Posted on 02/14/2016 11:45:57 AM PST by 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.
(Excerpt) Read more at foxnews.com ...
Why would Yertle the Turtle do that? A recess appointment would give the GOPe perfect cover to say they were robbed without having to take a stand and thus pander to the base, whatever is left of it. Obama plays McConnell and Ryan/Boehner like a fiddle.
I’m not sure at all about that case -— where it is in the process, but yes, the Senate really let themselves get into a trap.
“Will be interesting to see if Mitch calls back the Senate and Ryan calls back House.”
The confirmation process has NOTHING to do with the House!
I tend to agree with your opinion regarding the politics of this.
There are a number of political scenarios that will be considered by both parties over the next few days.
0bama holds the cards and is also the dealer.
No matter who 0bama nominates, they Senate will look like obstructionists. 0bama can send them a series of the most radical leftists(by design), guaranteeing the Senate will block the appointment.
Ultimately the question, IMHO, comes down to whether or not the voting public believes the MSM and actually wants a Congress that can work together and get things done.
Do the American people really dislike the “Gridlock”?
I like the gridlock, I like the Government shutdowns and wish there were more of them.
Yes, more government shutdowns would be a feature not a bug as they say.
There are multiple scenarios possible. I have only thought of a few, and all of them have possible unforeseen consequences.
“Will be interesting to see if Mitch calls back the Senate and Ryan calls back House.â€
The confirmation process has NOTHING to do with the House!
Uh, actually it does. Recess Appointment is the subject of the article, and I have to ask: Did you read the article or just post: NOTHING to do with the House!
To make it simple, here is some of the article~please note the references to the HOUSE:
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.
Article I, Section 5 of the Constitution states “NEITHER HOUSE, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the TWO HOUSES shall be sitting.”
That means that so long as both the HOUSE and Senate haven’t jointly agreed to “adjourn” for a stretch longer than three days, then there appears to be no way the president could make a recess appointment.
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, ....
I’m a slow typer)
Someone else also posted it, so I had to make a pest of myself there too LOL!
Senate procedure is like coding- another language.
I think everyone is confused by this. So sad that this happened now, and to such a great Justice :(
There is a wild card in all of this named Bernie Sanders.
He also has a huge opportunity to make some waves.
think this link over at Instapundit is a good summary of the details of the rules and the court decisions.
http://pjmedia.com/instapundit/226701/
In short, yes, the Senate is (likely) technically in recess and yes, Obama could make a recess appointment until 22 February. I take Elizabeth Foley’s analysis to be reasonably reliable.
My personal opinion on the politics of an appointment is that Obama would want to get the most political mileage out of a nomination. If he makes a recess appointment the person joins the SC until 3 January 2017. Obama (or Hillary) would not be able to say the Republicans are obstructing but the issue festers on the Republican side. The dems get little political mileage, but it highly fires up the Republican base (even more than it is now). That is not a plus for Obama or Hillary. The recess justice gets to wear a robe for a few months, but will hear very few oral arguments and participate in few decisions. Damage for sure, but limited, unless Hillary wins.
I think Obama goes for a regular nomination. Then he and all the dems can harp night and day until November about obstructionist Republicans. The right nominee could get them some mileage. Nevertheless, it pushes the issue out there every day and still fires up the Republican base.
P
I spoke to quickly, you are correct as regards the issue of the Congress “being in session.” The problem I have is that I cannot find the dates where one Congress Adjourns and another Convenes. The date January 3rd is mentioned as an adjournment date, but it doesn’t talk about the period between 1/3/17 and Inauguration Day 1/20/17. So I am wondering if a recess appointment could be made there, and if it could, how long wouid it be operative. Can you offer any help?
I spoke to quickly, you are correct as regards the issue of the Congress “being in session.†The problem I have is that I cannot find the dates where one Congress Adjourns and another Convenes. The date January 3rd is mentioned as an adjournment date, but it doesn’t talk about the period between 1/3/17 and Inauguration Day 1/20/17. So I am wondering if a recess appointment could be made there, and if it could, how long wouid it be operative. Can you offer any help?
If we cannot find out, I am sure Mark Levin will have a lot to say about this whole situation on his show on Monday. Must listen-to radio...
“God rest his soul A True Conservative Patriot.”
Yes, indeed. This is a very dark day for Conservatives.
ALSO, ANYONE KNOW EXACTLY HOW TO RECONVENE HOUSE AND SENATE—YES MITCH AND RYAN WOULD NEED TO BE THERE, but do they need a quorum? a majority? of members to vote?
Ugh, wish I had taken more civics ;)
Unless the senate says it is in recess it is not,in recess.
And after this they won’t be.
Good find.
Don’t you think that if Obama does put in a justice this week, it raises more suspicions about Justice Scalia’s death?
Ah but see my post 35.
After reflection, IMO, the author is correct.
The Resolution did not read as McConnell said in the Congressional Record that it would.
http://www.freerepublic.com/focus/f-news/3397020/posts?page=7#7
Thanks for finding this; we may have some time.
Ping to this point; the Senate is adjourned, with pro forma sessions with no business being conducted.
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