Federal court ruling slashes presidential recess-appointment power

[BrainGlutton]

@Martin_Hyde

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.

If we want the legislative branch to be stronger as against the executive, the thing to do would be to abolish the Senate. A one-house legislature is much stronger.

[Martin_Hyde]

@2sense

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…

I would think a potential compromise ruling if the SCOTUS takes it up would be to uphold the D.C. Circuit’s striking down on the President being allowed to determine when a recess exists, but upholding the President’s power to make a recess appointment anytime the Senate itself says it is in recess (so not just at the end of the year.)

[Martin_Hyde]

@BrainGlutton

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.

I’ve talked at length about parliamentary systems, and in general favor them over ours. As the British system existed in the 1780s it was a mess, even less democratic than the first U.S. political system before all the suffrage battles and etc, so I understand why we chose an alternative. But what I’ve said in this very thread, is the key thing about any parliamentary system I’ve observed is the PM can fall in an instant if his behavior becomes grossly unacceptable. Until/unless our head of government had that level of accountability I wouldn’t support the position being as powerful as the British PM.

[Martin_Hyde]

@BrainGlutton

If we want the legislative branch to be stronger as against the executive, the thing to do would be to abolish the Senate. A one-house legislature is much stronger.

I’ve proposed similar, but basically a “castration” of the Senate where it becomes an advisory body with no power to seriously stop legislation.

I also like the German system. Their version of the Senate can only block legislation that deals with State issues. The Germans also have a better structured Federalism. They have enumerated issues that are exclusively state policy, issues that are shared, and issues that are exclusively Federal.

Issues that affect the States require approval by their upper house, but they can’t block other types of legislation. (Their upper house is more of a true representative of the State’s government too, as State delegations are typically made up of the State’s executive and some of his ministers.)

[Saint_Cad]

@Martin_Hyde

Do you suspect the SCOTUS to say “the President can determine the Senate is in recess even when the Senate says they are not?”

Yes I do because

[QUOTE=Article II, Section 3]
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment , he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
[/QUOTE]

The only question of fact is if the House and Senate disagree on the time of adjournment.

[Iggy]

Taking the President’s position that pro-forma sessions do not prevent a recess, then would not any positions filled by recess appointment immediately come to an end if and when the Senate actually recesses formally, even if it is not THE recess at the end of term?

Gavel out a recess. Gavel back in a new session. Appointees gone. So long as such a recess is not for more than three days then the House need not approve.

So let the President appoint someone over a long holiday weekend. The next time the Senate recesses in such a manner those appointments would “expire at the End of their next Session”.

The president’s party could hardly argue that , with recess appointed officials in place, that pro forma sessions then suddenly prevent a recess.

Two sides can play quibbling semantics.

[BigT]

Honestly, I think the court is just trolling here. They are going beyond the case at hand to invalidate two centuries worth of jurisprudence which has allowed recess appointments. They are violating that same rule that wound up with Roberts saying that Obamacare was constitutional. You rule with the least level of disruption. You don’t use the law to invalidate recess appointments in general when the case being made is about whether the Senate is in recess at all.

The only reason I can think they would do this is to try to force the Supreme Court to get involved. It’s a dare–if you don’t get involved, recess appointments go away completely.

I saw this on the BBC, and my first thought was “Yeah, right, like this is going to stick.” There’s a reason why this is always reported as “a federal court” rather than with any implication that it’s going to stick. It makes it sound more important than it is.

[Really_Not_All_That_Bright]

@John_Mace

Seems to me unless the vacancy happens during the recess, then the prez needs to suck it up and get the Advise and Consent of the Senate.

If the position remains vacant, the vacancy is still happening.

[Saint_Cad]

@BigT

Honestly, I think the court is just trolling here. They are going beyond the case at hand to invalidate two centuries worth of jurisprudence which has allowed recess appointments. They are violating that same rule that wound up with Roberts saying that Obamacare was constitutional. You rule with the least level of disruption. You don’t use the law to invalidate recess appointments in general when the case being made is about whether the Senate is in recess at all.

