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).
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.
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.
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.
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.
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.