Wednesday, July 17, 2013

The NLRB Court Case

I don't really have anything to add to this, but I was wondering about it so maybe others were, too. SCOTUSBlog's John Elwood seems pretty confident that confirmation of the new replacement will not derail the recess appointment court case, scheduled to be considered by the Supremes in their upcoming term (via Goddard).

It's worth a reminder that this is a pretty big deal of a case, too. The lower courts took somewhat different positions, but the DC Circuit in particular had an extremely radical decision which basically ended the president's recess power; it ruled that practically all recess appointments in US history were actually unconstitutional, that we'd been getting it wrong ever since presidents wore funny wigs. In particular, only vacancies that arose during the recess between sessions of Congress (typically these days in November and December, at most) would be eligible to be filled by recess appointments, which would have to be made during that same recess. Essentially, the court ruled that recess appointments had become obsolete once Congress's modern schedule emerged. I think it's a terrible decision, but regardless: both the president and the Senate do need to know the ground rules, and so it's probably a good thing for the case to go forward.

Which, if Elwood is correct, it will. And with less baggage attached, too, for better or worse.


  1. I think that separating the case from the baggage will be good.

    The thing is, if the Senate weren't so dysfunctional, I might support that reading of the recess appointment. The whole business of gaveling sessions in and out in a minute just to avoid appointments is childish.

  2. The Congress isn't avoiding appointments, the Executive is avoiding advise and consent. The courts appear to agree with that interpretation, for now.

    Unless you think the Constitution is "childish"?


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