Since when have we Americans been expected to bow submissively to authority and speak with awe and reverence to those who represent us? – William O. Douglas
Map The World At War 1920. Note the pink, it was Franc, Russia, the British Empire, Canada, Australia – well most of the world against Germany. Though they were minor players in military action even Japan, Belgium and Greece allied with the Allies or Entente Powers.
London Street Map of 1548. The 1540s were a turbulent time in England. The Dissolution of the Monasteries. While that was not THE start of a more secularized England or Europe it was part of the end of Papal influence and rule by proxy possessed by the Vatican over English government. Henry VIII was given the authority to do take these actions when Parliament passed the Act of Supremacy, which made Henry, now on his fourth wife, Anne of Cleves, the Supreme Head of the Church in England. 1545 saw the publication of Henry’s sixth and last wife Catherine Parr’s Prayers or Meditations. The first book ever published under the Queen’s own name. The decade closed out with Kett’s Rebellion. While Robert Kett owned some land himself, he sympathized with rebels who had started tearing down fences put up by very wealthy land owners. So it was their land to fence in as they please. The problem was that the land that belonged to the wealthy was not paid for, but the result of using land as a reward to those who either physically fought for or supported the king. Capitalistic notions of working hard and some day also owning vast swaths of land was not possible. By tradition much of the open pastures were used by small local farmers and sheep herders. That land was considered common land. Thus fencing-off of common land by landlords for their exclusive use took away land poor peasants needed to graze their herds. This suddenly exclusive access left many peasants even poorer than they already were. The fencing produced inflation, mass unemployment and lower wages. This may sound familiar, one historian noted, they “could scarcely doubt that the state had been taken over by a breed of men whose policy was to rob the poor for the benefit of the rich”.
In a ruling that called into question nearly two centuries of presidential “recess” appointments that bypass the Senate confirmation process, a federal appeals court ruled on Friday that President Obama violated the Constitution when he installed three officials on the National Labor Relations Board a year ago.
The ruling was a blow to the administration and a victory for Mr. Obama’s Republican critics — and a handful of liberal ones — who had accused him of improperly asserting that he could make the appointments under his executive powers. The administration had argued that the president could decide that senators were really on a lengthy recess even though the Senate considered itself to be meeting in “pro forma” sessions.
But the court went beyond the narrow dispute over pro forma sessions and issued a far more sweeping ruling than expected. Legal specialists said its reasoning would virtually eliminate the recess appointment power for all future presidents at a time when it has become increasingly difficult to win Senate confirmation for nominees.
Note the three Republican judges did not narrow their decision to this particular appointment with their legal argument hanging – by a thread – on the use of the Senate’s pro forma session ( pro forma is Latin, meaning, as a matter of form, and is a parliamentary procedure that usually only lasts a few minutes. Mitch McConnell (R-KY) and senate Republicans used it to cover almost a month). The recess appointments were made because conservatives were using the silent filibuster to block any and all of President Obama’s appointments. Yes, Democrats have done this too, but only in cases where the appointee designate was especially unqualified or radical ( though they did let even Michael D. Brown (heck of a job Brownie), formerly a horse lawyer – that is not an invective, he was actually a horse lawyer become administrator of the Federal Emergency Management Agency, because that is who Bush 43 wanted). President Obama should not have to face a silent filibuster for just about every appointment. To use such tactics all the time is constitutionally questionable,
With English constitutional antecedents, the term-of-art “by and with the Advice and Consent” gives the Senate power to advise only by voting ‘yes’ or ‘no.’ Contrary to conventional wisdom, the term “Advice” is not synonymous with senatorial selection “courtesy.” Rather, the term “Advice” should be read as conjoined with its companion term “Consent” to mean that the Senate advises the president by and with a confirmation vote. (The modern Senate’s role is thus fundamentally corrupted by procedures, holds, and filibusters which prevent up-or-down votes.)
Recess Appointments: No Restrictions
The president has “sole and independent” appointment authority; as Hamilton wrote, “[senators] cannot themselves choose – they can only ratify or reject the choice he may have made.”
But equally important, if the Senate can not or will not act, the Framers’ provided clause 3 of Article II, Section 2:
[T]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Constitutional Convention delegates agreed readily the federal government should always be fully staffed. Hamilton explained in Federalist 67 that the clause 3 instant commission option provides an “auxiliary method of appointment” required for vacancies “which it might be necessary for the public service to fill without delay.”
