Court hears challenge to Obama recess appointments

[DonViejo]

Source: AP


BY BY SAM HANANEL, ASSOCIATED PRESS

WASHINGTON (AP) — A federal appeals court is considering whether President Barack Obama violated the Constitution earlier this year when he bypassed the Senate to fill vacancies in his administration.

Attorneys for Republicans and business groups tell a three-judge panel in Washington that Obama abused his power last January when he appointed three members to the National Labor Relations Board.

Obama made the appointments while the Senate was in a 20-day recess. But Republicans say the Senate technically stayed in session because it was gaveled in and out every few days for so-called “pro forma” sessions. The Obama administration argues that those sessions — some lasting less than a minute — were a sham.

The case is an important test of presidential power.

-30-

Read more: http://www.salon.com/2012/12/05/court_hears_challenge_to_obama_recess_appointments/

[ProgressiveProfessor]

1. What is the precedent?

[question everything]

5. From Wikipedia

New Jersey judge William J. Brennan was appointed to the Supreme Court by President Dwight D. Eisenhower in 1956 through a recess appointment. This was done in part with an eye on the presidential campaign that year; Eisenhower was running for reelection, and his advisors thought it would be politically advantageous to place a northeastern Catholic on the court. Brennan was promptly confirmed when the Senate came back into session. President Eisenhower, in a recess appointment, designated Charles W. Yost as United States ambassador to Syria.[6] Eisenhower made two other recess appointments, Chief Justice Earl Warren and Potter Stewart.

George H. W. Bush appointed Lawrence Eagleburger Secretary of State during a recess in 1992; Eagleburger had in effect filled that role after James Baker resigned.

According to the Congressional Research Service, President Bill Clinton made 139 recess appointments. President George W. Bush made 171 recess appointments, and as of January 5, 2012, President Barack Obama had made 32 recess appointments.[7]

(snip)

On August 1, 2005, Bush made a recess appointment of John Bolton, to serve as U.S. representative to the United Nations.[9] Bolton had also been the subject of a Senate filibuster. The filibuster concerned documents that the White House refused to release, which Democrats suggested may contain proof of Bolton's abusive treatment and coercion of staff members or of his improper use of National Security Agency communications intercepts regarding U.S. citizens. Having failed to win Senate confirmation, he resigned his office in December 2006 concurrently with the adjournment of the 109th Congress.[10]

On April 4, 2007, during the Easter recess of Congress, Bush announced three recess appointments. The first was Sam Fox to serve as U.S. Ambassador to Belgium.[11] Fox's appointment had been thwarted in Congress because he had donated $50,000 to the Swift Boat Veterans for Truth during the 2004 presidential campaign,

http://en.wikipedia.org/wiki/Recess_appointment

[Tx4obama]

9. Those are 'regular' recess appointments. NOT made while the Senate was not formally adjourned

The issue now is that the Senate does not officially adjourn when they go on break (because to officially adjourn and go into recess The House must agree to an adjournment resolution, and they have refused to do so) - so the Senate has been having to hold a 'pro-forma session' every three days when the majority of the senators are out of D.C.

That is the issue that is now in front of the court.

[Igel]

11. The options aren't great.

Either the Senate was in session, in which case the recess appointments are extra-constitutional.

Or the Senate wasn't in session, meaning that Reid adjourned the Senate in violation of the provisions of the Constitution. (With the possibility that instead of doing due diligence in keeping the Senate in session, he merely allowed quorum to lapse for several weeks without apparently noticing.)

[slogan057]

2. GOP Needs To Shut Up And Let The Adults Do The Job

[truthisfreedom]

3. Funny.

They're testing this right now? What are they expecting to accomplish, other than expose more weakness?

[Kelvin Mace]

4. He'll lose

the senate was "technically" in session' Lawyers and judges LIVE for technical bullshit like that.

[freshwest]

6. +1

[ProSense]

7. No, the Republicans are

sore losers.

Justice Department memo argues Obama recess appointments were legal

By Alexander Bolton

The Department of Justice offered a defense Thursday for President Obama’s controversial decision to make several recess appointments while Congress was holding pro forma sessions.

In a memo, Justice argued the pro forma sessions held every third day in the Senate do not constitute a functioning body that can render advice and consent on the president’s nominees. It said the president acted consistently under the law by making the appointments.

“Although the Senate will have held pro forma sessions regularly from January 3 to January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the president from determining that the Senate remains unavailable throughout to ‘receive communications from the president or participate as a body in making appointments,’” Virginia Seitz, assistant attorney general for the Office of Legal Counsel, wrote in the memo dated Jan. 6.

The Office of Legal Counsel concluded the president has authority to make recess appointments during a recess and that Congress can only prevent the president from making such appointments “by remaining continuously in session and available to receive and act on nominations,” not by holding pro forma sessions.

- more -

http://thehill.com/homenews/administration/203853-department-of-justice-defends-obamas-controversial-recess-appointments

Office of Legal Counsel Authorized Recess Appointments
http://www.mainjustice.com/2012/01/12/office-of-legal-counsel-authorized-recess-appointments/

[former9thward]

13. Whether the Republicans are sore losers is besides the point.

Obama will lose here and it won't be close. The Senate does do business in pro forma sessions despite what the office of legal counsel says. The Executive branch can't constitutionally tell the Senate whether it is in session or not. The Senate makes its own rules. Chief Justice Roberts was originally confirmed to the Court of Appeals in a pro forma session. The 2011 payroll tax extender which Obama signed was passed in a pro forma session.

[SemperEadem]

8. well, that would mean that the bush also violated the constitution

as did other republican and democratic presidents who used this vehicle.

talk about wasting the court's time.

[Igel]

12. Nopity.

They didn't make recess appointments while the Senate was in pro forma sessions.

In fact, one year the Senate was kept in pro forma sessions (when Obama was Senator) in order to prevent (successfully) * from making recess appointments. It was a good thing then. Now it's a bad thing.

[SemperEadem]

14. pro forma is bullshit

a handful of people doing nothing but wasting electricity.... it's tantrum theatre, that's all.

[GatorLarry]

10. Another GOP Temper Tantrum

WAAAH! STOMP! STOMP! WAAAH!

"We can do it but they can't! Besides, God is on our side!"

-- Unidentified Republican Senator