Yes, these are terse moments.

WSJ today had a piece on pg. A14 stating that NLRB was intent on ignoring the court’s decision beyond the immediate Noel Canning case, which was its focus. That is, NLRB would conduct business as usual elsewhere, NLRB would continue to function, and it would not recognize constraints beyond Canning.

That sounds reassuring at first. However, the danger there is that other similar cases are in the mill, and if recess appointees act in an NLRB capacity everything from their pay to adverse impacts on losing litigants could be called into question, and the appointees could be deemed without authority and individually liable.

So it’s a good the Administration is getting this back to court post haste. But what comes next there?

virtually eliminate the recess appointment power for all future presidents

Obama seems surprised. The Washington Post predicted it over a year ago.

President Obama’s flagrant violation of the Constitution not only will damage relations with Congress for years to come but will ultimately weaken the office of the presidency.

http://articles.washingtonpost.com/2012-01-05/opinions/35438016_1_senate-recess-senate-session-richard-cordray

The Democrats got steamrolled by their Republican mates on these judicial appts., quite a few years ago, and now the conservative vultures are home and roosting in the courts of our nation’s capital. And, they aren’t leaving without a fight. Of course, this is why these people were put in place to begin with. Lifetime work, too. Good luck with this battle, Mr. President. Our three branches of gov’t were purchased long before you got there. And, your appeasement and bipartisanship didn’t help matters. This is what it feels like to be Porked by Bjork and Co.

How odd that the WSJ did not write that article about Bush the Lesser, whose number of recess appointments make Obama’s number pale in comparison.

No kidding. In fact, the 4th’s opinion — written by David Sentelle, a longtime GOP/conservative partisan who gleefully facilitated Ken Starr’s every more during Coupgate (aka the get-Clinton witchhunt of the late 1990s) — is a massive case of judicial overreach that would never have occurred had its target had an “R” after his name.

The WaPo (aka Fred Hiatt) hates Obama because he doesn’t kiss Netanyahu’s feet with enough gusto, but even Hiatt can’t like the fact that, should the US ever elect another (officially) Republican president, that person won’t have the recess appointment power to use.

Or did that occur to you in your moment of gloating?

Good point.

In recent years, President Clinton made 139 recess appointments and President Bush made 171. Obama has made 32 recess appointments.

The landmark ruling found that: a) there is only one recess session per year and b) the Senate was not in recess.

So since these were unconstitutional, we can bump Obama down to 29. I guess maybe the WSJ wasn’t so interested in the numbers but the legality.

Not a gloat, but yes – “will ultimately weaken the office of the presidency” – not just this one.

Here’s some real gloat (not mine):

Obama and the Democrats have no one but themselves to blame for this embarrassing political turn of events. It was the Democrats who created the sham pro forma parliamentary procedure to keep the Senate “in session” to prevent former President Bush from making recess appointments. Bush honored the administrative procedure; however Obama charged ahead and ignored the tactic created by his own party.

As to nominations and recess appointments, Article II, Section 2, paragraphs 2 and 3 of the Constitution state:

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

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.

Of course, several things have happened since those words were written:

1. Political parties were formed, whereas none existed in the U.S. in 1789.

2. Senate rules, including the filibuster rules, were written, whereas the Constitution seems to assume that action by a majority would suffice, that majority consisting of half the Senators plus one vote, with the Vice President casting a tie breaking vote, if necessary.

3. Members of both major political parties began putting other considerations ahead of the good of the country.

4. More offices requiring Senate advice and consent were created than the Framers could possibly have imagined.

5. The Senate began pretending it was always in session.

6. Billionaire puppeteers like the Koch brothers and lobbyists have far more influence over elected officials than any private individual should have, a situation not contemplated by the Framers.

I do believe the the hundreds of “recess” appointments Presidents since at least Reagan (240) have made subvert the Constitution. However, IMO, the court should not have purported to address Presidential violations of Article II without also addressing the Senate pretense of always being in session and some of the other issues ennumerated above.

Isn’t simply amazing how Republicans “steamroll” the Democrats, whether the Republicans are in the majority or the minority?

