Executive Power

SCOTUS Seems Inclined to Reject Obama's Use of Recess Appointments to Bypass the Senate


The Constitution's Recess Appointments Clause, adopted at a time when gathering scattered legislators in the capital for a special session posed serious practical difficulties, was intended to let the president fill vacancies when the Senate was not available to provide its "advice and consent." During the last century, the clause evolved into a pretext for making appointments the Senate refused to approve. Yesterday, during oral argument in a Supreme Court case involving appointments to the National Labor Relations Board (NLRB), several justices questioned the constitutionality of this shift, indicating that the Court is inclined to impose limits on the president's ability to dodge the "advice and consent" requirement.

Justice Elena Kagan suggested that the original rationale for recess appointments is obsolete in an age when the Senate can be reconvened as quickly as its members can fly back to Washington:

Presidents of both parties essentially have used this clause as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the president thinks ought to be approved….

This is not the horse-and-buggy era anymore….There's no such thing truly as congressional absence anymore. And that makes me wonder whether we're dealing here with what's essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.

Justice Samuel Alito took up the same theme, telling Solicitor General Donald Verrilli:

You are making a very, very aggressive argument in favor of executive power now, and it has nothing whatsoever to do with whether the Senate is in session or not. You're just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the president must be able to fill those positions.

Verrilli agreed, saying, "I think the recess power may now act as a safety valve given that intransigence." The problem with that position, as Chief Justice John Roberts pointed out, is that the Senate has "an absolute right not to confirm nominees that the president submits." Justice Stephen Breyer also seemed troubled by the idea that the Recess Appointments Clause is a remedy for congressional "intransigence," saying, "I can't find anything that says the purpose of this clause has anything at all to do with political fights between Congress and the President….Where is it in the history of this clause, in its origination, that it has as a purpose to allow the President to try to overcome political disagreement?"

Miguel Estrada, arguing on behalf of Senate Minority Leader Mitch McConnell (R-Ky.), said such use of recess appointments is illegitimate, since "there is no power in the Constitution to use the Recess Appointments Clause to overcome the opposition of the Senate to the president's nominees." Noel Francisco, the lawyer for the company challenging the NLRB appointments, warned that "the government's position…would eviscerate [the requirement of Senate approval], creating a unilateral appointment power available for every vacancy at virtually any time, with advice and consent to be used only when convenient to the president."

That is not much of an overstatement. The Constitution says "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." The Obama administration maintains that "the recess" can occur not just between sessions of Congress but during any break when the Senate is not conducting business, that the president can unilaterally determine when such a break has occurred, and that the vacancy need not arise during the break.

Regarding that last point, Verrilli argued that a vacancy can be said to "happen" during a recess if it continues then, even though it arose while the Senate was in session. Justice Antonin Scalia questioned that reading:

Death is an enduring state. But if someone dies in 1941, you don't say he died in 1945. He's still dead.

Justice Anthony Kennedy noted that the original version of the Constitution, which gave state legislators the power to pick senators, included a provision similar to the Recess Appointments Clause: "If Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies." That provision was understood to let governors fill vacancies only if they arose between legislative sessions—a fact that "favors your position," he told Francisco.

Justice Clarence Thomas, as usual, did not speak during the oral argument. But given his originalist inclinations, it seems safe to assume he is not receptive to the idea that the Recess Appointments Clause can legitimately serve "a new purpose that nobody ever intended it to have," as Kagan put it. Given the skepticism expressed by Roberts, Scalia, Alito, and Kennedy, that's at least five votes against the administration. Kagan and Breyer also seemed troubled by some of the government's arguments and might end up joining an opinion that rejects at least part of Obama's position. The idea that the Senate does not get to decide when it's in recess seems especially vulnerable.

Although in this case it's a Democratic president using recess appointments as a way to avoid an inconvenient constitutional requirement, that sort of abuse has a bipartisan pedigree, as Kagan noted. In fact, Republicans (especially George W. Bush) have used this particular evasive maneuver more often than Democrats. "We have different political parties taking absolutely opposite sides," Breyer observed, "depending on the political party of the President." This case is therefore an excellent opportunity for the justices to show they are committed to upholding the Constitution without regard to partisan politics.

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  1. “I’m crushing your head!”

