Saturday, January 26, 2013

Did A DC Court Decision Just Invalidate the Warren Court?

http://www.therightscoop.com/mark-levin-explains-why-the-court-ruled-against-the-obama-administration-on-recess-appointments/


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  • 4 people like this.
  • Soup McGee --Wholly Shite-
    "Legal experts are saying that the ruling covers not just these appointments, but all recess appointments, made by any President, going back as far as the Administration of James Monroe in 1823." Eh, wha? http://www.huffingtonpost.com/andrew-reinbach/obama-recess-appointments-unconstitutional_b_2558009.html

    Conservative D.C. Court Throws the Country Into Chaos on a Technicality
    www.huffingtonpost.com
    On Friday a Federal Appeals Court in Washington, D.C. showed just how far, and r...See More
  • Alan Paris there are a few judges left who do not have their heads up their liberal asses...
  • Tea Party Blog Soup McGee, perhaps, but very few appointment's have been made in the manner addressed here I believe. And because the President has final say on any executive action, and there is no proof that any President has been illegally in office, and because no appointed official actually writes legislation, this shouldn't have any real impact. Obama could merely retroactively sign an executive order claiming that any decisions made by these officials are still in effect by order of the president and will remain standing until their replacements decide to change them.
  • Tea Party Blog In short, Huffpo is having a hissy fit that they lost this and they are trying to carve out a moral victory by overstating the ramifications.
  • Soup McGee --maybe, or maybe they just invalidated all of these:
    "Historical Examples of Recess Appointments During Brief Adjournments
    As previously noted, between the beginning of the Reagan presidency in January 1981 and the
    end of December 2011, it appears that the shortest intersession recess during which a President
    made a recess appointment was 11 days, and the shortest intrasession recess during which a
    President made a recess appointment was 10 days. CRS data on recess appointments before this
    period, which were collected from publically available sources, are incomplete. Similarly, CRS
    data concerning the historical use of pro forma sessions by the Senate are incomplete.
    From the available data, two historical occasions have been identified on which the President has
    made recess appointments during recesses of three days or less. In contrast to the January 2012
    intrasession recess appointments by President Obama, each of these instances occurred during the
    period of transition between sessions.
    On one of these occasions, the President made a recess appointment during an intersession recess
    of three days or less, where the Senate had adjourned sine die under the terms of a concurrent
    resolution. The adjournment began when the Senate adjourned the second session of the 80th
    Congress sine die on December 31, 1948, and concluded when the first session of the 81st
    Congress was convened on January 3, 1949. On January 1, 1949, during this three-day
    adjournment between sessions, official records indicate that President Harry S. Truman recess
    appointed Oswald Ryan to be a member of the Civil Aeronautics Board.37 Ryan had been serving
    on the board, and President Truman appointed him to a new term. Notably, the adoption of a
    concurrent resolution prior to this short intersession recess distinguishes it from the short
    intrasession recesses resulting from practices during the 112th Congress, where no concurrent
    resolution had been introduced.
    On the other of the two occasions, the President made recess appointments during a transition
    between sessions of less than a day in length, where no concurrent resolution regarding the
    transition between sessions had been adopted. In fact, it appears that little time elapsed between
    the sessions on this occasion. When the first session of the 58th Congress ended, at noon on
    December 7, 1903, and the second session began soon thereafter, President Theodore Roosevelt
    made over 160 recess appointments—mostly of military officers. President Roosevelt treated the
    period between these sessions as a “constructive recess.”"" http://www.senate.gov/CRSReports/crs-publish.cfm?pid=%270DP%2BP\W%3B%20P%20%20%0A
  • Soup McGee --maybe it's not just the HuffPost but factually, a serious, chaos-inducing Constitutional Crisis...would you admit that's, at least, possible?
  • Tea Party Blog Jesse James, that might be correct, but I find this legal ruling to be Constitutionally solid. The logic put forth is pretty clear and really hard to argue. You haven't see a whole lot of push back from the WH because even they haven't figured out how to address this logic yet.
  • Tea Party Blog Soup McGee, I don't see to much of a Constitutional crisis from all of this. Again, appointed officials make no laws, so no laws can be ruled void. They act on behalf of the President, so anything they've done in an executive agency can simply be kept in place via executive order, and I'm not really sure an executive order would even be necessary to do that. All I can see out of this ruling is that those appointed no longer have a job and must go through the normal appointment process to get their jobs back.
  • Soup McGee -- uh, be fair--and I DO appreciate the Dialogue-
    "Their reasoning is based on a combination of originalism and the meaning of the word "the." Seriously:

    It is this difference between the word choice “recess” and “the Recess” that first draws our attention....[In 1787], as now, the word “the” was and is a definite article. [...] Unlike “a” or “an,” that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.” This is not an insignificant distinction. In the end it makes all the difference.

    ....Finally, we would make explicit what we have implied earlier. The dearth of intrasession appointments in the years and decades following the ratification of the Constitution speaks far more impressively than the history of recent presidential exercise of a supposed power to make such appointments.

    John Elwood of the Volokh Conspiracy is surprised:

    It appears that the Court invalidated the use of intrasession recess appointments, which have been in pretty heavy use since WWII, and were used for a number of high-profile recess appointments, including John Bolton and Judge William H. Pryor, Jr. This is in pretty clear conflict with an Eleventh Circuit opinion and is a broader basis for invalidating the recess appointments than I anticipated. I suspect this one is destined for the Supreme Court.

