President's ability to make recess appointments may be severly curtailed.

[jimmy olsen]

I don't like recess appointments, but at the same time I don't like the idea of federal depatrments being starved of administrators by a hostile senate so I suppose I'm against this be overturned.

http://www.nytimes.com/2014/01/22/opinion/disarming-the-white-house.html

Disarming the White House

By NORMAN J. ORNSTEINJAN. 21, 2014


WASHINGTON — AMID the coverage of the Christie controversy and the latest budget deal, it was easy to miss the news about last week's oral arguments before the Supreme Court in the case of National Labor Relations Board v. Noel Canning. And yet the Canning case represents the biggest threat to presidential power in decades, and the stakes in the decision are extremely high.

The case grew from a challenge by the Noel Canning Corporation to President Obama's recess appointment of several nominees to the N.L.R.B., along with the head of the Consumer Financial Protection Bureau. Recess appointments are not unusual, but in this case, the Senate was away but still convening pro forma sessions — just five minutes or so at a time — because the House had not given permission to adjourn.

The challenge began narrowly, centered on the question of whether a president or the Senate gets to decide when the legislative body is in recess. But it was broadened dramatically last year by a panel of the Court of Appeals for the District of Columbia Circuit, which ruled that virtually all recess appointments violated the direct language of the Constitution: Only those vacancies occurring during the recess between the two sessions of Congress, and only those filled during that recess, would be allowed. Because such recesses are very brief, the odds of a significant vacancy opening up during them are near zero.

The tenor of the oral argument suggested widespread skepticism by the justices about recess appointments in general, despite their frequent use by presidents for 200 years. The court might rule narrowly, simply outlawing the kinds of recess appointments made by Mr. Obama, leaving intact the accepted practices, and usual tugs of war, that have characterized nomination battles for many decades. But there is a strong chance that the Supreme Court will agree with the D.C. Circuit opinion, in essence erasing the recess appointment authority and capability of the president.

In the short run, this outcome would mean little. In recent years, presidents have used recess appointments to avoid Senate filibusters. But the Senate recently changed its filibuster rules, lowering the threshold for cloture on nominations from 60 to 50 (both the N.L.R.B. and C.F.P.B. slots in question were filled by Senate confirmation). With the new cloture rules, and a Democratic Senate, the president will have little difficulty filling executive and judicial vacancies.

But what happens when we have a president from one party and a Senate majority from the other? The justices, in the oral argument, focused on the "originalist" fact that at the beginning of the republic, recess appointments were intended not to deal with political disputes between president and Senate but to enable presidents to fill positions when there were, as a practical matter, lengthy stretches without a Senate in session to confirm them.

But it is also true that at the beginning of the republic, there were no filibusters, and the Constitution's framers believed that senators would use the "advise and consent" power only rarely to block nominees, and even then only when senators judged them lacking in qualifications, temperament or ethical standards.

For most of American history, recess appointments were a safety valve for presidents when there were individual disputes over nominees, a modest weapon of the executive in the continuing struggle between the political branches.

The last decade or so, though, has been different. The party not holding the presidency has used the confirmation power not simply to vet presidential nominees but to veto them as a whole, regardless of qualifications, for partisan reasons, or has refused to confirm them in order to nullify laws by nullifying the agencies designated to enforce them.

That could be a disaster if that party controlled the Senate, where it could use its power to block nominees from even coming to a vote. In fact, the only thing that would keep a tribal party from acting to utterly foil a president from fulfilling his executive responsibilities would be the awareness that the other party would take its revenge later on.

Our contemporary politics make that kind of restraint unlikely. Without the possibility of a president being able to fall back on recess appointments, the temptation to foil the executive branch's entire agenda would be too great.

A president takes an oath to faithfully execute the laws; that requires having an executive branch led by presidential appointees. The inability to confirm those nominees would leave any president hamstrung to fill the most basic and core responsibilities of a chief executive.

To be sure, recess appointments are a limited tool, a modest safety valve to ameliorate the worst abuses of Senate power. But they are a necessary one to keep some check and balance in place. There is reason to fear that the Supreme Court will take that tool completely away — and make our dysfunctional politics and policy making much worse.

