Today in Supreme Court History: January 4, 2012

1/4/2012: President Obama makes three appointments to the NLRB. The Supreme Court would find these appointments unconstitutional in NLRB v. Noel Canning.

Comments

[Dan Schiavetta]

In other words, the Constitution really is a suicide pact.

[SMP0328]

How does not allowing Presidents to declare the Senate to be in recess, and thereby make recess appointments, mean the Constitution is a suicide pact? The Supreme Court simply ruled that the Senate is the only body that determines when the Senate is in recess.

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He really meant "murder-suicide".

[Dan Schiavetta]

If the Senate Majority Leader declares the Senate is in session, even when it clearly isn’t, and refuses to confirm any nominees when it is in session, then the Recess Clause is a nullity, positions don’t get filled, departments can’t act, and the federal government grinds to a halt. Not what the Framers had in mind.

[David Nieporent]

What if the Senate is indisputably in session — 100 senators sitting there, debating and voting on bills, 9-5, every single day — but they either decline to schedule a vote on, or say "No" to, every single presidential nominee? Is that "what the Framers had in mind"? Almost certainly not. Does that mean the president can just say "Well, I declare that this is bad, so I'm going to appoint people anyway"?

[Dan Schiavetta]

That will never happen. As a matter of human endurance no body can always be in session. They will have to take recesses; the Framers knew that which is why they allowed for recess appointments.

[David Nieporent]

As a matter of human endurance no body can always be in session. They will have to take recesses;

I mean, that's obviously not true, unless you mean 24/7/365, which would be a strawman since nobody thinks adjourning for the evening or weekend is a recess.

And you're fighting the hypo anyway.

the Framers knew that which is why they allowed for recess appointments.

They allowed for recess appointments because they didn't expect the legislature to be in session all year round, because that wasn't necessary for the government they envisioned. And with technology as it was in those days, time needed to be allotted for travel to and from districts.

[Dan Schiavetta]

Still would never happen.

No legislative body can stay in session all year, every year. They have to spend time at home with their constituents, and have other work to do. Recesses are a necessary part of the legislative process.

[John F. Carr]

If the Senate promptly voted "no" on every major nomination we'd be in the same situation.

[Dan Schiavetta]

No. With the recess appointment clause, the federal official takes office, and even if the Senate rejects him when it comes back from recess, he gets to stay in office until the end of the Senate session.

"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." art. II, sec. 2.

If the Senate either refuses to act on the next nomination, or votes "no", the President can name another person as soon as the Senate is in recess.