Court: Obama appointments are unconstitutional
Source: Associated Press
WASHINGTON (AP) — A federal appeals court has ruled that President Barack Obama violated the Constitution when he bypassed the Senate to fill vacancies on a labor relations panel.
The U.S. Court of Appeals for the D.C. Circuit says Obama did not have the power to make recess appointments earlier this year to the National Labor Relations Board.
Obama claims he acted properly because the Senate was away for the holidays. But the court says the Senate technically stayed in session when lawmakers gaveled in and out every few days for so-called "pro forma" sessions.
GOP lawmakers used the tactic specifically to prevent Obama from using his recess power to fill vacancies in an agency they claimed was too pro-union.
Read more: http://bigstory.ap.org/article/court-obama-appointments-are-unconstitutional
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...and yet the Lemmings of America will ignore it.
BUT...the sky-rocketing price of Chicken Wings before Super Bowl?????
OUTRAGE!
Despite the inevitable conservative complaints that President Obama is engaged in some kind of massive overreach by recess appointing Richard Cordray as the nation’s chief consumer financial protection watchdog, the truth is that Obama has used his recess appointment power very sparingly. After today’s appointment, President Obama will have made a total of 29 recess appointments. By comparison, George W. Bush made 171 recess appointments; Bill Clinton made 139 recess appointments; George H.W. Bush made 77 recess appointments; and Ronald Reagan made 243. When you divide these numbers by the number of years each man spent in the White House, it reveals that Obama is far and away the least likely president to invoke this power:
http://thinkprogress.org/justice/2012/01/04/397589/president-obama-has-made-far-fewer-recess-appointments-than-any-recent-president/
It's silly.
1. I agree with "happen." You need a change of state, some endpoint to something. There's a counterexample ("Joe happened to be examining the meteorite's impact crater when a second meteor hit the same spot"
. It's a usage not very likely to be in the Constitution, and may be recently innovated for all I know. It still means "arose" but leaves aside any information as to when the change occurred.
2. Their discussion of "the" is crap. Johnson presupposes knowledge about a thorny point of English grammar that was still actively argued 200 years later. See Enc's article published in Linguistic Inquiry in 1995 (give or take a couple yeas) for a nice summary of English definiteness, viewing "specificity" and "definiteness" as distinct categories. Contra the court, "The tiger is a ferocious beast" is not specific (except with respect to "tiger kind" --no individual, concrete tiger is involved, but neither is it true that all tigers are ferocious. "The tiger is a ferocious beast, but Tiny the circus tiger here is a coward" is perfectly fine. The kind is ferocious, the token at hand is timid. Compare "All tigers are ferocious beasts, but Tiny the circus tiger here is a coward" or "This tiger here is a ferocious beast, but Tiny the circus tiger is a coward"--you have to fight hard to get the nonsense reading that "Tiny the circus tiger" is coreferential with "this tiger." You really assume there are two tigers involved.
3. The problem is defining "session." I think of a "session" of Congress as extending from swearing in until the next Congress is sworn in, but I have a synonym in "the Congress" (usually with a # in front of 'Congress').
But if Congress is "in session" it's actively meeting or its adjourned, it's not in recess. That means I can say, "This session of Congress isn't in session." I think in the first 40 years of the Republic this would be deemed anomalous.
The court's parsing of "the Recess" is inane. It places an unsupportable burden of foreknowledge on both the Senate and the Executive. Looking at the political context of the day makes clear that the court's parsing isn't necessary to explain the historical facts they buttress their conclusions with.
I'll assume that there's no difference in usage in 'session' and 'recess' between the House and the Senate.
Take this year. The House and the Senate recessed in December. Was that the start of the intersession recess? In most years, sure. This year, no. But this was unknowable until a week later. Had they not reconvened, they'd have been in intersession recess. Obama could make recess appts. But since they did reconvene, Obama was retroactively barred from making intersession recess appointments. He couldn't know ahead of time.
Or perhaps by making an appointment that requires that the recess be intersession, he would have mandated that the session of Congress be over--thus barring Congress from reconvening?
Then again, the President would always be in charge. He could call the Congress back in session--presumably from "the Recess". Otherwise according this court the Congress is *already* in recess.
Yes, this becomes inane.
Here's my proposal. At the time, convening Congress was a bear. Moreover, the burden of administering a huge country and government with myriads of longwinded laws, scores of agencies, and reams of regulations wasn't so large. Required to be in session yearly (assuming that you could have a session of Congress not in session) there was no requirement to meet near the end of the term nor a requirement to meet longer than necessary.
They convene, a session starts. They recess, the session is over. The Congress remains the Congress. But all sessions are bounded by recesses. Once in session, you can't have more than one recess. For any session, there is a singular, specific, "the recess." That recess may not be between Congresses. It may be.
If the president makes a recess appointment it's because the Senate isn't around to deal with it. If the Senate wants, it can come back into session and deal with it. If it chooses to meet and leave the post vacant, then the position is vacant. The Senate has authority to make appts.--and that implies the authority to withhold them. If it chooses to not reconvene or doesn't have time to reconvene, then the issue is moot.
The way it works now strips the Senate of this power. If Obama (or *, or Clinton, or Bush I) makes a recess appt. the Senate is stuck with it for a year, until the "session" ends. It can't nominate another. It can only confirm a fait accompli. If the Senate refuses to confirm, then next (intersession) recess the prez re-recess-appts. the same person. The only option for the Senate is to have the outgoing Senate recess seconds before the new Senate is sworn in, and hope that the President doesn't sign his recess appointment during those seconds.
Any recess appointment, I think, could have been undone by simply (?) reconvening the Senate and then declaring recess 5 minutes later. This would be a stunning smack down of the President by the Senate. Moreover, reconvening Congress, for any President, was potentially perilous. It got the powerful Congress in the same town, able to pass laws and push him around. Any president not requiring something of Congress would have dreaded Congress' reconvening.
Result: You don't make controversial recess appointments unless you're damned sure that the recess is the last one before the new Congress. Or you make a recess appt fully aware that the Senate would confirm it, isn't planning on reconvening, and has no reason to reconvene. If you know the Senate is going to reconvene, why make the recess appointment?
The historical record is misinterpreted.
Still, it also leaves the definition of "recess" vs. "adjournment" up in the air. In this day and age you can adjourn and be home 3000 miles away during a 3-day adjournment. Harder to be 300 miles away during a 4-day recess in 1800. I don't see a way for the courts to make a definition that is unambiguous in its application and binding on Congress. "Sine die" might work. But it'll require tweaking, I think.
I also think that this points out a problem common to theoreticians. If you tweak part of a theory you really have to know what comes unglued at the other end. We've changed the interpretation of "session" and "recess" along the way and led to an accidental stripping of Constitutional authority from the Senate--and this court would restore it in ways that I think deprives the President of some of his Constitutional authority. But to fix this is going to make other things come unglued. Two hundred years' of tinkering has left a mess.