    Yeah, that's a pretty broad basis, all right. Not only have presidents made intrasession appointments for over 50 years, but the court seems to be saying that anything that wasn't done in the early 19th century was pretty clearly meant to be prohibited by the framers. Hoo boy." http://www.motherjones.com/kevin-drum/2013/01/dc-circuit-court-rules-obama-misused-the
    a few seconds ago

    DC Circuit Court Rules Obama Misused the Word "The"
    www.motherjones.com
    As you may recall, the last few years have been fraught ones for appointments to...See More
  • Tea Party Blog It could affect pensions of the few still collecting them that were appointed in this manner in the past, but that would be very few, and it isn't clear if this will be pursued.
  • Tea Party Blog Jesse James, judicial activism means someone is contorting the Constitution to other than something that is either textually mandated or against the original intent of the founders as best can be understood from their writings. Reading the Constitution as written and as intended cannot be called judicial activism, at best it can be called "judging" because that is the role of a judge, to listen to a case and to bounce it off the law as it was written and as it was intended. It is a fact that the intention of recess appointments was for when a position needed to be filled and Congress would not be back in session for a long period, sometimes up to 6 months or more. No one can reasonably argue that an executive position can't wait 11 days until Congress is back. ANY President who has done this is abusing the recess appointment intent. It is a fact that other than during these long recesses of multiple months the founders intended for all appointments to be approved by the Senate. Suggesting that a judge, ruling on these facts, is somehow and activist judge is asinine.
  • Soup McGee -- so every President since Monroe has acted in this UnConstitutional manner?--
  • Tea Party Blog In this case, the recess appointment reference in the Constitution is singluar, it says "the recess", and there can only be one actual recess between each Congress. If it is not during this recess then there is no Constitutional protection of an action which isn't that singular recess. An intersession recess is not recognized. With as often and as long as Congress is now in session you could make an argument that the recess appointment clause could be amended to be more specific and narrower in application, like in times of war if Congress is unable to meet only.
  • Soup McGee -- again, every President since Monroe has done this...--perhaps, in your haste, you missed this:
    "John Elwood of the Volokh Conspiracy is surprised:

    It appears that the Court invalidated the use of intrasession recess appointments, which have been in pretty heavy use since WWII, and were used for a number of high-profile recess appointments, including John Bolton and Judge William H. Pryor, Jr. This is in pretty clear conflict with an Eleventh Circuit opinion and is a broader basis for invalidating the recess appointments than I anticipated. I suspect this one is destined for the Supreme Court.

    Yeah, that's a pretty broad basis, all right. Not only have presidents made intrasession appointments for over 50 years, but the court seems to be saying that anything that wasn't done in the early 19th century was pretty clearly meant to be prohibited by the framers. Hoo boy." http://www.motherjones.com/kevin-drum/2013/01/dc-circuit-court-rules-obama-misused-the

    DC Circuit Court Rules Obama Misused the Word "The"
    www.motherjones.com
    As you may recall, the last few years have been fraught ones for appointments to...See More
  • Tea Party Blog Soup McGee, though not intentionally, yes.
  • Tea Party Blog I think the ruling of this case is technically accurate. I think recess appointments only apply to THE official recess between congress's and though I wouldn't rule on it in this fashion, I think the founders would see no purpose for it anymore with as often as Congress meets.
  • Tea Party Blog If you understand the purpose and intent of the recess appointment it would be hard to suggest that the way they have been used in the last century or so is really what was intended.
  • Soup McGee -- I guess I don't understand why it's a problem now when every President has done it...seems, I dunno, shady...Partisan, activist...but thanks for the Dialogue!
  • Jesse James We shall see how it plays out.
  • Soup McGee --last thought-
    The Warren Court
    Main article: Warren Court

    Warren took his seat October 5, 1953, on a recess appointment; the Senate confirmed him on March 1, 1954.
    en.wikipedia.org/wiki/Earl_Warren
    Eisenhower gave Warren a recess appointment that began on October 1, 1953. .

    so, If warren is Nullified,
    as it were, by this Courts ruling

    http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf

    ...Gone! No Constitutional Crisis? No? Good night.
    a few seconds ago · Like · Remove Preview



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2 comments:

  1. Soup McGeeJanuary 27, 2013 at 12:19 AM

    I mean, of course not really...but that's an idea of what it is...

    ReplyDelete
  2. Soup McGeeJanuary 27, 2013 at 12:25 AM

    Examples and use

    Presidents since George Washington have made recess appointments. Washington appointed South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. Because of Rutledge's political views and occasional mental illness, however, the Senate rejected his nomination, and Rutledge subsequently attempted suicide and then resigned.

    New Jersey judge William J. Brennan was appointed to the Supreme Court by President Dwight D. Eisenhower in 1956 through a recess appointment. This was done in part with an eye on the presidential campaign that year; Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern Catholic on the court. Brennan was promptly confirmed when the Senate came back into session. President Eisenhower, in a recess appointment, designated Charles W. Yost as United States ambassador to Syria.[6] Eisenhower made two other recess appointments, Chief Justice Earl Warren and Potter Stewart.

    George H. W. Bush appointed Lawrence Eagleburger Secretary of State during a recess in 1992; Eagleburger, as Deputy Secretary of State, had in effect filled that role after James Baker resigned.

    According to the Congressional Research Service, President Ronald Reagan made 240 recess appointments, President George H. W. Bush made 77 recess appointments, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of January 5, 2012, President Barack Obama had made only 32 recess appointments.[7] http://en.wikipedia.org/wiki/Recess_appointment#Legitimacy_of_intrasession_appointments

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