Talk Elections

Recently President Obama made some appointments to the NLRB which he called "recess" appointments.

The Senate has been in session, i.e. not on recess.

http://www.bloomberg.com/news/2012-01-05/obama-chooses-politics-over-principle-in-naming-consumer-bureau-head-view.html


Can the President make appointments to positions requiring Senate confirmation without obtaining such confirmation?


Interestingly enough, the rule on this was pretty clearly set forth  by the Deputy Solicitor General less than two years ago!

In New Process Steel v. NLRB (2010), 130 S. Ct. 263, in oral argument, Chief Justice Roberts questioned Deputy Solicitor General Neal Katyal about recess appointments to the NLRB, Mr. Katyal stated:

“(T)he recess appointment power can work in -- in a recess. I think our office has opined the recess has to be longer than 3 days.”

The quote is contained on page 50. Lines 3 – 4 of the transcript of oral arguments.

http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1457.pdf


Apparently the Obamamessiah has decided that whenever the Senate refuses to confirm he choices, that makes them (the Senate) in recess, even if the Senate maintains to the contrary.

Or perhaps the Obamamessiah simply doesn't have to obey no stinking laws?


If Obama gets away with this one, then Senate confirmation becomes a dead letter.

Pro forma sessions are bollocks, though. Even the Bush administration stated that a recess appointment could still be made when there's only pro forma sessions. Besides, Obama has made much less recess appointments than Clinton, Reagan, or either Bush did, per year.

Now, if you want a legitimate criticism, apparently Dodd-Frank specifies that the appointee has no actual authority unless he's approved by the Senate, so it was nothing but useless politicking.

So, the Obama will decide decide when the Senate is in session?  The Senate may assert it is session but you seem to believe that Obama can simply overrule them whenever he wants?  Hmm.

Now you may believe that that invoking "bollocks" constitutes some type of argument, but its a pretty specious one (to put it mildly).

Or do you believe that by incanting  "pro forma," then the Constitution doesn't apply?

Now, Bush II tried to assert pretty unlimited authority, BUT did NOT, repeat NOT, make any "recess" appointments while the Senate was in session.  Oh, and Clinton, Bush I and Reagan did not make any "recess" appointments while the Senate was in session.

Next, Bush I served for four years, Bush II, Clinton and Reagan for eight years, so it is NOT surprising that they had more recess appointments than Obama.  Now I understand that it seems like Obama has been afflicting the country for an eternity, but its actually been three years.

I ask you to be honest, if a Republican President tried to bypass a Democrat controlled Senate which was in session to make recess appointments, would you support such appointments as legitimate?

Finally, the call of the subject was on recess appointments in general.  So, your comment on the lack of powers for Corday is, well, off topic, even though correct.

I like this. Republicans are blocking appointments, not letting a proper consideration by the Senate, as mandated by Constitution, to go forward, and now are screaming.

Like arsonist accusing someone of setting a fire.

There is no winner here, and it shows how far from the constitution the appointment process has strayed.

1.  The pro forma session nonsense was begun by the Democrats when Dubya was President.  Neither party has its hands clean here.

2.  It's clear that the Constitution never envisaged a supermajority requirement for the advice and consent provision.  Nor did the founders envision a Congress that would always be in session.  The recess appointment provision was included so that if an office became vacant, the President could appoint someone on a temporary basis until the Senate had the opportunity to give its advice and consent.  The political shenanigans both parties are guilty of here would never happen if it were not for the aconstitutional Senate filibuster that causes appointees to remain in confirmation limbo.

3.  Politically, this is a wash.  The bases of each party get some red meat to froth over and the independents in the middle get even more disgusted with Washington politics as usual.

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While the legality of these pro forma sessions is disputed, it won't take long to be settled.

Net result is likely to be similar to what happened in Clinton v. City of New York concerning the Line Item Veto Act of 1996.   As soon as Corday or the NRLB makes a ruling that adversely affects someone, they'll sue, they'll win, and the whatever they did under these appointments will be thrown out.  While the pro forma sessions are political evasion of the crassest sort, they are well within the Article I Section 5 Clause 2 power of each house to determine the rules of its proceedings.  The cure to this problem is not Obama's effort to unravel this Gordian knot, but an Alexander willing to cut it once and for all by getting rid of the filibuster for at least the non-lifetime appointments to the executive branch.

