Court strikes down Obama recess appointments

[BobG]

A federal appeals court ruled Obama's recess appointments to fill the labor board were unconstitutional.

Republicans had brought the labor board to a halt by refusing to let any nominees come to a confirmation vote over the years (this is an abusive practice). To prevent Obama from filling the empty slots via recess appointments, Republicans copied a tactic Democrats used against George Bush. (A tactic we discussed here several years ago.)

https://www.physicsforums.com/showthread.php?t=199548

As abusive as blocking nominees solely to render the labor board non-functional is, I still think finding a way to stop, or at least curtail recess appointments is a good thing. Recess appointments were never intended to give the President a way to avoid getting Senate confirmation - they were intended to fill vacancies that occurred unexpectedly while Congress was out of session.

Of course, the impact of the ruling is bad. The labor board is down to one of five slots being filled, which makes it incapable of taking any action. Plus, since the board didn't have at least 3 legitimate members, all of their recent actions could be negated. Unless, of course, you despise unions and would like to see the labor board eliminated entirely (which is why no nominees, no matter who they are, were allowed to come to a confirmation vote) - so much so you don't really care what the majority wanted.

 

[mheslep]

Unanimous decision too.

I don't know that one has to "despise unions" or want the board entirely eliminated to favor a check on recess appointments to the NLRB. The conclusion could be that Republicans believe that some actions of the NLRB were overreach, like effectively trying to tell companies such as Boeing where they could open a $1B factory. Congress must be granted the power to advise and consent, end of story sayeth the Circuit Court.

 

[BobG]

These are two separate issues.

There definitely needs to be a check on recess appointments. This is something that's been abused by the last several Presidents, regardless of party.

But the confirmation process itself has been abused by the Senate for at least the last couple Presidencies. It's one thing to reject an unfavorable nominee by a vote. Blocking nominees from ever coming to a vote is obstructing the government from functioning.

There's a shortage of justices in the US federal courts because Democrats block the nominees of Republican Presidents and Republicans block the nominees of Democratic Presidents in committee before any of the nominees have a chance to come up for a vote. (Remember the Gang of 16, 8 Republicans and 8 Senators, that finally brought several Bush nominees to a vote.)

And Republicans have no particular beef with any of the nominees for the Labor Board. They want the entire board eliminated, but don't have the votes to do it. They block the nominees from coming to a vote with the goal of reducing the number of board members below the minimum required for the board to function.

The Senate is granted the power to advise and consent on individual nominees. A minority using that process to intentionally bring branches of government to a halt is abuse of the system.

 

[chemisttree]

The White House says it's... wait for it... a right, errr, 'practice' the president has enjoyed for 150 years.

The White House criticized the court ruling. “The decision is novel and unprecedented, and it contradicts 150 years of practice by Democratic and Republican administrations,” White House press secretary Jay Carney told reporters Friday.

 

[mheslep]

These are two separate issues.

There definitely needs to be a check on recess appointments. This is something that's been abused by the last several Presidents, regardless of party.

But the confirmation process itself has been abused by the Senate for at least the last couple Presidencies. It's one thing to reject an unfavorable nominee by a vote. Blocking nominees from ever coming to a vote is obstructing the government from functioning.

There's a shortage of justices in the US federal courts because Democrats block the nominees of Republican Presidents and Republicans block the nominees of Democratic Presidents in committee before any of the nominees have a chance to come up for a vote. (Remember the Gang of 16, 8 Republicans and 8 Senators, that finally brought several Bush nominees to a vote.)

...

The Senate is granted the power to advise and consent on individual nominees. A minority using that process to intentionally bring branches of government to a halt is abuse of the system.

I think the above is a bit hyperbolic:

• Equating the recess appointments, which are illegal according to the court, and the slow walking of appointees, which is not illegal, bad policy or not.
• The federal government is not being literally shut down, even if it is hampered in some cases.
• Other options exist, most importantly nominees from the executive that would not encounter blocks.

And Republicans have no particular beef with any of the nominees for the Labor Board. They want the entire board eliminated, but don't have the votes to do it. They block the nominees from coming to a vote with the goal of reducing the number of board members below the minimum required for the board to function.

That seems very dubious. First, if a politician has said as much (eliminate - not simply restrict it) I've not heard it. Second, in the past the Republicans have had the votes, theoretically, but did not eliminate the NLRB.

 

[lisab]

The White House says it's... wait for it... a right, errr, 'practice' the president has enjoyed for 150 years.

Which, apparently, is true.

Throughout the history of the republic, Presidents have also sometimes used the recess appointment power for political reasons. For example, recess appointments enable the President to temporarily install an appointee who probably would not be confirmed by the Senate.

http://www.senate.gov/CRSReports/crs-publish.cfm?pid='0DP+P\W; P

I've always thought the practice was pretty fishy, though.

 

[mheslep]

The issue at hand is not whether or not the President enjoys the Art II, Section 2 power to make appointments during a time when Congress declares itself in recess. I think the White House knows this is not the issue, the opponents of the White House know this is not the issue, and the White House knows its opponents know this is not the issue. Yet the White House puts out statements about common practice.

The issue is who decides when Congress is in session. The Executive made a not at all common practice decision to http://www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf for the Cordray appointment, when Congress thought otherwise.

 

[Alfi]

The court case turned on whether the Senate was in recess when Mr. Obama made the appointments during a holiday break early last year. The Constitution allows a president to unilaterally install nominees to positions that normally require Senate confirmation when the Senate is in recess.

But Republican lawmakers held minutes-long meetings every few days, and lawyers for the plaintiffs argued that meant the chamber was technically in session.

Nice job if you can get it.
I would love to get full pay even when I only showed up for work for a few minutes every few days.

'Technically in session' is not good value for the tax payers dollar in my opinion.

 

[BobG]

Nice job if you can get it.
I would love to get full pay even when I only showed up for work for a few minutes every few days.

'Technically in session' is not good value for the tax payers dollar in my opinion.

Members of Congress represent their state or district. It's definitely good if they actually spend some time in their home state or district.

Which means there will be times when there's not enough Senators or Representatives to conduct any business.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

(bolding mine)

If there's a waste, it's keeping a Senator in Washington DC to convene/adjourn meetings when it's impossible to conduct any business. And, presumably, after convening/adjourning, he goes back to his office and does whatever office work he has, so he's probably not actually working for only a few minutes each day.

By the way, the bolded part will be one of the key issues when this eventually reaches the US Supreme Court (which it will since there's now conflicting rulings in different Federal Appeals courts).

The literal text (above and below) don't really help much. The intent of the texts are open to interpretation and have interpreted in the past, even though this particular issue (pro forma sessions consisting of one member) hasn't.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Taken literally, I don't think the President has a leg to stand on. However, the intent of the article is well accepted to be making it possible for the President to keep the government functioning when it's impossible for the Senate to advise and consent on nominees. The intent is not to install a nominee that will surely be rejected by the Senate if they did advise and consent, even though its use has evolved into this. However, making a recess appointment to fill a slot when the Senate refuses to consider any nominee for the position could possibly fall under the intent (but that definitely has never been considered by the courts).

 

[BobG]

The Obama administration has asked the US Supreme Court to take the case.

What does "the" mean?

I suppose the best part of the case is that the US Supreme Court will finally tell us what it means.

I mean tell us what the means; not what it means.