid isn't going to call for a recess. Would that then negate a recess appointment? If no recess is called, then there technically isn't a recess so no appointment, right? Or am I missing something (very likely).

Second, I looked up the law. Maybe some obscure something in here applies. Maybe Sen. Reid is mainly concerned about dumbya filling gonzo's spot during a recess.

§ 5503. Recess appointments
How Current is This?

(a) Payment for services may not be made from the Treasury of the United States to an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until the appointee has been confirmed by the Senate. This subsection does not apply—
(1) if the vacancy arose within 30 days before the end of the session of the Senate;
(2) if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent; or
(3) if a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected thereafter receives a recess appointment.
(b) A nomination to fill a vacancy referred to by paragraph (1), (2), or (3) of subsection (a) of this section shall be submitted to the Senate not later than 40 days after the beginning of the next session of the Senate.

[quiet.american]

39. Thanks for posting these rules. n/t

[MzNov]

19. If this works, How Sweet It Is !!!!

Keep standing up to him Harry. It's not so dificult when 75% of Americans are behind you !!!

:bounce:

[philly_bob]

20. Recess Appointment Blocking Strategy -- great idea! Sen. Casey please note.

If Harry Reid and a few senators suffer the stifling DC summer for the sake of good government, my hats are off to them.

Hey, my senator, Bob Casey (D-Penn.), so far I'm underwhelmed by your performance, but if you become part of a blocking strategy against Summer recess appointment, I'll change my opinion.

And Philadelphia's SOOO close to Washington.

And if you refuse, I send cash money to any primary challenger.

[Swamp Rat]

21. k&r

[MasonJar]

22. Thank you, Harry!

[pinto]

24. Ha! If true, what a smart procedural move.

[AnnInLa]

25. Better hold up on that celebrating for a minute

Please go and read this thread on kos...seems there is some disagreement on the things bush can and cannot do, and if gonzo is advising him, well, he will do whatever he wants to and say "whaddaya gonna do bout it?"

http://www.dailykos.com/story/2007/5/20/164332/644


(Report for Congress updated Jan. 16, 2007) the Pres may make a recess appointment during a recess of more than three days, although "controversy" arises if it is perceived that the Pres is circumventing the Senate. The DOJ document cited is Mackie v. Clinton Civil Action 93-0032LFO, July 2, 1993. There is no ten-day benchmark per se, but Reid's strategy may be to have the Senate in a position to confirm or deny quickly, rather than letting the appointee languish in his/her position too long. Also according to this document, even if the Senate puts the kabosh on the appointment, the only way to get the appointee out is to deny him/her a salary.

http://www.senate.gov/reference/resources/pdf/RS21308.pdf

and this:

How Long Must the Senate Be in Recess Before a President May Make a Recess Appointment? The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over the last century, as shorter recesses have become more commonplace, Attorneys General and the Office of Legal Counsel have offered differing views on this issue. Most recently, in 1993, a Department of Justice brief implied that the President may make a recess appointment during a recess of more than three days. Appointments made during short recesses (less than 30 days), however, have sometimes aroused controversy, and they may involve a political cost for the President. Controversy has been particularly acute in instances where Senators perceive that the President is using the recess appointment process to circumvent the confirmation process for a nominee who is opposed in the Senate.

http://www.senate.gov/reference/resources/pdf/RS21308.pdf (same link as above)

According to the Senate (2+ / 0-)







calendar, the Senate was not in session from April 2-9 for the Easter recess, during which Bush appointed Fox. (Swiftboater Amb to Belgium)

So, what does Reid think he's accomplishing, again?

[Demeter]

50. In These Modern Times Of Instant Communication and Speedy Travel

Recess appointments must end. There is nothing so critical that it cannot wait a week or two.

[Edweird]

26. Hey! Great! I could use another spectacular let-down right about now!

I'll buy it when I see it happen. It would be great. But, wasn't that a plan once already?

[wiley]

27. This deserves a Molly Bloom yes yes yes

This has to be done. Now anything less will be a colossal failure of the Democrats to exercise their authority.

[19jet54]

28. Go Harry!

Hope it works? I.E. There are no countermeasures?

[Truth2Tell]

30. It doesn't really matter if every 10 days is too long

Harry Reid is throwing up the gauntlet on recess appointments. This is an opening salvo. Go Harry!

Bush may not even fight this.

[wryter2000]

45. Welcome to DU

:hi:

[jonnyra]

31. Right now I am concerned

about Bush replacing the liar Gonzo with another lackey over Memorial Day. And if you think the threat of controversy will stop him you aint been attention. Bush does not give a fuck about anything but covering his ass and he cannot let a new AG take over that would be on the side of truth...he cannot let that ha[[en and will stop at nothing to ensure that does not happen. If the liar Gonzales suddenly steps down this week you can bet its coming.

