A sample headline reads: “High court rejects Obama power move on recess appointments.” This article in the Hill includes a statement by “Senate Minority Leader Mitch McConnell, who intervened in the case on behalf of 44 members of the Senate, celebrated the ruling.”
“The president made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even bothering to wait for its advice and consent,” the Kentucky Republican said. “A unanimous Supreme Court has rejected this brazen power-grab.”
Admittedly I have only had the time to briefly speed read the Court’s opinion, but a few statements have caught my eye.
On page 4 of the syllabus,
“For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.”
I hope that a door has not been opened to essentially allow pro forma sessions in perpetuity. Regardless of one’s personal political ideology, I think most will agree and statistics definitely support the opinion that the recent Senates and the current Senate of the 113th Congress have not addressed a number of issues. The blanket filibusters not on merit but as a tool to obtain concessions not related to the issue on the Floor has been ridiculous. I see no rationality in an appointment being filibustered and ultimately that individual being confirmed by a unanimous vote after months of delays. On the other side, one can argue that Majority Leader Harry Reid has prevented pieces of legislation to reach the Senate floor. That is also ridiculous.
The so called “Nuclear Option” is less of an issue in my opinion. One reason is the filibustering without cause on the appointee, and more importantly the prior rule change from 1975 dropping cloture from 67 to 60 votes was by far a more significant change than this Nuclear Option. Likewise, I do not hark on the amendment process in the Senate either. It is true that Reid has continued what is now a standard of preventing minority amendments to legislation. The only reason this practice bothers me less than situations like filibusters and preventing legislation from reaching the floor is that many proposed amendments are riders and not germane to the legislation. A legitimate counter is that attaching a bill as a rider is the only method to bring certain items to the floor, but I would favor a system that allows for separate issues to either be passed or not based upon their own merit. That could happen with rule changes.
In my opinion, the Senate performs little work while in session and the idea that the Supreme Court recognizes pro forma sessions as conducting of business amazes me. It might be my strawberry field roots, but I don’t think I could accept pay if I only met with graduate students I’m mentoring for only 1 or 2 minutes each day.
The other statement which caught my attention during this initial quick reading is on page 19 of Justice Breyer’s opinion for the court. Justice Breyer writes:
“We disagree. For one thing, the most likely reason the Framers did not place a textual floor underneath the word “recess” is that they did not foresee the need for one. They might have expected that the Senate would meet for a single session lasting at most half a year. The Federalist No. 84, at 596 (A. Hamilton). And they might not have anticipated that intra-session recesses would become lengthier and more significant than inter-session ones. The Framers’ lack of clairvoyance on that point is not dispositive. Unlike JUSTICE SCALIA, we think it most consistent with our constitutional structure to presume that the Framers would have allowed intra-session recess appointments where there was a long history of such practice.
The concepts of a “textual floor” and the acknowledgment of a lack of anticipation of the Framers’ intrigue me. Are we seeing a movement back away from originalist arguments? History and intent were significant parts in both the Heller and McDonald decisions. In Heller a point of emphasis became the state constitutions in the absence and contradictions within Federal writings of that period. Only after the Constitutional and Federalist eras and not until the Jacksonian period do we see that broader interpretation at the Federal level. Even then the customs of urban and rural areas differed. Could this “textual floor” argument be applied as the Framer’s may not have anticipated the growth in urbanization and Framer intent be defined as prevailing practices within the urban areas of their period and not that of the rural and unsettled areas? If this is indeed the interpretation, it would also affect the McDonald decision with its incorporation of the 14th Amendment.
Of course the current the media and partisan focus is on “Obama violated the Constitution” which can be countered quickly with the fact that in regard to appointments made in this manner other Presidents are guilty of the same offense. Actually other should be termed as an overwhelming majority since a number of appointments in previous administrations is now unconstitutional.
On the other partisan side, one can focus on the fact that this decision has virtually no effect on the current administration since the incorporation of the Nuclear Option. Actually it limits the power of future Presidents and may actually shed more light on failures within the Senate to conduct business. In that respect, this decision damages any minority party more which uses a filibuster to delay confirmations which are eventually passed either unanimously or nearly unanimously. Why waste the time and money with the delay.
A closer reading may change my original perceptions, but I have a gut feeling that those celebrating now will be opposing this decision in the near future.
Linked below are copies of: