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]

Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537 (decided January 4, 1954): jury properly heard issue of whether movie producers and distributors conspired (in violation of the Clayton Act) to restrict first-run movies to downtown theaters (jury found for defendant; plaintiff's argument on appeal was that the judge should have directed verdict in its favor with jury hearing only damages)

Blockburger v. United States, 284 U.S. 299 (decided January 4, 1932): this case is the source of the "Blockburger rule", important in sentencing and Double Jeopardy situations: here, each sale of narcotics, no matter how close in time, held to be a separate offense because each sale had a separate fact

Marine Transit Corp. v. Dreyfus, 284 U.S. 263 (decided January 4, 1932): admiralty courts have power to order arbitration (suit arose when 19,200 bushels of wheat sank into the Erie Canal when ship hit a guide wall; somehow this reminds me of the fact that my grandmother, who lived on the Canal, made noodle soup that was too watery)

[defaultdotxbe]

My grandmother had the opposite problem. When she came here from Germany she didn't speak English and couldn't read directions on the soup can, so when she made condensed soup for my grandfather she didn't add any water. As a result my grandfather complained endlessly that everyone else's soup was too watery.

[Dan Schiavetta]

Ha! that's funny

[bernard11]

My mother had neither problem.

She told us if we didn't like the soup we could make it ourselves. We actually did that, and figured out how to adjust the thickness to our liking, instructions be damned.

[Frank Drackman]

My German mom had a similar problem, we were so poor, she breastfed me condensed milk!!!!!!!!!!!

[StellaLink_the dog]

first you use up all the capital letters and now you go after the exclamation points. leave some for the rest of us, you douche bag[exclamation point].

[wolfefan]

As always, thank you! The Erie case reminded me (obviously) of the Dreyfus Affair, but I like your memory better.

[F.D. Wolf]

In his concurrence in Noel Canning, Justice Scalia described recess appointments as an "anachronism". That may very well be, but that doesn't erase them from the Constitution. (As an aside, I think the largest anachronism in the Constitution is lifetime tenure for judges, and it was already an anachronism in 1787).

Donald Trump made zero recess appointments; the only other president to share that distinction is William Henry Harrison, who died one month into his tenure. The reason is Congress never recessed, discounting the momentary "recesses" on January 3 of each year, when one session of Congress is adjourned, and the second session is instantly commenced.

One wonders if there will ever be a recess appointment again. Likely not for the foreseeable future, at least.

[Dan Schiavetta]

Trump didn't need to make recess appointments because he had a Republican Senate which would rubber stamp any nominee.

Canning arose because the NLRB had become powerless without a quorum, with the Republican Senate, which didn't even want the NLRB to exist, refusing to confirm any Obama nominee. The NLRB had (correctly) ruled that Noel Canning, a Pepsi distributor, had broken the law by refusing to recognize a union. What Canning did was perfectly OK with Republicans. Obama tried to revive the NLRB with recess appointments, and was defeated because the Court held that the Senate is in session whenever it says it is (even though it actually isn't). The holding made the recess appointment clause meaningless; if the Senate is not interested in governing, it can choke the Executive Branch into powerlessness just by not confirming any nominees.

[Krayt]

We love democracy. Until we don't.

Recess appointments are good. I mean bad. Wait, which party controls the senate or the presidency?

[Bored Lawyer]

Principles are like fashion. They change with the times.

[Mr. Bumble]

If that's the case is it really a principle?

[defaultdotxbe]

What one person calls "choking the Executive Branch into powerlessness" another would call "checks and balances."

Of course is reverses depending on who controls the Senate and the Executive Branch.

[David Nieporent]

The holding made the recess appointment clause meaningless; if the Senate is not interested in governing, it can choke the Executive Branch into powerlessness just by not confirming any nominees.

If the holding had come out the other way, the Senate could have done the same thing simply by not recessing or pseudo-recessing.

The recess provision was not intended as a way for the president to circumvent the senate; it was intended a safety valve to allow the president to do stuff when the senate isn't around, in an era when it would have been hard to reconvene them if necessary.

[Sarcastr0]

First, this use was extremely forseable, so I don't know if that is the sole intent.
Second, does intent matter? It's been used to deal with an intransigent Senate since President 1.

I do tend to be a functionalist over a formalist, and this formalistic definition of recesss makes my teeth itch.

[F.D. Wolf]

The NLRB got down to two members in December 2007, with more than a year left in the George W. Bush administration, and it was Senate Democrats who blocked his appointments.

So, what happened after Noel Canning? Did the Senate Republicans say, "Too bad, Obama. No appointments for you, and no NLRB."? No, they negotiated with him, reached compromise on appointments, and confirmed all five of them, which is how "advise and consent" is supposed to work.

[Dan Schiavetta]

The difference is that GWB didn’t care about the NLRB being nonfunctional.

[Mr. Bumble]

Given the gamesmanship and politicization of judicial nominations, do you think doing away with lifetime tenure for judges would improve the current system?

[Krychek_2]

Probably not, but here's something that would: Have a rule that any nominee who hasn't had an up or down Senate vote within a reasonable period (say 6 months) would be deemed confirmed. That way, the Senate would have time to vote down any nominee who is objectionable but would not be able to obstruct just for the purpose of obstructing.

[Dan Schiavetta]

That's a good idea.

It would probably take a Constitutional amendment though.