[wryter2000]

43. Welcome to DU

:hi:

[DeSwiss]

32. K&R!!!

:) :thumbsup:

[LiberalFighter]

33. The Original Meaning of the Recess Appointments Clause

Source: http://home.sandiego.edu/~miker/recess.pdf">The Original Meaning of the Recess Appointments Clause by Michael B. Rappaport

1. Attorney General Edmund Randolph’s Interpretation
An early and important interpretation of the term “happen” in the Recess Appointments
Clause occurred during George Washington’s First Administration. In 1792, Thomas Jefferson,
who was Secretary of Foreign Affairs, asked the first Attorney General, Edmund Randolph,
whether a recess appointment could be made for the position of Chief Coiner of the Mint.
Randolph, who had been at the Philadophia Convention and had been an important participant in
the Virginia Ratifying Convention, adopted the arise interpretation and concluded a recess
appointment was not available.80

The statute establishing the Mint had peen passed on April 2, 1792, but no person had
been nominated for Chief Coiner before the Senate ended its session on May 8th.81 Randolph
asked whether the empty office was a vacancy “which has happened during the recess of the
Senate?” He concluded that the vacancy had “happened” on the day when the statute had been
enacted in April. Thus, the vacancy had happened during the session and could not be filled with
a recess appointment.

Randolph’s analysis relied not only on the language of the Clause, but also on “the spirit
of the Constitution,” by which he meant the same thing that I mean by structure and purpose.
Randolph concluded that the spirit of the Constitution requires that the Recess Appointments
Clause be “interpreted strictly” because it was “an exception to the general participation of the
Senate.” While Randolph recognized that there might be legitimate reasons why the appointment
could not be made before the end of the session, that was not sufficient to override the language
and the spirit of the Constitution.82

In this remarkable opinion, Randolph in a few paragraphs articulated the main pillars of
the arise interpretation: that the text supports the arise view, that the Senate’s confirmation role is inconsistent with the exist interpretation, and that any inconveniences created by the arise interpretation are outweighed by these textual and structural arguments.

2. Alexander Hamilton’s Interpretation
Alexander Hamilton also interpreted the Clause to have the arise meaning. In 1799, Secretary of War James McHenry,83 who interpreted the Clause to have the arise meaning, asked Hamilton, then serving as a Major General in the United States Army, for his interpretation of the Clause.84 In response, Hamilton also argued that the arise interpretation was the correct one, writing “It is clear, that independent of the authority of a special law, the President cannot fill a vacancy which happens during a session of the Senate.”

4. George Washington’s Interpretation
There is also evidence that President George Washington and the Senate adopted the arise
interpretation. As I briefly mentioned,88 President Washington and the Senate pursued a practice
to fill late session vacancies that suggests they adopted the arise interpretation. Under this
practice, if there was not sufficient time before the end of a session to ask an individual whether he was willing to serve in an office, the President would nominate the individual without
knowing whether he would take the position. The Senate would then confirm the individual
before recessing.89

Washington treated this nomination and confirmation as a full appointment. If the
appointee subsequently declined to serve, Washington classified this refusal as a resignation from
the office, which created a new vacancy during the recess. Washington could then make a recess appointment at that time while fully respecting the arise interpretation. Under the exist
interpretation, by contrast, this practice would not have been needed to make a recess
appointment, since the President could recess appoint an individual during the recess even if the
vacancy had arisen during the session.90

Although this practice suggests that Washington and the Senate accepted the arise
interpretation, it does not prove it. It is possible that Washington nominated and the Senate
confirmed persons immediately before the recess so that a permanent appointment would be
made rather than a temporary recess appointment. While this could have been the President and
Senate’s motivation, it does not seem probable. Nominating and confirming someone at the end
of a session takes effort and it seem unlikely that the President and Senate would do so without
knowing that the prospective appointee would be willing to serve in the job unless there were
significant benefits for doing so. Merely securing a permanent appointment does not seem to
warrant going to the trouble of the confirmation process, when under the exist interpretation the
President could make a recess appointment during the recess and then a permanent appointment
when the Senate came back into session. It is only if the office would have to remain vacant
during a long recess, as it would under the arise interpretation, that the President and the Senate would have a strong reason for rushing the appointment at the end of the session.