  2. Do you know what else the SCOTUS was “inclined to reject” that Verrilli defended?

    1. The DH rule?

  3. Has it been determined what happens at the NLRB if the appointment doesn’t hold up?

    1. A new oversight agency will have to be created, its director appointed by Obama.

    2. In Killaz wishful thinking land, the board then has to be dissolved with its members banished from these shores. But I suspect they merely do what they are doing now, meddling where they should not be, suing the shit out of political and class enemies on the tax chump’s dime, but with the same number of people as they are doing so now than with an expanded staff.

    3. Nothing?

      1. Not nothing. A whole bunch of decisions are invalidated and have to be re-litigated. It will be just another example of the Kenyon Village idiot fucking up running the government he claims to love so much.

        1. Those tears might be even yummier than the O’care ones.

          1. Since the whole point of the exercise was to put Union hacks on the board, it is a good bet every one of those decisions are going to be things Unions wanted.

          2. Those tears might be even yummier than the O’care ones.

            If that happens, will you be breaking out some Brecht and Weill score?

            1. Fuck Brecht in his slaver face.

              1. Best answer ever.

              2. Fuck him. But he did come up with one of the greatest lines ever. When the East German Commies lost the last free election held there they said “the people have failed the government” to which Bretch responded,

                “Maybe the government should get new people.”

        2. Obama started at Occidental, not Kenyon.

          1. Started, yeah, but he finished at the White House.

        3. A whole bunch of decisions are invalidated

          Maybe. That’s the way it should be done, at least. However, I suspect that SCOTUS will do some arm-waving about finality and reliance and unringing the bell and so forth, and let them all stand.

    4. Recycling.

    5. “Has it been determined what happens at the NLRB if the appointment doesn’t hold up?”


  4. The administration’s argument is just embarrassingly bad. For the president to get appointees through the nomination process, he’ll have to do what every president with an opposition party in the legislative branch has done since the beginning of the Republic, compromise and give them something they want. But, no, our special little snowflake is above mere partisanship, so he shouldn’t have to concede anything.

    1. but historical, unprecedented obstruction. also racism.

    2. It is racist to expect Obama to do his job and compromise with Republicans or degrade his unearthly powers of persuasion by using them to convince the lowly American public to pressure the Republicans.

      1. When the mask slips from the American public, it’s going to be an ugly sight. Even with his current poll numbers, they are too afraid to hate to the depth they actually feel contempt for this joker. His supporters are the one’s in the most denial about their true feelings. They’ll turn on him like Furies going after Dionysus.

        They thought they were ready to deal with their hangups in regard to electing a black president. They were not, or else they would have demanded more than bland speeches filled with stupid promises from him.

        1. My guess is that the public is going to find a scapegoat. Most of the stupid white people who supported this clown don’t have it in them to really hate the first black President. So, they will concentrate their hatred on someone associated with him. Maybe Hillary?

          Either that, or they really will turn on him and race relations will be set back a hundred years. You are right though. At some point the damn is going to break.

          1. Either that, or they really will turn on him and race relations will be set back a hundred years.

            I disagree. I look at my son’s generation, and I see a real impatience with ‘anti-racist’ policies. Specifically, the kids despise racial discrimination, whether it be punitively or benevolently intended.

            I suspect that in 20 years, that will start to manifest itself in a political realignment that will sweep away a significant portion of the current DOL. Whether they replace the DOL mandate with something equally odious (like prohibition regulators being repurposed to go after pot and opiates) is up in the air.

            1. Specifically, the kids despise racial discrimination, whether it be punitively or benevolently intended.

              Good for them. But race relations are a two way street. The Progs have spent a hundred years doing everything they can to set groups against one another. We don’t notice it too much because white people are generally bullied into not standing up for themselves. If that ever ends, race relations will go back right to what they were.

              1. Good for them. But race relations are a two way street.

                Not just that – but for cultural issues where bad thinking (whatever it may be) is pervasive, you need a large percentage of an entire generation “sick of this crap” and only when their kids are in power, and their grandkids are graduating highschool – will there be enough people with the current crappy thinking dead in order to really change things.

                It sucks – but I think a lot of this bad thinking is a generational issue. IE – once “fixed” in a generation, it will still be a generation or two before actual legal and cultural changes start to take hold.

                Note – I’d rather be wrong….

        2. When the mask slips from the American public, it’s going to be an ugly sight.

          Not gonna happen. You and I both wish it would, but its not. Sorry.

