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(Al Jazeera)   Supreme Court to rule on recess clause, decide who to send to detention   (america.aljazeera.com) divider line 65
    More: Interesting, Supreme Court, recess appointments, President Obama, Republican President George W. Bush, child custody, Richard Cordray, bottling company, executive agencies  
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1561 clicks; posted to Politics » on 10 Jan 2014 at 11:44 AM (35 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2014-01-10 11:19:54 AM
Detention? There's no stinking detention on the recess field! Send them to the Dodgeball Wall!

static1.wikia.nocookie.net
 
2014-01-10 11:23:38 AM
The President shouldn't have to fight the Senate and make recess appointments.  Filling vacancies should be a priority because empty positions don't get work done.  After a reasonable amount of time for hearings and debate, everybody deserves and up or down vote.

A recess appointment should be reserved for instances where there is a vacancy that must be filled before the Senate is back in session.
 
2014-01-10 11:41:13 AM
The Senate needs to STFU and GBTW.
 
2014-01-10 11:41:20 AM
They are going to rule that the constitution isn't constitutional? wat?
 
2014-01-10 11:45:51 AM

Marcus Aurelius: The Senate needs to STFU and GBTW.


True. However, the Court can't order them to do so.
 
2014-01-10 11:47:13 AM
supreme-court-toruleonpresidentialrecessappointments

did aljazeera run out of hyphens?
 
2014-01-10 11:51:37 AM
Who cares?  Now that an anonymous senator can not longer obstruct a senate vote, just have the senate vote on the appointment.
 
2014-01-10 11:53:13 AM

BizarreMan: The President shouldn't have to fight the Senate and make recess appointments.  Filling vacancies should be a priority because empty positions don't get work done.  After a reasonable amount of time for hearings and debate, everybody deserves and up or down vote.

A recess appointment should be reserved for instances where there is a vacancy that must be filled before the Senate is back in session.


Maybe the senate shouldn't be packed with grown men whose little girl panties are pleated and set to hair-trigger auto-bunch whenever they think of the scary blah prez'nit pushing sochulizms with his court and functionary appointments.
 
2014-01-10 11:53:30 AM

quantum_csc: Who cares?  Now that an anonymous senator can not longer obstruct a senate vote, just have the senate vote on the appointment.


It's less about going forward and more about recess appointments that have already been made.

I'm actually a bit surprised the court decided to weigh in on this issue, as it seems to fall under the "political question" doctrine.
 
2014-01-10 11:54:43 AM

quantum_csc: Who cares?  Now that an anonymous senator can not longer obstruct a senate vote, just have the senate vote on the appointment.


B..b..but how are we going to run the country from the minority position, and dictate every single policy?
 
2014-01-10 11:59:04 AM

qorkfiend: quantum_csc: Who cares?  Now that an anonymous senator can not longer obstruct a senate vote, just have the senate vote on the appointment.

It's less about going forward and more about recess appointments that have already been made.

I'm actually a bit surprised the court decided to weigh in on this issue, as it seems to fall under the "political question" doctrine.


Maybe Roberts wants to send a message to the current and any future obstructionists?

Don't fark with presidential appointments, you chucklefarks.
 
2014-01-10 11:59:10 AM

Crabs_Can_Polevault: Maybe the senate shouldn't be packed with grown men whose little girl panties are pleated and set to hair-trigger auto-bunch whenever they think of the scary blah prez'nit pushing sochulizms with his court and functionary appointments.


That's just the smoke and mirrors bullshiat.  The reality is that the GOP decided before Obama was elected that the most effective way to hurt a Democrat who's elected president is to stonewall anything and everything he wants to do, no matter how inconsequential.  They're not keeping Federal court seats open waiting for a Republican to get elected; they're just doing it to try to hurt Obama.  But it's nothing personal against him; they'll do this to every president with a (D) behind his name from now on.
 
2014-01-10 12:04:16 PM

lockers: They are going to rule that the constitution isn't constitutional? wat?


