SCOTUS aren't morons....today.Follow

On the flip side though, it's kinda absurd for the president to claim that a 3 day weekend counts as a "recess" for purposes of recess appointments. A little bit of common sense should (yeah, I know) apply here. The intent of the recess appointment is to allow for appointments if/when the Senate is unable to advise and consent on the appointment for a long period of time. It is *not* intended to be a method to bypass approval of a nominee entirely. In these particular cases, the president had plenty of opportunities to submit his appointments to the Senate if he wanted to. He choose not to because he believed the Senate would not approve them.

Regardless of where you fall on the appointees themselves, or the Senate approval process, partisan politics, or what have you, using the recess appointment process was absolutely wrong in this case. And it's good that the SCOTUS recognized this.

That's been how it's been used for at least the last 70+ years.

Anyway, I'm not terribly upset about it (for example, I've spent more time thinking what a shitty appointment Bolton was versus thinking how awesome those Labor Relations board guys I can't name are) but thought it was a noteworthy bit of Justicin' given that it directly restricted a Constitutionally listed privilege of the office.

I assume by "last administration", you really mean "the current administration". Did Bush ever make a recess appointment during the pro-forma sessions instituted by Reid? If not, then the expansion of executive power falls squarely on Obama's shoulders. Using an existing and established power in the same way it had always been used (even if more often) isn't an "expansion" of power. Using that power in a new way constitutes an expansion of that power. Doubly so if this new way happens to bypass an assumed check to that very power (which was precisely the case here).

With the key difference that they actually waited for the Senate to be in recess.

Yes. I get that the procedural tricks used nowadays effectively prevent the Senate from ever being in recess (well, except actually between sessions). But you can thank Harry Reid for that, if you're looking to place blame. Reid used this tactic to prevent Bush from using the recess appointment during the last two years of Bush's administration (which constituted a whole session of congress, so effectively shut down Bush for that entire period of time). Obama, on the other hand, has been in office through 3 (now) session changes. Which gets us right back to the point that he could have done this without violating the Constitution if he'd really wanted to. He choose to do this the way he did. And, just like the whole fake filibuster argument the left loves to parrot, this is another one of those cases where it's not really about partisan divide, but about Democrats in congress not wanting to be on record standing for an unpopular nominee.

Obama didn't do these particular recess appointments because the GOP was blocking things, but because the Dems didn't want to have to vote on them. I know that you're playing up the "I've never heard of these guys" angle, but they were very unpopular and controversial picks which were designed to deliberately unbalance the institutions they were assigned to (or create/lead an unpopular one in one case). Obama was saving his party members from having to deal with these issue in their next elections.



IIRC (and to be honest I'm a bit hazy on the details cause it's been so long), these positions were left vacant because they are normally occupied by a pair at a time (one liberal and one conservative). But the Obama administration wanted to appoint just liberals. Which is where the opposition came from. And also why they wanted to do this as quietly as possible and while providing as much political cover as possible. While these positions may not be as high profile as others, they do broadly affect a whole range of domestic policy issues (labor, right?). It was very clear that this was about a partisan power grab that required bypassing the normal rules in place to accomplish. It's why the Right made such a stink about these appointments in the first place, and why this ruling is such a huge blow to the Obama administration.

It makes the rulings made by these individuals over the last couple years invalid. Which is a huge deal. Now, if we can just get something similar to happen in the DoJ...

Edited, Jun 27th 2014 6:46pm by gbaji

It has not been used in the same way it had always been used. It has been expanded many times over the years. For instance, as I noted above, it only applies to vacancies that happen during the recessSpoiler"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.". But no one ever took it to the Supremes before because the people on the down side always knew they would one day be on the up side and the power would be theirs.

However, we have now reached the point where some people seem bent on burning down the house because they cannot get control of the TV remote. So off we go to the Supreme Court asking it to stop the abuse. Well, now the ruling will apply to all, not just to the NLRB appointments. And, as Joph noted, Mr. Bush used it to push through a somewhat higher profile appointment, among others. This ruling amounts to a Pyrrhic victory, in my opinion.

