Ninth Man in the Twelfth Hour

I actually didn’t really have much to say this morning, but then I saw Drudge’s headline that Obama might be able to squeeze through his SupremeCourt appointments. At first glance I thought this was more left wing malarkey. After all, they have been rather vocal about wanting to turn the norms of our democracy on its head since they lost. 

To be through, I followed the link to the Washington Times to see what the real scoop on this was. The article points out that 9 or so of Obama’s appointments have been thrown out because he tried to push them through when the Senate wasn’t open for business. The ruling was that as long as they did a formal gavel open and close ceremony, they were open and he couldn’t do a ‘recess appointment’. Since they continue to do this every day, even when no one but a few senators are in attendance, he can’t step around them. However, the court did supposedly note that there is a ‘golden’ 15 minutes or so where he might be able to do a recess appointment when the old congress ends and the new one begins.

This is of course why lawyers are the smartest stupid people on earth. Backing up to the plain language that is in the constitution, a president is charged with appointing Supremes with the ‘advice and consent’ of the senate. Specifically, Article II, Section 2, paragraph 2 of the Constitution says:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States

Note there is nothing in the language of the constitution about ‘recess appointments’. The ‘advice and consent’ wording is quite deliberate. It was put there to specifically limit the power of the executive and to legislative branches of the government when staffing the judicial branch. They have to cooperate, thus ensuring that no branch may obtain power over another. This is an intrinsic part of the ‘checks and balances’ of our system of government. 

So where did the concept of recess appointments come from? Article 2, Section 2 of the Constitution also states:

The 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.

The Wikipedia entry on recess appointments is rather biased, only noting at the very end that the Supreme Court in deciding NLRB v. Noel Canning confirmed that pro-forma Senate sessions count and Obama’s attempt to squeeze in an appointment was not legal. Thus I won’t point you to those entries for reference. Again illustrating that lawyers are the smartest stupid people, the above plain text of the constitution indicates that this clause can’t apply to the Supreme Court as it currently exist because such appointments are ‘for life’, not for a session of congress. Unfortunately however, that is the legal fiction we are stuck with. 

So given the legal fiction, what can the current and the new congress do to avoid a ‘golden 15 minute’ window for Obama to push in his Supreme Court nominee? Mathematically there are just a few scenarios available for how and when Congress and the new President can cede power to the next leaders. Let’s acknowledge for a moment that Obama is president until Trump raises his hand on the 20^th to accept the oath of office. If the Congress remains in session through that process, then there is nothing Obama can do. However, if the gavel open, then gavel close, wait for Trump to be sworn in, then gavel open the new session, then Obama will, in theory have the opportunity to do a recess appointment. 

There is nothing in the constitution or law that I can see that says that the congress and president have to exchange power at exactly the same time. The solution then is to keep the congress in session until Trump is sworn in, then adjourn. It really is that simple. Since most of our Senate leadership are lawyers, making them smart dump people, I have to wonder if they have the wherewithal to do this. God help us all if they don’t! Obama has shown that he is ruthless when exercising is executive prerogative. Now that his 'legacy' is effectively in ashes and rejected by the electorate, he will do what he can to frustrate the peaceful transition of power. The answer is a courageous Congress. I hope they for once show a backbone.