What would a person who gives that some thought conclude about the role of Democrats in their own “steamrolling?”

Well now, in the larger scheme of things we have “had” decades of Executive supremacy, (over the “power” to “declare” and “wage” war, begun by the conundrum of nuclear weapons, the “need” of “secrecy”, the opportune occurrence of 9-11 and the “formation” of the “Homeland”), branch #1, coupled to decades of “bipartisan” legislative cowardice, the unwillingness to engage in “oversight”, in responsible governance, and intentional “cover the asses with anonymity, (note recent Senate circus and pronounced Democratic Party Senate leadership cowardice …), branch # 2, coupled with egregious judicial overreach extending backwards into time to, say “personhood” for corporations determined by a court “clerk”, to such Dred Scott-territory decisions as Citizens United, branch # 3, stir in some haughty hubris from the Wall Street too-big-to-jail Banksters, add a pinch, just a “bit”, mind you, of “legal” torture, the willingness of all branches, #1, #2, and most especially #3, to do away with the inconvenience of the Rule of Law and respect for International Law … and whip in a large dollop of FEAR, endless “Wars” on drugs, terrorism, reason and justice, stir in more money to buy the “best government possible, undermine education, destroy unions, privatize the commons, and profit, socialize risk and the cost of all bailouts and “austerity” … and voila! … you have a situation no one coulda anticipated.

One notes, of late, the return of that simple old “Good guys and bad guys” tale where the shining Knights, pure of heart and eleventy-’leven chess-masterly virtue, have, somehow, been outsmarted, outgunned, and out-maneuvered by the very evil bad guys who could, not all that long ago, been put to rout, been consigned to the dustbin of history … had they not been rescued by refusals to “criminalize policy differences” (which turned out NOT to be different at all) and the insistence that the only way to “look” … was “forward”.

Were it not all such cunning kabuki, were the perilous state of the environment not portending an unpleasant extinction, why, then the good times would roll …

A Brit friend of mine uses the expression “Too clever by half …”, to describe the behaviors of sociopaths who have no idea of when “enough is enough” and end up caught on the sharp, and very public, horns of dilemma … one wonders, therefore, if there might not be, heaven forfend, some applicability of that “too clever” perspective to the events which now reveal a deeper dilemma which ALL of us must face: Should we just keep going with “more of the same”, or is it time, even past time, to consider that a fundamental change is required?

Dithering druthers!

Are the “branches”, three, in shrubbish conflict?

Has the Republic been lost?

Is empire gone?

Has the Sun set?

Do brooks yet babble,

Do birds yet sing?

Is all lost,

gone …

everything?

DW

St. Ronnie made 240 recess appointments.

Superb, excellent, and most thoughtful comment, nixonclinbushbama.

DW

I knew their bumbling on the filibuster was going to come back and bite them in the ass. How come they didn’t’ know it?

Maybe the government sent a bad lawyer………

Thank you DW.

They knew. They did not care.

The conventional wisdom in both houses of Congress is that you never lose an election because of things that do not get done. You lose elections only because of things that do get done.

Ergo, Senate members of both parties loves them some gridlock, secret holds, inability to get bills to the floor, etc.

They feel these things protect their personal interests in re-election. Ergo, the nation can pound sand.

Funny you should say that. I just started reading the opinion, the very beginning where the Court says which briefs were filed.

The Republican Senators filed an amicus brief, as did the House Republicans in support of Canning. Neither the Democratic Senators nor the the Democratic House members filed a brief in support of the NLRB. They did not participate at all.

Can someone advise me as to how a Senate controlled by the President’s own party stays in pro-forma session? Doesn’t the Senate make its own rules and control its own schedule as the House does? If so, doesn’t a majority of the Senate control the Senate? In other words, why can’t Reid adjourn and let Obama make these appointments? How can the Republicans force the Senate to stay in pro-forma session if the Democrats oppose it?

Sorry – one more thing – why aren’t the Democrats raising hell about this every day in the press? You the GOP will when they get the White House back.

Doesn’t the Senate make its own rules and control its own schedule as the House does?

Actually, no.

Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session (e.g. pro-forma) every few days.

Well, for that matter, Thad Stevens (which is covered Article I section 5 … especially paragraph 2 of that “quaint piece of paper” …”Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.” paragraph 3 … and paragraph 4 … “Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting”) …

How does the Executive evade section 8 of Article I?

Especially paragraphs, 11, 12,14, and 18.

11, given what is going on at Guantanamo and the use of drones (and the currently claimed “authority” that Article II (it is claimed) gives the Executive lethal decision power in the use of drone assassination) is most interesting: (Congress shall have the power) “11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.”

Unfortunately, the Constitution, at this time, is neither operating, respected, nor much lamented in its passing.

DW

Game, set, and match to NCBO. :-)

They likely are, but it’s amazing what the press chooses to cover. Mitch McConnell seems to get much more from the corporate press in the way of respect (not to mention column inches) than does Harry Reid. There’s a reason I call it “the GOP/Media Complex”.

I think the republicans are the “steamrollers” and the democrats are the “steamrollees.”

THis whole mess could be cleared up if WH appointments MUST be given an “up or down” within, say 120 days, or they are automatically approved. I figured that out and I am not a rocket scientist. But, I did stay at a Holiday Express last night in Mesquite.

You mean like the imbecile they sent for ACA hearing.

Why would they make THAT mistake again?

P.s. That’s a rhetorical question. :-)

Even given the requirement of Article I regarding adjournment, Reid can adjourn for three days. There is no reason why Obama could not have made his recess appointments within those three days. However, Article II of the Constitution also requires that the vacancy have arisen while the Senate was adjourned.

I posted the recess appointment provision of Article II above.

Yes, PW, Reid and his upstanding Senate cronies (wanting their due anonymity) have been behaving so courageously and with such foresight as regards the filibuster, it’s a pity we don’t know more about it.

Just like we should know more about the “authorization” for drone assassinations, but, well, media bias and all …

And, pore ole Max Baucus, now being brutally maligned (even the role of Prez, in that little “misunderstanding” over the “cliff” has been mentioned on Bill Moyers), while Hatch and McConnell are studiously ignored regarding their choreographed parts in the Amgen “subsidy” back-room “fling”.

Nasty old GOP/Media Complex.

Yes, we must lament the lack of coverage, considering what “the people” might come to understand if it weren’t for those mean old Republicans, the secrecy they insist upon, their chilling clamp-down on Occupy, and their insistence upon spying on the mass of law-abiding citizens.

Yep.

And to think, had not “looking forward” and the decision to not “criminalize policy differences”, not been forced on the Democrats …

Them damned stupid Republicans and the GOP/M Complex.

Woulda been history.

Watch the snark, please. It bites.

DW

I do not disagree. It appears to me that the democrats prefer to fly under the radar. Useless and clueless I say. While the republicans walk around DC with an entourage, a marching band, and twirlers.

If I may, you’re saying tha Obama and Reid just haven’t been on the same page about this?

It appears to me that Obama’s biggest failure is that he hasn’t learned how to BE president. Wher do you come down on that issue? I value your opinion.

I don’t think one party can be steamrolled when it is in the majority and also when it is in the majority without helping the alleged “steamrollers.”

As to your proposed solution to the problem, that is not what the Constitution says. The Senate could, I suppose, make a rule to that effect, but it won’t do that.

Excellent!!! Nail + head.

Who ya got in the Super Bowl???

No that is not what I am saying. I was pointing out what the Constitution says about recess appointments.

Well, then we must expect Reid to stand up and say, “Hey, we were adjourned, and those appointments are proper.”

I’ve no problem with that, ncbb, and honest “separation” should cover it.

If Reid so asserts, then even SCOTUS will not waltz in …

Secretly, I am hoping that actual separation might be revitalized, that especially the Legislative branch and the Judicial branch might shake off their acquiescent position and behave as they should … oversight on the part of Congress and far less genuflection on the part of the courts to assertions of “National Security”.

Check and Balances, long overdue.

I am however, far from sanguine in those hopes, such jockeying as we see is likely not intended to benefit the people, the Rule of Law, or civil society … just more infighting for perceived “spoils”.