[Mr. Bumble]

Should that apply to all positions that require "adice and consent" of the Senate or just be limited to judges?

[Dan Schiavetta]

Should apply to the whole clause. Just add the words, "consent to be presumed if no action after six months after formal presentation of the nominee to the Senate".

[Mr. Bumble]

Well, you (we) could hope for it, but given that it would seem to require amendment to happen I don't see much of a chance that it will.

[Krychek_2]

Neither party would support it, because both parties like the idea of being able to obstruct the other guy when he’s in the White House. It’s still a good idea.

And I'm not certain it would require a constitutional amendment. The Constitution says "advise and consent" but it doesn't say *how* the Senate advises and consents. So I think a simple change to the Senate rules would probably be sufficient. But either way, neither party will support it.

[defaultdotxbe]

I was thinking it could likely be done by Senate rule, but an opposition Senate would simply change the rule when their guy isn't in the White House, and then change it back when their guy is in.

As an aside, both parties opposing something is becoming a pretty good indicator that something is a good idea.

[Mr. Bumble]

Congressional "rules" are an oxymoron.

[bernard11]

I don't like this.

Why should a minority of the Senate be allowed to confirm a nominee through delay - and you know they'll find some way to do that.

My own idea is that after a certain period any Senator can call for a vote on a nomination. No other business, including committee meetings, can be carried out, and no salaries paid, until the vote is held.

[David Nieporent]

Why should a minority of the Senate be allowed to confirm a nominee through delay – and you know they’ll find some way to do that.

If you do away with filibusters for all nominations, a minority can't. At any time the majority can vote to reject the nomination.

[defaultdotxbe]

Not if the majority leader is part of the minority that wants to confirm. Then he can just decline to take any action until the nominee is deemed confirmed, even if all 99 other Senators would oppose.

[Bob from Ohio]

"he can just decline to take any action "

A majority leader is not a dictator. If a majority of his caucus wants something, it happens whatever his personal views.

Garland was blocked because the rest of the GOP senators either agreed with Mitch or didn't care.

[Dan Schiavetta]

Garland was blocked because McConnell knew he’d be confirmed.

[defaultdotxbe]

A majority of a majority caucus could still be as small as a 25-senator minority, so Bernard's point still stands.

I also believe captcrisis is correct, if there were little or no risk of Garland getting confirmed by a majority of the Senate there would have been no reason not to give him a vote. So a minority still made the decision over the majority.

[David Nieporent]

No. At any time, 51 senators could have forced a vote on him. They chose not to.

[bernard11]

It looks that way, but the Senate seems to have all sorts of obscure ways to delay action.

Plus, I have a strong preference for forcing legislators to cast actual votes. That's their job. It helps create accountability. Mechanisms that let things happen, or stop them from happening, without votes should be viewed with suspicion, IMO, and avoided where possible.

So given a choice between a rule that compels a vote and one that confirms, or doesn't, without one, I like the former.

[Frank Drackman]

Great Idea! just get 2/3 of House/Senate to approve it, and 3/4 of Legislatures of the "Several States" (or 3/4 0f Conventions, in the Several States, as directed by Congress)
or have 2/3 of State Legislatures vote to convene a Constitutional Convention and approve it there.
Guess they don't teach 11th grade Amurican Government everywhere.

Frank

[defaultdotxbe]

An amendment is the only way to ensure any process will actually be followed, anything done by chamber rules or legislatively will just be changed as soon as it becomes politically inconvenient.

It’s a high, perhaps impossible, bar to clear, but that’s the only way to ensure it’s not subject to the whims of the next Congress. Anything less and you might as well not do anything at all.

[Bob from Ohio]

Still butthurt about Garland I see.

Its a dumb idea. If the opposing party to the president controls the Senate, they will just vote every so often to reject all pending nominees.

[Sarcastr0]

Being pissed off at abuse of process and trying to prevent the same in the future is the normal thing to do. You're out-and-proud lack of a moral compass is the weird thing.

The Republicans didn't vote to reject Garland. Because then none of them are on the record.

I think there are good arguments against this above. You, as usual, miss the entire boat.

[Bob from Ohio]

There was no abuse of process. Nothing in the rules requires a vote on any nomination. In fact, plenty of nominations die without votes, there is even a senate rule on the topic.
For instance:
"In 1992, Bush nominated Roberts to a seat on the U.S. Court of Appeals for the D.C. Circuit, but no Senate vote was held, and Roberts's nomination expired at the end of the 102nd Congress."

Nominations have nothing to do with a "moral compass", right or wrong doesn't enter into it, its just a political process. Obama picked Garland because he thought that would box in the GOP, a "moderate" selection.

[Dan Schiavetta]

Obama picked Garland because the Republican chair of the Judiciary Committee specifically named him as someone they would accept.

[Rev. Arthur L. Kirkland]

"There was no abuse of process. Nothing in the rules requires a vote on any nomination."

Hold that thought for the point at which better Americans enlarge the Supreme Court, in scrupulous compliance with the rules and congruence with ample precedent.

Carry on, clingers. Well, as far as anyone can go with stale, ugly thinking that is unpopular among modern Americans, especially educated Americans.

[Frank Drackman]

Is there some reason Barry Hussein O wasn't impeached for something as Unconstitutional as Ill-legal at Bushwood NLRB appointments?? I'd have impeached him for that Girly-man "First Pitch" he "threw" at a Nationals game, embarrassed Leftie's worldwide.

Frank