Recess Appointments Unconstitutional?

[Papageorgio]

Recess appointments are being abused, I didn't like it under Bush, don't like it under Obama.

Case law is out, let's see how the Supreme Court handles the issue.

And end run around a law is not always a good thing.

 

[BlindBoo]

Three Republican appointed judges made the ruling. By never going into a formal recess isn't Congress taking away the presidents constitutional power of recess appointments? Holding Pro Forma specifically to deny the Executive branch it's recess apointment power is what should be declared unconstitutional.

 

[Care4all]

Three Republican appointed judges made the ruling. By never going into a formal recess isn't Congress taking away the presidents constitutional power of recess appointments? Holding Pro Forma specifically to deny the Executive branch it's recess apointment power is what should be declared unconstitutional.

yep

 

[Procrustes Stretched]

I await a supreme court decision, because if this ruling stands then ALL senates can ALWAYS be ''in session'' with just 1-2 senators there for 30 seconds, which means they can ALWAYS prevent a President from his constitutional right to make appointments when the Senate is unable to.....and the Senate is unable to without having a quorum, present, in the Senate.....

me thinks the Senate is in recess when the Senators go home and are not present in Washington to do their job, of advice and consent....so let's see what the SC says....hope it makes it there...

on another subject but sort of related....every year a report of how many days both Congresses are in session comes out at the end of the year and I've always thought that congress does not spend enough days working in session.....

WELL guess it is A LOT WORSE than those reports show because now we know that the Senate counts itself in session, working, for just 2 senators there for 30 + seconds every 3 days...... sheesh....

Senate rules can be abused. The Senate needs to fix it's own rules...I suspect that is what the SCOTUS will say...then again...

 

[Liability]

What Obama take an unconstitutional action ?

And apparently, ALL presidents before Obama as well...not like Obama invented this....bush had 171 recess appointments and 29 under the circumstance that Obama used...??? guess this is going to the supreme court...

And talk about what the meaning of is, is.

the court made its decision on the word "the" "the recess".....

congress needs to stop the bull crap of 22 second sessions as making them "in session".....that's utter bullcrap too and definitely NOT what the constitution or founders intended as being in session, in my opinion.

Landmark Legal Foundation (Mark Levin's entity) filed an amicus brief which the Court understood and largely followed. It can be found here: http://landmarklegal.org/uploads/RecessAppointmentBriefFinal_Updated12_5.pdf

Significantly, the brief urged:

"* * * * Under New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), and pursuant to 29 U.S.C. § 153(b), the Board lacks authority to issue orders or decisions absent a quorum of three members. The Board has had no valid quorum since January 3, 2012. Prior to that date, the Board consisted of Chairman Pearce, and Members Becker and Hayes. The remaining two seats were vacant, having been so for a considerable time. One of these seats became vacant in August 2010, when Peter Schaumber’s term expired. The other seat became vacant in August 2011, when Wilma B. Liebman left the Board.2 When Becker’s term expired on January 3, 2012, the Board was left without its requisite quorum of three members.3
On December 15, 2011, President Obama nominated Sharon Block and Richard Griffin to fill longstanding vacancies on the Board. The Senate has not confirmed those nominees.4
On December 17, 2011, the Senate agreed by unanimous consent to remain in session for the period of December 20, 2011 through January 23, 2012. 157 Cong. Rec. S8783-8784 (Dec. 17, 2011) (Sen. Wyden). The Senate simultaneously agreed to conclude the first session of the 112th Congress on December 30, 2011 and begin the second session of the 112th Congress on January 3, 2012 (as required by section 2 of the Twentieth Amendment to the U.S. Constitution). Id. This decision to continue in session was necessary to discharge the Senate’s constitutional obligations under both the Twentieth Amendment and Article I, Section 5, Clause 4 of the U.S. Constitution, which prohibits one House of Congress from adjourning for more than three days without consent of the other. The House did not consent to a Senate recess or adjournment of longer than three days.
Nevertheless, only three weeks after sending the Block and Griffin nominations to the Senate – and before the relevant Senate Committee, let alone the full Senate, could take action on their nominations – the President decided to ignore and bypass the Senate’s advice and consent responsibilities. On January 4, 2012, he announced his intent to “recess appoint” Block and Griffin, as well as Terence Flynn, as Members of the Board.5 On January 9, 2012, Block, Griffin and Flynn were sworn in and purported to take office as members of the Board.6
The nominations of Griffin, Block, and Flynn were never confirmed by the Senate – i.e., the Senate has never given its advice and consent to their nominations * * * *"

THIS is what the case is about. Whether the President may legitimately and unilaterally declare that the Senate is in recess when it isn't.

The court CORRECTLY said, "gee. no."

 

[PaulS1950]

Yes the law states that an appointment can be made by the president alone only during the recess of congress. "The Recess" is the time between congressional sessions. Lunch breaks, Sundays off, and holidays do not constitutue "the recess" of congress.
Other presidents have been smart enough to realize where their power was limited and have performed legal out-of-session appointments. Obama figured that he could get another one by that superceded his powers granted by the constitution.
He got slapped for it. ho, hum.

