- This is a continuation of the Conversation first referenced in "Did A DC Court Just..."http://www.theatlantic.com/national/archive/2013/02/what-did-the-word-the-mean-in-1755-and-why-does-the-court-care/272773/
- Soup McGee http://jostonjustice.blogspot.com/2013/01/d-c-circuits-astounding-decision-on.html
" Senators in both parties had strong doubts when President George W. Bush chose the bombastic conservative John Bolton in 2005 to be the United States ambassador to the United Nations. After the Senate’s Republican majority failed to muster the 60 votes needed to overcome a Democratic filibuster, Bush resorted to the established practice of appointing Bolton to the post anyway while the Senate was taking a summertime recess.
The recess appointment allowed Bolton to serve, seemingly as provided in the Constitution, until the end of the Senate’s next session — through 2006. But after Bolton again failed to win Senate confirmation, he gave up the post.
Now, it turns out, Bolton never should have served at all, according to an astounding decision by the federal appeals court for the District of Columbia. In a decision released on Friday [Jan. 25], a three-judge panel headed by the D.C. Circuit’s chief judge, David Sentelle, all but eliminated the president’s prerogative to bypass the Senate to install nominees who cannot win confirmation. "
- Soup McGee http://www.newyorker.com/online/blogs/comment/2013/01/the-awful-recess-appointment-ruling-in-canning-v-national-labor-relations-board.html?printable=true¤tPage
"Recess appointments, which are specifically authorized in the Constitution, have been facts of political life for decades. When faced with senators’ refusals to act on nominations Presidents simply made appointments while the Senate was not in session. There was some political controversy about whether they should exercise this power, but no legal challenge to their right to do so.
As the Times reported (but the D.C. Circuit, once again, did not see fit to mention), President Bill Clinton made a hundred and thirty-nine recess appointments, while George W. Bush made a hundred and seventy-one, including those of John R. Bolton as Ambassador to the United Nations and two appeals-court judges, William H. Pryor, Jr., and Charles W. Pickering, Sr., Obama has made only thirty-two such appointments, including that of Richard Cordray as director of the Consumer Financial Protection Bureau."
- Soup McGee http://shanereactions.wordpress.com/2013/01/25/judicial-activism-and-recess-appointments/
"For all the controversy surrounding these appointments, they were clearly constitutional if either of two things is true. They were constitutional if, despite the pro forma sessions, the Senate was in recess from December 20 until January 23. If that hiatus amounted to a “recess” for purposes of Article II, Section 2, then the President’s exercise of his appointment prerogative was permissible. The appointments would also be constitutional, of course, if the three-day hiatus between January 3 and January 6 was a “recess” for constitutional purposes. The President had plausible arguments either way."
- Soup McGee http://shanereactions.wordpress.com/2013/01/30/two-more-reasons-why-the-d-c-circuit-was-wrong-and-wrong-on-recess-appointments/
"Two of the three judges read into the language an additional limitation. They asserted that the President may fill only those vacancies that first arise during intersession breaks. If an advice-and-consent position becomes vacant, say, on January 4, and the Senate leaves town for the whole summer after sitting on the President’s nomination for six months, the President is just out of luck. As these judges read the Constitution, the President may not even fill the vacancy if it still exists when the Senate finally does adjourn sine die.
This second conclusion is ludicrous as a practical matter, and history utterly refutes it. Felix Frankfurter wrote in his famous Youngstown concurrence: “Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.” In this case, executive branch interpretation long ago rejected the D.C. Circuit view of appointment-eligible vacancies, and Congress itself has decisively accepted the executive branch view.
In 1823, Attorney General William Wirt concluded in a formal opinion that the Article II phrase refers to all vacancies that happen to exist during “the Recess.” This was, he wrote, “the only construction of the Constitution which is compatible with its spirit, reason, and purpose.” As explained in a recent report by the Congressional Research Service, beginning in 1855, formal Attorneys General opinions accepted the Wirt interpretation, “even with respect to newly created offices that had never been filled.” The question first reached a federal court in 1880, and that court, like every other court to reach the issue until last week, accepted the Wirt view as proper.
Yet more remarkably, we know that Congress itself has endorsed this interpretation. In 1940, Congress codified a statute, 5 USC 5503, which purports to limit the circumstances under which a recess appointee can be paid from Treasury funds. In general, the statute bars payment to “an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until the appointee has been confirmed by the Senate.”
But Congress gave its rule three exceptions. A recess appointee may be paid “if the vacancy arose within 30 days before the end of the session of the Senate.” A recess appointee may be paid, “if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent.” A recess appointee may be paid “if a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected thereafter receives a recess appointment.”