Would there be a way (other than SCOTUS saying we’ll do what we want bitches) for SCOTUS to rule that all previous appointments are valid because <fill in Latin here, maybe meaning implicit consent of the Senate for not removing the person appointed> but in the future recess appointments can be only be for vacancies occuring during a recess.

[Really_Not_All_That_Bright]

Sure. They simply rule prospectively. Courts do it all the time; in fact, in some situations (such as when a ruling negatively impacts criminal defendants), they must.

As a matter purely of judicial mechanics, there are three ways in which the [question of whether to apply a decision prospectively or retroactively] may be resolved. First, a decision may be made fully retroactive, applying both to the parties before the court and to all others by and against whom claims may be pressed, consistent with res judicata and procedural barriers such as statutes of limitations. This practice is overwhelmingly the norm, see Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S.Ct. 140, 148, 54 L.Ed. 228 (1910) (Holmes, J., dissenting), and is in keeping with the traditional function of the courts to decide cases before them based upon their best current understanding of the law. See Mackey v. United States, 401 U.S. 667, 679, 91 S.Ct. 1160, 1173, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in judgments in part and dissenting in part). It also reflects the declaratory theory of law, see Smith, supra, at 201, 110 S.Ct., at 2343 (1990) (SCALIA, J., concurring in judgment); Linkletter v. Walker, 381 U.S. 618, 622-623, 85 S.Ct. 1731, 1733-1734, 14 L.Ed.2d 601 (1965), according to which the courts *536 are understood only to find the law, not to make it. But in some circumstances retroactive application may prompt difficulties of a practical sort. However much it comports with our received notions of the judicial role, the practice has been attacked for its failure to take account of reliance on cases subsequently abandoned, a fact of life if not always one of jurisprudential recognition. See, e.g., Mosser v. Darrow, 341 U.S. 267, 276, 71 S.Ct. 680, 684, 95 L.Ed. 927 (1951) (Black, J., dissenting).

Second, there is the purely prospective method of overruling, under which a new rule is applied neither to the parties in the law-making decision nor to those others against or by whom it might be applied to conduct or events occurring before that decision. The case is decided under the old law but becomes a vehicle for announcing the new, effective with respect to all conduct occurring after the date of that decision. This Court has, albeit infrequently, resorted to pure prospectivity, see Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); **2444 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982); Buckley v. Valeo, 424 U.S. 1, 142-143, 96 S.Ct. 612, 693, 46 L.Ed.2d 659 (1976); England v. Louisiana State Bd. of Medical Examiners, 375 U.S. 411, 422, 84 S.Ct. 461, 468, 11 L.Ed.2d 440 (1964); see also Smith, supra, at 221, n. 11, 110 S.Ct., at 2354, n. 11 (STEVENS, J., dissenting); Linkletter, supra, 381 U.S., at 628, 85 S.Ct., at 1737, although in so doing it has never been required to distinguish the remedial from the choice-of-law aspect of its decision. See Smith, supra, at 210, 110 S.Ct., at 2348 (STEVENS, J., dissenting). This approach claims justification in its appreciation that “[t]he past cannot always be erased by a new judicial declaration,” Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 374, 60 S.Ct. 317, 318, 84 L.Ed. 329 (1940), see also Lemon v. Kurtzman, 411 U.S. 192, 199, 93 S.Ct. 1463, 1468, 36 L.Ed.2d 151 (1973) (plurality opinion), and that to apply the new rule to parties who relied on the old would offend basic notions of justice and fairness. But this equitable method has its own drawback: it tends to relax the force of precedent, by minimizing the costs of overruling, and thereby allows the courts to act with a freedom comparable to that of legislatures. See *537 United States v. Johnson, 457 U.S. 537, 554-555, 102 S.Ct. 2579, 2589-2590, 73 L.Ed.2d 202 1982); James v. United States, 366 U.S. 213, 225, 81 S.Ct. 1052, 1058, 6 L.Ed.2d 246 (1961) (Black, J., dissenting).

