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The appeals court ruling (by three Republican-appointed judges) that President Barack Obama's recess appointments to the National Labor Relations Board were unconstitutional would have huge ramifications if upheld. Two of the big ones: Every decision made by the NLRB in the year since the recess appointments would be invalidated, because it was only the recess appointments that gave the NLRB the quorum it needed to continue functioning at all, and oh yeah, there would be almost no circumstances under which presidents could make recess appointments going forward.

For now, the NLRB is going to continue functioning under the assumption that the ruling will be overturned. If it's upheld by the Supreme Court, though:

Such a ruling would mean all the board’s decisions since January 2012 are invalid—every court would have to recognize that the rulings were made by a board that lacked proper constitutional authority.

It would also prevent the board from making further rulings until Obama appoints at least two new sitting members and lawmakers confirm them. At least three members are necessary to make a quorum, and all but one right now were appointed while the Senate was on break.

That's more than 200 NLRB decisions hinging on the Supreme Court. Led by John Roberts. But it's not just Obama's appointments that would be challenged by this ruling, which says that recess appointments can only be made if a position comes open while the Senate is in recess, not for positions that are open at the time the Senate goes into recess.
If the Washington court ruling is upheld by the U.S. Supreme Court, then it may mean the Senate has always had the power to block recess appointments, according to Edward Hartnett, a constitutional law professor at Seton Hall University.

“To conclude the D.C. circuit is right you’d have to conclude that presidents dating back to at least James Madison have been wrong,” Hartnett said in a telephone interview. “For a practice that presidents have engaged in since close to founding of our nation, it’s hard to conclude that all acted unconstitutionally.”

Obama, by the way, has made just 32 recess appointments, while George W. Bush made 171 and Bill Clinton made 139.

Originally posted to Daily Kos Labor on Mon Jan 28, 2013 at 07:55 AM PST.

Also republished by In Support of Labor and Unions and Daily Kos.

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Comment Preferences

  •  Will likely be appealed to the en banc... (4+ / 0-)

    ...D.C. Circuit panel rather quickly; they may overturn before it gets ot the Supreme Court.  The real issue here is whether the Senate is actually ever in recess, as the Republican minority has been careful over the last few years to gavel in a pro-forma session of the Senate every few days.  The Constitution allows the President to make appointments during "the" recess of the Senate, which the plaintiffs in this case argue is a single time period, and not any time the Senate is in recess.  For a group that pilloried Bill Clinton for framing an answer on what the meaning of "is" is, it is wildly ironic that they base their case on what the meaning of "the" is.

    The road to Hell is paved with pragmatism.

    by TheOrchid on Mon Jan 28, 2013 at 08:17:41 AM PST

    •  You do know that the Democrats invented (7+ / 0-)

      the "pro forma" process in 2007 to keep President Bush from making recess appointments?  

      Anyway, I'm not sure the DC Circuit or the SCOTUS are gong to start looking at Senate and House rules to see when the Senate is in recess.  I would think that either (1) "the Recess" under the Recess Appointments Clause has a specific constitutional meaning (and the ruling says "we can't see anything in the Constitution to show that it means anything other than the intersession recess); or (2) "the Recess" means when the Senate, under its rules, considers itself in recess, which is a much narrower ruling but means that Senate Democrats were correct in 2007 and the President loses on the NLRB and Coudray appointments, but it doesn't invalidate any others.

      •  This ruling will hold until... (1+ / 0-)
        Recommended by:
        LordMike

        a republicon pResident is in office.  This pResident will then make a "recess" appointment and challenge the opposition,"you don't like it... so sue me."

        The oppo will either drop the issue or chllenge it in court.  The court will either completely reverse the previous ruling or more likely say that this "recess" exactly satisfied the requirements for a lawful "recess" appointment and their republicon pResident acted within his constitutional powers.

        So suck on it you stinking liberals (may or may not be explicit in the court ruling).

        I screwed up with a careless uprate so I'm a "No Rate" pariah. When I give a comment "+4 n/t", please consider that a recommend. (That's my workaround to participate here). DK haiku, one complete thought in a title field. Roar louder! NR since 3/7/12.

        by Josiah Bartlett on Mon Jan 28, 2013 at 11:06:59 AM PST

        [ Parent ]

        •  Or the court will look at whether there was a (0+ / 0-)

          provision in the pattern of adjournments and gavelings which precluded the Senate from doing any work. If there was, then the question will be come not what 'the' means but what 'recess' means, based on whether any work of the Senate can be done.  Yes, I know this means that the Rs will resolve this by naming post offices in the break.

