Supreme Court

Recess Appointment Case Before SCOTUS Serves Up Hypocrisy on a Cracker


Over at Instapundit, Glenn Reynolds notes that there's "High Drama At the Supreme Court" today. Indeed. The case being heard, National Labor Relations Board v. Canning, involves the president's ability to make recess appointments, While there's no question that the president can indeed do such a thing, there are serious questions about what constitutes a break or recess in Senate proceedings. In 2010, Barack Obama invoked the power to name three people to the National Labor Relations Board while the Senate was technically still in session (the specific case arose after Noel Canning lost a decision made by the NLRB).

As Damon W. Root explained earlier this year:

Senate Republicans were then gaveling the body to order every few days for the precise purpose of denying the president his lawful ability to make such appointments. Among the issues before the Supreme Court is whether Obama's actions exceed his constitutional authority 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."…

The hubbub is important, says Root, the

arguments in NLRB v. Noel Canning will feature two competing liberal takes on executive power. One, originally filed in opposition to George W. Bush, views the Recess Appointments Clause as a narrow grant of presidential authority. The other view, filed in support of Barack Obama, sees the clause as a broad affirmation of the president's power to shape national affairs.

More by Root here.

Canning highlights the willingness with which many on either side change principles based on their preferred outcome. The whole practice of gaveling the Senate to order to prevent recess appointments was a Democratic innovation used expressly to screw over George W. Bush. Back then, Senate Republicans trotted out what came to be known as the "nuclear option," or the waiving of Senate filibuster rules so presidential appointments could quickly proceed to a simple up-or-down, majority vote. The Democratic leader of the Senate, Harry Reid (D-Nev.) said this was worse than an abomination, of course. Right up until the moment last year when he did precisely that. And of course, Republicans who were for the waiving of Senate protocol when it helped their side were predictably disgusted by the Caesarism of Sen. Reid in 2013.

Here's the New York Times editorial board weighing in on the matter:

To be fair, Senate Democrats introduced this tactic in the last years of George W. Bush's presidency, but Republicans have blocked Mr. Obama's appointments at a far higher rate. They have made an art of avoiding up-or-down votes on judges, agency officials and even cabinet members.

Since the Senate finally voted last November to eliminate the filibuster for most presidential nominees, Mr. Obama should have an easier time getting them confirmed. But there are still plenty of tricks senators can use to jam the system, from refusing to conduct hearings to placing holds on nominees. And if Republicans retake the Senate in November, they won't need a filibuster to keep Mr. Obama's agencies from functioning.

How can anyone really take governing seriously these days? Each side in any given matter so clearly only cares about rules when they serve that side's immediate purpose. As I noted last October, isn't the whole notion of senatorial oversight supposed to act as a moderating influence on presidential appointments? The government, especially the Senate, isn't supposed to be a rubber stamp on anything. It's supposed to slow things down, throw sand in the gears, a spanner in the works, etc. You can find that frustrating as hell and even stupid by every measure, but for god's sake, when you come out against only when it gets your partisan panties in a bunch, at least have the common decency to admit as much. Whether you're a Republican or conservative or Democrat or liberal or whatever.

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  1. The next president will make recess appointments while the Senate is in full session, while walking around the Capitol floor waving his dick around.

    1. If the President not the Senate has the power to determine what a real “recess” is, then the recess clause loses all meaning.

      Of course, the parties wouldn’t be fighting to death over this shit if the NLRB had less power or better yet didn’t exist at all.

      1. Your last point seems to be the important one to me. It seems a little silly to me to deny an administration who it wants as, say, department head, since the administration is going to direct that department one way or another (in theory at least, in executing statutes which direct the executive). It just seems like a fight over a personality.

        The ‘meat’ of the dispute strikes me as these ‘quasi-independent’ regulatory agencies that do not just implement policy but end up making policy. Then appointments become high stakes. One wonders why Congress would create such agencies with their executively appointed regulation makers in the first place (we actually know why, to keep the policymaking away from the silly public and in the hands of experts where it of course belongs in a democracy).


