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The Supreme Court rules Barack Obama’s recess appointments unconstitutional

June 26, 2014

  We had two more unanimous Supreme Court decisions today and in my opinion, like yesterday’s decision, these were no-brainers. First the Supreme Court struck down a Massachusetts law which disallowed protests within 35 feet of abortion clinics. The whole idea of this, as well as free-speech zones which we see politicians implementing at events, is something which while well-intentioned is obviously unconstitutional as long as the protests are peaceful. But I want to focus on the other decision today.

You may remember in 2012 the Senate used a parliamentary gimmick called pro forma to keep the Senate in session. This is a trick which has been used by both sides of the aisle to stop a president of the opposing party from making recess appointments which failed to pass the Senate, however Barack Obama did something that no other president tried to do–he declared the Congress to be in recess and made three appointments.

  Today the Supreme Court ruled these three appointments were unconstitutional by a unanimous vote. The Constitution clearly states in Article II Section 2 that recess appointments are to be made only when a vacancy occurs WHILE the Senate is in recess, however this has been forgotten over many years and has been expanded to the point where presidents, of both parties, have used this clause to install appointees for vacancies which occurred BEFORE the Senate was in recess and who failed to gain Senate approval. 

  This decision stopped short of reinstituting this Constitutional clause so while this is a victory the victory is not complete from a Constitutional standpoint. Future presidents will still be able to move around the Senate to name appointees.

  Here is what Justice Antonin Scalia had to say about the court’s failure on this aspect in the decision:

“The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” Scalia warned. He called the majority’s work “atextual” and an endorsement of “an adverse-possession theory of executive authority” —scoffing at the idea that if one branch of government fails to assert its prerogatives for a time, it loses those powers.

“A self-aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, structure, and original understanding,” Scalia wrote.

  Still this is a partial victory but I wonder if this decision has any teeth. I have read several articles today about this decision and none of them addressed what happens next.

  Is Barack Obama going to admit defeat and order these three people to step down? Is Eric Holder going to demand these people step down? I doubt it, so who is going to enforce this ruling? The Congress? I doubt that as well.

2 Comments leave one →
  1. June 27, 2014 11:11 am

    I like the way you ended this Steve. Reminded me of the old Batman show endings, with the questions about the bad guys being brought to justice and if Batman and Robin can free themselves or others from the fiendish minds and traps of their adversaries! ‘Stay tune’ to ‘next week’ for the answers. Problem is we keep ‘staying tune’ but the answers don’t come only more confusions and ‘situations’!
    At least Justice Scalia stated in legal elegance something intended for good or something reasonable can be or is being used for harm. Just another bump in the road for Utopian cultist to forge over – ‘how to get around doing what’s right and moral.’


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