Don’t be so sure. The Court’s opinion suggests that the ability to transact business is the touchstone. If there is no quorum, it cannot conduct business, right?
If the GOP doesn’t like the NLRB or what-have-you, they need to pass legislation abolishing it. Intentionally creating derelict agencies by these means seems like a lawless infringement on the Executive.
The only valid motions in the absence of a quorum are motions to adjourn or to compel the attendance of absent Senators.
The SCOTUS ruling is not crystal clear on the point; it notes the failure to establish the absence of a quorum as one of many indicators that the Senate was in session. However I believe that even if that absence had been established SCOTUS would still find a session to have taken place. Once a session is scheduled and called to order, a majority of Senators could show up and transact business, even if they didn’t.
This is indeed the heart of the issue. But I think the opinion pretty clearly rejects your position. It says:
What do you understand that sentence to mean if not what I’m saying?
Or, nominating individuals too extreme to pass Congressional muster may require the president to reconsider his choices. Congressional approval is necessary to prevent presidential over-reach.
The definition of “too extreme” being “nominated by President Obama”, apparently.
Which still doesn’t mean that the Executive branch should decide if the Legislative branch is in session or recess.
If I understand the opinion correctly, they can’t lie about it completely. For instance, they can’t say they’re in session and then not show up at all.
Then they should be rejected by an actual vote so the President can nominate other candidates. Not simply put on perpetual hold.
I take it to mean that if they were not convening at all–in other words, if they were to say “we next meet on January 23, but we consider ourselves in session until then”–that they would not be in session.
Forget the appointments then. Can someone tell me, barring a massive increase in workload, whether Obama can just say “fuck it” and make the decisions himself? Or hire someone as an “assistant” to temporarily oversee the functions of the NLRB who reports to him, and Obama tells him what to do, and he tells the NLRB to do it. Somebody’s gotta sign the checks right? So its not like the department can’t do anything, its that they don’t have a leader. So who’s the next highest person working there that isn’t a political appointee? Just have that person make all the decisions and have Obama sign off on them. Can that be done?
So it’s back to arbitrary time distinctions then, no?
How do you draw the line? You’re the Supreme Court and you get a case involving a 45-day gap. How do you decide it?
Agreed, though the President can always smell the roses and withdraw a nomination-in-limbo.
I think that the pro forma sessions are a loophole that counteracts a loophole.
Originally recess appointments were needed because Congress was out of session for almost a year and ready communication was impossible, so sometimes a President needed to act with no Congress in town.
Then when Congress started meeting more frequently and could be reached by telephone, the President started to realize that he could use this clause simply to appoint people that wouldn’t have otherwise been appointed. This violated the spirit of the clause.
Then Congress realized that it could blunt this new power by holding pro forma sessions. This violated the spirit of the recess appointment clause as well.
However, like how two negatives make a positive, this returns everything back to how it should be.
A recess appointment has an expiration date, though. The appointee has to be confirmed by the end of the next session, effectively the end of the next calendar year.
Stringbean, what should a President do if the roses tell him that there is *no *nominee that can be confirmed, other than perhaps one determined to destroy the institution? Should there be a check and balance against obstructionism?
Let us not bury our heads in the sand. While I’m sure there must have been some actual objections to some of Obama’s appointments somewhere along the last half dozen years, it is clear that the GOP has used the “We won’t approve OR disapprove of ANYBODY because we ideologically object, not necessarily to the appointee, but to the office itself” approach.
To paraphrase one of Bricker’s arguments (on another subject), these agencies/positions were created by the Legislative branch, signed by the President, and have not been overturned by the Supreme Court. They are The Law. Preventing them from functioning, or crippling their functionality by refusing to allow anyone to take the position is an unreasonable interference with the Executive’s powers, and simply contravenes The Law. Don’t like 'em? You’re the Legislature – change 'em! Don’t hold them in limbo forever without accepting or denying the appointments.
What this calls for is a Constitutional Amendment, which I am happy to provide:
“The President shall nominate appointments to federal agencies and the judiciary. These appointments shall be effective when approved by a simple majority of the Senate, or, in the case when the full Senate fails to vote on the nomination, the appointment shall be effective ninety days after the nomination is received by the Senate.”
The Senate Republicans’ use of that tactic in refusing to vote up or down on Elizabeth Warren to head the Consumer Financial Protection Bureau she created, in an effort to neutralize it instead of failing to repeal it, is the biggest single reason she is now one of their colleagues instead.
It’s much more than a loophole - and even if it was it would be a loophole that counteracted a loophole (recess appointments) that counteracted another loophole (Senate holds).
For many offices recess appointments have been the only means by which Obama could appoint anyone. Look at the BATF - it hasn’t had a head since 2006 because the GOP wouldn’t even approve Bush’s nominees. It took a year for the Senate to confirm the ambassador to Egypt.
There’s always a nominee. Look at Supreme Court justices. Using Elizabeth Warren as an example is actually quite prudent. Create a regulatory bureaucracy, against the will of Republicans, then nominate a fairly extreme, if not entirely unqualified, Democrat to head the agency. Did you expect Republican support?