          •  IOKIYAR of course. . . . +4 n/t (0+ / 0-)

            I screwed up with a careless uprate so I'm a "No Rate" pariah. When I give a comment "+4 n/t", please consider that a recommend. (That's my workaround to participate here). DK haiku, one complete thought in a title field. Roar louder! NR since 3/7/12.

            by Josiah Bartlett on Mon Jan 28, 2013 at 05:34:42 PM PST

            [ Parent ]

    •  I don't think they go en banc (1+ / 0-)
      Recommended by:
      coffeetalk

      Takes too long, and you'd need all five other active judges agreeing to overturn.  Straight to the Supremes.

    •  No percentage in that (0+ / 0-)

      Might as well go straight to Supremes.

  •  There's the possibility that the SCOTUS (6+ / 0-)

    make cut back on this ruling some, but still hold that the NLRB appointments were unconstitutional, of course.

    The decision said interpreted "the Recess" in the Recess Appointments Clause of the Constitution to mean the intersession recess -- between sessions of Congress.  That broad ruling may go down.

    But there's a fallback interpretation of "the Recess" in the Recess Appointments Clause, and that is that the Congress is in recess when the rules of the House and the Senate say they are in recess.  They could base that on the fact that the Constitution gives the House and the Senate the sole power to make their own rules, thus making their rules essentially a political question that the courts cannot second guess. And that would mean that every other recess appointment was constitutional except the President's NLRB and Coudray appointments.

    President Obama's appointments were unique -- and a stretch of presidential power under the Constitution -- in that, while the rules of the House and the Senate meant that the Senate was not in recess, the President unilaterally determined the Senate WAS in recess and made the recess appointments.  The Senate was not in recess because the House was conducting the pro-forma sessions every three days, and the Constitution says that "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."  

    The President was clearly aware of the argument that the pro-forma sessions kept the Senate from being in recess because he was in the Senate when the Senate Democrats invented the "pro-forma" process in 2007 to keep President Bush from making recess appointments.

    The SCOTUS could say that the Constitution does not define "the Recess," so it happens when the rules of the Senate say they are in recess. That means the President loses, but all prior recess appointments were constitutional.  

    For the President to win, the SCOTUS has to say that the President has unilateral power to decide for himself when the Senate is in recess and can make an appointment whenever he considers the Senate to be in recess.  That ruling, of course, is fraught with danger -- future presidents (as this ruling explained) could simply hold controversial appointments, wait for the Senate to adjourn for the evening, or for a weekend, and declare a recess appointment, gutting the Constitutional requirement of advise and consent.

    It's not as simple as "either these appointments are constitutional, or the majority of appointments in the last hundred years are unconstitutional." There's a clear middle ground.  It depends on how the SCOTUS reads the words "the Recess" in the Recess Appointments Clause of the Constitution.  

    •  Let's simplify this. (6+ / 0-)

      The DC Circuit made two holdings:
      1.  Recess power can only be used for vacancies which are initiated during a recess.
      2.  Because of the pro forma sessions, this wasn't a recess.

      The Supremes could agree on #2 without agreeing on the more radical #1, strike down these appointments while otherwise affirming some realistic recess appointment power.

      •  You said it better. (6+ / 0-)

        I would add to #1 "and a recess is only intersession."

        I suspect option #2 is more likely, if I had to make a guess.  

      •  This is where I see it going and agree with you (0+ / 0-)

        I think they will affirm recess powers but nullify said recess appointments.

        Will be interesting though to see where Kennedy will put himself in that question.

        --Enlighten the people, generally, and tyranny and oppressions of body and mind will vanish like spirits at the dawn of day. - Thomas Jefferson--

        by idbecrazyif on Mon Jan 28, 2013 at 08:43:19 AM PST

        [ Parent ]

      •  They could also decide... (0+ / 0-)

        that "Pro Forma sessions were really meaningless but were a good bluff that worked for a few years until President Obama challenged it."

