tag:blogger.com,1999:blog-6926413038778731189.post2884022039942719498..comments2023-10-16T07:13:12.123-05:00Comments on A plain blog about politics: Recess Appointment Power? Gone, Says DC CircuitJonathan Bernsteinhttp://www.blogger.com/profile/15931039630306253241noreply@blogger.comBlogger20125tag:blogger.com,1999:blog-6926413038778731189.post-19371095968606638372013-01-27T17:51:26.974-06:002013-01-27T17:51:26.974-06:00This is a great decision. By refusing to allow a q...This is a great decision. By refusing to allow a quorum to be appointed to the NLRB, Republican Senators can essentially repeal the Wagner Act, and we can more closely approxinate a truly competitive labor market. As Matt Yglesias has recently written, labor unions do not so much raise wages as equalize them, as labor unions represent their average members rather than the outstanding workers among them. As private sector labor unions continue to decline, individual workers will receive closer to their own marginal product, rather than the average marginal product of their job category, as happens in unionized occupations. Outstanding workers will be able to increase their incomes, and below average workers will experience declining incomes.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-38628543814048382432013-01-27T10:19:27.523-06:002013-01-27T10:19:27.523-06:00There's no something if they relabel it. And t...There's no something if they relabel it. And they relabel it because...why? Because Presidents have gotten in the habit of using it this way, yes?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-38666549790318344252013-01-27T01:40:28.399-06:002013-01-27T01:40:28.399-06:00Disagree. I've never been convinced that "...Disagree. I've never been convinced that "judicial activism" has ever meant anything; I've only seen it used as pretty much a worthless slogan. By both sides, for what it's worth. Jonathan Bernsteinhttps://www.blogger.com/profile/15931039630306253241noreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-51432667156960757182013-01-27T01:31:53.350-06:002013-01-27T01:31:53.350-06:00I am answering it, I think.
Under this ruling, if...I am answering it, I think.<br /><br />Under this ruling, if the Senate simply relabels their year-end break, then there would be no "way for the President to fill important posts whose absence was unanticiplated." None. <br /><br />Again: it wouldn't require any Senator to spend even a single extra minute in Washington; all they have to do, under this decision, is relabel the year-end break and they can be gone for four months but there's no opportunity for a recess appointment.<br /><br />So there's no "something." Which is basically my problem with the ruling. Jonathan Bernsteinhttps://www.blogger.com/profile/15931039630306253241noreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-13737196939339954242013-01-27T01:24:21.829-06:002013-01-27T01:24:21.829-06:00I look forward to liberals bothering to understand...I look forward to liberals bothering to understand what "judicial activism" is supposed to be, and not just confusingly define it as any time the judicial branch overrules something.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-52380254665523535852013-01-27T01:21:46.304-06:002013-01-27T01:21:46.304-06:00And why can't that "something" be &q...And why can't that "something" be "this is a way for the President to fill important posts whose absence was unanticipated"? I don't feel you're addressing the question at all.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-48786160550734407502013-01-26T06:45:42.776-06:002013-01-26T06:45:42.776-06:00I don't understand the reason for making a &qu...I don't understand the reason for making a "logical" or "legal" argument about things that will get resolved by the votes of 5 partisans. <br /><br />A more useful article would cover the reasons why those 5 partisans will deem it in their best interest to make a particular decision.Honeyboy Wilsonhttps://www.blogger.com/profile/11268312972803113627noreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-65008808247076660652013-01-26T04:55:49.149-06:002013-01-26T04:55:49.149-06:00If anything, you're understating the political...If anything, you're understating the political effect of this ruling. In practice it would enable a minority party to prevent certain agencies, to whose mission it happens to object, from functioning. The NLRB is a good case. If you're against labor rights, can filibuster nominees, and can make sure the Senate doesn't adjourn, then you can force the president either to leave the agency without a quorum for conducting business, or to appoint someone you approve of, i.e. someone who will direct the agency to do the opposite of what it was intended to do (as Republicans have done when they controlled the NLRB, the Civil Rights Division at Justice, etc.).<br /><br />I suspect the Supreme Court would overturn this if it had any fear that Democrats, too, would use the power it would give them aggressively when in the minority (or when holding only the Senate). But I'm guessing they have little such fear.Jeffnoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-45303499186820922852013-01-25T22:09:58.679-06:002013-01-25T22:09:58.679-06:00The Constitution's provision for recess appoin...The Constitution's provision for recess appointments makes sense only given the assumption that a Senate that is in session will have a vote on a nominee sometime during the session during which the nomination was made, or during the session following the nomination if it was made between sessions.