The recess alternative’s efficiencies and broad scope merit emphasis. The Framers could have limited the appointment’s duration and function. Instead, recess commissions last up to 24 months (half a presidential term) and recessed officials have the same authority as confirmed officers. The Framers could have established a minimum time length of a Senate recess required to trigger the Executive power. Instead, the president may sign commissions during a Senate break of any length. Theodore Roosevelt appointed 160 officials during a 1903 adjournment that lasted only minutes. In Evans v. Stephens (11th Circuit 2004), the U.S. Court of Appeals ruled:
The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.
Again, this is where the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit went way too far – some might call it judicial activism. They did not rule that maybe because this was a special circumstance in which there was a pro forma, abet abused fairy tale version of that procedure, the one appointment would need to be made during a regular recess to be a valid recess appointment. That is till very thin ground in light of the letter and spirit of previous court rulings, but we could all groan and just get on with the appeal. According to the Congressional Research Service report, President George W. Bush made more than 170 and President Bill Clinton made almost 140; President Obama made 28 between his inauguration and December 2011. So it is not as though President Obama has abused recess appointments, and goodness forbid that he play hardball with conservative obstructionists who claim that it is their ball park and they’ll only play by their rules. It is also not a simple matter of conservatives objecting to Richard Cordray to the CFPB( Consumer Financial Protection Bureau). Much like the debt ceiling it was another ideological hostage situation,
Moreover, Senate Republicans were opposed to the creation of the CFPB, intended to crack down on some of the shady business practices that helped lead to the Great Recession; and after its creation they were bent on making it as ineffective as possible.
Conservatives could not kill the CFPB because the Senate and House passed it into law with actual votes, not parliamentary tricks. They do not want more oversight of Wall Street because they really have adopted the bizarre belief that Wall Street had nothing to do with the financial collapse of 2008. That was all the fault of a nurse and her mechanic husband out in Des Moines who bought a house they couldn’t afford, master of the universe Barney Frank and radio waves from a martian space ship.
For all the controversy surrounding these appointments, they were clearly constitutional if either of two things is true. They were constitutional if, despite the pro forma sessions, the Senate was in recess from December 20 until January 23. If that hiatus amounted to a “recess” for purposes of Article II, Section 2, then the President’s exercise of his appointment prerogative was permissible. The appointments would also be constitutional, of course, if the three-day hiatus between January 3 and January 6 was a “recess” for constitutional purposes. The President had plausible arguments either way.
If the appeals court opinion, were left in place or upheld by the U.S. Supreme Court, it would mark a ground-breaking departure from the way presidents have used recess appointments.
If Obama and Democrats can manage to get them appointed. His appointments to the feral courts, of judges not blinded by conservative zealotry, was supposed to be one of the consequences of the past election. For liberals who were/are disappointed in Democrat’s in regards the surveillance state holdover policies from the Bush administration or other issues, these court and to some degree, the administration appointments were supposed to be the consolation prize. While conservatives can take all the blame for administrative appointment backlog, part of the reason for Obama’s low rate of Court appointments is Obama, Obama Judicial Confirmation Statistics as of 01/03/2013
Information sources: Alliance for Justice; Federal Judicial Center; Senate Judiciary Committee
I’m going to hazard a guess that the White House doesn’t like far Right judicial activism. That being the case they might want to start filling some federal court vacancies.
If you want to understand the trouble Republicans are in, one good place to start is with the obsession the right has lately developed with the rising disability rolls. The growing number of Americans receiving disability payments has, for many on the right, become a symbol of our economic and moral decay; we’re becoming a nation of malingerers.
As Jared Bernstein points out, there’s a factual problem here: a large part of the rise in the disability rolls reflects simple demographics, because aging baby boomers are a lot more likely to have real ailments than those same workers did when they were in their 20s and 30s. The Social Security Administration does a formal adjustment for this reality, and as Jared says, it looks like this:
Baby boom generation is aging thus more benefits are being paid out.
Republicans have priorities. They are not concerned that a hand full of people increase their wealth daily simply as a benefit have having wealth – that the combined net worth of the world’s 250 richest individuals is more than the total annual living expenses of almost half the world – three billion people. Republicans are deeply alarmed that some 72-year-old is getting a $25 a month cost of living increase in their Social Security benefits. They might take that money and buy bread or medicine, something crazy like that. The nation is going to hell in hand basket if we don’t stop that kind of lazy mooching immediately.
Over the past week, six people have been shot at gun shows, the most recent victim being a gun dealer in Iowa who thought the gun he was showing was unloaded. Cops found another loaded gun at his table after he put a bullet in his palm.
Not a suggestion, but something for conservatives to ponder; instead of contributing to the latest campaign of faux outrage by Fox or Glenn Beck or that RNC mailer, check with the families of these victims to see if they could use some help with medical bills.
The Long Goodbye 