cliff1066â„¢/Flickr
The United States Court of Appeals for the District of Columbia Circuit
The federal confirmation process seems pretty straightforward: the executive branch nominates officials to fill judicial and administrative vacancies; the Senate offers its advice and consent. Of course, it's not as simple as it sounds, especially in an era in which a Senate minority can overrule a Senate majority by abusing filibuster rules.
The executive, in theory, has a workaround called recess appointments. In fact, Article II, Sec. 2, of the Constitution says, "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." Note that it says, "the recess," not "a recess."
In the early days of the country, framers saw recesses that could last months and wanted presidents to be able to fill key positions temporarily in emergency situations without the Senate's consent. There's a lengthy break following the final adjournment for the legislative session, and this is generally considered "the recess." The provision was not about giving presidents the authority to circumvent Congress when the White House felt like it.
As you might imagine, this has long been a point of contention between the branches, with presidents defining "recess" however they saw fit. More than a century ago, Teddy Roosevelt once made recess appointments when the Senate was off for an afternoon.
In the Obama era, congressional Republicans have decided they won't just block nominees through filibusters, making it impossible for some agencies to function, but also that there will no longer be any recesses at all, so the president's constitutional power to make recess appointments has effectively been eliminated.
How? Through the use of brief, pro-forma sessions -- sessions in which the Senate isn't actually in session, but it's technically not in recess. Obama's Justice Department and the Office of Legal Counsel said the president need not honor the charade and can make recess appointments when the Senate is effectively in a recess.
And last month, a federal appeals court disagreed, issuing a sweeping ruling that said recess appointments are all but impossible -- the vacancy has to occur during a recess, and if Congress is going through the motions of pro-forma sessions, a president is just out of luck.
We can debate whether the court ruling was right on the merits -- I'm of two minds on the subject myself -- but even if we put that aside, there's a pressing question that's causing some alarm: if recess appointments are legally impermissible, what about all the policy decisions that have been made by officials who were in their posts by virtue of recess appointments?
Or more to the point, if those officials weren't supposed to be on the job, are all of their actions null and void?
Brian Beutler had a good piece this morning on the consequences of the Noel Canning v. NLRB ruling.
The Congressional Research Service turned back the clock to the beginning of Ronald Reagan's first term and dug up all the recess appointments they could find in the ensuing 32 years. Hundreds of recess appointments -- by Presidents Reagan, H.W. Bush, Clinton, W. Bush, and Obama -- would have been unlawful exercises of the recess appointment power had the new appeals court decision been in effect at the time, the CRS found in a memo dated Monday and released by Democrats on the House Education and the Workforce Committee, who requested the research.
The lawsuit dealt specifically with appointments to the National Labor Relations Board, and as far as conservatives are concerned, the decisions made by officials Obama appointed to NLRB have to be reversed -- they shouldn't have been on the board, so their decisions shouldn't count.
But if that's true, every policy decision reached by a recess-appointed official, all of whom were ineligible for their posts under the appeals court's Noel Canning v. NLRB ruling, would also have to be considered invalid.
For Obama, that would cast doubts on the work the Consumer Financial Protection Bureau has already done on behalf of Americans, but let's not lose sight of the scope -- there were over 300 other inter-session recess appointments in recent decades that, according to the appeals court, were legally impermissible.
That would include, by the way, some judges who issued rulings after receiving a recess appointment. Are those rulings still valid? If those judges sentenced criminals to prison, will new trials be required in each case?
Noel Canning v. NLRB is, not surprisingly, being appealed again to the U.S. Supreme Court. To put it mildly, the outcome of the case will have quite an impact.
Leave a Comment:
Given the history of the rabid wingnut judge who wrote the decision (hint: he's the guy who revived the Clinton "scandal" and put Kevin Starr in business), the concept of an "independent judiciary" is a bad joke. Democratic judges might actually try and follow the law, but Republican judges only follow Republican law, even if they have to make it up.
What you say is believed by a lot of people these days. It is the among the nightmares that keep me up all night.
Generally, law and judicial rulings don't reach BACKWARD in time to disallow actions and decisions made under another time. Grandfather provisions even exist to preserve legal categories going forward, even after laws or polices change.
Seems a bit silly to revisit past rulings when all that would be actually affected would be those going FORWARD. That's the way rules and rule changes work. You work within the parameters you have.
I mean, imagine if basketball suddenly took away the three-point rule. Who would assume that all basketball stats and scores would have to be recomputed and recompiled with new scores, new outcomes, new tournament winners, returning of trophies, etc.?
Seems to me it was during the Bush 43 years (run by Harry Reid) that the Democrats started this idea of keeping a nominal force in session to gavel the Senate to order with just a few folks, to block recess appointments. Aren't you saying the GOP is just doing the same thing, only NEVER going into recess at all?
