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

[JoeFromtheBronx]

The Recess Clause was a sensible addition in the days when Congress was out of session for long periods & it would be complicated to immediately reconvene. Today, it is more anachronistic and liable to be used in this fashion.

The gamesmanship is evident in the use of pro forma sessions, which are often around a minute long, resulting in no recess. The House of Representatives takes a bit longer than the Senate, regularly including a prayer and the saying of the Pledge of Allegiance. That makes it around five minutes.

The Supreme Court held that those counted. President Obama argued they were fictional in respect to the Senate's advice and consent function.

The NLRB lacked a quorum when President Obama made these appointments (two Democrats and a Republican). The five-member board required a quorum of three members, but it had dwindled to two. So, at least one was necessary for it to function.

Was this because of a presidential delay in appointments? No. The dynamics are regularly skipped over, resulting in an incomplete understanding of the events. A sort of legal fiction, let's say.

The whole thing was mixed in with the filibuster and Republican blockage of Obama nominees, repeatedly simply because they didn't want anyone confirmed. Obama's reply was a check-and-balance mechanism.

The overall result, rightly so, was that the Senate ended the filibuster for most executive nominations. The whole thing was completed a few years later when the filibuster was ended for all judicial nominees, including the Supreme Court. Blue slips remained as a quasi-filibuster. Also, forcing a vote on every little nomination can also result in a quasi-filibuster.

The Supreme Court unanimously rejected the president's move but split on the reach of the clause. On that, the original understanding was split, and five justices took a "history and tradition" approach that applied it to intrasession (within a session) recesses.

https://www.scotusblog.com/2014/01/analysis-the-original-understanding-of-the-presidents-recess-appointment-power/

(The citation to "hundreds of pages of briefing" is telling. Originalists spend lots of verbiage, and it results in limited light.)

[Darwinnie]

Unconstitutional for thee but not for me.

[TLoro]

https://science.slashdot.org/story/26/01/03/2114246/what-happened-when-alaskas-court-system-tried-answering-questions-with-an-ai-chatbot

[Frank Drackman]

Impeach 44!!!!!

[lersahuynna]

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