        And a pony.

        I screwed up with a careless uprate so I'm a "No Rate" pariah. When I give a comment "+4 n/t", please consider that a recommend. (That's my workaround to participate here). DK haiku, one complete thought in a title field. Roar louder! NR since 3/7/12.

        by Josiah Bartlett on Mon Jan 28, 2013 at 11:13:21 AM PST

        [ Parent ]

      •  But even so... (0+ / 0-)

        The question still remains, "what is a recess?"

        "pro forma" sessions are not actual sessions as no business is ever conducted during these sessions. So if there is no business conducted then that in itself could be considered a "recess".

        To avoid a "recess" the Congress must be able to conduct business on any particular day. The whole concept of having "recess appointments" is because the Congress is unable to approve an appointment at a particular time. Tying up the Executive or Judicial appointments by Congress not being able to conduct business is the reason for these recess appointments in the Constitution. That is the reason for it being there.

        Semantics aside, Congress really shouldn't be trying to play this game. It is more likely to bite them in the ass. They have been playing fast and loose with the legal wordings surrounding the Congress for decades. Letting the SCOTUS decide how the Congress is to operate is asking for trouble.

        "I think it's the duty of the comedian to find out where the line is drawn and cross it deliberately." -- George Carlin, Satirical Comic,(1937-2008)

        by Wynter on Wed Jan 30, 2013 at 04:54:44 AM PST

        [ Parent ]

        •  Wynter - its the executive branch that is game (0+ / 0-)

          playing. The Constitution requires that the President's appointments be approved by the Senate. The recess feature was put in place when the Senate would be in recess for months at a time. It was never contemplated that it would be used to end run the confirmation process which has been routinely done for at least 70 years that I am aware of. Obtaining approval of Presidential appointments is an issue of politics, not law. I think the SCOTUS will state that the Congress is in recess when it says it is, and isn't in recess unless it says it is, and Congress decides the recess issue, not the POTUS. It will not declare, as the DC Court did, that recess appointments can only be made between session of Congress, but will affirm that the appointments made while Congress was in pro-forma session are not valid.

          "let's talk about that"

          by VClib on Wed Jan 30, 2013 at 08:02:55 PM PST

          [ Parent ]

    •  the INTENT of the pro forma sessions (0+ / 0-)

      is an issue that might carry weight, especially when it comes to the constitutional role of "advise and consent" being blocked by these pro forma actions.

      When there are so many 'secret holds' and filibusters preventing actions and votes on nominees, and when even in the judiciary, there are more than 80 federal judgeships presently vacant, in large part because a few senators have decided to sabotage everything Obama does, then matters of intent and procedure seem worthy of significant and prompt consideration by the Supremes.

      "We must not confuse absolutism for principle." - Barack Obama

      by Beastly Fool on Wed Jan 30, 2013 at 10:05:29 AM PST

      [ Parent ]

  •  Is it possible (0+ / 0-)

    that one or more of these three Appeals court justices were recess appointments by Republicans?

  •  Just scratching the surface of the ramifications.. (0+ / 0-)

    Having a scandal fresh in the minds of Massachusetts citizens over a corrupt crime lab worker, and the fact that HUNDREDS of criminal cases will have to be thrown out or retried, the concept of just how deep this mess can go is all too clear.

    First, I'd love to get this ONE THING cleared up.

    Riddle me this Batman: Since Harry Reid and the democrats run the Senate, how is it possible that the Senate "recessing" procedures are/were not followed to facilitate the Democratic President of the United States being able to make completely unquestioned recess appointments?

    I can see a Republican Senate playing games with a Democratic President, but weren't they supposed to be on OUR side?

    ***

    Now for the reality. Any and all Federal Judges on the bench as recess appointments... all the way back to Johnson (any earlier than that would be dead by now, yes?) would have to be tossed off the bench immediately. Any and all cases they ever ruled on would have to be voided. Any and all criminal convictions would have to be reversed, and any and all civil judgments voided.

    Then, if you survive that furor, you can move on to all commission and agency rulings and actions made by illegal appointee's over the decades.

    OR

    You can hurry the fuck up and have Scotus sort this out immediately before we have to tear the whole justice system apart to clean up the mess.

