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Next Year's Big Political Supreme Court Case

by: tmess2

Thu May 02, 2013 at 22:12:24 PM EDT

In adopting the Constitution, the Framers established a rough structure of government, leaving it to Congress to fill in the details.  For example, while establishing that there would be a Supreme Court and lower courts, the Framers did not establish the number of judges on the Supreme Court or any significant details about the structure of the lower courts.  Likewise, while recognizing that the Executive Branch would probably be divided into different departments handling the different duties of the Executive Branh, the Constitution did not establish the exact departments and left Congress free to create new departments.

One of the things that the Framers did provide for in the Constitution was that the executive departments would answer to the president.  To assure this, they gave the President the power to appoint executive branch officials.  However, recognizing the power of the heads of the departments (and some other appointees including judges), the Framers also required that major appointees be confirmed by the Senate (and gave Congress the power to define what appointees needed Senate confirmation).  One of the things that the Framers recognized was (especially given travel time in the late Eighteenth Century) that there would be times when Congress was not in session so that the members of Congress could return home and take care of personal business.  Not wanting to hamstring the government during Congressional recesses, the Framers authorized the President to temporarily fill vacancies during such recesses -- Article II, Section 2, clause 3.

In recent years, to avoid recess appointments and pocket vetoes (another power that comes into being during Congressional recesses, Congress has begun to hold nominal meetings when the House and Senate are technically in session once or twice a week even though neither house has a quorum present.  At the same time, the Senate has been unable or unwilling to confirm Presidential appointments to administrative agencies, in some cases leaving those agencies without a quorum to do business.  To break the disfunction of the Senate, the past several Presidents have contended that these nominal sessions are insufficient to avoid triggering the recess clause.

During one of these recesses, President Obama appointed several members to the National Labor Relations Board.  Without these appointees, the NLRB would lack a quorum and would be unable to make decisions on employer-employee labor disputes referred to it under various statutes.  Noel Canning Corporation lost one of the cases decided by the NLRB after these recess appointments and filed suit claiming that the recess appointments were invalid and, therefore, there was no quorum for the NLRB to make any decision in its case.  In January, the Circuit Court of the District of Columbia issued an opinion finding in favor of Noel Canning.  The Circuit Court rejected the claim that these were valid recesses on multiple grounds:  1) that the recess power only comes into effect during "intersession" recesses (the recess at the end of the annual session), not during intrasession recesses in the middle of a session; 2) that to properly trigger the recess power, the position must become vacant during the recess (i.e. the failure of the Senate to confirm anybody to fill an existing vacancy during a session would not authorize a recess appointment at the end of the session).   

Last week, the Administration asked the Supreme Court to review this decision.  In its application, the Administration asks the Court to review both theories adopted by the DC Circuit. 

But for the recess appointment, a party that wishes to, but is unable to, pass changes reducing the powers of an executive agency can fulfill its goals by just refusing to confirm nominees for that agency -- whether that be the FCC, FEC, NLRB, SEC, or any of a large group of agencies that operate through a Board rather than a unitary head -- until the Board governing that agency lacks a quorum due to the expiration of the terms of its members.  Even if the court takes this case, there will still be the live question of whether technical meetings are enough that Congress is still in session.  Right now, it is 50-50 whether the Supreme Court will make a decision on taking this case before its summer recess.  My hunch is that Noel Canning will request more time for its response, pushing a decision on taking the case until October.  While the Supreme Court is likely to take this case, an October decision on taking the case would push oral argument into January or February of 2014 and a final decision into June 2014.   

tmess2 :: Next Year's Big Political Supreme Court Case

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interesting (0.00 / 0)
so as it stands now, those recess appointments are not valid, or only the ruling against the canning company have been overturned? is there a stay leaving the current recess appoints in power until the appeal is completed?

also, in an unrelated matter, except that both are politics: what of sanford winning back his old seat? what of his close challenge in a very red district? does this race foretell of trouble for the dems, the gopers or not really have much baering on 2014 and will she run again in 2014 to try to unseat him?

Status (0.00 / 0)
It is an individual challenge to an individual decision by the NLRB.  Other courts have taken a different position on what qualifies as a valid recess appointment.  The decision currently is only binding on the DC Circuit, but a lot of appeals of administrative decisions go to the DC Circuit.  Presumably in any of those cases. if the recess appointee was necessary to a quorum or cast the deciding vote, the party will challenge the validity of the agency decision based on the court's decision in this case.

[ Parent ]
Sanford (0.00 / 0)

My personal opinion is that it is hard to read anything out of the South Carolina race.  On the one hand, it was a strongly Republican district (PVI of R + 11).  On the other hand, Sanford was a flawed candidate.  Both sides can easily spin the result -- the Republicans noting a solid win despite the flawed candidate, the Democrats noting the gains from the Romney, McCain, and Scott numbers.

538 has an analysis that says Sanford underperformed a generic Republican by exactly the amount you would expect someone who had been in a sex scandal to drop by. 




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