“Although a President may fill such vacancies through the use of his recess appointment power … the Senate may act to foreclose this option by declining to recess for more than two or three days at a time over a lengthy period. For example, the Senate did not recess intrasession for more than three days at a time for over a year beginning in late 2007.”
 
Elena Kagan

Krazen,

Have you noticed  I asked what the reaction would be if a Republican President tried this nonsense.  No response from the lefties on the Atlas Forum.  Hmm.

Please keep the vitriol against other posters in check, folks.

I'd be fine with it, if there was a Democratic Senate minority that was refusing to confirm any appointee to a specific executive post.

Ah, I wasn't giving an argument. :) I was in a bit of a rush that morning so I was just giving my two cents, and citing some related facts that I recalled. Here's my argument, though.


I don't believe that a pro forma session shouldn't be considered a true session of the Senate. With only a couple of members opening and quickly closing the Senate for the day, they don't have the quorum to do anything even if they wanted to. Thus, I think the Constitututional intent regarding recess appointments still holds, because the Senate wouldn't be available to approve the nominee even if they wanted to do so. For all intents and purposes, the Senate is in recess even if pro forma sessions occur.


I said the number of recess appointments each made per year. Sorry, I should have made that clearer. Note this chart:

()


Yes, honestly, I would. The chicanery of fake Senate sessions to avoid recess appointments is even worse than the procedural filibuster. I honestly prefer if neither were allowed at all, regardless of which party is in power. This use of parliamentary procedure shenanigans should be stopped before it becomes a huge problem. If pro forma sessions end up becoming a legitimate method to prevent appointments, then a handful of Senators would have as much control over the executive branch as the President himself, and that certainly violates the separation of powers.

On a somewhat related note, I don't think recess appointments should be allowed to the Federal judiciary and believe both Clinton and Bush II made very inappropriate decisions in that regard. They're supposed to be completely independent and serve for life- not serve until the end of the next session of the Senate, pending confirmation.


Fair enough. I mentioned it because I assumed this thread was (at least in part) inspired by the Cordray nomination, given the timing and all.

In 2001, there were 4 vacant seats from Michigan on the 6th circuit court of appeals. President Bush had withdrawn the nomination (made by President Clinton) of Carl Levin's relative to 1 of the 4 seats. Levin was upset at this and decided to block any and all nominees to any and all of Michigan's judicial seats for the entirety of Bush's 1st term. At the time they were also filibustering Miguel Estrada because of his race.


It's really amusing whining that they do.

I'm reasonably positive that's not why Estrada was filibustered.


The behavior of Senator Levin in the environment that you're describing was entirely uncalled-for and I can't think of anybody other than semi-pro Internet liberals or Democratic power players themselves who would disagree. There. Are you happy?

Memos between Democrats and liberal groups called him "extremely dangerous" due to "because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment.".

Ted Kennedy also said the following.

On Wednesday, Kennedy told his Democratic colleagues, "If we allow a stealth right-winger on this court, we have only ourselves to blame."

"We must filibuster Miguel Estrada's nomination," he told lawmakers at the weekly Democratic policy lunch. "The White House is almost telling us that they plan to nominate him to the Supreme Court. We can't repeat the mistake we made with [Supreme Court Justice] Clarence Thomas."




You can be your own judge on Miguel Estrada.

As far as Carl Levin and his relative, well, Levin got what he wanted. After stonewalling nominations for 7 years of the Bush Presidency, Bush eventually gave up in mid 2008. He withdrew his own guy and gave Helene White (a Democrat who is married to Levin's cousin) 1 of the seats. She was confirmed very quickly.

The signs show stonewalling seems to work.

I might add, in a very interesting twist of fate, Miguel Estrada was one of President Bush's first judicial nominees, along with a guy named John Roberts. Here they are pictured together 10 years ago. To that point in time they both had very similar career paths.

http://www.cbsnews.com/2300-500146_162-710311-13.html


Roberts is of course white and was confirmed by voice vote. He certainly turned out to be very conservative.

Okay, yes, that's problematic, though I trust you understand that the memos said what they said for political reasons--granted, incredibly cynical racial-politics reasons--rather than overt racism on the part of the people who wrote the memo themselves (though, who knows, they may have been overtly racist as well).


The problem with Clarence Thomas isn't that he's black. The problem with Clarence Thomas is that he's an insanely corrupt creep.


That's unfortunate and I'm immensely disappointed in Senator Levin, whom I like on many issues.

