Skip to comments.Sure sounds like the Supreme Courtís going to rule against Obama on recess appointments
Posted on 01/13/2014 2:02:07 PM PST by SeekAndFind
I know, I know: Didn’t we go through this once before? SCOTUS sounded skeptical after oral arguments on ObamaCare’s individual mandate too and we all know how that turned out. We’re setting ourselves up for heartbreak. Again.
One big difference between then and now, though, is that everyone assumed a ruling against the mandate would be no better than 5-4. Obama had four liberal justices in the bag for his position, as usual; the only question was whether they could get one conservative. Per Moe Lane, the word from SCOTUSblog about this morning’s arguments is that even some of the liberals seem ready to abandon ship.
Seeming a bit troubled about allowing the Senate to have an on-off switch on the presidents power to temporarily fill vacant government posts, the Supreme Court on Monday indicated that it may yet allow just that. Even some of the Justices whose votes the government almost certainly needs to salvage an important presidential power were more than skeptical…
Perhaps the most unfortunate moment for presidential authority was a comment by Justice Stephen G. Breyer that modern Senate-White House battles over nominations were a political problem, not a constitutional problem. Senators of both parties have used the Constitutions recess appointment provisions to their own advantage in their political fights, Breyer said, but noted that he could not find anything in the history of the clause that would allow the president to overcome Senate resistance to nominees…
First, Justice Elena Kagan, although expressing some alarm that the country would wake up one fine morning and chuck two centuries of history of frequent presidential use of recess appointments, nevertheless said at least twice that it was the Senates job to decide when it goes out on recess, thus giving it the ability to control when, or if, the president may make such appointments…
The Solicitor General made little headway in arguing that the Constitution meant the president to have significant power to make temporary appointments, and that deferring to the Senate would, in effect, destroy that power. He seemed to startle even some of the more liberal judges when he said that, if it was a contest between historical practice and the words of the Constitution, practice should count the most.
NBC also got the sense that the Court is leaning against O. So did left-wing TPM, noting that Scalia couldn’t resist a mild dig at Obama:
Justice Antonin Scalia, as he often does, led the charge against the Obama administration’s position. He argued that the president’s use of the recess appointments to fill empty slots on the National Labor Relations Board “flatly contradicts the clear text of the Constitution.” When U.S. Solicitor General Donald Verrilli defended the decision by saying the Constitution is ambiguous on that question, Scalia retorted, “It’s been assumed to be ambiguous by self-interested presidents,” to gasps and laughs in the chamber.
Per Gabe Malor, there’s a chance that the Court could decline to rule at all on grounds that this is a political question, i.e. a dispute over powers between the executive and legislature on which the Constitution provides no meaningful guidance. Let the political process sort that out, not the courts. Two problems with that in this case, though. One: The plaintiff challenging O’s recess appointments in the NLRB case isn’t the Senate, it’s a corporation. Technically, this is a case about the executive’s power to regulate private entities by making appointments to regulatory bodies through dubious procedures. Two: Obama’s dubiously-appointed NLRB has already issued decisions and will issue more going forward. Does the Court want to leave those intact without ratifying their constitutionality despite the hotly disputed propriety of how O staffed the Board? The need for public confidence in the integrity of the Board’s rulings makes me think SCOTUS will decide one way or another. The Court’s conservatives might even relish a chance to knock O down in a matter of executive overreach at this point. As it turns out, the “political question” doctrine apparently wasn’t even raised at today’s hearing.
The decision here is, as Ed noted earlier, less important than it used to be now that Reid’s nuked the filibuster for presidential appointees, but it’ll be newly important next year if the GOP holds the majority in a narrowly divided Senate. Imagine O nominates a judge to the D.C. Circuit and, with the help of a few select Republican centrists (Collins, Kirk, etc), Minority Leader Reid manages to pull together 51 votes for confirmation. The only obstacle at that point is Mitch McConnell in refusing to bring the nomination to the floor — unless O can make these pro forma recess appointments, in which case he’ll simply wait for a pro forma Senate session and then fire away. If he can’t, he’s basically at McConnell’s mercy. If the Court rules against him here and the GOP’s odds of winning big in November start to climb this year, expect Obama to nudge anyone in a Senate-confirmable federal position to quit this year so he can fill their vacancy on favorable terms.
Yeah, until the NSA reveals some juicy texts and e-mails all taken out of context.
Too late for Traitor Roberts to buy legacy salvation.
