Federal court ruling slashes presidential recess-appointment power

Great Debates
21

RickJay did a good job giving word to some unstructured thoughts that had been rattling around my head for awhile on this sort of issue.

In many areas of government, I feel the executive is growing ever stronger, and to our detriment. This is not a partisan position, and it doesn’t go back to Bush but even further, probably to the 60s. I’d argue that Roosevelt expanded executive power massively, and Truman didn’t really give any up, but Eisenhower seemed to be a more restrained President. I can’t pinpoint precisely when it happened, maybe Kennedy or Johnson, but somewhere around there we had an upward spiral of Presidents taking actions that the constitution really pretty clearly says they can’t. Congress did nothing about it, and thus in popular perception they are now seen as Presidential powers.

No President since Roosevelt has sought a declaration of war, which was supposed to be when our elected legislature had to approve our country sending soldiers into overseas engagements. The entire Vietnam War, was never declared. Not only wasn’t it declared, by and large Congress was not willing to do anything to stop it, which they easily could have with the power of the purse.

The recess appointment claim by Obama is just the most recent in a long line of executive actions that have eroded the legislative branch. Really think deeply, if the Constitution allows the President to make appointments during recesses, and Obama’s claim that he gets to decide when a recess is were true, then what does that actually mean? It means a President can appoint anyone at any time, with no Senate oversight or confirmation, and with no check on his power to do so. Not only did he get away with it for a long time, many people defended his actions.

I don’t blame any one President for this, and I probably blame Congress the most of all possible entities. It seems that powers are “sticky” with the Presidency. Once a power is attached to the executive, even executives who decry the use of that new power in their pre-Presidential careers have not shown a willingness to give those powers up once they move into the White House. Congress on the other hand, through shirking its responsibilities continuously and never taking the executive to task, has created the necessity for this expansion of executive power and the political climate where it’s so acceptable that it is simply never questioned.

Now, as someone who in other posts has advocated a Westminster style of government, some might wonder why I’m concerned about the expanding power of our executive. Primarily because we don’t have a Westminster style of government. Day-to-day guys like David Cameron have more functional power than our President, within their government. But Cameron is also more or less held accountable day to day precisely because his position is linked to his legislative majority (or coalition.) Prime Ministers can and have fallen mid-term in Westminster systems. Without such a mechanism, we’re drifting into a Westminster style “elected dictator” but without the safety valve a Westminster system has in which he can be booted out on his ass at a moment’s notice.

22

And if that becomes the law of the land and the Dems have any balls at all, you will, within 20 years, have NO federal appointed jobs filled by anybody. Have fun with that. Wanna sue somebody in Federal Court - get in line. The current wait time is 20 years and counting. “Advise and consent” should require a straight up-or-down vote within a reasonable time frame.

23

We don’t have a safety valve to get Senators out of office midterm either.

What we have now is a situation where we’re not quite managing to put together a government.

24

Yeah, while the plain meaning of the text seems to say the vacancy has to happen during a recess it hasn’t been interpreted that way by an executive in 100 years at least. I can’t imagine SCOTUS (or anyone, really) wanting to call into question every damn recess appointment, basically ever.

The most you’ll get is a ruling saying that the Senate gets to decide what recess means. Of course these days that also basically means no recess appointments ever anyway, as long as the minority party holds one house.

25

You cannot “interpret” the plain meaning. That’s why it is “plain”. You can ignore it, though.

26

Because there’s no way this or any Admin is going to accept a ruling that casts doubt on centuries of recess appointments without taking it all the way to the SCOTUS.

27

Just because the administration would like to take it all the way to the SCOTUS doesn’t mean the SCOTUS has to comply, correct?

28

Actually, I’d say that the Senators who refuse to vote on the nominations are acting So-and-so’s :slight_smile:

29

An appeal of a case going directly to a politically-relevant issue of constitutional interpretation, overturning centuries of precedent and practice, and with the Administration a party? Of course the SCOTUS will take it.

30

It is fully within SCOTUS’s purview not to take up the case.

31

Do you really think they won’t?

32

They definitely may not. I have seen SC not take cases I thought they should have. Usually (at least the way I saw it) in order not to have to publicly take up a position they didn’t care to be seen supporting. Like this one or this one.

I personally would love to see them take it up. It would be fun to see how they twist into a pretzel trying to decide that “Vacancies that may happen during the Recess of the Senate” doesn’t really mean “Vacancies that may happen during the Recess of the Senate”.

33

That’s an interesting opinion, but it’s not a fact nor a finding of law. If the constitution is broken and we, the people, are concerned enough, we can amend it. If we don’t then I’d say that’s evidence we don’t actually care.