Certainly its not overt racism. As it stands of course, the Democrats ended up poisoning the well for future minority judges.

The Senate GOP faced a similar choice in 1997 when a young Hispanic judge named Sonia Sotomayor was nominated to the 2nd circuit by Bill Clinton. The Senate GOP realized that she was 'extremely dangerous' in a similar manner and considered blocking her. About a year later they ended up confirming her, and a decade later she made it to the Supreme Court.

Things would have turned out differently had the GOP done what Ted Kennedy and company did to Miguel Estrada 5 years later.

Ernest is basically right on how this will play out, imo.

Are you agreeing with just my prediction of how the court case will go, or my take on the politics of Obama's overreach as well?

Bush would have put one conservative judge on the bench instead of another and Obama would have put one not-conservative judge on the bench (I'm uncomfortable calling Sotomayor 'progressive' or 'liberal' while, say, Douglas and Brennan are still well within living memory) instead of another?

In my opinion, this whole thing hinges on whether the 30 second activities of Senator Warner, without a quorum of Senators being present, constitute the Senate being in session.

If the Senate is not scheduled to convene for business until the 23rd of this month, sound like a recess to me.  What strikes me as unconstitutional game playing is having one senator show up for 30 seconds, do nothing, and declare a session has occured.   

Something like that. Whether Estrada would have gotten the call or not (and thus got that coveted first Hispanic judge business) is of course speculative.

Sotomayor was quite lucky. Of course, luck is inherently part of the deal in making it to the Supreme Court.

The game is quite constitutional, just as it is quite revolting what both parties are doing.  Congress is well within its constitutional rights to decide what constitutes a recess.  The requirement to make a recess appointment is three days in recess, not three days without a quorum.

Of course, the root problem is the aconstitutional requirement for a supermajority to do anything of importance in the Senate.  If the filibuster was not in place, there would be no shenanigans over recess appointments.

The Senate has declared that it is in recess "with the exception of pro forma sessions" until January 23, 2012, when it will resume a "legislative session".  I question whether "pro forma" sessions are constitutionally actual sessions of the Senate.



Can the Senate begin a new session, thereby ending its recess, without convening a quorum to do business?

I struck out your qualifier, because the Senate is not in recess, as the President has no power to decide if the Senate is in recess or not.

It can start a session without a quorum, and has done so in the past when members were delayed in arriving. The Senate decides its own rules itself, and it judges whether they are being followed.  In theory, at any one of these pro forma sessions that has been held a Senator could raise the point that a quorum is not present and then undertake to compel the other Senators to come.

In any case, you are mistaking the symptom, the trouble with unresolved appointments, with the disease, the filibuster.  With a straight majority vote on executive appointments, there would be no controversy over appointments languishing without coming to a vote.

The Senate said it was in recess. See the note at the top of this page: http://www.judiciary.senate.gov/




According to the Constitution a Quorum is required to do business.



Here is the Senate rule on Commencement of Daily Sessions --  http://rules.senate.gov/public/index.cfm?p=RuleIV -- that rule was not followed on January 3. 



Both the filibuster and the "pro forma session" are symptoms of a dysfunctional Congress.



But the Senate decides its own rules itself and the fillbuster is one of its rules.

The Constitution does give him the power to "adjourn them to such Time as he shall think proper" if there is a "Case of Disagreement between them, with Respect to the Time of Adjournment."   However, I haven't seen any evidence that Obama is going in this direction. 

The Senate hasn't been disputing with the House as to whether they should adjourn or not.  Now if the Democratic Senate tried to adjourn without pro forma sessions and the Republican House refused to grant its assent, which is required for a recess greater than three days, then and only then, does the President have a role to play in deciding when they have adjourned.

*NOTE: The Senate is in recess, with the exception of pro forma sessions, until January 23, 2012, when it will resume legislative session.

It's not a three day recess, and you well know that's what I meant.


They can talk, they just can't make any binding decisions.  The standard the Constitution provides is they they have to stop meeting, not they stop having meetings in which they take votes.


Here is the Senate rule on Commencement of Daily Sessions --  http://rules.senate.gov/public/index.cfm?p=RuleIV -- that rule was not followed on January 3.
[/quote]

What did they break?  If you are referring to the lack of a quorum, both houses assume a quorum is present unless a quorum call or vote is taken and shows otherwise.  Indeed, if they didn't it would be difficult for them to do the committee meetings and other non-debate legislative they do.


