Recess Appointment Case Before SCOTUS Serves Up Hypocrisy on a Cracker

Over at Instapundit, Glenn Reynolds notes that
there’s “High
Drama At the Supreme Court
” today. Indeed. The case being
heard, National Labor Relations Board v.
 involves the president’s ability to make recess
appointments, While there’s no question that the president can
indeed do such a thing, there are serious questions about what
constitutes a break or recess in Senate proceedings. In 2010,
Barack Obama invoked the power to name three people to the National
Labor Relations Board while the Senate was technically still in
session (the specific case arose after Noel Canning lost a decision
made by the NLRB).

As Damon W. Root explained earlier this year:

Senate Republicans were then gaveling the body to order every
few days for the precise purpose of denying the president his
lawful ability to make such appointments. Among the issues before
the Supreme Court is whether Obama’s actions exceed his
constitutional authority 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 hubbub is important, says Root, the

arguments in NLRB v. Noel Canning will
feature two competing liberal takes on executive power. One,
originally filed in opposition to George W. Bush, views the Recess
Appointments Clause as a narrow grant of presidential authority.
The other view, filed in support of Barack Obama, sees the clause
as a broad affirmation of the president’s power to shape national

More by Root here.

Canning highlights the willingness with which many on
either side change principles based on their preferred outcome. The
whole practice of gaveling the Senate to order to prevent recess
appointments was a Democratic innovation used expressly to screw
over George W. Bush. Back then, Senate Republicans trotted out what
came to be known as the “nuclear option,” or the waiving of Senate
filibuster rules so presidential appointments could quickly proceed
to a simple up-or-down, majority vote. The Democratic leader of the
Senate, Harry Reid (D-Nev.) said this was worse than an
abomination, of course. Right up until the moment last year when he
did precisely that. And of course, Republicans who were for the
waiving of Senate protocol when it helped their side were
predictably disgusted by the Caesarism of Sen. Reid in 2013.

Here’s the New York Times editorial board
weighing in on the matter:

To be fair, Senate Democrats introduced this tactic in the last
years of George W. Bush’s presidency, but Republicans have blocked
Mr. Obama’s appointments at a far higher rate. They have made an art
of avoiding up-or-down votes on judges, agency officials and even
cabinet members.

Since the Senate finally voted last November to
eliminate the filibuster
 for most presidential nominees,
Mr. Obama should have an easier time getting them confirmed. But
there are still plenty of tricks senators can use to jam the
system, from refusing to conduct hearings to placing holds on
nominees. And if Republicans retake the Senate in November, they
won’t need a filibuster to keep Mr. Obama’s agencies from

How can anyone really take governing seriously these days? Each
side in any given matter so clearly only cares about rules when
they serve that side’s immediate purpose.
As I noted last October
, isn’t the whole notion of senatorial
oversight supposed to act as a moderating influence on presidential
appointments? The government, especially the Senate, isn’t supposed
to be a rubber stamp on anything. It’s supposed to slow things
down, throw sand in the gears, a spanner in the works, etc. You can
find that frustrating as hell and even stupid by every measure, but
for god’s sake, when you come out against only when it gets your
partisan panties in a bunch, at least have the common decency to
admit as much. Whether you’re a Republican or conservative or
Democrat or liberal or whatever.

from Hit & Run

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