        1. I think Congress has ceded power so they can shift blame to someone else when things get FUBAR, while still being seen to “do something”.

          1. I think you are exactly right.

          2. I agree that is some of it, but there was also a lot frank admittance by many progressives that we had to take a lot of policy ‘out of politics.’ It is no coincidence these agencies started to spring up during what is known as the ‘progressive era.’

          3. The reality is that you can’t have a regulatory super-state without massive delegation. Congress simply isn’t structured to manage a Government of this size.

            1. Congress simply isn’t structured to manage a Government of this size.

              It was never meant to.

        2. Yes, it is the quasi legislative nature of the NLRB that is the biggest part of the problem. If you notice, the really nasty fights usually erupt over appointments to quasi legislative agencies like the NLRB or the Federal Election Commission, or to high positions at DOJ where policy regarding litigation often has the same effect as lawmaking.

    2. waving his dick around.

      Or hers! mysogynist!

  2. “Barack Obama invoked the power to name three people to the National Labor Relations Board while the Senate was technically still in session.”

    And how they’re named isn’t the worst of it.

    Call me when they’re ready to overturn NLRB v. Jones & Laughlin Steel.…..orporation

    1. The majority opinion in that abomination makes my head hurt…

      “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.”

      1. And there it is.

  3. The government, especially the Senate, isn’t supposed to be a rubber stamp on anything.

    Checks and balances are so quaint. Now it’s collusion all the way down.

  4. And for more hypocrisy…. when Democrats were doing it, the Times saw the filibuster as a safeguard of democracy.

  5. The whole idea of recess appointments is dated. The only time I can see it being useful anymore is if there was a real emergency, with many members of government dead or incapacitated and the Senate unable to convene to approve replacements. But not only is that a really remote possibility, I suspect that there are clear lines of succession in place for every critical position of need, so it really is a nonissue.

    1. Yes – it’s still in the Constitution, but it was written when gathering the Senate meant long journeys on horseback to let the Senators know they were needed and long journeys for them to gather. Of course, there is no way it gets amended with the growing Imperial Presidency.

    2. There are no clear lines of succession, AFAIK, for SCOTUS. But the republic would not falter for lack of a NLRB.

  6. And if Republicans retake the Senate in November, they won’t need a filibuster to keep Mr. Obama’s agencies from functioning.

    Good one, NYT. How would our nation function without these over paid juveniles being appointed to oversee the labor market?…

    On April 22, 2011, NLRB attorney Debra Willen received an email, in which Republican Sen. James DeMint of South Carolina is ridiculed as “Sen. Dement.”

    * On May 12, 2011, NLRB Deputy Assistant General Counsel Joseph Baniszewski emailed a political cartoon to Deputy Assistant General Counsel Jennifer Abruzzo mocking the state of South Carolina with regard to Boeing Corporation’s decision to locate its manufacturing facility in that state.

    * On April 28, 2011, Miriam Szapiro sent an email to NLRB attorney Debra Willen commenting on an article in The Economist expressing some support for the Boeing lawsuit: “Exactly; it just shows you how incredibly reactionary the US is, that the conservative Economist thinks we’re Neanderthal.”

    1. over paid juveniles

      Oh c’mon. Get off your high horse.

      1. Fuck you. You hold people like that to lower standards, you are asking for them to abuse their authority.

        1. I expect people to be human. I’m realistic. You’re not.

          1. I expect people to act like professionals when they are on the clock. I don’t see how that’s unrealistic.

            1. And yet, here you are. Here we all are.

              1. My job is not funded through coercion, nor does it employ coercion. If you want to wield the state’s power, you better be squeaky fucking clean. I don’t care if that makes it hard to hire and retain people. Liberty is hard.

                1. With 50% of the country working for Federal/State/Local government, that’s a lot of squeaky clean morally straight serious no BS motherfuckers.

                  Yup. That’s an entirely sensible position to have.