      2. yes, of course. Why, it’s racism to merely speak his name in anything but hushed and reverent tones. What the hell is wrong with you, subject?

      3. It’s racist to call Obama a “Kenyan village idiot,” but perhaps you deserve the benefit of the doubt since you couldn’t spell “Kenyan” right.

        1. Is it racist to call him a mixed-breed, half-wit dumb fuck?

        2. How about “Chicago Village Idiot”?

        3. Well I did at least get the village idiot part right. Is there anything he touches that doesn’t fuck up? This entire administration would be comical if it wasn’t producing such tragic results.

          1. Hey, he hasn’t even been to Kenya, that often. Why go to Kenya when you can plagiarize from the experience of someone else?

            Obama’s Apocryphal Kenya Trip


            On reading sentences like this, the reader has to ask: Did Obama really know such a man, or has he borrowed from Gallman’s experience? Any number of distinctive local words and phrases show up in both books: Baobab [a tree], bhang [cannabis], boma [an enclosure], samosa [a fried snack], shamba [a farm field], liana [a vine], tilapia [a fish], kanga [a sheet of fabric], shuka [decorative sashes].

            On the fashion front, both books have young women “wrapped” in their kangas and “dressed” in “rags.” The women in both books wear shukas, head shawls, head scarves, goatskins, and balance baskets on heads graced with “laughing smiles.”

            On the animal front, men in both books spearfish in “ink-black” waters and hunt by torchlight. Elephants are seen “fanning” themselves, birds “trill,” insects “buzz,” weaver birds “nest,” and monkeys “mesmerize.” The books share a veritable Noah’s ark of additional fauna: crickets, crocodiles, starlings, dragonflies, cattle, lions, sand crabs, vultures, hyenas, “herds of gazelle,” and leopards that can hold small animals “in their jaws.”

            Any doubt it would be a major scandal if it were anyone else?

            1. Wasn’t Crazy Joe Biden’s candidacy ended by revelations he had plagiarized some of his speeches?

              Obama’s whole life is a giant ball of mendacity. It is amazing to think how little the country actually knows about who this guy is and where he came from. Forget the birther conspiracies and such. We don’t even know this guy’s college grades. Not a single reporter has ever bothered to go talk to the people who knew him in high school or college or when he first went to Chicago.

              I think he is just a stupid true believer upper middle class Prog. I don’t think he is the Manchurian Candidate or anything. But it would be nice to have known a bit more about him before he was elected President.

              1. One of Biden’s guys running that race was a local political insider here that I got to know from working downtown. I remember him spending a month camped out in the comfy chair of my aunt’s antique shop in a state of depression.

          2. Says the Bush lover. Even I couldn’t be as blindly partisan as you John.

            1. But BUSH!!

              It is really all you have left isn’t it?

              1. All any of us has is comparison. There is no ideal Platonic president. I’m just saying you’re full of shit because you supported recess appointments when Bush was doing it. Or perhaps I’m mistaken and you were consistent like me.

            2. Does anyone here love Bush?

              Hating Obama a little bit more then Bush does not make one a Bush lover.

              And why the fuck even have the juxtaposition?

              Can’t one just hate Obama without any consideration of Bush?

              I can hate Strawberry ice-cream without giving any consideration to Vanilla ice-cream right?

              1. The point is that John doesn’t know what he thinks about recess appointments until he checks the party letter accompanying the president’s name.

                1. and what is your evidence of this, Tony, other than John dared attack Obama for doing it?

                  1. The fact that he hasn’t denied it.

                    1. So Tony – with that logic – when did you stop rapping neighborhood pets?

                      And remember – no refutation means it’s true!

                    2. I’ve been here a long time and John is a Bush lover. He is entirely motivated by partisanship, and not for good reasons like I am.

                2. Why must your type always accuse us of loving those with an R next to their names. We despise all incompetent, dictatorial politicians equally. It just so happens that there is currently a proggie admin for us to take to task. That is all.

                  1. He is entirely motivated by partisanship, and not for good reasons like I am.

                    Tony’s world in a heart beat – behavior he sees as despicable in others (not that it’s real), he sees as not just acceptable, but justified when he or his team engages in it.

                    IE – his side kills, only his opponents murder.

                3. The point is that John doesn’t know what he thinks about recess appointments until he checks the party letter accompanying the president’s name.

