Quote of the Day, …Justice STEPHEN BREYER said that?

Hoo boy.

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 Constitution’s 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.

Background: obviously, this is about the Supreme Court reviewing the President’s abuse of the recess appointment privilege – well, admittedly, it’s about what I’m calling the President’s abuse of the recess appointment privilege.  The problem for the Obama administration is that the above quote suggests that even some of the liberal members of the US Supreme Court may be agreeing with me on that. This may end up being very, very bad for the executive branch’s ability to make any recess appointments, ever again*… Continue reading Quote of the Day, …Justice STEPHEN BREYER said that?

White House: The DC Circuit Court has made its NLRB decision…

now let it enforce it:

President Obama’s spokesman denounced the invalidation of the so-called ‘recess’ appointments as a “novel and unprecedented ruling,” adding that the decision has “no impact on the ongoing operations of the National Labor Relations Board (NLRB).

“The decision is novel and unprecedented,” White House Press Secretary Jay Carney said during the press briefing. “It contradicts 150 years of practice by Democratic and Republican administrations. so, we respectfully but strongly disagree with the ruling.” Carney said that over 280 intrasession recess appointments have been made since 1867.

And, thanks to the Obama administration, that particular little political pressure valve may be clamped shut forever! All because Barack Obama and his team of N-dimensional geniuses apparently don’t know how to deal with people who will tell them “No.” Continue reading White House: The DC Circuit Court has made its NLRB decision…

Federal appeals court nixes Obama’s recess appointments.


In a case freighted with major constitutional implications, a federal appeals court on Friday overturned President Obama’s controversial recess appointments from last year, ruling he abused his powers and acted when the Senate was not actually in a recess.

The three-judge panel’s ruling is a major blow to Mr. Obama. The judges ruled that the appointments Mr. Obama made to the National Labor Relations Board are illegal, and the board no longer has a quorum to operate.

But the ruling has even broader constitutional significance, with the judges arguing that the president’s recess appointment powers don’t apply to “intrasession” appointments — those made when Congress has left town for a few days or weeks.

We got our specialists over at RedState working out the consequences to this one – the only thing that I’m a specialist at, frankly, is at being an absolutely insufferable [expletive deleted] – but the short version is that if this gets upheld by the Supremes (and the thinking is that the court is going to either uphold the smaller decision 7-2, or 9-0) then pretty much every favor Barack Obama’s done Big Labor lately ain’t worth diddly.

Yes.  Weep, my droogies.  Weep.

Moe Lane

PS: Constitutional scholar, my [expletive deleted].

President Obama to flip-flop on recess appointment?

CNN is just now reporting that the President plans to recess appoint Richard Cordray to head the Consumer Financial Protection Bureau.  Such a recess appointment was previously assumed to be impossible, given that: the assumed minimum length of time is three days; and the Senate is deliberately meeting every two days in order to prevent recess appointments during that time period.  The Hill helpfully notes (via @RBPundit) that the three-day limit is actually from the Clinton era: they also note that Obama’s then Solicitor General noted the three-day rule during Supreme Court arguments (Politico gives the case as being New Process Steel, L.P. v National Labor Relations Board).  That his administration is now going to reverse themselves on this should come as a surprise to nobody; neither should it be a surprise that this administration apparently has absolutely no awareness whatsoever that their actions will have consequences that will make Democrats curse this White House for the next thirty years.

That’s pretty much it, except for one final note: ever hear of “unanimous consent,” Mr. President?  No?  Well, you will.

Moe Lane (crosspost)


Shall we reconsider blocking Ambassador Robert Ford’s appointment?

I’m starting to think that the current Republican opposition to Ford’s formal appointment as ambassador to Syria, while valid in general – we’re actually not well-advised to play Albright-style kissy-face games with rogue states – may be counterproductive in this specific case.  Then again, the general principle doesn’t apply here, does it? After all,  Ambassador Ford is not exactly playing nice with the Assad regime; he’s instead telling them things that they don’t like to hear.  Like, for example, the truth:

…how ironic that the Syrian Government lets an anti-U.S. demonstration proceed freely while their security thugs beat down olive branch-carrying peaceful protesters elsewhere.The people in Hama have been demonstrating peacefully for weeks. Yes, there is a general strike, but what caused it? The government security measures that killed protesters in Hama. In addition, the government began arresting people at night and without any kind of judicial warrant. Assad had promised in his last speech that there would be no more arrests without judicial process. Families in Hama told me of repeated cases where this was not the reality.

Continue reading Shall we reconsider blocking Ambassador Robert Ford’s appointment?