They are going to rule that wile the recess appt provision is constitutional but the president does not have the power/authority to state when the senate is in recess.  That power is vested in the power granted to the senate to create their own rules.  But then punt on reversing all the work done by the unconstituitonally appt NLRB people.
 
2014-01-10 12:04:24 PM

qorkfiend: quantum_csc: Who cares?  Now that an anonymous senator can not longer obstruct a senate vote, just have the senate vote on the appointment.

It's less about going forward and more about recess appointments that have already been made.

I'm actually a bit surprised the court decided to weigh in on this issue, as it seems to fall under the "political question" doctrine.


That is my point.  Have the Senate vote today on every recess appointment that has been made by Obama.  They should have done that immediately after changing the rules.  The case would be moot.
 
2014-01-10 12:04:24 PM

qorkfiend: Marcus Aurelius: The Senate needs to STFU and GBTW.

True. However, the Court can't order them to do so.


But the President can.
 
2014-01-10 12:06:22 PM

lockers: They are going to rule that the constitution isn't constitutional? wat?


Well we at least know Scalia will...
 
2014-01-10 12:11:41 PM
This should be fascinating if the Obama team is really arguing that the senate is unable 'or unwilling' to do their job.

The republican court will never let that fly, but it could be an intriguing arguments. Suddenly obstructionism isn't just an obscure concept but an actual, definable thing.
 
2014-01-10 12:12:01 PM

Saiga410: lockers: They are going to rule that the constitution isn't constitutional? wat?

They are going to rule that wile the recess appt provision is constitutional but the president does not have the power/authority to state when the senate is in recess.  That power is vested in the power granted to the senate to create their own rules.  But then punt on reversing all the work done by the unconstituitonally appt NLRB people.


Shouldn't the Senate Majority leader or the President Pro Tem (hmm I wonder who that is?) get to state when the Senate is in recess?
 
2014-01-10 12:12:14 PM
quantum_csc:
That is my point.  Have the Senate vote today on every recess appointment that has been made by Obama.  They should have done that immediately after changing the rules.  The case would be moot.

No because how whould you then  treat the rulings performed by these appointees in the intervening year and a half.  We can have a vote to keep them but the work they have done already would still be in question.
 
2014-01-10 12:15:06 PM

cameroncrazy1984: Saiga410: lockers: They are going to rule that the constitution isn't constitutional? wat?

They are going to rule that wile the recess appt provision is constitutional but the president does not have the power/authority to state when the senate is in recess.  That power is vested in the power granted to the senate to create their own rules.  But then punt on reversing all the work done by the unconstituitonally appt NLRB people.

Shouldn't the Senate Majority leader or the President Pro Tem (hmm I wonder who that is?) get to state when the Senate is in recess?


The rules are if a certain number of people show up you are not in recess.  Change the rules and you change the cituation but at the time the rules stated they were not in recess.
 
2014-01-10 12:15:06 PM

qorkfiend: quantum_csc: Who cares?  Now that an anonymous senator can not longer obstruct a senate vote, just have the senate vote on the appointment.

It's less about going forward and more about recess appointments that have already been made.

I'm actually a bit surprised the court decided to weigh in on this issue, as it seems to fall under the "political question" doctrine.


i would guess that this is follow-through, reflecting on how PISSED the judicial branch as a whole is that vacancies and staff cuts, etc. are keeping them from getting anything done...
 
2014-01-10 12:16:01 PM

qorkfiend: I'm actually a bit surprised the court decided to weigh in on this issue, as it seems to fall under the "political question" doctrine.


The court has wiggle room on this one, since there's a clear legal question on the forefront: whether the NLRB legally ruled against Noel Canning. Resolving the question of whether the recess appointments were Constitutional is the key factor in determining that legality in ruling.

And, a word as to who's to blame on this one since a lot of vitriol is being spewed against the Senate: it was the  House that did not assent to recess during the relevant time frame, thereby forcing the Senate to hold  pro forma sessions.
 