All of these exceptions – crafted by the legislative branch itself – obviously refer to and acquiesce in recess appointments to positions that became vacant while the Senate was in session. This is nothing less than explicit congressional ratification of the position that the D.C. Circuit rejects. To quote Frankfurter again: “[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive Power’ vested in the President by § 1 of Art. II.” The D.C. Circuit should have heeded this wisdom."
- Soup McGee http://shanereactions.wordpress.com/2013/01/31/permitting-legislative-repeal-by-blocking-nominations-the-dc-circuit-recess-appointment-disaster/
"A September, 2012 report by the Congressional Research Service looked at delays in confirming non-Supreme Court nominees deemed uncontroversial. We know they were uncontroversial because (1) their nominations were eventually reported out of the Senate Judiciary Committee favorably either by voice vote or by a unanimous roll call vote, and (2) their nominations were eventually approved by the full Senate by voice vote, or if a roll call vote was held, approved with five or fewer nay votes. The report’s key conclusions regarding post-1980 judicial confirmations were as follows:
“For uncontroversial circuit court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 64.5 and 44.0 days, respectively, during the Reagan presidency to a high of 227.3 and 218.0 days, respectively, during the Obama presidency…For uncontroversial district court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 69.9 and 41.0 days, respectively, during the Reagan presidency to a high of 204.8 and 208.0 days, respectively, during the Obama presidency.”
Which brings us to the DC Circuit opinion. The Constitution provides that the president may “fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” As interpreted by three GOP-appointed judges, this power is triggered, however, only if “the recess of the Senate” happens to be the break between its annual sessions — and then, yet more surprising, only if an office actually becomes vacant during that break. Because the NLRB vacancies had not opened up during the Senate’s intersession break, and the president did not make his recess appointments during that break, the court found them impermissible.
Under this view, however, it is painfully evident what a president may do if (a) he sends to the Senate a timely nomination for an executive branch position that becomes vacant while the Senate is formally convened and (b) a minority of senators just sit on the nomination and refuse to bring it to a vote. In a word, “nothing.”
The constitutional impotence that the DC Circuit would impose on the president means that filibustering senators can prevent an agency from functioning — thus effectively repealing the law that created the agency and authorizing its functions — simply by refusing to confirm an agency head or enough voting members to constitute a quorum."
- Tea Party Blog I still think the decision was correct. I think that by and large those that should be appointed are appointed. Most of the appointees do very little anyways. There really isn't any delay in the work of government if they have to wait for appointees to come in. I've talked to many civil servants in many different agencies and they can't stand the political appointees because usually they aren't qualified, and they have no idea what they are talking about. The civil servants just keep doing the actual work as administrations come and go.
- Soup McGee http://shanereactions.wordpress.com/2013/01/25/judicial-activism-and-recess-appointments/
"For all the controversy surrounding these appointments, they were clearly constitutional if either of two things is true. They were constitutional if, despite the pro forma sessions, the Senate was in recess from December 20 until January 23. If that hiatus amounted to a “recess” for purposes of Article II, Section 2, then the President’s exercise of his appointment prerogative was permissible. The appointments would also be constitutional, of course, if the three-day hiatus between January 3 and January 6 was a “recess” for constitutional purposes. The President had plausible arguments either way." SERIOUSLY?
- Tea Party Blog Soup McGee, I'm an originalist, which means the Constitution is both what it says and what was intended by the founders. The founders did not intend for the Constitution to grant the President the power to appoint someone to office because Congress wasn't in session for a week. The Constitution intended for the Senate to act as a check by confirming political appointees. When the President circumvents this process he is violating the Constitution. It is this simple and it is this plain. You can post 500 articles and it won't matter. Recess appointments are for when Congress is away for long periods of time and the President needs to fill a position. Unless Congress is in recess for more than a month or two, there should be no recess appointments. It's unconstitutional.
- Soup McGee --The appointments would also be constitutional, of course, if the three-day hiatus between January 3 and January 6 was a “recess” for constitutional purposes. The President had plausible arguments either way." - The senate will NEVER be in recess or the recess for that matter for
- Soup McGee --" The Constitution provides that the president may “fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”"" Does it not? So one three judge panel in 200 years agrees with you...and that's it? No more needs t be said? That does not make even Constitutional Sense. When this gets to the Court, I'll still e here on this thread pointing out your denial of common sense reality.
Saturday, February 2, 2013
O And We Let Women Vote Now
Posted by Soup McGee at 7:37 AM