[11B4V]

 

[grumbler]

I dislike recess appointments, but even more dislike encouraging the kind of dishonesty that comes from the legislature pretending it is in session when it is not.

[jimmy olsen]

And it's unanimous!

http://www.nbcnews.com/politics/supreme-court/supreme-court-narrows-presidents-recess-appointment-power-n141601

Supreme Court Narrows President's Recess Appointment Power
By Pete Williams

The US Supreme Court today limited a president's power to make recess appointments when the White House and the Senate are controlled by opposite parties, scaling back a presidential authority as old as the republic.

The case arose from a political dispute between President Obama and Senate Republicans, who claimed he had no authority to put three people on the National Labor Relations Board in January 2012 when the Senate was out of town.

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He used a president's power, granted by the Constitution, to "fill up all vacancies that may happen during the recess of the Senate." But the Republicans said the Senate was not in recess at the time the appointments were made, because every three days a senator went into the chamber, gaveled it to order, and then immediately called a recess.

By a unanimous vote, the Supreme Court agreed that the Senate was not in recess, holding that it's up to both houses of Congress to define when they're in session or in recess. As a result of the decision, the Senate can frustrate a president's ability to make recess appointments simply by holding periodic pro forma sessions, a tactic used in recent years by both political parties.

The question, the court said, is whether the Senate had the capacity to act. It found that during the recess at issue, the court did have that power.

The stakes were no longer as high as they were when the case first came to the Supreme Court, given that the Senate has now agreed that a president's nominations need only 51 votes for confirmation.

It remained an important constitutional issue, even though the reasons for recess appointments have changed. In the nation's early days, when Congress was in session less than half the year, it made sense for a president to have the power to fill a vacancy in order to keep the government going before Congress came back to town months later.

But recent presidents have used the recess appointment power to make an end run around a Senate that refused to confirm controversial nominees. That use of the power is all but dead.

[Hansmeister]

Not surprising, given the egregiousness of the violation of the law by Obama.

[garbon]

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[derspiess]

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I'm sure Tim has.

[alfred russel]

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I'm sure Tim has.

Tim has so we don't have to.

As for the ruling, the problem seems to be that way too many positions require senate approval.

[Hansmeister]

On a related note this was the 13th 9-0 ruling against the Obama administration, which must be some sort of record.

[Viking]

It is  a problem with the US system that one branch can go

https://www.youtube.com/watch?v=zyltK6pmJGg

and there are no consequences. Most european systems call for new elections when shit like this happens.

[Hansmeister]

It is  a problem with the US system that one branch can go

https://www.youtube.com/watch?v=zyltK6pmJGg

and there are no consequences. Most european systems call for new elections when shit like this happens.

I, for one, am glad that Obama has quit doing his job.

[Viking]

It is  a problem with the US system that one branch can go

https://www.youtube.com/watch?v=zyltK6pmJGg

and there are no consequences. Most european systems call for new elections when shit like this happens.

I, for one, am glad that Obama has quit doing his job.

The "screw you guys I'm going home" I was referring to was the republican congress responding to each potential appointment with a "no, you were nominated by obama"

[The Brain]

recess

[Hansmeister]

It is  a problem with the US system that one branch can go

https://www.youtube.com/watch?v=zyltK6pmJGg

and there are no consequences. Most european systems call for new elections when shit like this happens.

I, for one, am glad that Obama has quit doing his job.

The "screw you guys I'm going home" I was referring to was the republican congress responding to each potential appointment with a "no, you were nominated by obama"

The Democrats control the Senate, and in these particular cases the President hadn't even submitted the mandatory questionnaires to the committee.

[grumbler]

I don't have a problem with the (effective) abolition of recesses and so, recess appointments.  I think that Senate objections (whether by Democrats or Republicans) should block appointments, if the objecting side has the 51 votes.  If not, then too bad for them.

I also think that the filibuster must go.  it's already going, and this ruling will make an even stronger argument for a return of the Senate to democratic processes and the curtailment of minority power.