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Old 06-26-2014, 08:08 AM  
alnorth alnorth is offline
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OBama loses on recess appointments case

Obama has lost on the NLRB case. Breyer wrote the opinion. Unanimous, with a concurring opinion.

Recess appointments can be made during a intra-session recess, so the most extreme case has been avoided. (some people believe recess appointments can only be made between congresses which would make most recess appointments in our history illegal. The court said no to that) Also, the vacancy does not have to occur during a recess, which was the other ridiculous argument some people made.

However, the court has ruled that a 3-day recess is too short (and so therefore they also ruled that the pro-forma sessions were real sessions, and not bullshit). They do not spell out precisely how long a recess has to be, only that 3 days is too short, and 10 days would have probably been long enough for a recess appointment.
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Old 06-27-2014, 10:39 AM   #31
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Originally Posted by patteeu View Post
Maybe it would help get things moving if Obama worked with Senate Republicans to find acceptable candidates.
There may be something to that with judges since they are lifetime appointments, but its a load of crap for cabinet positions and positions in the executive branch.

Unless he is nominating felons, the president should be able to get his own guys into his branch of government.
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Old 06-27-2014, 10:41 AM   #32
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Originally Posted by Direckshun View Post
I think this means we can look forward to pro forma sessions on a near-constant basis.
Since nominations can't be filibustered anymore (except SCOTUS, and that'll change as soon as it matters), this isn't as big of an issue as it used to be.
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Old 06-27-2014, 10:43 AM   #33
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Originally Posted by alnorth View Post
Since nominations can't be filibustered anymore (except SCOTUS, and that'll change as soon as it matters), this isn't as big of an issue as it used to be.
That's because the Senate is run by the same party as the White House.

Soon as you get divided rule there, say hello to constant pro forma sessions.
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Old 06-27-2014, 11:05 AM   #34
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Originally Posted by Direckshun View Post
That's because the Senate is run by the same party as the White House.

Soon as you get divided rule there, say hello to constant pro forma sessions.
We haven't brought it up yet, but there are untested shenanigans that the president can attempt in that situation which future courts will have to resolve. There are at least 3 which I'll list below.

1) There is no question that inter-session recess appointments are legal (which is the period of time when one congress adjourns and the newly-elected congress opens). There is no set time when congress must adjourn, so some years they go away in December, but other times they have adjourned just a few moments before the new congress opens. Obviously if congress adjourns in the middle of December weeks before the new congress there are no problems, but If the congress is controlled by the other party and they try to keep the inter-session recess from happening, then the president could try to jam his nominations through in those few minutes. Does an inter-session recess require the same 10 days as an intra-session recess? Probably. So this isn't a very good tactic.

2) The second method of creating a recess comes up if the president's party controls one house but not the other. What happens if the house (controlled by the president's party) wants to adjourn in the middle of December (thus creating a recess for their president), but the senate doesn't agree and would prefer to adjourn on the day the new congress opens? Well, according to the constitution (article 2 section 3), if the two houses of congress can't agree on when to adjourn, then the president can adjourn them.

This has never been done before, but its in the constitution. There would be a lot of fighting in the courts over what the scope of this never-before-used power is the first time a president dusts it off and uses it. So, as long as the two houses can't agree on when to adjourn, the president could try to step in and say "fine, I'll decide. You guys are adjourned right now".

Where it really gets fun is how early could the president adjourn congress? There has to be some kind of limit, the president and a willing house can't force the senate to close the day after they are sworn in and have no congress for a full 2 years.

3) (I got this one from Scotusblog) In the NLRB case, the supreme court said that the pro-forma sessions were valid because the senate was open and could conduct business for those few moments. Now we know thats not true since its just one senator gavelling it open and closed, but no one called a quorum. A quorum is presumed until it is shown that there is no quorum. The supreme court said that even if we think the senate is not really open, if the Senate says it is open and able to conduct business, then the court will not second-guess the Senate. The senate minority leader and Noel Canning both went to great lengths explaining that there was nothing on record suggesting no quorum so the SCOTUS had to presume there was. So they certainly thought that was an important part of the case.

So, OK. If this happens again, then one senator from the president's party can stay in town and as soon as the senate is gavelled in, he could suggest the absence of a quorum and force a roll call. The rules of the senate say the roll must immediately be taken and you can't do anything else until the roll call is finished (including close the senate for the day) when a quorum call is made unless the senator who called for it agrees to suspend the quorum call, so that senator will be able to get it on the official record that the senate had no quorum that day and wasn't really able to conduct any business.

If it goes back to SCOTUS again after a recess appointment, the president will say "look, with the NLRB case you said you had to presume the senate had a quorum and could conduct business, but in this case we now have it on the official record that there was no quorum. If thats relevant like you said it was back then, then this pro-forma session in this new case was bullshit, and the senate was really in recess and unable to act on a nomination".
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Last edited by alnorth; 06-27-2014 at 11:12 AM..
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Old 06-27-2014, 11:26 AM   #35
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Originally Posted by Direckshun View Post
That's because the Senate is run by the same party as the White House.

Soon as you get divided rule there, say hello to constant pro forma sessions.
The worst part of this decision is that it doesn't go far enough and forces the Senate into the pro forma sessions that concern you. There's really no excuse for recess appointments in this day and age with the next session of Congress always right around the corner and with virtually no travel obstacles for Senators to get to DC.
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Old 06-27-2014, 11:29 AM   #36
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Originally Posted by alnorth View Post
We haven't brought it up yet, but there are untested shenanigans that the president can attempt in that situation which future courts will have to resolve. There are at least 3 which I'll list below.

