SCOTUS to hear arguments today regarding president’s power to appoint during Senate recess

Monday, January 13, 2014

Good morning:

The SCOTUS will be hearing arguments today regarding the president’s power to appoint people, whose appointments are normally subject to the consent of the Senate, when the Senate is not in session.

Article 2, Section 2 of the Constitution provides:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Senate Republicans precipitated this battle by abusing the filibuster power to block appointments to vacancies on the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CPFB) and by scheduling pro forma or brief meet-and-greet-see-you-next-time-ha-ha “sessions” to further frustrate and prevent the president from appointing people to positions in his government while the Senate is in recess.

PBS summarizes what is at stake:

Senate Republicans’ refusal to allow votes for nominees to the National Labor Relations Board and the new Consumer Financial Protection Bureau led the president to make the temporary, or recess, appointments in January 2012.

Three federal appeals courts have said Obama overstepped his authority because the Senate was not in recess when he acted. The Supreme Court case involves a dispute between a Washington state bottling company and a local Teamsters union in which the NLRB sided with the union. The U.S. Circuit Court of Appeals for the District of Columbia overturned the board’s ruling, and hundreds more NLRB rulings could be voided if the Supreme Court upholds the appeals court decision.

More broadly, if the justices ratify the lower court ruling, it would make it nearly impossible for a president to use the recess power. Under such a ruling, presidential nominees could be blocked indefinitely when the president’s party does not control the Senate.

Three federal appeals courts have upheld recess appointments in previous administrations.

By a simple majority vote recently, the Democrats voted to change the Senate rules to limit the ability of the minority party to block most presidential nominees, spurred by GOP efforts to block three Obama appeals court nominees.

Yet the issue still remains for non-judicial appointments.

What do you think.

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This is our 849th post in 26 months.

We have received two donations since yesterday’s post for which we are very grateful. As I said yesterday, I realize it’s easy to assume others will step in and contribute, but that type of thinking doesn’t work when everyone does it.

We’ve averaged less than 1 donation per day during the past week despite hundreds of visitors per day and thousands of page views. We’re not trying to get rich here, but this just isn’t working out for us.

Fred

15 Responses to SCOTUS to hear arguments today regarding president’s power to appoint during Senate recess

  1. Pat deadder says:

    Friend just called to say fullerton officers found not guilty. Is this true.

  2. Lyn says:

    So proud of VP Biden today at Shannon’s funeral. Biden is a great guy.

  3. bettykath says:

    I’d call the pro forma sessions crapola. They served no purpose but to thwart the Constitutional right of the president to act when the Congress refused to act in a responsible manner. Since the Congress deliberately scheduled “no business to be conducted” that the appointments were valid. My bias is that the case before the court is one that is intent on further union busting.

    • I am absolutely opposed to union busting and a firm supporter of the wobblies.

    • gblock says:

      The pro forma sessions are BS. But, they are only one of a number of ways in which the way that Congress conducts business are broken. Keep in mind that the only reason that Republicans used the trick was because President Obama was trying to make recess appointments, and the only reason that President Obama was trying to make recess appointment was because of Congressional Republicans obstructing appointments that he was trying to make while Congress was in session. We need rule changes, if not a Constitutional Amendment, that will force proposed appointments to come up for a vote within a reasonable amount of time.

  4. Boyd says:

    This is bleeping garbage. They want it so that they can shut government down. I found this excerpt from 2011. They string these pro-forma together so the President can’t do a thing. All this balance of powers crapola. The President in office for a maximum of 8 years , these clowns and the Supreme court can stay forever. That’s not an equal balance of Power. And Now we can write a paragraph of baloney and you’ll never get anyone to fill the jobs! Unless it’s OUR boy.

    Mr. WYDEN. Madam President, I ask unanimous consent that when the Senatecompletes its business today, it adjourn andconvene for pro forma sessionsonly, with no business conductedon the following dates and times, and thatfollowing each pro forma session the Senate adjourn until the following proforma session: Tuesday, December 20, at 11 a.m.; Friday, December 23, at
    9:30 a.m.; Tuesday, December 27, at 12 p.m.; Friday, December 30, at 11 a.m.;
    and that the second session of the 112
    th
    Congress convene on Tuesday,January 3, at 12 p.m. for a pro forma session only, with no business conducted,and that following the pro forma session the Senate adjourn and convene for pro forma sessions only, with no business conductedon the following datesand times, and that following each pro forma session the Senate adjourn untilthe following pro forma session: Friday, January 6, at 11 a.m.; Tuesday,
    January 10, at 11 a.m.; Friday, January 13, at 12 p.m.; Tuesday, January 17, at
    10:15 a.m.; Friday, January 20, at 2 p.m.; and that the Senate adjourn onFriday, January 20, until 2 p.m. on Monday, January 2

  5. Boyd says:

    Interesting, I had to look up pro-forma in the Senate’s online reference. It said pro-forma usually takes a few minutes, and only a few people have to be present.

    so do you need timing diagrams to prove Obama made his selection when they were not in pro-forma. Who records the pro-forma meetings? This is so stupid.

    If these idiots decide that counts as congress in session they could be in pro-forma 24 hours a day, and no one ever gets appointed.

  6. Two sides to a story says:

    I think Tea Party Republicans just like to make President Blackenstein’s life miserable. This will continue to backfire on them.

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