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Old 01-25-2013, 02:02 PM   #1
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Court rules Obama recess appointments unconstitutional

http://www.latimes.com/news/politics...,1401126.story

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By David G. Savage
January 25, 2013, 9:00 a.m.
WASHINGTON — A federal appeals court, dealing a defeat to President Obama, has sharply limited the chief executive’s power to bypass the Senate and to make temporary “recess” appointments to fill vacant slots in government agencies.

The Court of Appeals for the D.C. Circuit, in a 3-0 ruling, said the president can make recess appointments only when the Senate has formally adjourned between sessions of Congress, not when lawmakers leave Washington for a brief break.

The Obama administration is almost certain to appeal the decision to the Supreme Court. But if the ruling stands, it strengthens the power of the Senate’s Republican minority at the expense of Obama and the Democrats.

PHOTOS: President Obama’s second inauguration

During his first term, Senate Republicans, led by Minority Leader Mitch McConnell (R-Ky), refused to approve Obama’s nominees for several agencies, including the National Labor Relations Board and the new Consumer Financial Protection Agency created in the wake of the Wall Street collapse of 2008. McConnell could rely on the filibuster rule by which the minority can block a vote by the majority.

In response, Obama invoked his power under the Constitution “to fill up all vacancies that may happen during the recess of the Senate.” Obama used this authority last January to appoint several new members to the National Labor Relations Board, ensuring the group had the necessary three members to make decisions. In addition to the NLRB appointments, Obama also installed Richard Cordray as director of the Consumer Financial Protection Bureau at the same time.

Business groups and Senate Republicans challenged the move, arguing the Senate was not truly in recess last January when it was out of session for several days.

In Friday’s decision, Chief Judge David Sentelle ruled for the challengers and said a “recess” refers to the break when Congress formally adjourns after a two-year session.

“An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law,” said Sentelle, an appointee of President Reagan. He was joined by Judges Karen Henderson and Thomas Griffith, who are also Republican appointees.

Cordray’s appointment is being challenged in U.S. District Court in Washington, D.C., in a separate lawsuit by a Texas bank and two free-market advocacy groups. They also claim the appointment was unconstitutional because the Senate was not in a formal recess. The suit is pending.

On Thursday, Obama renominated Cordray to the five-year term as director of the 2-year-old agency. Cordray’s recess appointment expires at the end of the year.

Obama said Thursday that Cordray was qualified for the position, but “he wasn’t allowed an up or down vote in the Senate, and as a consequence, I took action to appoint him on my own.”
Chess moves being made.
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Old 01-25-2013, 02:41 PM   #2
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Basically.

I think that technically the ruling might be correct but that what the Repubs did was certainly a gaming of the law/constitution that certain grates against its actual intent and integrity.

If this ruling does stand its appeal(s), then the Senate should alter its procedural rules to prevent such chicanery.

I do think such thing as the Senates Advise and Consent function, as well as its filibuster rules, do need to be tightened up a bit, though not eliminated entirely. Certainly in the recent past, Republicans (though Dems have hardly been innocent either, if not nearly so egregious) have abused both to simply thwart Obama politically where in reality, denying appointments and use of the filibuster should be reserved only for much more serious purposes. As both are currently being used, they are proving deleterious to the function of that body.
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Old 01-25-2013, 02:53 PM   #3
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Quote:
Originally Posted by Rhumb View Post
Basically.

I think that technically the ruling might be correct but that what the Repubs did was certainly a gaming of the law/constitution that certain grates against its actual intent and integrity.

If this ruling does stand its appeal(s), then the Senate should alter its procedural rules to prevent such chicanery.

I do think such thing as the Senates Advise and Consent function, as well as its filibuster rules, do need to be tightened up a bit, though not eliminated entirely. Certainly in the recent past, Republicans (though Dems have hardly been innocent either, if not nearly so egregious) have abused both to simply thwart Obama politically where in reality, denying appointments and use of the filibuster should be reserved only for much more serious purposes. As both are currently being used, they are proving deleterious to the function of that body.
We'll see how this plays out. The republicans were smart on this one because their goal was to block appointments and they've been successful at it.
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Last edited by phrozen06; 01-25-2013 at 02:55 PM.
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Old 01-25-2013, 03:23 PM   #4
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Tactically smart, in the short term, perhaps, but remember, every precedent they set here as a minority will come back to bite them in the butt should they ever ascend back into the majority. That is, however, assuming they have a reasonable confidence they will ascend back into majority status given rather dire demographic trends -- they may be resigning themselves to a more or less permanent, or at least prolonged, minority status and thus are simply playing for tactical advantage now.

In any case, I do think filibusters and denying appointments need to be done only at a much higher standard (gross incompetence, serious legal/constitutional concerns) rather than lower bar ideological issues as has become the standard now.
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Old 01-27-2013, 12:55 PM   #5
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Quote:
Originally Posted by Rhumb View Post
Tactically smart, in the short term, perhaps, but remember, every precedent they set here as a minority will come back to bite them in the butt should they ever ascend back into the majority. That is, however, assuming they have a reasonable confidence they will ascend back into majority status given rather dire demographic trends -- they may be resigning themselves to a more or less permanent, or at least prolonged, minority status and thus are simply playing for tactical advantage now.

In any case, I do think filibusters and denying appointments need to be done only at a much higher standard (gross incompetence, serious legal/constitutional concerns) rather than lower bar ideological issues as has become the standard now.
I agree that this will bite them in the a$$ later.
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Old 01-28-2013, 07:44 AM   #6
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I see members of the GOP are hard at work again making sure now one else can get work done.
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Old 01-28-2013, 08:43 AM   #7
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That's how they do - obstruct, obstruct, obstruct, try to repeal Obamacare 37 times in a row.
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If you ever want to see what I mean by the arbitrariness of categories, check the situation of polarized politics. The next time a Martian visits earth, try to explain to him to why those who favor allowing capital punishment also oppose the elimination of a fetus in the mother's womb.
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Old 01-28-2013, 08:46 AM   #8
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I see members of the GOP are hard at work again making sure now one else can get work done.
now one
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