    To engage in the level of turmoil and expense we face over the clear game of semantics of "well, we weren't REALLY recessed, even though 99 of the 100 were off at home for weeks on vacation" nonsense is just insane.

    I'm beginning to think Uncle Joe (Stalin, not Biden) had it right all along, on how to properly manage governmental malfeasance.

    •  Good ole Harry invented the pro forma sessions to (1+ / 0-)
      Recommended by:
      The Jester

      block any Bush appointments during his last two years.  Harry must have been to proud of it to speak out,

    •  You're way off base (2+ / 0-)
      Recommended by:
      IreGyre, The Jester
      Riddle me this Batman: Since Harry Reid and the democrats run the Senate, how is it possible that the Senate "recessing" procedures are/were not followed to facilitate the Democratic President of the United States being able to make completely unquestioned recess appointments?
      Because the House did not recess, which means that it is unconstitutional for the Senate to do so.
      Any and all Federal Judges on the bench as recess appointments... all the way back to Johnson (any earlier than that would be dead by now, yes?) would have to be tossed off the bench immediately.
      Recess appointments only last until the beginning of the next Congress.
      Any and all cases they ever ruled on would have to be voided. Any and all criminal convictions would have to be reversed, and any and all civil judgments voided.
      No. That's not how court rulings work. They aren't retroactive. (With a few exceptions: if a law itself is found unconstitutional, and it's the only reason that you are in jail, then you are now free to go. But you are not retroactively freed from having served time in jail, and you can't sue the state for false imprisonment. If your judge is found to have never completed law school, you don't get a new trial unless another judge finds that he made egregious errors in your old one.)

      The reason this ruling would reverse all of the rulings of the decisions made by the labor board is because their appointment is specifically the one that has been challenged in court. It's as simple as that.

      The much more interesting thing going on here isn't even related to this lawsuit. It is the Republicans seeing if they can get away with blocking a President's nominations with absolutely no political repercussions. And it turns out that they can.

      If Justice Thomas were to drop dead next week, I do not rule out the possibility that the Senate wouldn't allow him to replace him. Ever. I believe that we could potentially be stuck with eight (then seven, then six...) justices until the next time there was a Republican president to nominate one. It's absolutely certain that we will never see an appointment to either of the two seats at question here that isn't done by a Republican, unless somehow we end up with a 60-seat majority in the Senate again.

      Why not? There is obviously literally no political downside, and there's a huge upside to their supporters...

  •  My guess is that whatever court hears this next, (0+ / 0-)

    and there will be one, will have to deal with the problem that this is a very old process, not one invented by O, and what consequences of the choice they make will be. Is the result that all work done by those appointed in recess that does not meet their current decision will be invalidated, or only prospectively. If they dont go prospectively only, then they will have the ungodly mess of having all of government unscramble now unauthorized acts, and restructuring the entire legal world going back decades if not longer. That is part of their choice, now that this decision has been rendered,  and it seems unlikely to me that they will choose to undo everything beause it will be them as have to make all those rulings. And in this one, they will have to figure out what the effect is of the ALJ ruling when the process followed has made enforcement impossible for the present.

    •  I hope the Supremes... (1+ / 0-)
      Recommended by:
      basket

      realize the lower court overstepped it's bounds and reverses this decision---is this topic, of recess appointment powers, a nonjusticiable "political question?"

      This is not my area of expertise but that was my first impression.

  •  While you smart folks (0+ / 0-)

    discuss the constitutional implications of the recess appts, being overturned, I am sweating blood about the workers and their unions who just got reamed.  Here are some random samples of NLRB decisions during 2012 that will likely be voided and will be reheard ---- someday.

    Woodcrest Health:  SEIU 1199 cleanly won an election for over 200 workers.  The employer appealed on technicalities  but the "recess appt" NLRB turned the employer down.  That decision may be voided. So this clear union victory will drift back into the appeals process.

    Central Packing:  Teamsters #25 in Boston won a majority of votes at this 300-worker company.  Again, since the voided NLRB upheld the union against the boss's objections,  the status of this union victory again becomes uncertain.

    Brusco Tug--The union has been trying to get an election there for 11 years, but the latest voided NLRB decision will throw it back into limbo.

    Austal/Sheetmetal workers:  The union's been trying to get an election here, also enduring eleven years of NLRB decisions, but if the latest decision is voided, they're gonna wait some more.

