• Quick note - the problem with Youtube videos not embedding on the forum appears to have been fixed, thanks to ZiprHead. If you do still see problems let me know.

Recess appointment of Merrick Garland to the Supreme Court?

Recess appointment of Merrick Garland to the Supreme Court?

  • Yes

    Votes: 26 68.4%

  • No

    Votes: 12 31.6%
  • Total voters
    38
BobTheCoward said:
It is clearly Constitutional. This would be well within an appointment in a recess. Why would it be unconstitutional?
Click to expand...

Didn't the Supreme Court already indicate that it would be unconstitutional?

Excerpt from p. 21 of the opinion in NLRB v Noel Canning et al.:

But when considered against 200 years of settled practice,
we regard these few scattered examples as anomalies. We
therefore conclude, in light of historical practice, that a
recess of more than 3 days but less than 10 days is presumptively
too short to fall within the Clause. We add the
word “presumptively” to leave open the possibility that
some very unusual circumstance—a national catastrophe,
for instance, that renders the Senate unavailable but calls
for an urgent response—could demand the exercise of the
recess-appointment power during a shorter break. (It
should go without saying—except that JUSTICE SCALIA
compels us to say it—that political opposition in the Senate
would not qualify as an unusual circumstance.)
Click to expand...

The Recess Appointments Clause was not meant as a loophole for the President to appoint people without Senate confirmation. It was meant to "reflect[] [the] tension between the President’s continuous need for 'the assistance of subordinates,' Myers v. United States, 272 U. S. 52, 117, and the Senate’s early practice of meeting for a single brief session each year. The Clause should be interpreted as granting the President the power to make appointments during a recess but not offering the President the authority routinely to avoid the need for Senate confirmation." (see top of pg. 2 of the opinion).
 
sunmaster14 said:
Didn't the Supreme Court already indicate that it would be unconstitutional?

Excerpt from p. 21 of the opinion in NLRB v Noel Canning et al.:



The Recess Appointments Clause was not meant as a loophole for the President to appoint people without Senate confirmation. It was meant to "reflect[] [the] tension between the President’s continuous need for 'the assistance of subordinates,' Myers v. United States, 272 U. S. 52, 117, and the Senate’s early practice of meeting for a single brief session each year. The Clause should be interpreted as granting the President the power to make appointments during a recess but not offering the President the authority routinely to avoid the need for Senate confirmation." (see top of pg. 2 of the opinion).
Click to expand...


Sorry...Read too much into the 10 days period. But the three days is the fixed point right now.
The recess would exceed 10 days, right?
 
Last edited:
BobTheCoward said:
Sorry...Read too much into the 10 days period. But the three days is the fixed point right now.
The recess would exceed 10 days, right?
Click to expand...

My understanding is the recess would be no more than 1 day. There is some sort of gap between the 114th Congress and the 115th Congress which can't be bridged with the usual pro forma sessions that Republicans have been using to keep the Senate in session continuously.

ETA: By the way, Congress will be in session on January 6, 2017 for sure because that's when the electoral votes are counted. So, I don't even see a possibility of a recess beginning January 3, 2017 being longer than 3 days.
 
Last edited:
sunmaster14 said:
My understanding is the recess would be no more than 1 day. There is some sort of gap between the 114th Congress and the 115th Congress which can't be bridged with the usual pro forma sessions that Republicans have been using to keep the Senate in session continuously.

ETA: By the way, Congress will be in session on January 6, 2017 for sure because that's when the electoral votes are counted. So, I don't even see a possibility of a recess beginning January 3, 2017 being longer than 3 days.
Click to expand...

Yea, he can't do it.
Here is the argument that it would count

https://newrepublic.com/article/138787/obama-can-put-merrick-garland-supreme-court
 
Last edited:
sunmaster14 said:
Didn't the Supreme Court already indicate that it would be unconstitutional?

