Recess Appointments

[CARLHAYDEN]

Facts

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

Issue

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

Rule

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

Analysis

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?

Conclusion

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

[CARLHAYDEN]

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.

[CARLHAYDEN]

“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.

[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