    !st Student/Oregon School Employees Association.  The boss has been withholding raises and IRA payments for over 2 years, following a union victory. Guss the workers better wait another 2 years for a re-constituted NLRB to rule in their favor -- again.

    Teamster Miguel Calon was fired by Coca-Cola in 2008 after two strikes during contract negotiations.  He'd waited 4 years for his NLRB "victory" which would have reinstated him. Lord knows how much longer he'll wait for a reconstituted, "legal" NLRB to re-hear his case.

    Orly, it isn't evidence just because you downloaded it from the internet.

    by 6412093 on Mon Jan 28, 2013 at 02:02:14 PM PST

    •  A mess (2+ / 0-)
      Recommended by:
      bear83, 6412093

      for sure, but in the past when the Board has been short of members it has gone on to issue decisions.  Those earlier decisions were later quickly 'ratified' by the full Board, once there was one.  So, it doesn't necessarily erase those decisions.  They are essentially on ice until there is a quorum of Board members to ratify the prior decisions.  At least that's how I understand it.  Of course, if that happens, then there's the problem of getting appointees through.  Repubs will almost certainly approve no appointment to the Board.  Still, it's a bad bad deal for the workers affected.  Depressing.

    •  "Lord knows how much longer..." (0+ / 0-)

      Oh, I can tell you how much longer: until we have another Republican president, who can appoint three (or, more likely, all five) board members.

      The Republicans have proved that there are no political repercussions to not allowing appointments by the President. There is no reason not to imagine, and every reason to assume, that they will not ever allow one to a position that they do not like again.

      The next Supreme Court vacancy should be really, really interesting. Especially if it is someone unexpected: one of the conservatives.

  •  Does the ruling hold (0+ / 0-)

    that recess appointments are inherently unconstitutional (which seems rather ridiculous since the constitution says they're not from what I understood), or that they're constitutional, but because the senate was still technically in session and thus not in recess when these appointments were made, these appointments are not valid recess appointments? If it's the latter, this seems perfectly valid to me. Or am I missing something?

    And if it is the latter, WTF was Obama doing making recess appointments when the senate wasn't actually in recess?

    Personally, I think that the whole confirmation process has to be amended, to be more like pocket vetos. I.e. either give each and every nomination a speedy confirmation process and up or down vote, say within 60-90 days, or they get automatically confirmed. The government can't operate otherwise.

    "Liberty without virtue would be no blessing to us" - Benjamin Rush, 1777

    by kovie on Tue Jan 29, 2013 at 07:50:51 PM PST

  •  It's hard to take anything you write seriously (1+ / 0-)
    Recommended by:
    thestructureguy

    when stuff like this creeps into it:

    The appeals court ruling (by three Republican-appointed judges)
    Really?   That's why they ruled that way?   It couldn't be because the President got nabbed for trying to slip one by Congress?

    Intolerance betrays want of faith in one's cause. - Gandhi

    by SpamNunn on Tue Jan 29, 2013 at 07:53:23 PM PST

    •  Obama Derangement Syndrom and the (3+ / 0-)
      Recommended by:
      basket, Albanius, IreGyre

      victory of the Federalist Society in our courts explains the decision when linked to three Republican judges.  The development of recess appointments has been a work around Senate failure to do its job.  

    •  I think a "just to note" on that (0+ / 0-)

      is very fair.

    •  Republicans have a 5-3 majority on this court (2+ / 0-)
      Recommended by:
      Zinman, IreGyre

      because Senate Republicans have blocked every effort by Obama to fill the 3 vacancies on the court. Caitlin Halligan has been pending since 2010 and "lost" on a 54-45 floor vote because of a GOP filibuster.

      Filibuster reform now. No more Gentleman's agreements.

      by bear83 on Tue Jan 29, 2013 at 09:19:42 PM PST

      [ Parent ]

      •  and there are 80 vacancies overall (1+ / 0-)
        Recommended by:
        bear83

        in the federal court system - all technically led by Chief Justice Roberts - actually there's more than 80 that could be filled if the Senate would approve the nominees that Obama sends - in some cases he has no present nominee for a seat because a nominee has withdrawn or some senator or another has made it known that they will refuse any candidate Obama nominates. And with their secret holds, and loose filibuster rules...