1) There is no question that inter-session recess appointments are legal (which is the period of time when one congress adjourns and the newly-elected congress opens). There is no set time when congress must adjourn, so some years they go away in December, but other times they have adjourned just a few moments before the new congress opens. Obviously if congress adjourns in the middle of December weeks before the new congress there are no problems, but If the congress is controlled by the other party and they try to keep the inter-session recess from happening, then the president could try to jam his nominations through in those few minutes. Does an inter-session recess require the same 10 days as an intra-session recess? Probably. So this isn't a very good tactic.

2) The second method of creating a recess comes up if the president's party controls one house but not the other. What happens if the house (controlled by the president's party) wants to adjourn in the middle of December (thus creating a recess for their president), but the senate doesn't agree and would prefer to adjourn on the day the new congress opens? Well, according to the constitution (article 2 section 3), if the two houses of congress can't agree on when to adjourn, then the president can adjourn them.

This has never been done before, but its in the constitution. There would be a lot of fighting in the courts over what the scope of this never-before-used power is the first time a president dusts it off and uses it. So, as long as the two houses can't agree on when to adjourn, the president could try to step in and say "fine, I'll decide. You guys are adjourned right now".

Where it really gets fun is how early could the president adjourn congress? There has to be some kind of limit, the president and a willing house can't force the senate to close the day after they are sworn in and have no congress for a full 2 years.

3) (I got this one from Scotusblog) In the NLRB case, the supreme court said that the pro-forma sessions were valid because the senate was open and could conduct business for those few moments. Now we know thats not true since its just one senator gavelling it open and closed, but no one called a quorum. A quorum is presumed until it is shown that there is no quorum. The supreme court said that even if we think the senate is not really open, if the Senate says it is open and able to conduct business, then the court will not second-guess the Senate. The senate minority leader and Noel Canning both went to great lengths explaining that there was nothing on record suggesting no quorum so the SCOTUS had to presume there was. So they certainly thought that was an important part of the case.

So, OK. If this happens again, then one senator from the president's party can stay in town and as soon as the senate is gavelled in, he could suggest the absence of a quorum and force a roll call. The rules of the senate say the roll must immediately be taken and you can't do anything else until the roll call is finished (including close the senate for the day) when a quorum call is made unless the senator who called for it agrees to suspend the quorum call, so that senator will be able to get it on the official record that the senate had no quorum that day and wasn't really able to conduct any business.

If it goes back to SCOTUS again after a recess appointment, the president will say "look, with the NLRB case you said you had to presume the senate had a quorum and could conduct business, but in this case we now have it on the official record that there was no quorum. If thats relevant like you said it was back then, then this pro-forma session in this new case was bullshit, and the senate was really in recess and unable to act on a nomination".
The third one is a rock solid strategy, actually.
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Old 06-27-2014, 11:29 AM   #37
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Originally Posted by patteeu View Post
The worst part of this decision is that it doesn't go far enough and forces the Senate into the pro forma sessions that concern you. There's really no excuse for recess appointments in this day and age with the next session of Congress always right around the corner and with virtually no travel obstacles for Senators to get to DC.
I'm sure, in your eyes, the need for recess appointments became unnecessary in January of 2009.

I'm sure that opinion will change the second Chris Christie gets sworn in, January 2017.
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Old 06-27-2014, 11:32 AM   #38
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Originally Posted by patteeu View Post
The worst part of this decision is that it doesn't go far enough and forces the Senate into the pro forma sessions that concern you. There's really no excuse for recess appointments in this day and age with the next session of Congress always right around the corner and with virtually no travel obstacles for Senators to get to DC.
I don't think we want to go there. A lot of people on the left think the 2nd amendment is outdated too. We've got to draw the line and say that if its in the constitution, we can't just say its not needed anymore and ignore it.
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Old 06-27-2014, 11:57 AM   #39
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I don't think we want to go there. A lot of people on the left think the 2nd amendment is outdated too. We've got to draw the line and say that if its in the constitution, we can't just say its not needed anymore and ignore it.
OK, that's a fair criticism. It's time to amend the constitution and repeal the appendix-like recess appointment power.
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Old 06-27-2014, 02:41 PM   #40
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OK, that's a fair criticism. It's time to amend the constitution and repeal the appendix-like recess appointment power.
I think I could support that. I do believe the president should be able to appoint almost whoever the hell he wants to non-judge positions, but there's not much of a need for recess appointments these days.
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Old 06-27-2014, 03:16 PM   #41
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I think I could support that. I do believe the president should be able to appoint almost whoever the hell he wants to non-judge positions, but there's not much of a need for recess appointments these days.
Maybe it should be something like Congress has a set period of time to act on an appointment with a confirmation vote (e.g. 180 days) and if they fail to do so, the appointment is automatically confirmed.
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Old 06-27-2014, 06:12 PM   #42
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Originally Posted by Direckshun View Post
I'm sure, in your eyes, the need for recess appointments became unnecessary in January of 2009.

I'm sure that opinion will change the second Chris Christie gets sworn in, January 2017.
If that is the case then he will never change his opinion as that guy will never be anything other than a visitor at the White House. Oh and **** off~
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