2014-01-10 12:17:58 PM

Saiga410: quantum_csc:
That is my point.  Have the Senate vote today on every recess appointment that has been made by Obama.  They should have done that immediately after changing the rules.  The case would be moot.

No because how whould you then  treat the rulings performed by these appointees in the intervening year and a half.  We can have a vote to keep them but the work they have done already would still be in question.


I thought that once the Senate returned to session they could confirm the recess appointments to guarantee continuity.  Hasn't it been done this way prior to having a black president?  According to Wikipedia they have until the end of the next session to confirm recess appointments.  If these were made in 2012 then they should have been confirmed by two weeks ago or the ball was dropped.
 
2014-01-10 12:18:36 PM

Dwight_Yeast: Crabs_Can_Polevault: Maybe the senate shouldn't be packed with grown men whose little girl panties are pleated and set to hair-trigger auto-bunch whenever they think of the scary blah prez'nit pushing sochulizms with his court and functionary appointments.

That's just the smoke and mirrors bullshiat.  The reality is that the GOP decided before Obama was elected that the most effective way to hurt a Democrat who's elected president is to stonewall anything and everything he wants to do, no matter how inconsequential.  They're not keeping Federal court seats open waiting for a Republican to get elected; they're just doing it to try to hurt Obama.  But it's nothing personal against him; they'll do this to every president with a (D) behind his name from now on.


You are correct, sir; that's a fair point.

That said, though, I still think it'll be easier to unseat them by citing the reason they provide than by claiming that they're being obstructionists and jeopardizing the notion of checks and balances within the American government out of  pure spite. The former is much easier to disprove, at least to rational individuals.
 
2014-01-10 12:21:47 PM
The Canning case is probably moot, because even if the Court rules that the appointments were improper thus vacating the Canning ruling, the NLRB can now simply reinstitute the ruling with its proper appointees.

I do think the DC Appeals Court has successfully Overton Windowed the question of recess appointments.  No one realistically thinks that the President can only appoint people when a vacancy occurs during a recess; there are 200+ years of precedent saying otherwise, but it seems to me that the ability to declare that a pro-forma session is in fact a recess will be held to be unconstitutional.  If the Senate hadn't fixed the filibuster on executive and judicial nominees, this would be a bigger problem, but since all such nominees get an up or down vote it's not the problem that it was 6 months ago.
 
2014-01-10 12:28:54 PM
The President is supposed to appoint people, Constitutionally, with the "advice and consent" of the Senate.

Not the "stonewalling, obstructionism (that isn't even related to the nominee or office), WHAAAAR, GAAAAARBL, and potato" of the Senate.
 
2014-01-10 12:34:36 PM
Clearly something is broken. I hope the SC can see that and actually make things better.
 
2014-01-10 12:41:41 PM

PanicMan: Clearly something is broken. I hope the SC can see that and actually make things better.


Don't hold your breath.
 
2014-01-10 12:52:56 PM

47 is the new 42: PanicMan: Clearly something is broken. I hope the SC can see that and actually make things better.

Don't hold your breath.


I never do when it comes to the SC. They come up with some wacky justifications.
 
2014-01-10 01:00:25 PM
"Senate Republicans wielding 60-vote supermajority power had blocked Obama's previous nominations"

Wow. I guess I really slept in this morning and missed an impromptu Senate election where the GOP managed to pick up 15 seats.
 
2014-01-10 01:02:56 PM
For the sake of the country cant Obama just step down and put Rand Paul in charge until the next election? All this bickering would end overnight and we could finally get America back on the right track. Im tired of this president trying to sell our freedom to China and our Christian morals to Satan. Even a Mormon would be a better president than a blah guy (or a woman for that matter).
 
2014-01-10 01:12:12 PM

FnkyTwn: For the sake of the country cant Obama just step down and put Rand Paul in charge until the next election? All this bickering would end overnight and we could finally get America back on the right track. Im tired of this president trying to sell our freedom to China and our Christian morals to Satan. Even a Mormon would be a better president than a blah guy (or a woman for that matter).