Chris,
i hear you, but Dems never seem to take things as far as the repubs. dems appear to respect the OFFICE of the presidency, EVEN WHEN A REPUB HOLDS IT. proof of that is the W. bush "presidency". even after the debacle in Florida, dems gave W. lots of things he wanted.
sometimes we need to revisit the past so we don't repeat mistakes, and sometimes it's just helpful to make comparisons between the two parties, in my opinion. when H.W. bush was president, he had a long-standing affair with Jennifer Fitzgerald, an affair that started when he was ambassador to China, and it lasted at least throughout his presidency. he traveled everywhere with her. the Chinese were stunned that he was traveling so openly with his mistress. yet when Bill Clinton became president, REPUBS WHO WERE DOING THE SAME THING as President Clinton impeached him. dems who knew about daddy bush's affair could have turned on him, but AS A GENERAL RULE, dems just aren't as vengeful and mean as repubs appear to be.
you are right, we work within the parameters we have. but repubs always want an apology from someone (a democrat), they always to impeach someone (a democrat), and they even go so far as to falsely imprison a democratic governor (Don Siegelman, Democratic gov. of Alabama) because the W. bush administration wanted a repub gov. in the state of Alabama instead. repubs outed a CIA agent (Valarie Plame) because her husband (Joe Wilson) wouldn't lie for the bush administrsation about WMD in iraq. they started the war anyway, WITH SUPPORT FROM DEMOCRATS, unfortunately.
dems aren't perfect, but newt gingrich, who led the charge against President Clinton, was having his own affair(s). were it not for Larry Flynt (Hustler Magazine) outing repub Bob Livingston FOR HAVING HIS OWN AFFAIR, (Livingston wanted to be the next speaker if repubs would have successfully removed Clinton from office) they might very well have succeeded in their hypocritical deceptive action. it's OK for them to lie about a blow job, but it's NOT OK for a democratic President to lie about one.
this is how the repubs are approching their legislative duties with President Obama. everything they have done in the past is OK, but if President Obama wants it, THEY ACT AS IF THEY HAVE NEVER HEARD OF IT, OR SUPPORTED IT IN THE PAST, OR EVEN THAT IT WAS THEIR OWN IDEA (THE INDIVIDUAL MANDATE).
nuff said.
This kind of whining is not going to generate any sympathy. Obama knew he was skirting the law and got called on it. Too bad, Democrats lose. Deal. The law is nothing if not about technicalities.
To be clear, throwing out 50 years of recess appointments is Democratic whining and not judicial overreach? Where are the Republicans about these "activist judges"?
The law is nothing if not about technicalities.
Is it me, or is this guy getting stupider?
There's going to be a distinction between appts made during an actual recess and appts. deliberately telling the Congress to shove it.
BigJay, this process (staying in session during normal recess) was started by the Democrats. Bet you didn't know this because you won't hear it here:
Amazing how you have nothing to say about:
Nor do you say anything about the previous Republican and Democratic Presidents who did the same thing.
Or the fact that the three judges who made this ruling are all Republicans.
Yupp...some Presidents do tell congress to shove it...I think there was this thing once about congress saying we weren't going to give money to the Contras...
and then there were those pesky things they kept sending to Bush and Cheney...what were they called...Oh yeah SUBPOENAS!
There is a big difference between trying to appoint someone to head an agency that has already been created and completely and utter disregard for the constitution or the authority of the other branches of government
As executive abuses go this doesn't even rate as a temper tantrum
I'm sorry, Lorr-2611132, were you under the impression that laws that applied to previous Republican presidents still applied to THIS president. Tsk Tsk. That would be giving the GOP more grey cells than they deserve. They came up with the 'perpetual session' - with no recesses for the past 4 years by their gaveling in and out within seconds.
This way we are all sure that this particular verdict ONLY applies to black democratic presidents, especially those who have won reelection. I hope the Supremes take a look at this -- as well as previous recess appointments made by Saint Ronnie, GH Bush, GW Bush -- but then that would require someone bringing that forth in oral arguments. The whole GOP plan of repealing and reversing the past 4 years of the Obama presidency with Romney/Ryan's election to the White House -- went the way of the White Rabbit -- down the Rabbit hole, so to speak.
Surprising to see 3 supposedly educated judges, even as Republicans, that wouldn't see the ramifications of their ruling -- but then, maybe that wasn't the point. The actual point was to make it appear to delegitimitize THIS president in the on-going war against Barack Obama as President.
http://www.senate.gov/reference/resources/pdf/RS21308.pdf - page 3
By no means an extensive record of recess appointments, but Teddy Roosevelt made a recess appointment when the Senate was in recess less than one day. No constitutional questions. No law suit. What makes this President different?