Finally, a court may apply a new rule in the case in which it is pronounced, then return to the old one with respect to all others arising on facts predating the pronouncement. This method, which we may call modified, or selective, prospectivity, enjoyed its temporary ascendancy in the criminal law during a period in which the Court formulated new rules, prophylactic or otherwise, to insure protection of the rights of the accused. See, e.g., Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199 (1967); Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); see also Smith, supra, at 198, 110 S.Ct., at 2341 (“During the period in which much of our retroactivity doctrine evolved, most of the Court’s new rules of criminal procedure had expanded the protections available to criminal defendants”). On the one hand, full retroactive application of holdings such as those announced in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), would have “seriously disrupt[ed] the administration of our criminal laws[,] … requir[ing] the retrial or release of numerous prisoners found guilty by trustworthy evidence in conformity with previously announced constitutional standards.” Johnson, supra, 384 U.S., at 731, 86 S.Ct., at 1780. On the other hand, retroactive application could hardly have been denied the litigant in the law-changing decision itself. A criminal defendant usually seeks one thing only on appeal, the reversal of his conviction; future application would provide little in the way of solace. In this context, without retroactivity at least to the first successful litigant, the incentive to seek review would be diluted if not lost altogether.But selective prospectivity also breaches the principle that litigants in similar situations should be treated the same, a fundamental component of stare decisis and the rule of law generally. See R. Wasserstrom, The Judicial Decision 69-72 (1961). “We depart from this basic judicial traditionwhen *538 we simply pick and choose from among similarly situated defendants those who alone will receive the benefit of a ‘new’ rule of constitutional law.” Desist v. United States, 394 U.S. 244, 258-259, 89 S.Ct. 1030, 1039, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting); see also Von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harv.L.Rev. 409, 425 (1924). For this reason, we abandoned the possibility of selective prospectivity in **2445 the criminal context in Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), even where the new rule constituted a “clear break” with previous law, in favor of completely retroactive application of all decisions to cases pending on direct review. Though Griffith was held not to dispose of the matter of civil retroactivity, see id., at 322, n. 8, 107 S.Ct., at 712, n. 8, selective prospectivity appears never to have been endorsed in the civil context. Smith, 496 U.S., at 200, 110 S.Ct., at 2342 (plurality opinion).

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535-38 (1991)

[my annotation]

[WillFarnaby]

@Martin_Hyde

Issues that affect the States require approval by their upper house, but they can’t block other types of legislation. (Their upper house is more of a true representative of the State’s government too, as State delegations are typically made up of the State’s executive and some of his ministers.)

This is kind of what the framers were going for when they said the Senate members were to be chosen by the legislatures of each state. This way the state legislatures would send people to the senate who would protect the state’s power over certain issue over the federal government’s attempted usurpations, or else they would be thrown out by the state legislature. Of course that all went out the window when the constitution was amended to institute the popular election of senators, and the accompanied growth in federal power.

[2sense]

@WillFarnaby

This is kind of what the framers were going for when they said the Senate members were to be chosen by the legislatures of each state. This way the state legislatures would send people to the senate who would protect the state’s power over certain issue over the federal government’s attempted usurpations, or else they would be thrown out by the state legislature. Of course that all went out the window when the constitution was amended to institute the popular election of senators, and the accompanied growth in federal power.

People continually apply antifederal interpretations to the work of federalists. The federalists were nationalists. They distrusted state governments and wanted to empower the central government. That’s the whole point of enacting the Constitution. While they couldn’t avoid resting some of the federal edifice on the states they did what they could to make Senators more independent by giving them long terms, not subject to recall, and per capita voting. That the House was to represent people and the Senate to represent States is an ex post facto justification. In the federal convention it was hoped that Senators would not be tied to local views but rather have a more cosmopolitan outlook.

[2sense]

@Martin_Hyde

I would think a potential compromise ruling if the SCOTUS takes it up would be to uphold the D.C. Circuit’s striking down on the President being allowed to determine when a recess exists, but upholding the President’s power to make a recess appointment anytime the Senate itself says it is in recess (so not just at the end of the year.)