Meh, 1/10. Needs more garrrrrbl.
 
2014-01-10 01:14:25 PM
If the asshats didn't try to stop Black Muslim Hitler at every instance, there might not have been this fight.
 
2014-01-10 01:18:32 PM

Target Builder: "Senate Republicans wielding 60-vote supermajority power had blocked Obama's previous nominations"

Wow. I guess I really slept in this morning and missed an impromptu Senate election where the GOP managed to pick up 15 seats.


They didn't. But they did have the power to require a supermajority and have enough votes to block any vote requiring a supermajority.

Po-Tay-toe, Po-Tah-Toe.
 
2014-01-10 01:35:19 PM
I wonder if Obama's lawyers are going to argue:
The Senate and House's own calendars said they were in recess.  All their members were at home.  They had multiple press conferences saying they were on recces.  The claim they were still in session because they left a bathroom light on is ridiculous.
 
2014-01-10 01:38:47 PM

Stile4aly: The Canning case is probably moot, because even if the Court rules that the appointments were improper thus vacating the Canning ruling, the NLRB can now simply reinstitute the ruling with its proper appointees.

I do think the DC Appeals Court has successfully Overton Windowed the question of recess appointments.  No one realistically thinks that the President can only appoint people when a vacancy occurs during a recess; there are 200+ years of precedent saying otherwise, but it seems to me that the ability to declare that a pro-forma session is in fact a recess will be held to be unconstitutional.  If the Senate hadn't fixed the filibuster on executive and judicial nominees, this would be a bigger problem, but since all such nominees get an up or down vote it's not the problem that it was 6 months ago.


Not taking sides on this one, but I see a very solid argument on the basis that effectively being in recess, regardless of what you call it, is in recess so the appointments are valid.  I don't know that's the actual case, but the phrase pro forma implies the meetings had no value with respect to the business of the house.

Cheers.
 
2014-01-10 01:50:35 PM

Brian_of_Nazareth: Not taking sides on this one, but I see a very solid argument on the basis that effectively being in recess, regardless of what you call it, is in recess so the appointments are valid. I don't know that's the actual case, but the phrase pro forma implies the meetings had no value with respect to the business of the house.

Cheers.


It all comes down to whether or not a "recess" is a technical thing or a functional thing.  If it's technical, then any appointments any time the Senate isn't technically on recess aren't constitutional.  If it's functional, then they are allowed any time the Senate is not in a position to "advise and consent" on such appointments.  Arguments can be made for either; it really hinges on how individual judges will interpret "recess".
 
2014-01-10 02:06:45 PM

obenchainr: Brian_of_Nazareth: Not taking sides on this one, but I see a very solid argument on the basis that effectively being in recess, regardless of what you call it, is in recess so the appointments are valid. I don't know that's the actual case, but the phrase pro forma implies the meetings had no value with respect to the business of the house.

Cheers.

It all comes down to whether or not a "recess" is a technical thing or a functional thing.  If it's technical, then any appointments any time the Senate isn't technically on recess aren't constitutional.  If it's functional, then they are allowed any time the Senate is not in a position to "advise and consent" on such appointments.  Arguments can be made for either; it really hinges on how individual judges will interpret "recess".


Given that the Constitution grants the Senate and House the power to determine their own rules, it seems to me that the question of functionality vs technicality is one that the SC will declare a political question and decline to overturn the precedent of the Senate having to formally recess before a recess appointment can be declared.  That being said, I still think the pro-forma sessions are BS.
 
2014-01-10 02:11:04 PM

qorkfiend: quantum_csc: Who cares?  Now that an anonymous senator can not longer obstruct a senate vote, just have the senate vote on the appointment.

It's less about going forward and more about recess appointments that have already been made.

I'm actually a bit surprised the court decided to weigh in on this issue, as it seems to fall under the "political question" doctrine.


Sounds to me like the conservative near-majority of the Court has decided that merely interpreting the Constitution under a black president isn't sufficient, that they will have to actually start writing it.