34

I personally think that the Supreme Court will take the case.

BrainGlutton–what Terr is saying is that there is nothing that forces them to take the case. Other than a very few exceptions, the Supreme Court is the only arbiter of what cases they will and will not hear.

35

Do you suspect the SCOTUS to say “the President can determine the Senate is in recess even when the Senate says they are not?” Because I’d actually be shocked if that’s decided even along partisan lines, I can imagine at least 7 justices not signing off on that level of executive power.

Further, this isn’t 100+ years of precedent. People seem to turn off their ability to understand this issue because they see it as Republican versus Democrat. No President in American history has ever made a recess appointment when the Senate is still conducting pro-forma sessions, period. So there isn’t even an operational precedent, let alone a legal one.

As I’ve explained, the manner in which a prior executive got around a Senate that wouldn’t confirm his nominees and wouldn’t recess, was to declare all of his appointments for the “instant” between when one year’s session adjourned and the next began (since they technically have to gavel in / out for this.) So there is both no historical or legal precedent for this.

This actually is a good case for the SCOTUS not to rule on. If they don’t rule on it, they get to avoid creating a big mess with all the other recess appointments, but it leaves the D.C. Circuit’s ruling in effect, so Obama will lose his NLRB appointments and their decisions, but no greater harm will come. It will also send a signal that if any further cases are brought, the same will result for those appointees so it’ll create an incentive for Obama to got a lot of guys confirmed properly. The only way that happens of course is if there are significant compromises from what he’d like. That’s why the real way to fix this would have been for Reid to change Senate rules so confirmations can’t be filibustered, and instead have to face a straight up or down vote.

If the SCOTUS does rule on it, it’s fantasyland scenario they’d say all decisions by recess appointments back to 1789 are invalid, that just isn’t how they operate. They are not totally divorced from reality.

36

It is worth emphasizing at this point that the separation/allocation of powers between branches of government, of which recess appointments are one aspect, is not a “left” or “right” issue, nor a Dem or Pub issue. Neither party has any consistent ideological position on it; generally, each favors more power for whichever branch it controls at the moment.

37

In general you’re right. But some people, like myself, are much more able to see the big picture constitutional issues.

I said back when Obama did this, I understand the frustration with the filibuster (which is not a constitutionally protected thing), and I understand his reasons for trying a dicey thing. But this dicey thing is new, and has no legal or historical precedent, and in fact could very likely get overturned if challenged. It was challenged, and to be frank given the plain reading of the constitution I’d have been surprised if it hadn’t been overturned. It would have taken a very sympathetic set of judges to say “the President has sole authority to determine when the Senate is in recess.” Because that undermines the entire Senate.

And there is one piece you missed. Yes, when a party has the White House they want more power for the White House, when they have Congress, they want more power for Congress. But congress was given the most power by the constitution, with the major check on congress being the assumption as a large body its members would self-weaken the body as a whole because deals and compromises would be required for any agreement. But all that being said, what is troubling in the past few decades is whenever a party’s President is in power and that party controls congress, the congress cedes powers to the President that do not appear to ever be going back to where they rightfully belong. This has been a problem through both Republican and Democratic Presidents, and it’s so accepted that I think that’s why people are shocked Obama got his hand smacked by what would normally be seen as a very clear violation of the plain reading of the constitution.

38

Um, coming to understand the “plain meaning” of certain words in the Constitution is an interpretation. Of course the document must be interpreted, each and every word.

As an opponent of judicial activism I wish the court had limited itself to ruling against the President Obama’s innovation of claiming the right to make recess appointments while the Senate was claiming not to have recessed rather than striking against the customary use of recess appointments. I’m not sure about the result of this ruling, should it stand. Not good for the Democrats now, of course, but overall the appointing process is hugely flawed (from the viewpoint of governmental efficiency) so if putting more strain on the system eventually leads to reform…

39

First, I wouldn’t be surprised at any decision of the Supreme Court. In the past, they have twisted the Constitution completely out of whack when they needed it to justify some political “realities”.

And second, I wasn’t talking about deciding when recess is. I was talking about the portion of the Court of Appeals decision that says that only vacancies that arise during recess can be “recess appointed”. That is what’s in the “plain language” (as someone upthread put it) of the Constitution. But I am sure it can be “interpreted” any way the Supreme Court wants.

40

Then you should also be able to be open-minded enough to periodically re-examine the question of whether separation-of-powers is a good or necessary thing after all. There is no such thing in parliamentary systems of governmnent, and they seem to work at least as well as ours most of the time, and with no greater predilection to abuse of power.