Recess Appointments

[maxparrish]

Also take into account whoever Gov. DeWine replaces Vance with in the Senate.

good point. Dewine has tended to be more liberal than the average Republican so who he appoints could be critical.

 

[Rich2018]

What's the betting that Vance will be president within 4 years.

 

[Cordelier]

Well, magical or not because “Officers of the United States” must be appointed by the President “by and with the Advice and Consent of the Senate.” U. S. Const., Art. II, §2, cl. 2. it is the law that assigns and separates the powers between the branchs.

That general rule is subject to one Constitutional exception: “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.” Id., §2, cl. 3.

All these words and their original and formal meaning are not in dispute. To be sure, we use words such as "recess" colloquially but the Constitution has a formal 18th century meaning.

There are 'Sessons' and "the Recess" (not "a recess" but "the Recess". They are distinctly different. Congress meets twice a year in "Sessions" and the period in between is "the Recess". This distinction exists to prevent the President from nullifying the Senates Constitutional role and power in the appointment process during a simple break or adjournment. It recognizes that there is a lengthily gap between Sessions of Congress, for which the President might critically need the advice and assistance of an official. And if there is a vacancy "that happens" in that period the exception applies.

The 10 day rule is solely an invention of modern courts, and not even a logical one. The whole point of the Constitutional clause is to cover was used to be a very long period between sessions. It was not made to address something as brief as 10 days because there is NO reason to rush through a vacancy and avoid the confirmation process because the Senate doesn't meet for a 10 day period. Perhaps a 30, 60, or 90 day rule but not one that allows a President a way to ignore the right to confirm.

Since Article I §5 states that "Each House may determine the Rules of its Proceedings...", is it not up to Congress what does and what does not constitute "the Recess"?

Remember, it wasn't at all unusual before the 1950's for Congress to have more than 2 sessions.

i know the 10 day rule is arbitrary, but the Supreme Court had to draw the line somewhere to avoid a repeat of 1903. Ten days gives Congress ample opportunity to muster a quorum, assuming it was disposed to block the recess appointment.

 

[Cordelier]

good point. Dewine has tended to be more liberal than the average Republican so who he appoints could be critical.

Whoever he picks is bound to be an improvement from Vance.

 

[Rexedgar]

Whoever he picks is bound to be an improvement from Vance.

FL is getting a new Senator as well, rumors of in-law nepotism are rife.

“It’s never happened before,” is like pulling the covers over your head when your house is being burglared, IMO.

 

[Cordelier]

FL is getting a new Senator as well, rumors of in-law nepotism are rife.

“It’s never happened before,” is like pulling the covers over your head when your house is being burglared, IMO.

Florida is a lost cause... I've still got hope for some sensibility from Ohio, though.

Saying "It's never happened before" is like waving a muleta at a bull to these Trump third-cheekers.

 

[maxparrish]

Since Article I §5 states that "Each House may determine the Rules of its Proceedings...", is it not up to Congress what does and what does not constitute "the Recess"?

So the power to make administrative rules means the House can "rule out" the constitution's explicit requirements? I don't see how, any more than rules could change the meaning of any clause or amendment.

Besides, structurally it only makes sense that the President be given the power to make temporary recess appointments WHEN the gap between sessions does not allow him to fill necessary positions through Senate advice and consent. It also makes sense that when the Senate says "NO" it means no, not that the President can keep it vacant and fill it with the rejected nomination.

The 10 day rule is not just arbitrary, it grants the President far more power than the constitution permits. No one can seriously advance the notion that a mere 10 days constitutes "the Recess". The President does not have the power simply because there is a break for 10 days. A vacancy occurring during a break of 30 days or 45 days is at least reasonable.

I am fairly certain this was a case where the court majority (Kennedy being the usual swing vote) wished to rule, as gently as possible, against Obama taking advantage of a 3 day break. Either that or judicial liberalism no longer represents limiting executive power and protecting the people's representatives and their prerogatives.

Now that Trump is in power, we can better appreciate WHY the constitution had its protection of the separation of power. And let us hope if Trump gets his way in vacancy appointments of these horrible choices, the court may get another shot at correcting their error.

 

[Rich2018]

Whoever he picks is bound to be an improvement from Vance.

The man who'll be president within 4 years.

 

[Cordelier]

@maxparrish - I'd say the Constitution is purposely ambiguous as to what qualifies as a "recess" - just as the 2nd Amendment is ambiguous as to what constitutes a "well regulated Militia". It's ambiguous so as to not handcuff future Congresses from enacting the legislation they feel to be "necessary and proper" for their day and age.

 

[Cordelier]

The man who'll be president within 4 years.

Que sera, sera.

 

[Rich2018]

Que sera, sera.

Plus ca change....