Why do I suspect the Court would never even consider this if it were a Republican White House facing Democratic opposition?
 
2014-01-10 02:24:59 PM

mksmith: qorkfiend: quantum_csc: Who cares?  Now that an anonymous senator can not longer obstruct a senate vote, just have the senate vote on the appointment.

It's less about going forward and more about recess appointments that have already been made.

I'm actually a bit surprised the court decided to weigh in on this issue, as it seems to fall under the "political question" doctrine.

Sounds to me like the conservative near-majority of the Court has decided that merely interpreting the Constitution under a black president isn't sufficient, that they will have to actually start writing it.

Why do I suspect the Court would never even consider this if it were a Republican White House facing Democratic opposition?


As someone else said here, its the Senate that gets to determine what a recess is according to the constitution.  I this case, the Senate purposefully put itself in a position where they were not in recess, but the President told them to go fark off and appointed them anyway (I believe other presidents have also done the same thing at times.. both democrat and republican).

Advise and consent puts all the marbles in the Senates court, the President has no power here to even argue this without a constitutional amendment.  In the end, Presidents are going to start to have to find centrist appointees that both parties can agree on or not get their appointees confirmed... as it should be.
 
2014-01-10 02:26:26 PM

meat0918: Maybe Roberts wants to send a message to the current and any future obstructionists?


That may be one of the reasons SCOTUS took this, actually... Specifically:
Dwight_Yeast: They're not keeping Federal court seats open waiting for a Republican to get elected; they're just doing it to try to hurt Obama.

It may be less about "don't fark with the President's appointment process" and more "don't fark with the judiciary".
 
2014-01-10 02:27:11 PM

obenchainr: It all comes down to whether or not a "recess" is a technical thing or a functional thing...


Indeed -- and for this it will be very interesting to see on which sides the Court falls, especially the conservative wing who are all formalists and mostly self-proclaimed originalists. The conservative wing will undoubtedly swing in Noel Canning's favor, but they'll have to do some serious ideological gymnastics to do it as recess appointment power was one of the more heavily-contended and -defended ancillary powers of the Executive branch by the Federalists, primarily Hamilton. No originalist argument on the topic can possibly ignore  Federalist no.67, especially since the arguable abuse of power stems from the  House with the singular intent to  block appointment.

If the White House is smart, it'll seize upon that originalist argument to allege the  House of Representatives was, at the time, unconstitutionally inserting itself into the process of appointment.
 
2014-01-10 02:28:56 PM

dwrash: As someone else said here, its the Senate that gets to determine what a recess is according to the constitution.  I this case, the Senate purposefully put itself in a position where they were not in recess, but the President told them to go fark off and appointed them anyway (I believe other presidents have also done the same thing at times.. both democrat and republican).


Yes, them all going home and just saying they were in recess is totally a legitimate and allowed maneuver. I'm sure if Democrats did this under Bush, you'd be ok with this.

dwrash: Advise and consent puts all the marbles in the Senates court, the President has no power here to even argue this without a constitutional amendment.  In the end, Presidents are going to start to have to find centrist appointees that both parties can agree on or not get their appointees confirmed... as it should be.


The Democrats are the centrists, are you suggesting all appointees should be Democrats?
 
2014-01-10 02:29:04 PM

dwrash: In the end, Presidents are going to start to have to find centrist appointees that both parties can agree on or not get their appointees confirmed... as it should be.


I'm gonna have to go ahead and disagree with you there, Bob. I don't know where you got the idea that both parties have to agree on a nominee for them to get confirmed.
 
2014-01-10 02:29:31 PM

grumpfuff: dwrash: As someone else said here, its the Senate that gets to determine what a recess is according to the constitution.  I this case, the Senate purposefully put itself in a position where they were not in recess, but the President told them to go fark off and appointed them anyway (I believe other presidents have also done the same thing at times.. both democrat and republican).

