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Some pretty strong language here protecting the Constitution. Maybe they'll think twice now about trying to executive order gun control around the Second Amendment.
The fourth and final possible interpretation of “the Recess,” advocated by the Office of Legal Counsel, is a variation of the functional interpretation in which the President has discretion to determine that the Senate is in recess. See 2012 OLC Memo, supra, at 23 (“[T]he President therefore has discretion to conclude that the Senate is unavailable to perform its advise and-consent function and to exercise his power to make recess appointments.”). This will not do. Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers. The checks and balances that the Constitution places on each branch of government serve as “self-executing safeguard[s] against the encroachment or aggrandizement of one branch at the expense of the other. Buckley v. Valeo, 424 U.S. 1, 122 (1976). An interpretation of “the Recess” that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law. The intersession interpretation of “the Recess” is the only one faithful to the Constitution’s text, structure, and history. [pp 25 & 26, emphasis added]
This post was edited by sugarmag 15 months ago
Do Obama's executive orders violate the Second Amendment? Perhaps you can elaborate on that.
Until then, I'm going to go ahead and point out that you're confusing two different issues here.
So, some 218 decisions by the NLRB are now up in the air as regards legality?
Apparently, yes. And there are other appointments not covered in the suit which would be thrown out if this case is upheld on appeal. Stay tuned.
What about previous Presidents' recess appointments? There have been hundreds -- how many are affected?
Ridiculous. So now the Senate can filibuster nominees do they never even get a vote, and it technically never goes into recess so a potus can't appoint someone. Awesome.
An argument can be made that if Obama had played the game the way it's always been played, then it wouldn't have come to this, but since he doesn't work or play well with the other children, well, things happen. Remember that the next time someone complains about the Tea Party not playing along.
Personally, I'm delighted when sand is thrown in the gears of DC.
...Regardless of which government function is being hamstrung?
Consider your answer carefully.
The MOST criminal regime in the history of the of the USA.
For such a time as this.
Bush has been gone for over four years now, you really need to get over it,
Seriously Obama makes Bush look like an amatuer.
Blaming Bush 4 years later. You really need to get over it.
Separation of powers is a bitch, ain't it?
Naturally, there are functions that I would vociferously argue are necessary and proper - things that benefit me. If you ask me, I will argue that they should be kept running forever and ever.
That's why the whole damn corrupt mess needs to be shut down, then started up only in strict compliance with the constitution. Each of us alive today will complain, but our grandchildren will bless us (I'm enough of a realist to understand that we're headed like a bat out of hell towards a real fiscal cliff, and there are no heroes to save us, but I can have irrational hopes.)
There's nothing about secret holds, filibusters and simply refusing to recess the Senate in the Constitution.
There's something like 100 unfilled seats on the federal bench, NLRB appointees can't get a vote, CPFB appointees can't get a vote, the ATF hasn't had a head in 6 years. That's absurd. Advise and consent, not "fuck it, we just refuse to do our jobs."
I don't recall any Dems complaining when they took control of the Senate and Harry Reid starting blocking Bush's ability to make recess appointments by holding “pro forma” work days of the Senate every three days – even if in meant one Senator was present to gavel in the chamber for a few seconds before gaveling it out.
Advise and consent implies the right to NOT consent, including by not even voting. Secret holds, filibusters and when the Senate goes into recess are all related to how the Senate conducts its business, and all within its sole purview. The President doesn't get to tell the Senate how to conduct its internal business, regardless of whether the particulars like filibusters or secret holds are spelled out in the Constitution or not. That's kind of the whole idea of separation of powers.
It was just as wrong and stupid when Dems did it, and Reid's cave on filibuster reform was an indication that he was more interested in allowing the Dems to do similarly stupid things when the next R potus is in office. Let the dysfunction continue!
This isn't necessarily related to the topic at hand, but whenever I feel like our Executive is too power-hungry or corrupt or etc., I think of Hugo Chavez's insane cult of personality and possible soon-to-be necrocracy (hat-tip to Christopher Hitches re: North Korea) and whistle a jaunty tune that I live in a country as great as America.
A country in which SATerp and I can e-yell at each other, insult each other's preferred political candidate, and not for a second worry about any limber-dick government cocksucker sticking his nose in our business.
When I drink tomorrow, my first will be for that beautiful fact, my second will be for all those in the loyal opposition, and any ones subsequent will probably [definitely] be due to the Duke game.
"And I try to har-mo-nize with songs the lonesome sparrow sings...
There are no kings inside the Gates of Eden."
All other legalities aside, I'm fine with 100 govt paychecks and benes not being cashed in light of the current situation. It's a good start, perhaps in a slanted direction, but I'm a bit pragmatic.
Wait, I'm lost. Is playing politics good or bad? I seem to remember them being good when it came to the Fiscal Cliff/Sequestration because those certain people got what they wanted, but now those same people are yelling against the game of politics. Which is it?
"It's just so hard," Greivis said. "It's my heart, my love. Maryland made me who I am."
I can obviously nerd it up with the best of them when it comes to stupid legal and constitutional talk, but as a practical matter, I find it absolutely absurd that we have so many executive and judicial positions that are Senate confirmable but cannot be filled in the current political dynamic. I think it is political negligence to hold up nominations in this process. Many of them are held up not because the people are not qualified, brcause this would never come to a vote, but simply because the other party wants to play bullshit politics.
The Senate's been failing to do a lot of jobs lately, so why shouldn't dozens of jobs go unfilled? It's almost as if the Constitution wasn't framed for limitless executive power to arm the bureaucratic state but for tugging and pulling among co-equal branches. Truth of it is, most Americans won't have a clue whether hundreds or thousands of gvt jobs go unfilled b/c they don't make a perceptible positive difference in the lives of Americans. The people's yawns over the failure to fill fed jobs is the best argument for limited fed govt.
and to trump your practical matter thought. The need for so many political appointees should be addressed first. I would opine that if 90% of the political appointee positions were never filled, no one would notice.
This may be a fine concept in the abstract, but I disagree with it as a practical matter. For example, let's take a look at the countless judicial vacancies we currently have:
First, I'm pretty sure hundreds of judges would make a perceptible difference in the lives of Americans. There used to be a time when "justice delayed is justice denied" used to be a rallying cry. The harm not just to people but to corporate America from a much slower legal system is considerable.
Second, if you want to talk about a limited government, arguably the BIGGEST check on the size of the executive power in a democracy comes from the judicial branch. For example, SEE THIS THREAD where we are talking about the judiciary smacking down an overbearing executive branch. If you are truly concerned about limitless executive power or co-equal branches, you should be clamoring for the executive and legislative branches to make sure the judicial branch is adequately empowered.
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