[progressoid]

34. Well, hot damn!!!

[LiberalFighter]

35. The Meaning of Recess

Source: http://home.sandiego.edu/~miker/recess.pdf">The Original Meaning of the Recess Appointments Clause by Michael B. Rappaport

I now turn to the second question addressed in this essay: What is the meaning of the term “recess” in the Recess Appointments Clause? The basic issue here is whether the term “recess” is restricted to intersession recesses or also may include intrasession recesses. Under the
intersession interpretation, a recess appointment can only be made in the period between the two
full sessions of Congress. Under the intrasession interpretation, by contrast, a recess
appointment can be made not only during an intersession recess but also during an intrasession
recess. The intrasession interpretation comes in two versions. One version interprets the term
“recess” to include all intrasession recesses, irrespective of how long they are – what I call “all recesses interpretation.” Alternatively, one might believe that the term “recess” includes
only intrasession recesses that are greater than a specified length, such as two weeks or a month – what I call “the practical interpretation.”

Originally, the Clause was applied mainly to intersession recesses. While Attorney
General Knox explicitly endorsed the intersession interpretation in 1901,132 two decades later
Attorney General Daugherty overruled this position and adopted the practical interpretation.133
Daugherty held that the term recess should be understood to include intrasession recesses when
as a practical matter the Senate was not conducting business. To determine whether the Senate
was actually conducting business, Daugherty would ask whether there was a duty of attendance,
whether the chamber was empty, and whether there was anyone there to receive communications
from the executive.134 Daugherty did not believe that this analysis yielded any specific minimum
time period for a recess, but he did conclude that there were clear cases: A break of 30 days
would certainly be a recess, whereas a break of 10 days would not.135 Because of the uncertainty
about what constituted a recess, Daugherty decided that the President was “necessarily vested
with a large, although not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate.”136

Over time, though, the executive branch has appeared to expand the definition of a recess.
Thus, the Office of Legal Counsel has held, on more than one occasion, that a recess of 18 days
is constitutionally sufficient.137 President George H. W. Bush made several recess appointments
during a 12 day intrasession recess.138 President Clinton made a recess appointment of an
Ambassador during a ten day intrasession recess,139 while President George W. Bush recently
recess appointed William Prior to the Eleventh Circuit also during a 10 day intrasession recess.140

The executive branch’s legal analysis contemplates even shorter recesses. One
opinion suggested that 3 days might be sufficient. A Justice Department legal brief, as well as
some commentators, argue that in principle there is no limit on the length of a recess.141 If this
opinion were accepted, that would transform the practical interpretation into the all recesses
view.

This part explores these three interpretations, arguing that the evidence from text,
structure, purpose, and history strongly favors the intersession interpretation over the other two
interpretations. While the intersession view makes sense in terms of text, structure and purpose,
the other two interpretations suffer from serious problems. Most significantly, the all recesses
view appears absurd as a matter of structure and purpose, because it would allow the President
make recess appointments during a one week or even a one day recess. While the practical
interpretation would avoid recess appointments during extremely short recesses, this view cannot
derive a workable standard from the language of the Constitution.

[wicket]

37. Simply awesome

:D

[IWantAChange]

38. Dems are working hard to save our Democracy from the Bushbots...

[madokie]

40. Thank you Harry Reid

and thank you OP for bringing it to my attention:-)

[OPERATIONMINDCRIME]

41. Seems Like A Great Procedural Move, But How Much Ya Wanna Bet Bush Does It Anyway.

With his ego and belief that he's the be all end all, would it surprise anyone if he attempted to push through a recess appointment with only a one day break even?

[wryter2000]

42. Give 'em hell, Harry

Rubbing C. Montgomery Burns' hands together. "Excellent!"

[npincus]

44. LOL-- kiss kiss

[paparush]

46. Harry Reid was a Boxer in his younger days. He's still got a good Jab!

And a good left hook!

[Norquist Nemesis]

48. As long as he has one or two backups in place...just in case

Frankly, I don't trust the Bushetals. The list of who will be tapped should either be secret or along the lines of "one of these three Senators".

Somewhere, someone has to have looked at the statistical probability of Bush's luck with bad things befalling his enemies.

[Honeycombe8]

49. Then why would he announce it? To take the argument from the other side...

that's letting your enemy know the game plan. ?????

[Auggie]

51. I love it!

[blondeatlast]

53. Excellent. Give 'em hell, Harry! nt

[nolabels]

54. What the hell, they should be camped out in D.C. at any rate

The stalemate is a twenty some months or shorter, this is the least these elected millionaires could do :shrug:

[Henryman]

56. Great Move Even if it Doesn't Work!!!

Reid keeps the Senate in session, Bush appoints anyway, Senate denies the appointee a salary. Newsworthy and embarassing to the repugs.