Interesting cert grant
The Supreme Court today granted cert in NLRB v. Canning, raising the question of Obama's recess appointments to the NLRB. The Constitution says the President can make certain appointments without Senate consent, if the vacancies arise while the Senate is not in session. The Administration (and, I seem to recall, others in the past) have used that to fill vacancies during Senate recesses, even thought the vacancy itself arose while the Senate was in session.
The Court also ordered: "In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: Whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions."
IMO, they can have it either way except that IF the 3 day actions are determined to be sessions then the appointments would end at the end of each short session and the Pres would have to reappoint over and over and over.
Truth is that IF one can read English there is only a single reading of the vacancy clause. The prepositional phrase "during the Recess" applies to "that may happen" because of standard grammatical rules and standards. The Framers did NOT make grammatical errors. The Committee on Style were the best of the best at proper ENglish usage.
Posted by: fwb at June 24, 2013 12:22 PM
The Constitution also grants each house the authority to make it's own rules. If the Senate decides in its rules that it is not in recess, then the administrative branch doesn't seem to have standing to decide for them.
Posted by: Flight-ER-Doc at June 24, 2013 03:00 PM
Seems like an obvious example of a political question. If congress is not in recess according to its own rules, then it isn't in recess.
And this is doubly true when they are actually convening every 3 days. They clearly COULD vote on the president's appointments or take up any other business if they wished. Willfully refusing to take up an appointment is also a political question- they can choose not to consider the appointment and they can stay in session to block the start of recess and the president can do nothing. I mean, this isn't even a controversial thing. Congress has had this power for as long as it has existed.
Also, thanks to air travel and the internet, it is possible to have congress take up a vote on an important issue within hours of it needing attention. It's not like the old days when someone had to receive word from a guy on a horse than then take a buggy ride all the way to DC to participate. They're obviously capable of choosing to proceed on the president's appointments at any time during these periods. They're choosing not to.
Posted by: Jim W at June 25, 2013 07:43 AM
More importantly the Senate passed legislation during the three day recess that's being appealed.
Posted by: ParatrooperJJ at June 28, 2013 09:20 AM