Yes, them all going home and just saying they weren't in recess is totally a legitimate and allowed maneuver. I'm sure if Democrats did this under Bush, you'd be ok with this.

dwrash: Advise and consent puts all the marbles in the Senates court, the President has no power here to even argue this without a constitutional amendment.  In the end, Presidents are going to start to have to find centrist appointees that both parties can agree on or not get their appointees confirmed... as it should be.

The Democrats are the centrists, are you suggesting all appointees should be Democrats?


FTFM
 
2014-01-10 02:35:57 PM

qorkfiend: dwrash: In the end, Presidents are going to start to have to find centrist appointees that both parties can agree on or not get their appointees confirmed... as it should be.

I'm gonna have to go ahead and disagree with you there, Bob. I don't know where you got the idea that both parties have to agree on a nominee for them to get confirmed.


Only enough have to agree to get a majority vote... as it should be... it depends on the makeup of the Senate.
 
2014-01-10 02:37:18 PM
obenchainr:

It all comes down to whether or not a "recess" is a technical thing or a functional thing.


So it depends on what your definition of the word "recess" is?

www.iranhall.com
 
2014-01-10 02:38:00 PM

dwrash: qorkfiend: dwrash: In the end, Presidents are going to start to have to find centrist appointees that both parties can agree on or not get their appointees confirmed... as it should be.

I'm gonna have to go ahead and disagree with you there, Bob. I don't know where you got the idea that both parties have to agree on a nominee for them to get confirmed.

Only enough have to agree to get a majority vote... as it should be... it depends on the makeup of the Senate.


How does that have anything to do with "Presidents are going to start to have to find centrist appointees that both parties can agree on or not get their appointees confirmed"?
 
2014-01-10 02:45:38 PM

Stile4aly: obenchainr: Brian_of_Nazareth: Not taking sides on this one, but I see a very solid argument on the basis that effectively being in recess, regardless of what you call it, is in recess so the appointments are valid. I don't know that's the actual case, but the phrase pro forma implies the meetings had no value with respect to the business of the house.

Cheers.

It all comes down to whether or not a "recess" is a technical thing or a functional thing.  If it's technical, then any appointments any time the Senate isn't technically on recess aren't constitutional.  If it's functional, then they are allowed any time the Senate is not in a position to "advise and consent" on such appointments.  Arguments can be made for either; it really hinges on how individual judges will interpret "recess".

Given that the Constitution grants the Senate and House the power to determine their own rules, it seems to me that the question of functionality vs technicality is one that the SC will declare a political question and decline to overturn the precedent of the Senate having to formally recess before a recess appointment can be declared.  That being said, I still think the pro-forma sessions are BS.


I just looked up the political question doctrine, and I don't see how this one doesn't meet the requirements.  The only reason I can come up with for the supremes to hear this one (and I don't have my GED in law yet, waiting for the cheque to clear) is because they maybe want to talk about congress' requirement to interpret its rules in a consistent and reasonable way.  In other words, make up whatever rules you like, but you actually have to live with them until you change them.

Looking through the rules of Congress, I can't find anything that actually defines recess or adjournment so maybe a second argument that absent a specific rule by congress on a subject, terms and expectations can be justiciable based on common/accepted meanings.

Cheers.
 
2014-01-10 02:50:17 PM

qorkfiend: dwrash: qorkfiend: dwrash: In the end, Presidents are going to start to have to find centrist appointees that both parties can agree on or not get their appointees confirmed... as it should be.

I'm gonna have to go ahead and disagree with you there, Bob. I don't know where you got the idea that both parties have to agree on a nominee for them to get confirmed.

Only enough have to agree to get a majority vote... as it should be... it depends on the makeup of the Senate.

How does that have anything to do with "Presidents are going to start to have to find centrist appointees that both parties can agree on or not get their appointees confirmed"?


It depends on the makeup of the senate and the senate rules... like i said, the President will have to take the senate makeup into account when he nominates an appointment... i.e. the Constitution never gave the President carte blanche to appoint whomever he wants.  The President needs to take into account strategy in order to put the best possible candidate forward that he thinks the senate will agree on.
 
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