                  I don’t think you understand that NO ONE would be saying anything about recess appointments at all had not Obama pushed it into the ridiculous territory of the President deciding when the Senate was in session or not.

  5. Are those Catholics ganging up again?

  6. “I think the recess power may now act as a safety valve given that intransigence.”

    Wow. Just wow. The Solicter General actually seems to think that it is the Senate’s duty to confirm anyone that the President nominates.

    I am sorry. I don’t buy that this was a misstatement or that the court walked him into saying something he didn’t really mean literally. I think he actually believes this.

    1. Well, the Solicitor General’s job is to polish whatever turd the government has passed him. You can’t say that it has precedence, so you have to say that the situation is unprecedented.

      1. wouldn’t you resign before you go before SCOTUS with that argument?

        1. Why. You still get paid if you lose.

          1. Some things are worth dying for, no cooperating with these assholes is one of them.

            1. I’m looking at it from the clown’s POV. You wouldn’t work for Obama in the first place.

        2. I would, but then I would have never took the job in the first place if the Obama administration was the only meal ticket around.

      2. But that wasn’t the argument. He just said that during argument. The actual argument is a lot more subtle. It is still appalling bullshit. But it is subtle.

        I think the mask slipped there.

        1. Hand me down my walkin’ cane, hand me down my hat.
          Hurry now and don’t be late ’cause we ain’t got time to chat.
          You and me, we’re goin’ out to catch the latest sounds.
          Guaranteed to blow your mind so high, you won’t come down, no.

          Hey, you all prepare yourself for the Rubberstamp Man.
          You’ve never heard a sound like the Rubberstamp Man.
          You’re bound to lose control when the Rubberstamp starts to jam.

          Oh Lord, this dude is outta sight,
          Everything he does seems to come out right.

        2. The actual argument is a lot more subtle.

          It would have to be subtle, since it can’t be based on anything in the Constitution.

          1. Agreed – and since he likely knows better – he is literally making a BS argument because he’d prefer if it were true for at least this one President.

            With thinking this bad….

  7. If Kagen is skeptical, there is a decent chance the Court will bitch slap him 9-0. I mean this is just ridiculous. There is no way a majority of the Court is buying this bullshit.

    1. Calm down John. Nobody here thinks you weren’t defending Bush’s abuse of this practice at every step.

      1. But BUSH!!!

        God Tony, you are getting as pathetic as Shreek. Maybe defending the indefensible is starting to wear you down. You never were quite as crazy as shreek, just as stupid and nasty, but never as vulgar or as crazy. Have you thought about maybe stepping away from things for a while?

        1. When have I defended anything here? I happen to agree with where the court seems to be headed.

          Just don’t pretend you’re outraged on principle because nobody buys it.

          1. Sure you do Tony. You just change the subject to BUSH!! because you care about good government. It isn’t because you are incapable of admitting fault on Obama’s part. Couldn’t be that.

            1. I just said I disagreed with the administration’s argument. Of course I also disagree with the notion that a majority of senators shouldn’t be able to get their way on appointment confirmations, but that’s another issue.

          2. Just don’t pretend you’re outraged on principle because nobody buys it.

            This is hysterical coming from Tony.

            1. He is kind of a comedy act these days.

      2. Except that Bush didn’t do this. Bush never decided that the Senate was in recess when it wasn’t.

    2. Based on this article, I would be surprised if it wasnt 9-0. It takes OWJ, Jr level of retardation to vote the other way.

      1. OWH, Jr, obviously.

        Got my Supremes mixed up with my Bloom Co characters for a second there. Or maybe just a typo.

          1. God damn I love Bloom County.

            1. Bloom County and Calvin & Hobbes. I miss those so much, but I understand why they bailed out.

        1. Is it too late to dig up the rotting corpse of Bill the Cat and run him in the 2016 election?

          1. “This time, why not the worst?”

            1. He has been a disabled, native American, veteran union member. He is America.

              1. Warren ?

      2. Yeah, just it’s just as obvious as the individual mandate, right?

        The pro-executive power judges are working overtime to find some bullshit line of logic to justify this shit.

        1. This is not the mandate. The mandate stepped on your toes. The court doesn’t give a shit about that. This steps on the Congress’ toes and by extension potentially the Court’s if the precedent is set. That makes it a whole different matter.

          1. True dat. But if they’re happy being a rubberstamp to a powerful executive then they really don’t have any toes to be stepped on.