#rsrh No recess appointments over July 4th break?

While we’re on the subject of what goes around, comes around…

President Obama will likely be blocked from making recess appointments over next week’s July 4th break, according to Republican Senate sources.

The Senate is likely to hold so-called “pro forma” sessions at least every three days over the holiday week, thus preventing Obama from making any such appointments during the period, according to the sources.

Essentially, Senate Majority Leader Harry Reid doesn’t want to adjourn without passing a budget, and Harry Reid doesn’t want to pass a budget, and the only people who get truly shafted by pro forma sessions will be progressives, anyway*.  You see, pro forma sessions equals ‘no recess appointments;’ which means that all of those would-be government officials deemed too controversial for the regular nomination process get to stay on the sidelines cooling their heels.  Like, for example, Elizabeth Warren of the ‘Consumer Financial Protection Bureau’ – who I am explicitly pointing out by name solely for the sheer pleasure in reminding the Left that President Obama doesn’t have the guts to fight for her.

Never has – and, likely, never will.

Moe Lane

*In other words, nobody that matters.

#rsrh “No recess for you!”

You know, there’s a part of me that deplores that we have to do things like this.

President Obama will not be able to make recess appointments over the week-long break to commemorate Memorial Day, after Republicans forced Senate Majority Leader Harry Reid, D-Nev., to keep the chamber open for pro forma sessions every three days.

However, there’s a much larger part of me that is prone to murmur Payback’s a bitch. And What goes around, comes around.  Guess that the Democrats shouldn’t have opened that particular Pandora’s Box, back in 2007…

Via AoSHQ.

Moe Lane

PS: Regarding President Obama making recess appointments anyway: yeah, sure, completely destroy that precedent.  The next Republican President will thank you for it.  Then again, nobody ever claimed that the Democratic party is big on long-term thinking…

Is Sir Donald out as Medicare czar?

Not exactly: the Politico reports that, in wake of forty-two Senators sending a letter indicating that Sir Donald Berwick is simply unacceptable for the job of Centers for Medicare and Medicaid Services (CMS) head*, Senate Democrats have made an answer to that by… giving up trying to get Berwick nominated.  There’ll be no fight, no confirmation hearing, no standing on what the Democrats consider ‘principle.’  They’ll just let him keep going until later in 2011.  I’m not fully checked out on the minutiae of recess appointments, but presumably the President can make another recess appointment for Berwick during the next time that the Senate is in recess for long enough.

But that’s not really the point; the point is that it’s clear that one thing is true in the 112th Congress that was also true in the 111th.  To wit: Democrats won’t fight.  Oh, sure, when they have the votes they’re the toughest guys in the room, and will be happy to walk all over you: witness that ludicrous strutting over passage of Obamacare back in 2009.  But the second that they don’t have a sure thing, Democratic politicians cave (see the defeat of the Obama tax hikes during the lame duck session).  They cave – or, as we’re seeing in the states, Democratic politicians run away.  Because Democratic politicians are cowards, from top to bottom.  And here’s the fun part: we know it.  Which is why those forty-two Senators sent the letter.  Which is why Senate Democrats caved on the cuts in the current CR.  Which is why they’ll break later on the budget.  They just don’t know how to be brave and fight for their beliefs**.

Poor things. Continue reading Is Sir Donald out as Medicare czar?

Congress backstabs POTUS on recess appointments.

It seems a bit odd that Senate Democrats have agreed to use a rules technicality to prohibit the President from making any recess appointments between now and the election – particularly since Senator Dick Durbin (D, IL) seemed to be suggesting earlier this week that a recess appointment for blocked OMB nominee Jacob Lew would be possible if the hold on his nomination was still active.  None the less, the prohibition is now in effect: and in exchange, the Republicans gave up…


No, really: as near as I can tell, we gave up nothing at all.  All the GOP had to do was threaten to throw some pending nominations back to the White House for resubmission, and the Democrats simply folded like a cheap suit; thus making it impossible for the President to do one of the few things that he can do to mollify his base right now.  This was pretty craven of Reid and his cadre; not that I’m objecting, but I was under the impression that the Democratic party controlled both the legislative and the executive branches of government these days. I mean, I’ll be expecting this gambit maybe next year (or maybe in 2013, or whenever is the next time where the GOP controls Congress but not the White House), but having it happen right now is a bit odd.  Very welcome, but odd.

Moe Lane (Crosspost)

PS: We would have traded something for this, probably.  Being able to stop recess appointments would have been an opportunity worth bargaining for.  So… thanks?