                  1. Beg the question much?

          2. Making excuses for authority is just what pig shit wallowing LCD types like you do. I bet you were going around in 1998 squealing, ‘it was just a blow job!’

    2. I am not sure I can put much criticism on someone because of an email they received, rather than sent.

      1. Part of a greater pattern.

      2. If they can’t properly administrate their spam blocker, then…

    3. 2011-vintage The Economist being “conservative” hahahahahaha. I guess when you define conservative as anyone to the right of Pol Pot.

  7. there are serious questions about what constitutes a break or recess in Senate proceedings.

    I don’t think there really is a serious question. Whether the Senate is in recess is a formalistic, procedural question. The only issue is, who has the authority to declare the Senate in recess?

    Traditionally, the Senate has the authority to declare its own recesses. Article I, Section 5 of the Constitution (I know, who cares?) even makes it crystal clear that the two Houses of Congress are in charge of whether they are in session, adjourned, whatev. With the sole restriction being that neither house can adjourn for more than 3 days while Congress is in session.

    There is absolutely zero legal support for the President’s assertion that he has the authority to declare the Senate adjourned. Given this utter lack of legal support for the President’s argument, I predict a closely divided SCOTUS opinion. Because I’m feeling optimistic, I’ll say there’s a 60-40 chance the President loses.

    1. It’s an expansion of executive power, therefore the Supes vote 7-2 in favor of El Presidente.

  8. I predict that the Supreme Court makes a ruling without actually making a ruling.

    1. Oh, sure, take the easy way out! Just because they do that a lot of the time…

  9. You can find that frustrating as hell and even stupid by every measure, but for god’s sake, when you come out against only when it gets your partisan panties in a bunch, at least have the common decency to admit as much.

    That would require them to have an ounce of self awareness. If they had the capacity for self awareness they wouldn’t be TEAM ‘tards.

  10. Did these vacancies “happen” (that is, “come about”) during the so-called recess? If the vacancies were already in existence, then it would seem Obama is wrong and the Court should say so in a 9-0 decision. But Our Glorious Leader is never wrong and his appointments will probably be upheld 6-3 with one justice determining the NLRB is a “tax” on employers.

    1. Ya know, creech, that is my other quibble with the way the recess appointments clause is applied.

      I don’t think it makes sense to say that a recess that was created while the Senate is in session “happens” while the Senate is out of session. “Happen” means to come into being or occur. A recess “happens” when the incumbent leaves; it persists until a replacement is appointed. It wouldn’t have been hard to draft the clause so it applies to all vacancies still outstanding when the Senate adjourns, but it wasn’t written that way.

      Why not? Because if it were written that way, the President can easily avoid all confirmation of his appointments, just by waiting out the Senate. Hell, as applied, a nominee voted down unanimously by the Senate could be appointed as soon as the Senate recesses.

  11. but Republicans have blocked Mr. Obama’s appointments at a far higher rate.

    Cripes, I hate this sort of blindly partisan analysis. If a Democrat House had been rejecting a Republican’s appointments at a far higher rate, they’d have attributed it to the ultra-partisan nature of the appointments.

  12. And of course, Republicans who were for the waiving of Senate protocol when it helped their side were predictably disgusted by the Caesarism of Sen. Reid in 2013.

    The implication of hypocracy here bothers me.

    Yes, in light of unheard of tactical moves by the Democrats, Republicans seriously considered the ‘nuclear option’. And they were dissuaded by public outcry as well as the ramifications of the nuclear option that came out in the debate over it.

    There is no hypocracy in having a bad idea, debating it, and deciding not to do it.

    There IS hypocracy in being one of the people who railed against that bad idea who then went on to implement it.

  13. A “cracker” is a baked good. When used in this context it is a derogatory, racist term and has no place in Reason.

    1. Are you trolling? This use of “cracker” has nothing to do with race or ethnicity. He’s not saying “hypocrisy served up on a poor rural white person.”

    2. Derp da derp da tiddly terp.

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