  8. Net neutrality:


    I stupidly had an argument earlier today with that Edwin idiot, who thinks that private utility companies should be forced to let any competitor piggyback on their services. I bet Edwin lerrrrves net neutrality.

  9. Death is an enduring state. But if someone dies in 1941, you don’t say he died in 1945. He’s still dead.

    This is awesome.

    1. I’m glad somebody else is picking up on the word “happens”.

      This is the risk of overreaching by the President. The Court has an opportunity to really cut the recess clause way, way back here, all the way to its original language, so it wouldn’t be available unless the vacancy actually, you know, comes into existence during “the” Recess of the Senate.

      They wouldn’t take that step unless they had some reason to. Obama may have given them that reason by overreaching so blatantly.

    2. Agreed. But Obama may be confused since the dead regularly vote in Chicago.

  10. How was it that someone didn’t stand up and tell this clown “we can’t appoint these guys like this. The court will never buy that argument and we will end up with a bunch of invalidated decisions.”? I guess Obama was having one of those “he is bored by everything” moments Valarie Jerrett is always yapping about.

    Beyond the shear gall of making this argument, fixing this is going to cause a lot of harm and aggravation to all of the parties who will now be stuck re-litigating their cases. All because the Constitutional Scholar In Chief was too fucking stupid to understand he wasn’t going to get away with telling the Senate when it was and was not really in session.

    What a fucking moron.

    1. Dumber than Carter; Dirtier than Nixon.

      1. Notice how even his brain dead supporters don’t claim his is “brilliant” anymore?

    2. Obama is losing 9-0 Supreme Court decisions at an unprecedented pace. It’s amazing how many of these cases the White House can’t even get one of the Obama appointees to agree with them.

    3. It’s not that…

      The idea was to grab as much power, push as hard as they could to get, ram as much legislation they could through parliementary tricks, counting that the ratchet of government meant that much of what they had done would be permanently in place.

      It’s not necessarily an insane idea; Roosevelt’s movement was despised by the end of WW-II, yet much of the framework they put in place endured. Similarly LBJ ended up refusing to run for reelection he was so hated, yet his execrable War on Poor People continues.

      I think we are all going to be quite disappointed at the lack of roll-back we see in the coming decade.

      1. Roosevelt’s movement was despised by the end of WW-II, yet much of the framework they put in place endured.

        That is actually not true. The entire New Deal was rolled back or drastically altered. The only part of the “New Deal” that exists in any recognizable form today is Social Security.

        For example, the National Labor Relations Act, about which we are having this conversation, was radically overhauled in the 1950s and looks nothing like FDR intended it to look.

        And Johnson’s programs actually got more popular. Obama’s changes are not. The rollback is going to look a lot more like the rollback of the New Deal than they will the reaction against Johnson.

        When things fail and make people’s lives worse, people figure out not to support them. Not every program is medicare or Social Security.

        1. I was thinking more of the unionization rules and the expanded commerce clause when I wrote that…. but I take your point.

          I hope your analysis proves correct; I fear we will be disappointed though.

          1. I remember the 1970s when things like price controls and government control of entire sectors of the economy were considered to be sacrosanct. After things got bad enough, those rolled back.

            1. Unfortunately – everything that is rolled back is rolled back because it seems like a bad idea.

              They haven’t (yet) seemingly rolled back anything because it was both (a) a bad idea and (b) because the government didn’t really have the power.

              The reason this is unfortunate is because any rollback pushed like this is still possible in the future – we just need smarter and correct-thinking people in charge and then it will work.

        2. This. What the people of that era went through with the cartelization of entire industries is lost on us. The political cost of the New Deal were delayed due to WW2, the Cold War and the accompanying fear of the Nuclear Age of MAD, but it came to a head in several cycles, 46, 48, 52 that Democrats paid dearly for. Without Kennedy, they truly were lost in the wilderness with a very reactionary Southern Democratic base in control.

    4. The same reason nobody ever says “You can’t just order us to go to war, only Congress can do that.”

  11. As usual, Kagan will recuse, though.

    1. Yeah, she’s such a stickler about that.

  12. Are there appointments in any other departments that will be invalidated by a favorable decision, or are these NLRB clowns the only ones appointed during a Senate potty break?

  13. Sammy DoDo saidthat is not gonna happen.


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