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-64416831396802378012013-01-25T17:40:58.590-06:002013-01-25T17:40:58.590-06:00The president should be able to make *some* recess...The president should be able to make *some* recess appointments in a world in which the Senate is often out of Washington for some period of time but doesn't want him to.<br /><br />Under this decision, if the Senate chooses, it could simply relabel it's intersession recesses as intrasession recesses and prevent any recess appointments. <br /><br />It's not up to the court to figure out what role recess appointments should have -- but it is necessary to understand the clause so that it means *something*.Jonathan Bernsteinhttps://www.blogger.com/profile/15931039630306253241noreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-51936589707325977672013-01-25T17:37:20.412-06:002013-01-25T17:37:20.412-06:00I think so.I think so.Jonathan Bernsteinhttps://www.blogger.com/profile/15931039630306253241noreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-11540405035781312013-01-25T16:21:16.342-06:002013-01-25T16:21:16.342-06:00Re: whethe the decision renders the recess appt c...Re: whethe the decision renders the recess appt clause a nullity -- I am not sure that the rule against such interpretations applies to practical nullities (as this case would be) as opposed to logical nullities. <br /><br />Oops, perhaps I am wrong "The rule of strict construction will not be pressed so far as to reduce a taxing statute to a practical nullity by permitting easy evasion." Carbon Steel Co. v. Lewellyn, 251 U.S. 501 (1920). (What did people do, before Google Scholar?)Gordon Danningnoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-15942884641189236242013-01-25T16:03:35.519-06:002013-01-25T16:03:35.519-06:00I look forward to hearing Conservatives denounce t...I look forward to hearing Conservatives denounce the brazen judicial activism of this ruling.Thomasnoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-41851769193335226352013-01-25T15:49:59.579-06:002013-01-25T15:49:59.579-06:00To clarify, the argument seems kind of circular: t...To clarify, the argument seems kind of circular: they can't change recess appointments because that would change recess appointments! It doesn't seem to be examining what role recess appointments ought to have.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-84683127010957741652013-01-25T15:43:30.100-06:002013-01-25T15:43:30.100-06:00Good post, but I'm a little fuzzy on something...Good post, but I'm a little fuzzy on something. You seem to think the most persuasive argument against this ruling is that the Senate could easily stop the President from making any recess appointments by adjourning a certain way. Makes sense. But left unstated is why this means the ruling is wrong. Embedded in your argument is the assumption that the President should be able to make lots of recess appointments. If one regards it as a simple failsafe--so posts are not left empty during a sudden vacancy--what would the argument against the ruling be then?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-42381872846437673422013-01-25T13:43:13.351-06:002013-01-25T13:43:13.351-06:00Does this impact the question of whether or not Co...Does this impact the question of whether or not Congress has "adjourned?" Because that is the language that permits a pocket veto. If this interpretation also applies to Article 1, Section 7, then the presidency just lost both appointment AND legislative powers.<br /><br />My suspicion is that it doesn't apply there, but...yeah, politics is increasingly depressing.Matt Jarvisnoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-43110249753559725362013-01-25T13:34:25.367-06:002013-01-25T13:34:25.367-06:00Don't worry: thanks to wise Senate reform, the...Don't worry: thanks to wise Senate reform, the body is running smoothly in all its duties, and recess appointments shouldn't ever be a practical issue.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-20527376288231379082013-01-25T13:29:41.157-06:002013-01-25T13:29:41.157-06:00Is the Richard Cordray case in a different court?Is the Richard Cordray case in a different court?Scott Monjenoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-68505563100371746442013-01-25T13:26:04.707-06:002013-01-25T13:26:04.707-06:00It may be just me reading too fast, but I get conf...It may be just me reading too fast, but I get confused as to which of your two recess-related questions is the "recess" question.<br /><br />I suppose, to be logically complete, we should say that in addition to the changes of longer sessions and more intrasession recesses, there's a further change: the technological improvement of communications and transportation that allows Congress to be recalled on a moment's notice if necessary.<br /><br />Also, this seems to be in keeping with the Supreme Court's "Citizens United" precedent when it comes to glibly overturning a century's worth of precedent.Scott Monjenoreply@blogger.comtag:blogger.com,1999:blog-6926413038778731189.post-10328955527516765182013-01-25T13:03:24.547-06:002013-01-25T13:03:24.547-06:00Was this stayed pending appeal?Was this stayed pending appeal?Greghttps://www.blogger.com/profile/16387816156204378075noreply@blogger.com