Claiming that the power has been expanded only by Mr. Obama is myopic and surely a partisan view. Claiming that Mr. Bush did not abuse the power is equally so. It has not only been Democrat Presidents who have used this power and expanded it. If everyone could have agreed to play nicely, they could have avoided having the Supremes issue a ruling on this. As a result of the childish "he got more than me" behavior, we now have the highest court in the land issuing a decision that a recess is something like 10 days, but definitely more than 3 days.

Hobby Lobby wins. They don't have to cover contraception in their employee health plans.

Sounds like the decision lies within the 1993 Freedom Restoration Act which:


I'm less concerned about the contraception coverage than I am about setting precedence for a corp to be further endowed with the same rights as individuals.

I liked how the argument to rule for Hobby Lobby was that it was for a specific type of contraceptive.

Sure. But not by George W. Bush. Bush did not use the recess appointment in any way not previously used by earlier presidents. If the term "expansion" is to have any meaning at all in this context, we must acknowledge that Bush did not expand executive power with regards to recess appointments. Quite the contrary, Bush was faced with a "new" process introduced by Senator Reid, in which someone would just gavel a session open while the majority of the Senate was out so as to prevent there from being a formal recess despite no actual business being done, but still did not do anything to go around it. He could have, but chose not to.

Obama, when faced with the same tactic, chose to expand executive power by deciding that a 3 day gap constituted a recess and he could appoints folks during that time. He very clearly did what Bush did not. We can argue about why he did it, and can agree with or oppose that decision for any reason we want, but at the end of the day Bush did not do this when faced with that obstacle and Obama did. It's therefore incredibly disingenuous to claim that Obama was just doing the same thing that previous presidents had done. It's even more disingenuous to specifically single out Bush as an example of someone who was just as bad (or even worse!) on this issue. He wasn't. Numbers of uses of the power isn't the issue. How and when you use it is.



One could argue that Obama's decision to violate the constitution rather than work with Congress better fits that analogy. Lots of past presidents have managed to deal with a Congress not made up 100% of their own party. Most presidents have had to do that. This president seems utterly unable to accomplish anything unless every single person in the government is "on his side". That speaks volumes about him IMO. And the ruling from the court was more about slapping him on the wrist for failing to find ways to deal with that division other than playing roughshod with the constitution.

I'll also repeat my earlier point that most of this is smokescreen anyway. The Democrats control the Senate. I'll fully admit to not being an expert on every Senate rule (cause who is really?), but it seems to me that this whole business was an unnecessary "crisis" that could have been avoided via normal procedural practices. The Dems collectively choose to use this route to do things instead.




No previous president has ever used recess appointments in the way Obama did. It's neither partisan nor myopic to say that this represented an expansion of executive power with regard to recess appointments. I'm honestly kinda scratching my head as to how anyone could think otherwise. The people being partisan are those denying that this did represent an expansion, since it clearly was (I'm assuming the only reason one would deny this is for partisan reasons, but I suppose it's possible some could just be plain misinformed or something).




The question was which use of the recess appointment represented an "expansion" of executive power. You're introducing a slightly different term. How about we stick with the same one for both so we can make an apples to apples comparison?




Again, this point applies most directly to Obama himself. He's the one who could not figure out any other way to get people appointed to positions he wanted/needed to fill. Magically, other presidents have managed to figure out how to do this without declaring that 3 days constitutes a recess. Ergo, we can conclude that this is a failing of Obama, and not of Congress, much less the constitution itself.

I considered replying to your post, but then I decided to take the high road and just laugh at how astonishingly poorly you understand the law.

I wish smash had taken the low road personally.

The court created this problem with this ruling. They just gave an 'entity' a religious privilege. Not the end of the world itself, I mean letting old man shaman legally smoke his peyote probably isn't going to impact the market place.

Blaming the ACA is a cop-out.

Yes; no other president was quite as black while bending the Constitution.

Irritating to your ilk, I know.

That's rude. It's just a coincidence that problems and issues that have been going on for decades, if not centuries, are suddenly such huge issues during this specific administration.