 

[Liability]

Yes the law states that an appointment can be made by the president alone only during the recess of congress. "The Recess" is the time between congressional sessions. Lunch breaks, Sundays off, and holidays do not constitutue "the recess" of congress.
Other presidents have been smart enough to realize where their power was limited and have performed legal out-of-session appointments. Obama figured that he could get another one by that superceded his powers granted by the constitution.
He got slapped for it. ho, hum.

In fairness, Pres. Obama is not the lone transgressor. But he IS the one who got snagged. Flag on the play!

 

[Papageorgio]

Three Republican appointed judges made the ruling. By never going into a formal recess isn't Congress taking away the presidents constitutional power of recess appointments? Holding Pro Forma specifically to deny the Executive branch it's recess apointment power is what should be declared unconstitutional.

I did exclude all recesses, just bogus recesses. So you are incorrect that this law denies the Executive branch it's recess appointments.

This was wrong under Bush and it is wrong under Obama and it needs to be cleaned up, we need the checks and balances.

 

[Papageorgio]

Yes the law states that an appointment can be made by the president alone only during the recess of congress. "The Recess" is the time between congressional sessions. Lunch breaks, Sundays off, and holidays do not constitutue "the recess" of congress.
Other presidents have been smart enough to realize where their power was limited and have performed legal out-of-session appointments. Obama figured that he could get another one by that superceded his powers granted by the constitution.
He got slapped for it. ho, hum.

Other Presidents needed to be slapped by this also, not just Obama.

 

[Care4all]

Three Republican appointed judges made the ruling. By never going into a formal recess isn't Congress taking away the presidents constitutional power of recess appointments? Holding Pro Forma specifically to deny the Executive branch it's recess apointment power is what should be declared unconstitutional.

I did exclude all recesses, just bogus recesses. So you are incorrect that this law denies the Executive branch it's recess appointments.

This was wrong under Bush and it is wrong under Obama and it needs to be cleaned up, we need the checks and balances.

he's not wrong.... any recess can be said not to be a recess because the senate had 1-2 senators for 30 seconds, claim the senate is in session....thus eliminating the president's power to appoint during recess... when congress is not in session...........

these are parliamentary rules that are bogus....

ALL senators have gone home, absolutely no bill or appointee can be voted on because the Senate quorum is NOT present.....they ARE on recess, they are NOT in session.... its obstruction imo.

THAT is just plain wrong...

 

[Papageorgio]

Three Republican appointed judges made the ruling. By never going into a formal recess isn't Congress taking away the presidents constitutional power of recess appointments? Holding Pro Forma specifically to deny the Executive branch it's recess apointment power is what should be declared unconstitutional.

I did exclude all recesses, just bogus recesses. So you are incorrect that this law denies the Executive branch it's recess appointments.

This was wrong under Bush and it is wrong under Obama and it needs to be cleaned up, we need the checks and balances.

he's not wrong.... any recess can be said not to be a recess because the senate had 1-2 senators for 30 seconds, claim the senate is in session....thus eliminating the president's power to appoint during recess... when congress is not in session...........

these are parliamentary rules that are bogus....

ALL senators have gone home, absolutely no bill or appointee can be voted on because the Senate quorum is NOT present.....they ARE on recess, they are NOT in session.... its obstruction imo.

THAT is just plain wrong...

The word is "the" and it doesn't include all recesses, only those allowed by the articles of the Senate.

 

[Care4all]

I did exclude all recesses, just bogus recesses. So you are incorrect that this law denies the Executive branch it's recess appointments.

This was wrong under Bush and it is wrong under Obama and it needs to be cleaned up, we need the checks and balances.

he's not wrong.... any recess can be said not to be a recess because the senate had 1-2 senators for 30 seconds, claim the senate is in session....thus eliminating the president's power to appoint during recess... when congress is not in session...........

these are parliamentary rules that are bogus....

ALL senators have gone home, absolutely no bill or appointee can be voted on because the Senate quorum is NOT present.....they ARE on recess, they are NOT in session.... its obstruction imo.

THAT is just plain wrong...

The word is "the" and it doesn't include all recesses, only those allowed by the articles of the Senate.

this allows the senate TO ALWAYS CLAIM they are not in recess as long as the 2 local senators show up for 30 seconds every 3 days....

i'm sorry but no way jose did the writers of the constitution foresee such obstruction in the Senate to prevent and get around the constitution so to halt a president from using his constitutional power to make recess appointments...

I'll await this to be decided by the supreme court....

 

[Papageorgio]

he's not wrong.... any recess can be said not to be a recess because the senate had 1-2 senators for 30 seconds, claim the senate is in session....thus eliminating the president's power to appoint during recess... when congress is not in session...........

these are parliamentary rules that are bogus....

ALL senators have gone home, absolutely no bill or appointee can be voted on because the Senate quorum is NOT present.....they ARE on recess, they are NOT in session.... its obstruction imo.

THAT is just plain wrong...

The word is "the" and it doesn't include all recesses, only those allowed by the articles of the Senate.

this allows the senate TO ALWAYS CLAIM they are not in recess as long as the 2 local senators show up for 30 seconds every 3 days....

i'm sorry but no way jose did the writers of the constitution foresee such obstruction in the Senate to prevent and get around the constitution so to halt a president from using his constitutional power to make recess appointments...

I'll await this to be decided by the supreme court....

That's what I'm waiting for. But this recess loophole has been abused many times over and is getting worse with each administration.

Maybe Presidents need to be more discerning when using loopholes to serve themselves.