Court rules Obama recess appointments unconstitutional

[jimmy olsen]

Makes sense to me.

http://www.latimes.com/news/politics/la-pn-court-obama-recess-appointments-unconstitutional-20130125,0,1401126.story

Court rules Obama recess appointments unconstitutional

By David G. Savage

January 25, 2013, 9:00 a.m.

WASHINGTON — A federal appeals court, dealing a defeat to President Obama, has sharply limited the chief executive's power to bypass the Senate and to make temporary "recess" appointments to fill vacant slots in government agencies.

The Court of Appeals for the D.C. Circuit, in a 3-0 ruling,  said the president can make recess appointments only when the Senate has formally adjourned between sessions of Congress, not when lawmakers leave Washington for a brief break.

The Obama administration is almost certain to appeal the decision to the Supreme Court. But if the ruling stands, it strengthens the power of the Senate's Republican minority at the expense of Obama and the Democrats.

During his first term, Senate Republicans, led by Minority Leader Mitch McConnell (R-Ky), refused to approve Obama's nominees for several agencies, including the National Labor Relations Board and the new Consumer Financial Protection Agency created in the wake of the Wall Street collapse of 2008. McConnell could rely on the filibuster rule by which the minority can block a vote by the majority.

In response, Obama invoked his power under the Constitution "to fill up all vacancies that may happen during the recess of the Senate." Obama used this authority last January to appoint several new members to the National Labor Relations Board, ensuring the group had the necessary three members to make decisions. In addition to the NLRB appointments, Obama also installed Richard Cordray as director of the Consumer Financial Protection Bureau at the same time.

Business groups and Senate Republicans challenged the move, arguing the Senate was not truly in recess last January when it was out of session for several days.

In Friday's decision, Chief Judge David Sentelle ruled for the challengers and said a "recess" refers to the break when Congress formally adjourns after a two-year session.

"An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law," said Sentelle, an appointee of President Reagan. He was joined by Judges Karen Henderson and Thomas Griffith, who are also Republican appointees.

Cordray's appointment is being challenged in U.S. District Court in Washington, D.C., in a separate lawsuit by a Texas bank and two free-market advocacy groups. They also claim the appointment was unconstitutional because the Senate was not in a formal recess. The suit is pending.

On Thursday, Obama renominated Cordray to the five-year term as director of the 2-year-old agency. Cordray's recess appointment expires at the end of the year.

Obama said Thursday that Cordray was qualified for the position, but "he wasn't allowed an up or down vote in the Senate, and as a consequence, I took action to appoint him on my own."

Staff writer Jim Puzzanghera contributed to this report.

[Phillip V]

[CountDeMoney]

Well, that's one way to shrink government.  This way, Federal appointments can remain empty for the entirety of an administration.  Yahoo.

[Phillip V]

IIRC, maybe the new filibustering rules will facilitate Congressional work.

[Neil]

Well, that's one way to shrink government.  This way, Federal appointments can remain empty for the entirety of an administration.  Yahoo.

But that's not really the case, is it?  Doesn't your legislature have seasonal sessions with breaks in between?

[OttoVonBismarck]

They do have seasonal sessions, traditionally this was because members of Congress had business elsewhere to attend to (politicking with constituents, in the past they might even have other full time jobs.) More recently it has just been because members of Congress want to take vacations and get out of Washington.

However, there is no constitutional requirement that during a congressional term either body ends a session, and the President has no power to end a session (only to call a special session.) The only time you definitely must end a session is when you're transitioning from one elected congress to the next. So what Republicans have been doing is making freshman legislators stick around during the holidays to force the legislative bodies to technically remain in session by gaveling it in and out every day. I'm extremely bad on my House/Senate procedural stuff, but my understanding is in the Senate this actually means that the Democrats have to stay around too, because the Senate cannot adjourn while the full congress isn't adjourned for an official break. So as long as the Republicans in the House keep gaveling in, the Senate has to meet like once every three days. So the Republicans, through control of the House can keep Congress itself in session, and while Congress is in session the Senate is not allowed to adjourn and technically go into recess.

This tactic has been used before. Theodore Roosevelt got around it because technically you have to adjourn when one congress leaves office and the next is sworn in. So Theodore literally appointed hundreds of people in "second" in between the gaveling out of the prior congress and the gaveling in of the new congress. For reasons unknown to me, Obama chose to try a new procedural move around a Congress that won't recess. There are a few techniques that have been used to get around the blocking of recess appointments before, but I think Obama chose a novel one and appears to have paid the price for it.

[The Brain]

A special session? Every session I've seen has seemed special.

[Neil]

Man.  Republican perfidy knows no bounds.

[Tonitrus]

Though this decision was made by judges, and as judges are simply super-lawyers, they are geometrically more evil.

[Razgovory]

Obama has a white guys hands in that one.

[The Brain]

He has a white guy job.