Recess Appointments

[WillK]

the President has no power to decide if the Senate is in recess or not.

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. 

[True Federalist (진정한 연방 주의자)]

the President has no power to decide if the Senate is in recess or not.

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.

[True Federalist (진정한 연방 주의자)]

I struck out your qualifier, because the Senate is not in recess

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

*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.

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

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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.
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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.

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Both the filibuster and the "pro forma session" are symptoms of a dysfunctional Congress.
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The pro forma session would have no reason to be done were it not for the filibuster.

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

[WillK]

*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.

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

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

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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. 

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

[True Federalist (진정한 연방 주의자)]

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

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.

[WillK]

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

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

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The Senate can not vote down a recess appointment.

[True Federalist (진정한 연방 주의자)]

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

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

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.

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The Senate can not vote down a recess appointment.
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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.

[WillK]

DOJ gives its reasoning:

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

[True Federalist (진정한 연방 주의자)]

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:

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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.

[J. J.]

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.

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.

[Link]

“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.

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.

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.

[minionofmidas]

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:

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

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.

[CARLHAYDEN]

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

[True Federalist (진정한 연방 주의자)]

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.

[Jerseyrules]

Recess appointments bad, but not just when convenient