Recess Appointments

[True Federalist (진정한 연방 주의자)]

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.


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.

[True Federalist (진정한 연방 주의자)]

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

[True Federalist (진정한 연방 주의자)]

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?

[True Federalist (진정한 연방 주의자)]

Facts

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

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.   

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.

[True Federalist (진정한 연방 주의자)]

The requirement to make a recess appointment is three days in recess, not three days without a quorum.

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.

[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.

[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.

[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.

[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.

[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.