Obama has rare parliamentary window to make recess appointment to succeed Scalia

Fox News ^ | 02/13/16 | Chad Pergram

[Freedom56v2]

There was much hubbub in late 2012 when President Obama made four recess appointments during a short recess The case later went to the Supreme Court and the maneuver was ruled to be unconstitutional...

The key in the 2014 Supreme Court decision regarding the president's appointments to the National Labor Relations Board over the three-day break was that the justices found the executive branch determined what it interpreted as a recess.

But Justice Stephen Breyer wrote in the majority opinion that under the Constitution "the Senate is in session when it says it is."

Obama said Saturday night that he would submit an appointment to the Senate, as part of his constitutional obligation, but "in due time."

But now we have a completely different set of parliamentary circumstances. Senate Majority Leader Mitch McConnell, R-Ky., has indicated that he thinks that the nomination of a new justice should wait until the election of the next president.

But if the White House does take that to heart -- and knows there would be an unprecedented attempt of filibuster a Supreme Court nominee until next year -- Obama has a rare opportunity to make a Recess appointment in the coming days.

This window is open next week and this week only.

In short: Both bodies of Congress are operating in the perfect parliamentary status in which a recess appointment would be applicable. The last such appointment to the high court came by President Eisenhower in 1956 when he appointed William Brennan.

Article II, Section 2 of the Constitution states that "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate."

This could be the window of time in which Obama has his chance to maneuver a recess appointment to the high court.

[Freedom56v2]

Buckle your seat belts--gonna be an interesting couple weeks. Jarrett stated they have papers ready on 2 Supreme nominees.

[jessduntno]

“There was much hubbub in late 2012 when President Obama made four recess appointments during a short recess The case later went to the Supreme Court and the maneuver was ruled to be unconstitutional...”

This time it will be a split decision and have to wait for the ninth Judge to be appointed...in 2017. Robert Bork must be smiling at this furor.

[Freedom56v2]

Will be interesting to see if Mitch calls back the Senate and Ryan calls back House.

[XenaLee]

I’m sure that perfect “window of time” opening this week and next week is merely a coincidence re: the timing of Scalia’s passing. You know how perfectly timed coincidences are when radical leftists are in control.

[DemforBush]

I was just skimming an article (from Vox, so take it for what it is worth) about Obama’s most likely choices to replace Scalia.

Good gravy. Among the rogues’ gallery: two possibilities from the uber-left 9th Circuit, and Senator Amy Klobuchar from Minnesota. Argh!

[Freedom56v2]

The probleem now is that Congress did officially adjourn on Thursday.

[mrsmith]

WHY DON’T THESE IDIOTS READ THE CONGRESSIONAL RECORD!

“They’re NOT recessed, they’re just adjourned:

“ORDERS FOR MONDAY, FEBRUARY 15, 2016, THROUGH MONDAY, FEBRUARY 22, 2016

Mr. McCONNELL. Mr. President, I ask unanimous consent that when the
Senate completes its business today, it adjourn, to then convene for
pro forma sessions only, with no business being conducted, on the
following dates and times, and that following each pro forma session,
the Senate adjourn until the next pro forma session: Monday, February
15, at 11 a.m.; Thursday, February 18, at 9 a.m.; I further ask that
when the Senate adjourns on Thursday, February 18, it next convene at 3
p.m., Monday, February 22,”

The Senate is in adjournment, not recess, and is having pro-forma sessions.

[Freedom56v2]

From the article:

But the House and Senate are not operating under those circumstances right now. Both bodies of have adjourned until later this month for the President’s Day recess.

The Senate last met on Thursday. When doing so, it approved a
“conditional adjournment resolution” for the Senate not to meet again until Monday, Feb. 22. The House met on Friday and at the close of business adopted the same adjournment resolution to get in sync with the Senate. The House is out until Tuesday, Feb. 23.

So, the House and Senate will not be meeting in the coming days. This is an adjournment and is not challengeable in court the way the NLRB recess appointments were because both bodies have agreed with each other to adjourn.

This is a true recess and an opportunity for the president should he elect to take it — considering the political realities of the Senate and the position of its majority leader to potentially make a recess appointment.

Keep in mind that this window will close later this month. Then GOP-led House and Senate can effectively block the president with another recess appointment gambit in the future by agreeing to meet every three days, even if members aren’t really here.

But obviously nobody anticipated Scalia’s death.

Thus, the president could in fact take advantage of this rare opportunity because he won’t get it again after February 22/23 if McConnell sticks to his guns.

[M Kehoe]

Mitch, get your a$$ to DC NOW!

5.56mm

[jessduntno]

“There was much hubbub in late 2012 when President Obama made four recess appointments during a short recess The case later went to the Supreme Court and the maneuver was ruled to be unconstitutional...”

I don’t believe anything has changed since then.

[Truth29]

"I’m sure that perfect “window of time” opening this week and next week is merely a coincidence re: the timing of Scalia’s passing. You know how perfectly timed coincidences are when radical leftists are in control."

Not that there is any evidence of foul play, but with the US Marshals Service reporting the death and, reportedly, the FBI conducting any investigation, the evidence will show whatever the Administration wants IMO.

[Freedom56v2]

Thanks for posting this.

Good, then we have nothing to worry about.

Folks are free to unbuckle their seat belts and move about the cabin.

[mrsmith]

WHO IS LYING: FOX OR THE CONGRESSIONAL RECORD?

[mrsmith]

MY APOLOGIES!
(in caps)

[Alberta's Child]

"Recess appointments" are one of those things that has lost a lot of its meaning over the years. A Senate recess might have meant something when members of Congress had to travel for days or weeks between their home states and the nation's capital. With the advent of air travel and the ability of Congressmen to travel anywhere in the country within hours, that has pretty much gone by the wayside.

It's interesting that a radical leftist like Stephen Breyer wrote the majority opinion in the case against the Obama administration over those NLRB appointments.

[Freedom56v2]

Well if you read the article, they said Congress adjourned. Mrs. Smith posted that it is not a recess, so Obama cannot do it...

we will see.

[bigbob]

I wonder which odds are better: those of failing to confirm a recess appointee or those of resisting Obama’s attempt to get a permanent appointee confirmed?

I don’t really see the Republican majority being any stronger one one or the other, so I don’t know which option would be perferred. I do know Obama will make an appointment, you can take that to the bank.

[Faith Presses On]

Yep. I was thinking the same thing.

[Freedom56v2]

WHO IS LYING: FOX OR THE CONGRESSIONAL RECORD?

---

GEEZ ALL CAPS MEANS YELLING. Not sure if you are yelling at me or what...I just posted the article for people’s information.

If I could, I would take it back.

[MUDDOG]

Stephen Breyer wrote the majority opinion

And the vote was 9-0.