I thought the issue was that Congress was really not in recess. Or is that another one? I didn't know when the vacancy occurred made a difference. Let's say a vacancy occurs and a President tries to fill the vacancy but has problems. Congress goes into recess. Congress then comes back into session. The President tries to fill the vacancy but encounters rejection. The Congress goes into recess. Why can't a President fill the appointment. The vacancy could have first opened up 3 years ago or whatever. what difference does that make? Just wondering.
The way the court resolved the issue was to determine the meaning and function of the recess appointments clause. Not only did the court conclude that the Senate was not in recess, it also defined the circumstances that satisfy the recess appointments clause.
To wit, a recess happens, on average, once a year (adjourn sine die is the legal marker); and the only vacancies that are amenable to recess appointment are those that happen, occur, start, begin during a recess.
So, now, in the DC Circuit, the timing of when a vacancy occurs makes a difference.
Well, one reason would be that if Congress, collectively at least, does not want a position filled... it does not get filled. Remember, Congress and the Prez are partners in the process, each with a role. It’s like Congress has a veto.
A recess appt gives the benefit of the doubt to the prez to make a LIMITED appointment when they are out of town between sessions, because the previous appointment never got even the chance of being considered by the Congress.
No scholar here- but I would surmise that the intent of a recess appointment was to be a temporary measure when a vacancy occurred DURING a recess, not a way to place unapprovable candidates into offices, where vacancies had existed prior to recess...
Many more here at FR are schooled in this- I await illumination.
There is the text of the ruling that goes into detail about what constitutes a recess vs. THE recess. What’s an adjournment and what’s a session. They say the constitution was written at a time when Congress could go months without being in session. I hardly think that just because Congress doesn’t convene for 3 days means that it’s in recess. If the office has been vacant for 3 years like in your example, there’s no excuse for making an appointment during a recess. Presidents have been abusing the recess appointment thing for decades.
Mark Levin opened his program using Obama’s own words:
“If Congress will not act, I will.”
The court said you acted unconstitutionally Mr. President. But then, you excel at that.
Brits don’t understand Constitutional law. Ignore this article.
Someone tell the Kenyon to STHU. We’re tired of his whining.
I thought the issue was that Congress was really not in recess. ...That was the problem. The Congress WAS in session but were not meeting regularly. Obunghole saw this and jumped. It is not meant that if Congress takes a lunch break, the President can use this perogative.