        "We must not confuse absolutism for principle." - Barack Obama

        by Beastly Fool on Wed Jan 30, 2013 at 10:33:31 AM PST

        [ Parent ]

        •  It's 105 vacancies (0+ / 0-)

          if you count the ones that have been announced and are pending in the next few months.

          Senate Democrats need to make a stronger effort to get these nominees through the process - even if it takes one cloture vote after another.

          Filibuster reform now. No more Gentleman's agreements.

          by bear83 on Wed Jan 30, 2013 at 07:26:26 PM PST

          [ Parent ]

  •  Does anyone know how this relates to (0+ / 0-)

    past POTUS's recess appts?

  •  Does this not call into question Senate Rules? (2+ / 0-)
    Recommended by:
    basket, Zinman

    Rules that prevent the Senate from effectively doing its job confirming Presidential appointments by a simple majority.  Since the Constitution specifies the requirement for super majorities (for treaties and impeachment) does it not follow that the creation of super majorities for other Senate business is unconstitutional?  The recess appointment as practiced by recent Presidents (ie when the Congress is in session most of the time) is really a work around the Senate's breach of constitutional intent and wording.  Unless the Republicans in the Supreme Court have become FoxNews nation and are suffering Obama Derangement Syndrome as well, they will be purposely (as opposed to reflexively) opening a can of worms that will make our country less governable.  And to what end?

  •  The effect of this is difficult to overstate. (2+ / 0-)
    Recommended by:
    basket, bear83

    President Obama was indeed on shaky territory when he appointed while the Senate was doing those pro-forma 30 second sessions, but the court ruling went way beyond addressing the pro forma session issue and really struck at the heart of the recess appointment power.  Actually kind of surprising that they took that last step, since GOP presidents tend to use the power so much more often than Democratic presidents.

    I suspect that SCOTUS will pull back on that latter part but I find it difficult to see a world where his NLRB appointment is upheld - a lot of the reporting on DKos really fails to mention that the Senate was simply not in recess when that appointment was made.  He was going out on a limb and trying something risky because the normal method of appointment had simply failed.  That whole "When the universe closes a door, open a window," and that sort of questionable non-recess recess appointment was an attempt to crowbar the window open.

    I don't fault the President - the NLRB needed to function and the Senate has refused to even conduct hearings.  He had to do something.  The problem lies with the Senate, and those problems have been discussed ad infinitum - there's really nothing meaningful I can add to that.

    I'll accept correction but I suspect that, if all NLRB rulings for the past year are found to be void for want of Constitutional authority, that's huge and, to the best of my knowledge, totally unprecedented.  We're in uncharted waters here.

    "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

    by auron renouille on Tue Jan 29, 2013 at 08:04:25 PM PST

    •  A year's worth of NLRB rulings were tossed (0+ / 0-)

      After the last quorum debacle.  The damage was limited and temporary.
      Obama and the Senate Dems need to sack up and get the current members (who were nominated last year) confirmed.

      •  "Sack up"? (2+ / 0-)
        Recommended by:
        auron renouille, Zinman

        Aside from what seems to be a pretty tasteless phrase, you hold the Senate Dems responsible for the whole situation of no confirmations?

        "Why reasonable people go stark raving mad when anything involving a Negro comes up, is something I don’t pretend to understand." ~ Atticus Finch, "To Kill a Mockingbird"

        by SottoVoce on Tue Jan 29, 2013 at 09:03:00 PM PST

        [ Parent ]

      •  Won't happen (0+ / 0-)

        There is simply no way to do so in the current Senate. They have determined that they will pay no political price for refusing to confirm any of Obama's nominations, and we have gotten rid of any chance of filibuster reform before 2014 (and who knows if we'll even still be in the majority then... smart money, with Massachusetts looking like it does, is against us).

        Honestly, the chances of the NLRB being able to do anything before 2016 are, in my opinion, effectively zero, and the chances of them being able to do anything after 2016 depend on one of two things: one, the Democrats win (back) the Senate and somehow magically embrace effective filibuster reform, or two, a Republican wins the presidency and nominates a bunch of pro-business stooges.