I suspect, things are just about as “fixed” as possible.

Time for substantive, principled change?

I consider it to be so.

DW

Sorry, I posted before I saw that you were asking for my opinion on whether Obama has learned to be President.

I would say yes as to some things and no as to other things.

I think Democrats who are more liberal than Obama tend to assume that Obama is trying to achieve liberal things. So, they think he fails again and again.

I don’t happen to think he is seeking liberal things. For example, I don’t think that he wanted to raise taxes in December 2010. So, I did not see him as folding or caving for too little in that alleged compromise with the Senate minority leader. I think he pretty much got exactly what he wanted.

Has Obama learned to wheel and deal as LBJ did? No, I don’t think he has. Then again, as I said, I am not sure he wants to. I think he agrees with Republicans quite often.

I must have been unclear because two posters misunderstood me.

This is not only between Reid and Obama. The Constitution requires two things. Obama and Reid, working together, can control only one of those two things.

Requirement 1.

The Constitution requires that the vacancy occur while the Senate is in recess. Now, it is possible that can be controlled if the person leaving cooperates with both Reid and the President. However, if the person leaving is a loyal Republican, he or she may not agree to cooperate. Also, if the vacancy occurs because of death, no one can control that timing.

Requirement 2.

The Constitution requires that the recess appointment be made while the Senate is in recess. Reid and the President can control that, if they work together. And if the person leaving is cooperating, too, everything could even be done within the same three day period.

Thing is, Presidents were just ignoring the Constitution entirely.

I don’t know whose “gloat” that is, but Bush did not observe the Constitution when it came to recess appointments. It’s only that no one sued over it while he was in office.

I can’t think of any, perhaps you could cite an instance?

The Constitution:

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.

What part of “not observe the Constitution” were you refering to?

We are on precisely the same page.

Presidents (for quite some time) were just ignoring the Constitution entirely, even completely, if we factor in other considerations all too apparent to any who care to look. That the other “branches” have, too often, been cowardly, if profitably, complicit in the kabuki, is also obvious.

Your comments are very much and thoroughly appreciated, ncbb.

DW

Hi, DW, I’m glad you are enjoying the conversations.
Just wanted to note that many people, myself included, read a lot of posts that we don’t comment on.
It’s just that many don’t know what to add to the conversation. Or, may feel that their voice isn’t important. Do you understand what I’m saying?
I hope you hear me.
I kind of get tired of hearing that if no one is commenting, they don’t care and part of the mass who are taking this country down.
Best wishes to you.

Thank you. For me, I can’t make up my mind.

Ahhh, my waiter is here. Gotta go.

“Two Dos Equis please.”
“What?”
“That IS my lunch order.”

Lots o’ good people here. Sometimes restores my hope for the country. Other times?????

My lunch is here, gotta go.

I appreciate most everyone’s comments, demi, yours among them.

Many times I do not comment, either, when reading posts I value and appreciate.

Some of the time I haven’t time to comment, other times I’ve not the time to comment as the post or comments upon it deserve.

I do, however, try to hit the “recommend” button on “my FDL” posts.

Everyone’s voice is important, is that not what democracy is all about? Is that not what all of us consider to be so?

Where do you see me suggest that not commenting is a problem?

If you read something that you do not feel comfortable commenting upon that is NOT the same as being too uncomfortable or simply unwilling to read it.

Even if the topic is appalling or records appalling things done in everyone’s name, reading it, considering it, even talking about it to others is far more important than a mere passing comment.

I don’t know who has said that not commenting is “taking this country down”?

Would you care to enlighten me?

You, always, have both my best wishes and my respect, demi, even if we might disagree about specific things, as honest friends might and on occasion, do. However, I am perplexed by you comment, and hope you might be willing to share with me, more fully, your concerns, that I might come to better understand those concerns.

Namaste

DW

x2

Oh, DW, I wish I could find the comment about folks Not Caring, but I can’t at this time. Looking up, looking down, can’t find it.
Maybe it was in the dish with newcarguy’s lunch.
I hit recommend also too.
All best.