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| McConnell: No vote on Scalia replacement under Obama |
| 2016-02-14 |
| [Wash Examiner] Senate Majority Leader Mitch McConnell on Saturday signaled there would be no vote on any appointment picked by President Obama to replace deceased Justice Antonin Scalia -- setting the stage for a dramatic political showdown in Washington that will likely result in gridlock for the remainder of the year. McConnell said a new appointment should wait until a new president takes office. "The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president," McConnell said in a statement. McConnell's statement indicates he is not planning on bringing to the floor for a vote any nominee Obama selects to succeed Obama, according to a Senate GOP aide. |
| Posted by:Besoeker |
| #10 Elizabeth Price Foley laid out that McDinglberry doesn't need to vote. Obama has the power for 8 more days to put in a recess appointment: COULD OBAMA MAKE A RECESS APPOINTMENT TO REPLACE SCALIA?: The answer appears to be “yes,” because (once again), the GOP-controlled Senate voluntarily has left itself vulnerable to the exercise of such presidential power. Article II, section 2 of the Constitution gives the President power to fill vacancies “during the recess of the Senate”: 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. There’s a lot of misinformation out there. For example, a report by Fox News mistakenly focuses on the Adjournment Clause of Article I, section 5, which merely states that neither House of Congress may adjourn for more than three days without the consent of the other. The Fox News reporter wrongly concludes: [S]o long as both the House and Senate haven’t jointly agreed to “adjourn” for a stretch longer than three days, then there appears to be no way the president could make a recess appointment. But the House and Senate are not operating under those circumstances right now. Both bodies of have adjourned until later this month for the President’s Day recess. The Senate last met on Thursday. When doing so, it approved a “conditional adjournment resolution” for the Senate not to meet again until Monday, Feb. 22. The House met on Friday and at the close of business adopted the same adjournment resolution to get in sync with the Senate. The House is out until Tuesday, Feb. 23. So, the House and Senate will not be meeting in the coming days. This is an adjournment and is not challengeable in court the way the NLRB recess appointments were because both bodies have agreed with each other to adjourn. Whether the House of Representatives is in adjournment is irrelevant to the Recess Appointments Clause power. The only salience of the Adjournment Clause is that, in NLRB v. Noel Canning (2014), the Supreme Court looked to the Adjournment Clause as relevant evidence in its quest to ascertain a minimum period of time for determining the meaning of a “Recess of the Senate” in the Recess Appointments Clause. Specifically, the Court concluded: The Adjournments Clause reflects the fact that a 3-day break is not a significant interruption of legislative business. As the Solicitor General says, it is constitutionally de minimis. A Senate recess that is so short that it does not require the consent of the House is not long enough to trigger the President’s recess-appointment power. . . . If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. And a recess lasting less than 10 days is presumptively too short as well. Thus, a Senate recess of fewer than 3 days is not enough to trigger the President’s recess appointment power; the Senate’s recess must be at least ten days in duration. So how long is the Senate’s present recess? It began on Friday, February 12, with the passage of S. Con. Res. 31 which states: That when the Senate recesses or adjourns on any day from Thursday, February 11, 2016, through Saturday, February 20, 2016, on a motion offered pursuant to this concurrent resolution by its Majority Leader or his designee, it stand recessed or adjourned until 12:00 noon on Monday, February 22, 2016, or such other time on that day as may be specified by its Majority Leader or his designee in the motion to recess or adjourn, or until the time of any reassembly pursuant to section 2 of this concurrent resolution, whichever occurs first; . . . Sec. 2. (A) The Majority Leader of the Senate or his designee, after concurrence with the Minority Leader of the Senate, shall notify the Members of the Senate to reassemble at such place and time as he may designate if, in his opinion, the public interest shall warrant it. A Senate recess from February 12 (at noon) until February 22 (at noon) is a recess of exactly 10 days. Thus, under Noel Canning, the Senate is potentially in recess, and President Obama’s recess appointments power may be exercised. Under S. Con. Res. 31, the only way to recall the Senate back into business before February 22 is with the “concurrence [of] the Minority Leader of the Senate,” Harry Reid (D-NV). Somehow I doubt Sen. Reid will grant such concurrence to