THE SUMMER OF 2014:
Today is the last watershed day for America, because it is the last chance for the US Supreme Court to exercise a Constitutional Check and Balance on the current rogue, tyrannical and oppressive Federal Administration.
Chief Justice John Traitor Roberts will probably again refuse to abide with the clear Constitutional Law, and again rewrite the US Constitution to his own liking, in similar manner to what Roberts did with the Constitutionality of the Obamacare Case when he un-Constutionally converted a legal fine into an illegal tax.
Today the US Supreme Court takes up the issue of whether or not an Administration can act without Congressional Approval on matters relating to personnel appointments.
The topic of bypassing the House on approving the spending of taxpayers dollars by the Administration will not be considered today, except tangentially, as the appointed personnel will be paid with taxpayer dollars, which would be a bypassing of the Constitutional Control of the Purse by the US House of Representatives.
We taxpayers view this as a clear cut case where we have Taxation Without Representation because our Representatives have not been part of the decision-making process.
Examples of a few Imperial matters of record include the following:
* Senator Reids Democrats recent voting to turn the US Congress into the US Parliament,
* Boehners refusal to appoint House Special Prosecutors for each of the Five Obama Administration Scandals,
* Obamas four years of Imperial actions, and
* the recent history, ( Traitor Roberts Obamacare decision), of the US Supreme Courts proven reluctance to provide their Constitutional duty of a Check and Balance on the other two Branches of the US Federal Government.
With the usual US Supreme Court private straw vote today that always follows the 30 minute Official Hearing before the Court, Americas future fate will be sealed, and later proclaimed between now and the Summer of 2014.
Either way that the NINE SUPREMES rule on this case, The Summer of 2014 will prove to be the Summer that decided whether or not our Founding Fathers fought King George the Third of England in vain - - - .
THE SUMMER OF 2014.
I used to hold to the belief that Repub presidents would select conservative justices. We now see from history that isn’t true.
And for many years to come, I see no positive rulings forthcoming from the SCOTUS.
Roberts can be bought, question is, how cheap?
When liberals pick judges they stay liberal 100% of the time, when conservatives pick.. our picks suddenly turn liberal 80% of the time.
My take on this issue and the supremes is, at its core, more about the court than anything else. What is the purpose of the Supreme Court in our system of government? The answer should be, to protect the Constitution. If not that, we are finished as a constitutional government. I can imagine that some, if not all of the Justices, realize that. Their authority and indeed their very future is in doubt and they must know that.
I think if it is the lives of his children they have over his cojones in that vise, he will go all the way. Maybe we need to go after his adoption for him. Would there be a way to fix this for him legally so that he no longer has ‘em in a vise?
Well one would hope.
Gosh, we thought they’d rule against Obamacare too.
I have no faith that this Court under Roberts will uphold the Constitution. The real issue isn’t even being addressed. The Constitution says the President can make a recess appointment when the position becomes vacant during the recess. It does not give the President the power to make a recess appointment to end run the Senate if the position does not become vacant during the recess. Both parties violate this. But as usual Obama pushes the violation to the extreme because the Constitution means nothing to him, or apparently to his party.
Don’t worry. Roberts will rule that the recess appointments are a tax and some folks will say it is a magnificent political strategy.
This one should be a slam dunk, but the justices sounded very favorable on Obamacare...we were mostly concerned about Kennedy, and he was clearly thinking our way in his questioning. We didn’t foresee our Roberts turning twisting his thoughts like a pretzel to rule for Obama.
We thought that about ObamaCare too.
C.J. Roberts is a reliable Obama vote, so O has his safe majority on ALL issues.
Eisenhower once said the biggest mistake he made as President was appointing Earl Warren to the Supreme Court. I suspect Roberts will be W’s biggest mistake.
Just like it sounded like they’d rule against an obviously unconstitutional Husseincare.
That can’t be. Don’t they know Christie closed a bridge lane? And misappropriated Sandy funds? Everything else is faux scandal.
How much more damage will the Supremes do to the remaining legitimacy of America’s enemies in FedGov?
“Eisenhower once said the biggest mistake he made as President was appointing Earl Warren to the Supreme Court. I suspect Roberts will be Ws biggest mistake.”
Yup. And GHW Bush said the same thing about Souter.
When we get control, let’s eliminate the NLRB and the Civil Rights Comission. And while we are at it let’s eliminate some judges seats.
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