        •  Let's hope the 2014 democratic caucus (0+ / 0-)

          decides on a new leader that's invested in a consensus among democrats and their constituency, and not a compromise with a fading plutocracy that's still in the grips of groups like the gun lobby.

          "We must not confuse absolutism for principle." - Barack Obama

          by Beastly Fool on Wed Jan 30, 2013 at 10:40:46 AM PST

          [ Parent ]

      •  The damage is limited and temporary (2+ / 0-)
        Recommended by:
        Zinman, IreGyre

        unless you are Miguel Calon and your reinstatement is voided after being unemployed for 2 years after an illegal firing,  and now you must wait, and wait ....

        Orly, it isn't evidence just because you downloaded it from the internet.

        by 6412093 on Tue Jan 29, 2013 at 09:30:27 PM PST

        [ Parent ]

  •  Laura, the hypocrisy of Republican manipulation of (2+ / 0-)
    Recommended by:
    bear83, IreGyre

    the judicial system is disgusting.  Out of one mouth they tell us that liberals are gaming the system, that tort reform is required to prevent those wicked plebs from getting financial settlements; out of the other they eagerly promote the use tax payer dollars to fund frivolous lawsuits.

    Recess appointment challenges are just another of the cynical attempts to prevent government from functioning.  Keep in mind, these libertarians are dedicated to anarchy, the destruction of government.  "Government bad, freedom good" (a Libertarian motto).

  •  There's more to this than Sentelle's (2+ / 0-)
    Recommended by:
    bear83, IreGyre

    18th century dictionary.  The Supremes will have to deal with the consequences for executive power.  Not so simple; read the NLRB brief which is online.

    It may also force the hand of the Senate, once the NLRB commissioners are renominated.  The great filibuster fold of 2013 (the day before the court decision) may need to be revisited.

  •  Look on the bright side... (2+ / 0-)
    Recommended by:
    Dbug, IreGyre

    Maybe John Bolton will have to give back his government salary.

  •  Doesn't this ruling invalidate everything (0+ / 0-)

    done by every single recess appointment?
    Since they decided that a recess appointment is only valid if the position opens up while the senate is in recess, then pretty much every single recess appointment was unconstitutional.

  •  I really want to see them TRY to invalidate it... (0+ / 0-)

    It would be fun to watch as the SCOTUS throws a hundred years or so of precedent into the trash can. It would be like finding a single thread wrong in all of Democracy then in an attempt to correct it you would utterly dismantled 200 years of government in the process. It's just not going to happen!

    Once an event has occurred over and over again through the years by Republican and Democratic administrations you just can't say, "let's undo the whole thing". Precedent has been set and it's one of the cornerstones of the SCOTUS.

    If you have a law stating X and everyone has followed this law X since it's creation then it's created a precedent by it's "usage" not by it's wording. When it's first used and applied is when you can argue it in the court's. Once it's usage is accepted over many years of application by various people then it's usage becomes PART of that law whether it's written down in it or not.

    Now that is not to say that a law cannot be changed once it's put in place over years. But you cannot invalidate the past if it's set by this precedent. The 2nd Amendment is one such law. We can and should improve on that little bit of dusty legal wording. Not by rewriting it since that would never pass the nuts in Congress. But if it were possible you could make a change in a law that would apply to future usage of that law, not the past usage.

    Precedent is one of those hard to measure items because it is based in how much damage the decision would cause to our current system. If the damage is too severe then the new interpretation of the law cannot be applied to past usage. And changing it's usage would also throw things into turmoil. The SCOTUS would likely have to punt on this situation because if they claimed the usage was invalid then this bit of mischief would turn both the Executive and the Legislative Branches into question. "Who gets to decide?"

    That's my view at least.

    "I think it's the duty of the comedian to find out where the line is drawn and cross it deliberately." -- George Carlin, Satirical Comic,(1937-2008)

    by Wynter on Wed Jan 30, 2013 at 04:47:10 AM PST

  •  If we invalidate every decision of every Bush (0+ / 0-)

    recess appointment, do we get our democracy back? It never hurts to ask.

    Just doing my part to piss off right wing nuts, one smart ass comment at a time.

    by tekno2600 on Wed Jan 30, 2013 at 08:37:38 AM PST

  •  Does this mean lots of Bush era judges are out??? (0+ / 0-)

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