The pro forma session would have no reason to be done were it not for the filibuster.


A flawed rule in my opinion, and one that contributes mightily to dysfunctional government.  Eliminating it would not eliminate dysfunctional government, but it would make it less common.

It was not clear what you meant.  You struck out a portion of my comment that did not mean 3 day recess.     



The question is not when do they stop meeting, but rather when do they start up again. 



Just about all of it.  One Senator was present on January 3. He called order, had the clerk read the letter declaring him presiding officer, declared that the second session of the 112th Senate had commenced, then he adjourned. 


Pro Forma sessions were used during the Bush administration by Democrats.  The Filibuster wasn't the issue then.

It wasn't?  I fail to see how it could not have been the filibuster or its bastard cousin, the single-senator hold.

The only point reason to bother with pro forma sessions is to allow a minority that threatens to filibuster a nominee to also keep the nominee from getting a recess appointment.  Without the filibuster, if a majority opposes a nominee, they can vote em down.  While technically  constitutional, it would be considered very bad form to use a recess appointment to appoint someone the Senate has already rejected.  While I can't swear to it, I don't think it has ever been done.

Then you are not knowledgeable about how Pro Forma sessions were used in 2007.

See:  http://www.cbsnews.com/stories/2007/11/16/politics/politico/thecrypt/main3516002.shtml




The Senate can not vote down a recess appointment.

I would argue that the filibuster (in the general sense of parliamentary tactics used to avoid votes) was indeed behind why Reid did what he did.  Reid refers to the recess appointments Bush did in 2005 to deal with the Democratic filibusters in the 109th Senate. With the narrow majority that the Dems had in the 110th Senate, Reid could not afford to bring controversial nominees to a vote, as it would have taken but a single defection, such as Hagel or Lieberman for a Bush nominee to get confirmed.  A shaky majority can find avoiding bringing things to an up or down vote just as useful as a minority can when the outcome is in doubt.


No, but they can vote down regular appointments, and as far as I know no appointee who has been rejected by the Senate has gone on to be given a recess appointment.  I thought I had made my points clear enough in my last few posts,  but either I am not making the context of what I am saying clear, or you are ignoring the context and insisting on hyper-literalism on purpose.

DOJ gives its reasoning:

http://thehill.com/images/stories/blogs/flooraction/Jan2011/dojrecess.pdf

In my opinion this is a bunch of cotton-candy logic that will not withstand scrutiny.  I will agree with one thing that is said there:


The thing is, the Senate had been able to, it just has chosen not to.

And then there is the whole absurd section of the opinion that talks about how while pro-forma sessions might satisfy the constitutional requirement that neither House adjourn for more than three days without the consent of the other, they still don't meet the standard for the recess appointment clause.

Yes, because the Democrats refused to change the rules.  Blame the Senate, as a body, for that.

True Federalist is right; it will be found unconstitutional.

I think that's the fundamental problem.  I don't care what party you're in how are you going to refuse to staff a post that was created on your watch?  I think that's unConstitutional.  To get elected to office under the false premise that you are going to work as a Senator and then as an entire party  just walk out en bloc and very clearly and succinctly say we under no circumstances are going to do our job.  You could appoint Jesus H. Christ and we would still just vote him down, jus' cause.  WTF?!  Talk about unConstitutional.

If you have a problem with the agency introduce a bill abolishing it.  Or offer up a puppet appointment that will do your bidding.  But to just say I'm not going to approve anybody is to me the real crime here.

Clearly, the solution is a judicial clarification that that's a distinction that makes no difference. If the Senate cannot, within its rules, agree on what advice and consent (or lack thereof) to give, it is unable ot give its advice and consent. :P

The wheels are grinding on a legal challenge to the Obama appointments to the NLRB:

http://sblog.s3.amazonaws.com/wp-content/uploads/2012/01/Motion.pdf

That may or may not work.  Depends on how far along the NRLB was when it lost its quorum.  If the NRLB is simply following through on a decision already reached and the board no longer has to make any decisions on what to do, it might not work.  Of course, if the NRLB has to make a decision, then since it can't without the quorum it does not have, it will work.

I'd have to more research than I care to do in order to make a firm opinion as whether this case could be the one used to overturn the sham recess appointments, or if we have to wait longer.

Recess appointments bad, but not just when convenient