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« Prof. Nick Johnson on the right to arms | Main | Here's a fundraiser worthy of attention »

Nice close of the 2013 Term

Posted by David Hardy · 27 June 2014 10:51 PM

The 2013 Term is drawing to a close (I think some opinions are due to be announced Monday) and it seems to be ending quite nicely, with two opinions on Con law which are 9-0s (rare at the end of a Term, which is when all the bitterly contested 5-4s come down).

There's Riley v. California, a 9-0 on the Fourth Amendment (how long has it been since we've seen one of those?) Police may obtain a smartphone during a search incident to arrest, but cannot explore its contents -- texts, photos, videos -- without probable cause and a warrant. Alito's concurrence asks whether the power to search incident to arrest is truly limited to protecting officer safety,

And there's NLRB v. Canning, on the President's Recess Appointments Clause. Another 9-0. Five of the Justices take a narrower approach to the question, holding that clause gives the power to make interim appointments during any Senate "recess" (i.e., not just during gaps between formal "Sessions" or "Congresses") of sufficient length, but a three day gap is too brief, and a gap of up to ten days is questionable.

The other four Justices (Scalia, Roberts, Alito, and Thomas) take a view that I thought reasonable: the power is to fill "Vacancies that may happen" while the Senate is in recess. A vacancy that occurs before the recess does not "happen" during it. The purpose, in the days when Senate sessions were briefer than now, was to patch gaps that arise during a recess, not to fill posts where the Senate had the chance to act and refused to.

· General con law

3 Comments | Leave a comment

Harold | June 28, 2014 6:41 AM | Reply

I loved the comment by Scalia, I think it was, that the majority endorsed an adverse possession approach to recess appointments.

fwb | June 28, 2014 8:56 AM | Reply

The view that the vacancy MUST ABSOLUTELY OCCUR (HAPPEN) during the recess is not just reasonable, it is the ONLY legitimate reading of the proper grammar of the sentence. Only an ignorant idiot would attempt to add words, ie "to exist", in order to push an agenda. Most of what I have read by "legal" folks is so full of garbage about how the grammar might evaluated that it leaves me wondering if they were educated at all.

The Constitution provides for ALL cases where a vacancy happens when the Senate is in session. The President is required to nominate and wait for approval from the Senate. No authority is granted to simply wait for recess THEN appoint. If it is Sooo necessary to appoint that the President just has to do it during the recess then why did he wait? This simple clause was needed to cover times when the Senate was not around and the position needed to be filled immediately. Today we have positions that could never be refilled and nothing bad would happen. More likely the elimination of these positions would result in a better life for the People.

We are in trouble because words are constantly added to the Constitution by the interpreters. There are no open spaces between the lines. There are no implied authorities. There are no inherent powers. Anyone who can actually read and understand the English language and who has a modicum of logical reasoning will reach this conclusion based on the text of the Constitution. Too many lies have been bantered about and too many of the sheeple have believed them.

fwb | June 28, 2014 9:05 AM | Reply

As to the 4th amendment, we wouldn't have these questions if the court had made a proper decision in Barron v Baltimore (1833). The 4th has always applied fully against the feds and the states. But the court mucked everything up with their decisions. Now they attempt to fix things piecemeal. Again some grammar lessons would prove beneficial. The use of a comma between the reasonable clause and the warrant clause tells someone educated in the proper use of English grammar that the two clauses are DEPENDENT. The courts have treated the clauses as independent for too long. The ONLY reasonable search is one conducted with a warrant. The BS about urgent need is one of the "insert the words" situations that the government, and never think the courts work for the people, uses to usurp powers and abuse the people. Think of all the cases that would have never come up had the supreme court simply ruled that the 4th bound all government and that warrants are required to make a search reasonable.

When I hear someone running for office or in power, saying "I'm hard on crime" I know that person is not trustworthy or honorable. The real position is to be ready to work for justice.

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