Recess appointments trimmed, but not eliminated

[Bob78164]

The Supreme Court has ruled that the President's power to make recess appointments (a) is not limited to vacancies that arise during a recess and (b) is not limited to intersession recesses, but (c) cannot be exercised during a recess shorter than 3 days and (d) presumptively cannot be exercised during a recess shorter than 10 days. --Bob

[silverscreenselect]

The Supreme Court has ruled that the President's power to make recess appointments (a) is not limited to vacancies that arise during a recess and (b) is not limited to intersession recesses, but (c) cannot be exercised during a recess shorter than 3 days and (d) presumptively cannot be exercised during a recess shorter than 10 days. --Bob

The decision came about in an NLRB case and, as a result, the Court invalidated hundreds of NLRB decisions that were made using the improperly appointed replacement members.

Because Harry Reid was able to change the Senate rules, this particular issue is unlikely to arise again because Presidential appointees can no longer be held up by 40 Senators. If the Republicans win the Senate this year, they could block an appointee by voting him or her down by majority vote, as the Senate has always had a right to do.

The changes in the cloture rules do not affect Cabinet level appointments or Supreme Court justices. It will be very interesting to see what happens if a vacancy arises on the Supreme Court in the next two years. Two of the liberal justices (Ginsburg and Breyer), one conservative justice (Scalia) and the justice who's usually the swing vote (Kennedy) are all over 75. If Scalia or Kennedy left the Court, the chances of 4-4 votes in key cases would greatly increase. And, needless to say, replacing either of them with a more liberal justice would tip the balance of the court significantly. Again, A Republican Senate majority could simply vote down an Obama appointment while a minority could filibuster it.

[Bob78164]

The Supreme Court has ruled that the President's power to make recess appointments (a) is not limited to vacancies that arise during a recess and (b) is not limited to intersession recesses, but (c) cannot be exercised during a recess shorter than 3 days and (d) presumptively cannot be exercised during a recess shorter than 10 days. --Bob

The decision came about in an NLRB case and, as a result, the Court invalidated hundreds of NLRB decisions that were made using the improperly appointed replacement members.

Because Harry Reid was able to change the Senate rules, this particular issue is unlikely to arise again because Presidential appointees can no longer be held up by 40 Senators. If the Republicans win the Senate this year, they could block an appointee by voting him or her down by majority vote, as the Senate has always had a right to do.

The changes in the cloture rules do not affect Cabinet level appointments or Supreme Court justices. It will be very interesting to see what happens if a vacancy arises on the Supreme Court in the next two years. Two of the liberal justices (Ginsburg and Breyer), one conservative justice (Scalia) and the justice who's usually the swing vote (Kennedy) are all over 75. If Scalia or Kennedy left the Court, the chances of 4-4 votes in key cases would greatly increase. And, needless to say, replacing either of them with a more liberal justice would tip the balance of the court significantly. Again, A Republican Senate majority could simply vote down an Obama appointment while a minority could filibuster it.

The Court's opinion pointed out a useful workaround when the President's party controls one House of Congress: The President "may, on extraordinary Occasions, convene both Houses, or either of them, 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 . . . ." U.S. Const. art. II, § 3, cl. 2 (emphasis added). --Bob

[Flybrick]

Careful what you wish for...