Right, and the recess appointments by Bush, Reagan, and Roosevelt were all just fine and dandy because it's okay if you're a Republican. I see how that works.
BigJay and ARodney, the difference is not one party can and one party can't, it is that:
Bush stopped recess appointments when this "pro forma" session was ongoing because the Senate was NOT in recess. President Obama chose (right or wrong) to defy the pro forma and made appointments...so, it has been challenged.
Well since the LAW in this country is based on PRECEDENT and a panel of JUDGES made this 'ruling' it is not 'whining' nor 'technicalities'. Try to keep up.
Mego, the LAW is not based on PRECDENT. The LAW is derived from legislation. The APPLICATION and/or INTERPRETATION of the LAW is based on PRECEDENT. I keep up fairly well.
And the precedent is in favor of the ruling. There have NOT been recess appoints when the Senate has continued to gavel into session. The Democrats first did it in 2007, Bush did not appoint. When the Republicans gaveled into session, Obama ignored the session and appointed. Try to keep up. If my facts are wrong, please be specific. Thanks.
RobDon:
Couldn't Bush have made recess appointments in November 2007? I mean seriously "the Dems did it too!" is hardly a valid defense. The law states that recess appointments are allowed. Trying to circumvent that by making fake 'non-recess-recesses' is, frankly, bold and should be ignored.
That Bush wasn't willing to ignore the pro-forma sessions is his failing, not Obama's.
Katherine, I think that is a valid interpretation (although I don't agree). But, to go that route would also mean that the Democratic Senators were playing political games by using a gimmick instead of carrying out serious government responsibilities. Either way, both sides come out short in some area.
Riiight... you're new around here aren't you :p
Congress playing political games instead of carrying out serious responsibilities has kind of been the way it's worked since its inception. We get things done every now and then and that's really cool... but 90% of the time, it's some political game designed to keep said congressperson in office as long as possible.
It's why we're in a deficit problem right now. Republicans won't raise taxes cause they'll get Grover Norquist'ed out of office (do the names Arlen Specter and Charlie Crist ring any bells?) Democrats will fight and be strong and try to keep their own goals in mind, but bend over backwards to accomodate the Republicans when things go down - while having the vague hope that maybe next time the Republicans won't be so mean and maybe will compromise with them! (I'm thinking of a certain Mark Twain quote that fits here...)
So it's a group who won't abandon their ideals cause they're worried about the extreme right wing, and a group who'll abandon their ideals cause they're either ignorant to history or think that maybe THIS time they won't get stabbed in the back.
Katherine, you make it sound like the mean old Republicans just bully those old naive and idealistic Democrats who want to do right but just keep falling short. I'm not "new around here," neither am I blind to my own ideology.
If the Senate is not in recess, then appointments are not allowed. The Senate Democrats in 2007 (which included our current President) said the Senate was NOT in recess if they gaveled in BUT now he wants to change his mind.
I meant the "are you new here" to be snarky (hence the :P face after it) sorry that it may have been unclear - I kind of have been phoning in the writing ability lately for some reason.
I'm a progressive liberal, so I definitely take the Democrat's side on things. I'd like to think that my statement wasn't so much "the Republicans are mean, the Democrats are innocent" but rather "the Republicans stick to their guns while the Democrats are weak-spined."
I'm sure that Obama may be hypocritical on the matter, and fine. Is it, however, Obama's fault that Bush didn't take advantage of the non-recess-recess pro-forma session? I don't think so. I think Bush should've just say "screw you, Democrats" and gone ahead with the recess appointments. I wouldn't have faulted him any.
We may have more points of agreement than disagreement here. I'm tired of all of them playing games and always jockeying for the next election, attempting to paint the other side as completely extreme, and constantly kicking the can down the road. On these issues I think both sides are equally to blame.
But, thanks for the constructive dialog without name calling and generalities...I'm a moderate conservative and seldom get people here to engage in a constructive conversation. Best to you...
Hard to believe that this foolish ruling will survive an appeal.
Well, I dunno, Scalia the Hack is still on the bench.....
BOTH SIDES DO IT.
This is nothing new. It was actually started by the Democrats and now they are crying "foul."
Here's a New York Times Opinion article saying President Bush was misusing recess appointments and thus the reason the Democrats started "gavel-ing" into session.
Why the insistance on those "bad" Republicans when they are copying the Democrats, usually a day late and a dollar short.
"BOTH SIDES DO IT"
people who say that are primarily responsible for the @!$%#ing mess that is the US government.
the truth is, one side does it more, with greater viciousness and with less thought for the good of the country than the other side. and if that was more well known, we'd never see a GOP majority again.
So, ahoypolloi, then you are okay with the tactic (of blocking appoints by keeping the Senate in session) you just don't like the motive or outcome.
Robdon,
Are you astute enough to differentiate between a Congress attempting to slow a President abusing recess appointments, and a President attempting to fill appointments around an obstructive Congress?
Yes, motives absolutely DO count.
needmorecoffee, I'm with you on the fact that motives matter but so does process and the law. Even if you buy that Republicans are bad and Democrats are good, you can't just decided your good motives over ride the law.
In a democracy, the law has to rule, not the motive. If you'll note in the opinon post, the Democrats were saying that Bush was being power hungry by appointing recess appointments, the same that Republicans are saying about Obama.
My point is there is very little difference in the way the two parties operate.
Robdon @ 4.4. I won't insult your intelligence by even pretending I believe Republicans are bad and Democrats are good, we have Blagojevich after all. It's your leadership in Congress and state positions of power who are setting the example of how the nation should view conservatism, and from my perspective, they've done it great harm.
Democrats aren't perfect either. But they have done good things for the US in past years. Ours are not demon politicians, and our president doesn't deserve to be treated as such. Liberal policies are not Armageddon. They deserve the same ear and consideration as Republican policies.
There's no difference in how the two parties operate? I back the party I feel is governing for the long view. Your party seems to be operating on a very short view. Huge difference.
NeedMoreCoffee, I can appreciate you comments. I would only add that the Democrats try to paint the Republicans as "demon politicians," too. Most Republicans do not want to hurt the poor, help the rich, and go to war. They want to make things better for everyone as much as possible by the best way they see how...just like the Democrats.
For instance, it makes perfect sense (to me) that we have to do a better job of securing the border before inacting any other part of immigration reform. We had immigration reform in 1986, in 2006, and we are still in the same situation because people continue to come here illegally. I'm not for breaking up families, I'm for uniting those who are here but not allowing any others to be broken by coming here illegally.
The problem is that politics have become demonized, everything is extreme or at least painted as such by the other side. If you and I sat down, we would find more we agree on in principle (even if not in process) than we have as differences. But when the next election is around the corner, the politicians trying to define the "enemy" (the opponent) in the most offensive terms. IMHO
RobDon:
You say "most Republicans do not want to hurt the poor" and yet at every opportunity they do so. Bobby Jindal and others want to get rid of the income tax and cover it with sales tax, for one example. This significantly hurts the poor while helping the rich, and it's been shown to be so and yet they still pursue it.
Or trying to elimate things like Obamacare - which helps the poor get good medical coverage without having to pay hand over fist to insurance companies who make millions and millions of dollars.
Republicans seem quite content in saying they're not hurting the poor while writing into law things that overwhelmingly do so.
RobDon,
most repubs might not want war or to hurt the poor or help the rich. unfortunately, most of those repubs are NOT IN WASHINGTON. you might agree that a woman taking birth control is OK, even a good thing, if it cuts down on abortion, but many REPUBS WHO GET ELECTED TO OFFICE want to REGULATE OR MAKE ILLEGAL not just ABORTION, but also birth control.
as a general repubs are very disrespectful of democrats, and EVEN HATE THEM, AS WE SAW with Bill Clinton, and now with President Obama.
i don't many see many moderate repubs in washington. maybe things will change now that they are losing elections, BUT THEY HAVE BEEN IN LOCKSTEP IN WASHINGTON.
Katherine and Suzette have given you the correct reply, Robdon. Actions speak louder than words. There isn't anything more I can add.
Respectfully...
I it true that Rachel Maddow is the voice for the scam calls from "Rachel at Cardholder Services"?
Just re-read the argument transcripts of New Process Steel v. NLRB. This will be interesting.
The court ruling puts form over substance and that should not be a basis for Constitutional law. If both sides do it, does that make it legal? I doubt it. Acquiescence or custom might help the argument for the court ruling. But it is still not a good foundation for Constitutional law.
Both sides do it has been the right's cover. Okay, fine. Let's peel back the cover...
If "both sides do it" then the right isn't any more American/moral/just/patriotic/god-fearing than the party they vote against. Period. They're smeared with the exact same mud they throw at Democrats. In fact, that's where they get the mud to throw at Democrats.
"Both sides do it" is no longer an excuse. It's an assessment of ethics.
Constitution of the United States, Article III, Section 3, para. 1:
"...he may, on extraordinary Occasions, convene both Houses, or either of then and in case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper..."
If there haven't ever been any disagreements about the adjournments, perhaps this was missed when President Obama studied Constitutional Law?