That seems the best outcome for me. Not sure how likely it is.

[WillFarnaby]

@2sense

People continually apply antifederal interpretations to the work of federalists. The federalists were nationalists. They distrusted state governments and wanted to empower the central government.

Writing and ratifying the Constitution was a process that included federalists and anti federalists. There was give and take. In any case, the motives of the founders concern me less than the mechanisms by which the federal government has usurped power from the people. The fact remains that the original process for electing senators was conducive to preserving state functions from federal encroachment.

That the House was to represent people and the Senate to represent States is an ex post facto justification

Where is your support for this claim?

[BrainGlutton]

@WillFarnaby

In any case, the motives of the founders concern me less than the mechanisms by which the federal government has usurped power from the people.

N.B.: “The people” != “the states.”

@WillFarnaby

The fact remains that the original process for electing senators was conducive to preserving state functions from federal encroachment.

Cite?

[WillFarnaby]

@BrainGlutton

N.B.: “The people” != “the states.”

The people have greater control over the state government. It’s simple mathematics.

Cite?

How about American history up until 1913 vs. American history since 1913.

[2sense]

@WillFarnaby

Writing and ratifying the Constitution was a process that included federalists and anti federalists. There was give and take. In any case, the motives of the founders concern me less than the mechanisms by which the federal government has usurped power from the people. The fact remains that the original process for electing senators was conducive to preserving state functions from federal encroachment.

State governments aren’t the people. Back in the 18th century they were considered closer to the people but as physical distance receded in importance this position has become more difficult to sustain. On the contrary, since today federal politics get so much more attention you can argue that state governments aren’t held as closely responsible to their constituents.

Where is your support for this claim?

The federal convention itself. The debate began from the Virginia Plan with representation based on population and wealth (in human form) in both houses of a bicameral legislature (though still with the 2nd house chosen by the legislature rather than popularly elected) and evolved into what we have now. What we ended up with was not the result of elegant first principles but comes from messy compromises. The upper house in revolutionary America was inspired by the House of Lords and was intended to serve the same purpose: to represent or protect property. In general see The Upper House in Revolutionary America, Jackson Turner Main.

[Really_Not_All_That_Bright]

@WillFarnaby

The people have greater control over the state government. It’s simple mathematics.

And like many arguments ostensibly based on common sense, it’s not true. The lower the level of government, the less involved the electorate.

[2sense]

@WillFarnaby

Where is your support for this claim?

Hurm. If we are considering the intent of those ratifying the Constitution and not just drafting it (and that is not unreasonable after all) then claiming that this is an ex post facto justification doesn’t work because the idea came up during ratification.

[Martin_Hyde]

@Saint_Cad

Yes I do because

The only question of fact is if the House and Senate disagree on the time of adjournment.

That is not supported by practice, I don’t believe any President has ever used this power and thus its scope is unknown, and the wording is vague.

What is an extraordinary circumstance? A situation where Congress is refusing to do something the President wants? I’m highly dubious of that as an extraordinary circumstance as it opens the floodgate to extreme executive abuses (for example, a President could declare a Congress moving to impeach him had an “adjournment disagreement” and thus needed to be adjourned by executive fiat.)

Further, what is a disagreement about timing of adjournment “between them?” Does that mean between the House and between the Senate? Or does it mean when the internal members of the House or Senate cannot agree among themselves when to adjourn.

Further, it says this power can be used to adjourn when there is a timing disagreement, might not that imply both Houses would need to have made some motion for adjournment, on which they could not reconcile the timing? Without such a motion from both Houses, it’s hard to make an argument Obama is resolving a disagreement at all.

Finally, Obama never invoked this power and never said “I’m adjourning Congress” he never issued any writ or made any proclamation or in any way made it known he was adjourning Congress. Instead, he said the Senate was not in session, a recognition of what he asserted was true, not an active use of executive power. That makes it very hard to argue he was using a power never before actually executed and thus of dubious clarity when he himself never asserted he was using such power.