reconvene, should President Obama decide to use this 10-day recess to make a recess appointment and replace Justice Scalia. But should President Obama try use this particular 10-day recess to replace Justice Scalia, the replacement would only be constitutionally permitted to serve until the end of the next session– i.e., until the end of the 114th Congress, which occurs on January 3, 2017. But there is another potential wrinkle. Specifically, the Congressional Record of February 12 shows that Senate declared that it would be in pro forma session (where a member of the Senate gavels in and gavels out every few days), declaring: A unanimous-consent agreement was reached providing that when the Senate completes its business on Friday, February 12, 2016, it adjourn, to then convene for pro forma sessions only, with no business being conducted on the following dates and times, and that following each pro forma session, the Senate adjourn until the next pro forma session: Monday, February 15, 2016, at 11:00 a.m., and Thursday, February 18, 2016, at 9:00 a.m.; and that when the Senate adjourns on Thursday, February 18, 2016, it next convene at 3:00 p.m., on Monday, February 22, 2016, unless the Senate receives a message from the House of Representatives that it has adopted S. Con. Res. 31; and that if the Senate receives such a message, it stand adjourned until 3:00 p.m., on Monday, February 22, 2016. Notice, however, that the pro forma status of the Senate’s recess is made conditional: “unless the Senate receives a message from the House of Representatives that it has adopted S. Con. Res. 31; and that if the Senate receives such a message, it stand [sic] adjourned until 3:00 p.m., on Monday, February 22, 2016.” This matters because if the Senate is in pro forma session, the Noel Canning majority agreed that such pro forma sessions will block the president’s recess appointment power: We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. Unfortunately for the GOP Senate, however, the GOP-controlled House agreed to S. Con. Res. 31 on February 12 without objection. This means that under the plain language of S. Con. Res 31, the Senate is “in recess”–and not in pro forma session. If this is indeed the case, the Senate is presently in the midst of a 10-day recess (not a pro forma session), and under Noel Canning, President Obama currently possesses the power to make a recess appointment to the Supreme Court until noon on February 22, when the Senate comes back in session. So basically the fix is in for a ultra-statist, gun grabbing fuck to be put in for the year and tons of our freedoms can be permanently rolled back. Again I question the timing of the judge's death and you can bet the establishment will do everything it can to fuck our country over. |
| Posted by: DarthVader 2016-02-14 14:03 |
| #9 I disagree Darth - Mitch probably can't wait to fold for free. I think he gets off on folding to the democrats myself. Either that or they will pass a bill that it will require 2/3rds vote to block a confirmation. That way they can safely vote against it later. Isn't that how they usually abrogate their duties? It's been done before. |
| Posted by: CrazyFool 2016-02-14 12:33 |
| #8 I expect Mitch to fold when the nominee is described by the press/Prez as a 'moderate'. |
| Posted by: Mugsy Glink 2016-02-14 10:43 |
| #7 No, Mitch has to say that -- if he doesn't there's instant rebellion in the GOP. He has to say that there will be no vote on a Scalia replacement this year. Then has to mean it, and then he has to be on guard for all the usual Dem tricks. |
| Posted by: Steve White 2016-02-14 10:28 |
| #6 OTOH, my biggest fear on hearing of Scalia's death was that the uber-rino McConnel would help push through an Obama "compromise". This would seem to preclude that. I agree that this would be a huge mistake, see #2,3,4,5, if I had any confidence in MM, but I don't think it will matter too much given the current circumstances. It will be interesting to see what the GOP candidates have to say. |
| Posted by: AlanC 2016-02-14 10:09 |
| #5 Nice p0ker face, Mitch. Did you notice the way you held your cards, face out? Watta frickin moroon! |
| Posted by: Alaska Paul 2016-02-14 09:46 |
| #4 Way to lead with your chin Mitch. Moron. |
| Posted by: NCMike 2016-02-14 08:04 |
| #3 Blindling flash, but Scalia's passing highlights the danger of an activist Supreme Court. McConnell's statement was ill advised and may simply hasten the Champ taking a unilateral or recess action. By the way, everything that Scalia has been working on at the court must now be pitched into the rubbish bin. A poor replacement has the potential of retroactive damage as well. |
| Posted by: Besoeker 2016-02-14 06:55 |
| #2 Excuse me, but what an idiot? You don't announce that you won't approve any of Obama's proposals, you wait for his candidates and... well, one more thing before we can vote... |
| Posted by: European Conservative 2016-02-14 05:44 |
| #1 Riiiiiight.... At least until his check clears. |
| Posted by: DarthVader 2016-02-14 00:08 |