June 26, 2014

“Breaking: Supreme Court unanimously rejects Obama recess appointments”

– Although surprisingly, they did so without citing the emission of CO2 as the reason — though I haven’t yet checked if John Roberts, after much deliberation, was unable to declare the unconstitutional recess appointments a tax, and so found his hand forced.

In other words, I don’t much care anymore what the Supreme Court says, save for Thomas, Alito, and on many (but not all) occasions, Scalia.

But some of you may still.  And I’m a giver.  So here (via Ed Morrissey, quoting NBC News):

The US Supreme Court today limited a president’s power to make recess appointments when the White House and the Senate are controlled by opposite parties, scaling back a presidential authority as old as the republic.

The case arose from a political dispute between President Obama and Senate Republicans, who claimed he had no authority to put three people on the National Labor Relations Board in January 2012 when the Senate was out of town.

He used a president’s power, granted by the Constitution, to “fill up all vacancies that may happen during the recess of the Senate.” But the Republicans said the Senate was not in recess at the time the appointments were made, because every three days a senator went into the chamber, gaveled it to order, and then immediately called a recess.

By a unanimous vote, the Supreme Court agreed that the Senate was not in recess, holding that it’s up to both houses of Congress to define when they’re in session or in recess. As a result of the decision, the Senate can frustrate a president’s ability to make recess appointments simply by holding periodic pro forma sessions, a tactic used in recent years by both political parties.

The question, the court said, is whether the Senate had the capacity to act. It found that during the recess at issue, the court did have that power.

Of course, now that the Senate Republicans have allowed appointments be made with 51 votes — fillibuster proof, for the most part — it doesn’t really matter all that much, precisely because John McCain, Mitch McConnell, Lamar Alexander, Thad Cochran, and Lindsey Graham are still kicking.

So.  Whatever.

Posted by Jeff G. @ 9:34am
14 comments | Trackback

Comments (14)

  1. The Right Scoop: *** In a second unanimous ruling today, the Supreme Court says that the 35-foot perimeter this Massachusetts law put around abortion clinics, keeping pro-life protesters at bay, is unconstitutional:

    REUTERS – The U.S. Supreme Court on Thursday struck down a Massachusetts law that mandates a protective buffer zone around abortion clinics to allow patients unimpeded access.

    On a 9-0 vote, the court said the 2007 law violated the freedom of speech rights of anti-abortion protesters under the First Amendment of the U.S. Constitution by preventing them from standing on the sidewalk and speaking to people entering the clinics.

    The relatively narrow decision allows the state a chance to enact a new, less-restrictive statute. The court opted against overturning a 2000 precedent, Hill v. Colorado, which upheld a similar buffer-zone law in Colorado.

    ***

  2. Given the executive overreach of the current administration, I’m wondering if Obama will just flip the bird at the Supreme Court in this case and refuse to go through the appointment process. Or maybe the 9 – 0 decision against will be enough for him to do the pro forma thing and have the Senate confirm on party line vote, as Jeff alluded to above.

  3. The US Supreme Court today limited a president’s power to make recess appointments when the White House and the Senate are controlled by opposite parties, scaling back a presidential authority as old as the republic.

    Oh, how I hate the media. The Supreme Court did not limit a president’s power to make recess appointments; it declared, in clear accordance with the Constitution, that the president does not have the authority to declare when Congress is in recess.

  4. breaking soon: “President unilaterally overrules Supreme Court decision.”

  5. Exactly. The Court merely restated limits that already existed.

  6. Exactly. The Court merely restated limits that already existed.

    And had been — as limits — readily perceived and followed by 43 Presidents prior to the on-set of His Magnificence.

  7. I keep repeating it, this administration discovered the “loophole” in our constitutional republic, it is dependent on self discipline and the honor system.

    FDR discovered it too but, had a war to cover his tracks. Nixon dabbled.

  8. Steve Hayward tweezes the threads in the decision. Hayward:

    *** Hence, Justice Scalia’s dissent not only contains a powerful contrary Originalist argument, but here and there sticks it to Justice Kennedy for his frequent confusions and inconsistencies. Like this passage:

    First, the Constitution’s core, government-structuring provisions are no less critical to preserving liberty than are the later adopted provisions of the Bill of Rights. Indeed, “[s]o convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary.” Clinton v. City of New York, 524 U. S. 417, 450 (1998) (KENNEDY, J., concurring).

    That “KENNEDY, J. concurring” is a nice little knife jab, as there were numerous other cases Scalia could have cited on this point—including the language of the Obamacare decision that Kennedy joined. But Scalia is not done:

    This Court does not defer to the other branches’ resolution of such controversies; as JUSTICE KENNEDY has previously written, our role is in no way “lessened” because it might be said that “the two political branches are adjusting their own powers between themselves.”

    Boom!

    Beyond these less-than-subtle smacks at his colleague, Scalia makes a straightforward case that the recess clause isn’t “ambiguous” at all. There’s a simple rule of thumb that can be used in these kind of cases: when the liberals have to write long and winding opinions in relatively straightforward controversies, it’s because they’re trying to obfuscate and overrun the basic principles of the Constitution. ***

  9. Ernst,

    breaking soon: “President unilaterally overrules Supreme Court decision.”

    Preezy: “The Court has made its ruling, now let’s see them enforce it.”

  10. One more thing: if the SCOTUS has ruled the NLRB recess appointments invalid, does that make the NLRB’s subsequent actions null and void?

  11. . . . does that make the NLRB’s subsequent actions null and void?

    It’s surely an active question on the legal front. But hey, the ClownDisasterites no more consider the implications of that before they proceed to act unconstitutionally than they do the enormous waste of Federal dollars implementing an idiotic unworkable top-down central controlled health-care system which couldn’t possibly function and hence is necessarily an absurd waste of money only to be discovered to the public after the monsters have been driven from office. So.

  12. if the SCOTUS has ruled the NLRB recess appointments invalid, does that make the NLRB’s subsequent actions null and void? – See more at: http://proteinwisdom.com/?p=54156#comment-1090132

    If the appointments are invalid, then nothing the NLRB has done with those seats filled (with the invalid members) is valid in any respect, since the NLRB requires a quorum to operate, and without those seats being filled, there is no quorum.

    However, it requires someone harmed by those rulings to bring suit to have them declared so. Shouldn’t be difficult, but that extra step must be taken. If a judge upholds them, then that judge is risking being officially upbraided by having his ruling “voided with instructions” or outright “reversed on appeal”.

    Of course, it is entirely possible that the businesses on the losing end of those ruling can simply go back to status quo ante, and let the winners try and sue to get the rulings upheld, even after being voided due to lack of quorum. Legally, it is as though the rulings were never issued, but there is no telling what a judge will do in these times.

  13. the SCOTUS has ruled the NLRB recess appointments invalid, does that make the NLRB’s subsequent actions null and void?

    Almost certainly, they’ll be deemed valid.

  14. If The American Republic still existed, this ruling by the SCOTUS would mean something, but, alas, that once well-regarded government, unique in the World, is now just a wistful memory of the Glory that once was.

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