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2013-01-26 Home Front: Politix
Court: Recess Appointments Unconstitutional
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Posted by Beavis 2013-01-26 00:00|| E-Mail|| Front Page|| [223 views ]  Top

#1 Recess appointments expire at the end of the following session, right? So those NLRB seats should be vacant again about now, needing to be filled, either by confirmed appointment or another recess appointment at the next recess. As such, isn't this current case now moot? SCOTUS doesn't take moot cases, AFAIK, so wouldn't the Appeals Court ruling stand? And have no practical effect except as precedent, which can be ignored and then the next intrasession 'recess' appointees serve until THEIR case gets through the court system?
Posted by Glenmore 2013-01-26 08:22||   2013-01-26 08:22|| Front Page Top

#2 The point of the matter was that 'recess' appointments go back to a archaic time when Congress sat for only a couple of months of the year and then adjourned for many more months because business was done. Now that Congress is basically in continuous session, often missing deadlines for annual appropriations for the next fiscal year, they're not adjourning as taking an extended break from the Beltway reelection/graft farming daily grind. It's one thing when the members of Congress would literally saddle up to be back in the swamp lands of the Potomac, taking weeks in transit. It's another when you can jump a flight on be there in hours. So, other than the actually office of President, who needs to fill what position that can't wait a couple of weeks for a look at?
Posted by Procopius2k 2013-01-26 09:31||   2013-01-26 09:31|| Front Page Top

#3 The point of the matter was that 'recess' appointments go back to a archaic time when Congress sat for only a couple of months of the year

P2k, you mean there was a time when being a congressperson wasn't a profession?
Posted by g(r)omgoru 2013-01-26 10:30||   2013-01-26 10:30|| Front Page Top

#4 "you mean there was a time when being a congressperson wasn't a profession?"

Strange but true, grom. Waaay back in the olden days. (Some states still have citizen legislators - Virginia and Texas are two for sure. There are probably others.)
Posted by Barbara 2013-01-26 10:48||   2013-01-26 10:48|| Front Page Top

#5 As such, isn't this current case now moot?

Well, no. The "recess" appointees are still in place aren't they?

Further if the recess appointments are unconstitutional, as the DC Circuit has determined, then questions arise as to whether the actions they've taken are legal nullities and whether parties negatively impacted by same have ongoing ripe causes of action as a result. Of course the D.C. Cir. ruling is precedential only in D.C. so a plaintiff would have to win in their home courts on the question of the unconstitutional nature of the appointments, the harm, their right to bring a resultant action and the damage they experienced. Unless of course these particular agencies or the statutes impacted are ones whose actions are appealable only to the D.C. Circuit. It's complicated.

SCOTUS doesn't take moot cases, AFAIK, so wouldn't the Appeals Court ruling stand?

Yes but I'd wager that the DC Circuit's overreach (though a proper originalist interpretation of the Constitution) will induce the S.Ct. to take up the matter. The D.C. Cir. found: 1) the recess appointments unconstitutional (so far so good); 2) for the reason that only the Senate could determine when the Senate was in session (potentially a failure as the S.Ct. may choose to avoid the issue entirely by calling this out as a "political question" and using that fig leaf to vitiate the entire D.C. Cir. decision); and 3) that recess appointments can only be made for vacancies that arise during a recess (danger Will Robinson, it was entirely unnecessary to set this forth in order to invalidate the improper recess appointments and, if the S.Ct. takes up the matter I'd not bet heavily on its survival).

And have no practical effect except as precedent, which can be ignored and then the next intrasession 'recess' appointees serve until THEIR case gets through the court system?

While not binding precedent in the traditional sense (I believe the D.C. Cir. has original jurisdiction here), the D.C. Cir. case would, if the S.Ct. declines to take the matter up, survive as a holding binding on the Executive & Legislative Branches.

The out for the Administration that would probably effectively moot the matter would entail quickly nominating new appointees who would, upon confirmation, quickly rubber stamp every action taken the the unconstitutional appointees. The matter of the unconstitutional appointments would then be moot and those affected would be left with causes of action accruing damages only from the date of the impactful action by the unconstitutional appointee until the date of the rubber stamp action by the proper appointee. That's far from an automatic win and given the temporal limitation it's probably something few, if any, would pursue.
Posted by AzCat 2013-01-26 11:13||   2013-01-26 11:13|| Front Page Top

#6 AzCat, the DCCCA was not even briefed on this. So it's danger Will Robinson, from step 1. Reminds me of Erie v. Tompkins. But nobody could appeal Brandeis decision. Nonetheless, I suspect SCOTUS may sustain, just so they can watch the donks scream about judicial activism.

And the administration has no out. Appointments who would rubber stamp prior actions could not get through the Senate. And the CPFB appointment could be an even bigger deal.

As Sheriff Joe says, "This is a big f'n deal.
Posted by Nimble Spemble 2013-01-26 14:33||   2013-01-26 14:33|| Front Page Top

#7 I thought recess appointments only held for about a year, or until the next session started, so wouldn't these appointments, from January 2012 be about to expire? Or have already expired? They were appointed during the 112th Congress and the 113th is now seated...
Posted by Glenmore 2013-01-26 15:24||   2013-01-26 15:24|| Front Page Top

#8 their rulings would've stood, tho. Now anyone pissed at their outcome can sue to have them overturned. Also, he can only appoint people when the opening occurs DURING a recess. Future Presidents can thank Teh Zero for ruining this for everyone. Again - his reverse Midas Touch
Posted by Frank G 2013-01-26 15:31||   2013-01-26 15:31|| Front Page Top

#9 you mean there was a time when being a congressperson wasn't a profession? criminal conspiracy.
Posted by JohnQC 2013-01-26 18:18||   2013-01-26 18:18|| Front Page Top

#10 Early on, I recall that BHO said he was going to try to find ways to go around Congress. It also occurs to me that he instructed his minions to do the same. Suppose SCOTUS interprets his actions, not as an emergency appointment during recess as claimed, but as an attempt to subvert the authority of Congress as he stated early on?
Posted by JohnQC 2013-01-26 18:27||   2013-01-26 18:27|| Front Page Top

#11 Or is this wishful thinking?
Posted by JohnQC 2013-01-26 18:29||   2013-01-26 18:29|| Front Page Top

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