Excerpt from p. 21 of the opinion in NLRB v Noel Canning et al.:



The Recess Appointments Clause was not meant as a loophole for the President to appoint people without Senate confirmation. It was meant to "reflect[] [the] tension between the President’s continuous need for 'the assistance of subordinates,' Myers v. United States, 272 U. S. 52, 117, and the Senate’s early practice of meeting for a single brief session each year. The Clause should be interpreted as granting the President the power to make appointments during a recess but not offering the President the authority routinely to avoid the need for Senate confirmation." (see top of pg. 2 of the opinion).
Click to expand...

Funny how Republicans had no issue with Reagan's 232, GWB's 171, or GHWB's 78 recess appointments.

:)
 
sunmaster14 said:
The discussion so far appears to be missing the obvious point that somebody like Merrick Garland would never accept a recess appointment to the Supreme Court. In fact, almost anybody who be a party to such a clearly unconstitutional exercise of executive power, would, by defintion, be a poor choice for the Supreme Court.

One of the many problems that might arise is that any decision on a case on which such a bogus appointment sits (even if his vote didn't make a difference) would arguably be illegitimate and have to be re-heard.
Click to expand...

Recess appointments are very Constitutional and legal.

Reagan made 232 of them.
 
BobTheCoward said:
The question is how long was the recess when he appointed them?
Click to expand...

Constitution says nothing about how long a recess must last for the President to have the authority to make a Recess Appointment.

It simply states that when a vacancy arises during a Senate Recess, President can make an appointment that expires at the end of the following Senate session.
 
Hercules56 said:
Constitution says nothing about how long a recess must last for the President to have the authority to make a Recess Appointment.

It simply states that when a vacancy arises during a Senate Recess, President can make an appointment that expires at the end of the following Senate session.
Click to expand...

It's 3 days now....NLRB v Noel canning.
 
Hercules56 said:
Constitution says nothing about how long a recess must last for the President to have the authority to make a Recess Appointment.

It simply states that when a vacancy arises during a Senate Recess, President can make an appointment that expires at the end of the following Senate session.
Click to expand...

Is that what it actually says? Because the vacancy is already there, it won't arise during the recess.
 
BobTheCoward said:
It is clearly Constitutional. This would be well within an appointment in a recess. Why would it be unconstitutional?
Click to expand...

I think he could accept the nomination and also recognize the power of Congress to refuse it. That would put the Senate in a difficult place. Explain why they automatically throw out consideration of him without a hearing.
 
sunmaster14 said:
Didn't the Supreme Court already indicate that it would be unconstitutional?

Excerpt from p. 21 of the opinion in NLRB v Noel Canning et al.:



The Recess Appointments Clause was not meant as a loophole for the President to appoint people without Senate confirmation.
Click to expand...

Meant to? Oh, we're using context and intent to interpret the Constitution now? Good to know.

It was meant to "reflect[] [the] tension between the President’s continuous need for 'the assistance of subordinates,' Myers v. United States, 272 U. S. 52, 117, and the Senate’s early practice of meeting for a single brief session each year. The Clause should be interpreted as granting the President the power to make appointments during a recess but not offering the President the authority routinely to avoid the need for Senate confirmation." (see top of pg. 2 of the opinion).
Click to expand...

Yes, in its context and intent, it was obviously meant for addressing posts that needed filling while the Senate was unavailable and is not meant as a way to ram through political lackeys. However, we have a situation where one party has locked down the basic functions of government, using procedure to dictate policy. Mitch McConnell has made the Senate unavailable. What are the Republicans going to do to fight the recess appointments? Go through the courts?

Of course, there is always the FDR route to this.
 
Donal said:
However, we have a situation where one party has locked down the basic functions of government, using procedure to dictate policy. Mitch McConnell has made the Senate unavailable. What are the Republicans going to do to fight the recess appointments? Go through the courts?

Of course, there is always the FDR route to this.
Click to expand...

That is long keeping with a tradition of primacy of the legislature. They have multiple avenues to shut down a president.
 
Wasn't acting like an adult with a job to do a tradition as well?
 
Ya, we're going have to agree to disagree on that one. They are shirking their duties in a naked power grab.
 
You must log in or register to reply here.

Back
Top Bottom