No more recess appointments - is this the end of the filibuster?

Another SC ruling today effectively ends the republic-old power of the President to make recess appointments. Now, the Senate is in session whenever it says it is, which can be continuously, even if nobody is actually there, so there are no more recesses.

That also means a minority of as little as 41 Senators can prevent an entire executive-branch agency from functioning, merely by preventing enough appointees from confirmation just by using the filibuster. That’s what’s happened with the NLRB, which not only can no longer function but has had all of its recent actions invalidated.

So does that finally give the frustrated-beyond-belief elected majority in the Senate enough support to get rid of at least the painless filibuster, if not the whole antidemocratic rule?

From your quote:
“Instead, the court stopped short of limiting recess appointments to remote periods and circumstances, as a federal appeals court had ruled last year. It said simply that 72 hours is not long enough to qualify as a recess; 10 days, it said, would be more like it.”

I like Giraffe’s statement and am considering using it as a signature, a replacement for “Cite?” or a tattoo (after translating it into Japanese).

I sure hope so, at least in its current form. Make it a talking filibuster, and then it will be used sparingly.

ElvisL1ves, you clearly did not bother to read the actual decision, or you would not have characterized it in such a manner.




In other words, this ruling restores to the Senate the “republic-old power” to decide for itself when it is in recess. This ruling is nothing more or less than a rejection of the Executive’s naked power grab.
Edit: the ruling was unanimous, which ought to tell you something.

Ugh. So now the Senate, by parliamentary sleight of hand (everyone knows they’re not really in session), can take away a power explicitly entrusted by the Constitution to the President. I would be just as appalled by this ruling if Bush were still in office as I am with it first hitting Obama.

Which, conveniently, includes never, no matter if anyone is actually in town or not, doesn’t it?

There is no power in the Constitution for a minority of the Senate to block an Executive agency from operating at all - until now.


But is there anything preventing congress from deciding it’s always in session and just making sure that they take turns every three days to gavel it open and closed for a couple of minutes through the summer.

Uh, correct me if I’m wrong, but since Reid is a Democrat, can’t he make a deal with Obama and just hold the Senate in recess whenever he wants? Doesn’t he set the agenda for the most part?

As long as they say they’re in session, and as long as under Senate rules the Senate retains the capacity to transact Senate business.


He can’t recess the Senate without either unanimous consent or the possibility of a vote upholding the decision of the chair.

The purpose of the recess appointments are to keep agencies moving along while congress makes the long journey from their home district to Washington. No agency will grind to a halt waiting a couple of more days for someone to be approved.

The constitution gives congress the power to approve all appointees. It is part of the seperation of powers. To allow the executive branch to tell the legislative branch when the legislature is in recess is a blantantly lawless power grab.

The filibuster is a different kettle of fish, but the decision was obviously the right one.

I don’t think you can argue that SOP includes giving Congress the right to effectively shut down part of the Executive without the trouble of actually passing legislation to do so. The recess appointment system had always been part of the SOP system as well, with the function of allowing the President to work around a Congress intent on taking such a path.

So is shutting down an executive agency through simple obstructionism.

The filibuster is related, and that’s what I’m more interested in. The now-reduced ability of the President to work around an obstructionist Congress is now amplified, given that the obstructionism directly results from the minority having effective veto power over everything. That is not in the Constitution and does not result from separation of powers, either. The Republicans have been badly overplaying their hand, it’s already cost them the easy filibuster over nominees, and there is now even more evidence that only eliminating the easy filibuster can neutralize their obstructionism.

That doesn’t mean there is no role for the filibuster entirely; that’s arguably appropriate under SOP too. But it can’t be easy or frequent, and should only be used in cases of perceived historic necessity.

Well, we’ll see if that happens.

My guess is that it will, since it’s possible. But can a minority prevent a recess from ever happening? My guess is no, and therefore filibusters aren’t relevant.

If a minority can prevent a recess, and if this gets (ab)used to prevent presidential appointments, then I bet it’s just a matter of time for the nuclear option.

Why is this a problem ?

The Supreme Court essentially is saying the way it has worked for the past 236 years is the way it should be.

No. The Constitution provides that neither house may recess for more than three days without the consent of the other.

Pro forma sessions were “invented” in 2007, when Democrats controlled both houses of Congress and wanted to block recess appointments by President Bush. At that time the Senate wanted to hold the sessions.

In 2010 Republicans won the House but not the Senate. They effectively forced the Senate to hold pro forma sessions by refusing to agree to any recess (in 2011-12) for more than three days. The Democratic Senate majority doesn’t want to hold the sessions, but if they didn’t they would be in breach of the Constitutional requirement of House consent to recess.

Because one party is using historically unprecedented douchebaggery to obstruct while in the minority.

Before, people had class and decorum limiting them. The modern GOP has no such fetters.

You do realize that Democrats did this in 2007?

But then, it was okay, because Bush was president and his recess appointments were BAD. But now Obama is president and his recess appointments are good. Therefore, the rules should change.

They should change back when a Republican president is in office.

Yogsoth is the only poster here who will come out and admit that he favors precisely that scheme.

I don’t admit it because I don’t favor it. Please don’t misrepresent my position, it’s not very nice.

The difference, is that Bush made 171 recess appointments and Obama has made 32. It’s not right when the Dems did it, but it was less monolithic.

If I slap you in the face it’s wrong. If you slap me in the face 50 times,* it’s more wrong*.

I agree with Lobohan that this isn’t so much a legal problem, but a problem with the culture of the Congress, in that, for a long time, there was a kind of gentleman’s agreement to compromise and work collegiality, and that’s pretty much gone now. I think I’d probably have the change starting with the Republican takeover of the House in 1994, but it got worse under the Bush administration and is now almost completely toxic under the Obama administration.