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October 10, 2015

Senate GOP Continues Legal Battle Against Disputed Recess Appointments

(Bill Clark/CQ Roll Call)

(Bill Clark/CQ Roll Call)

The entire Senate Republican Conference on Monday filed a friend of the court brief with the Supreme Court, continuing its effort to oppose President Barack Obama’s disputed use of the recess appointment power.

Several federal appeals courts have ruled against the constitutionality of the appointments, which included slots on the National Labor Relations Board, as well as the initial move to put Richard Cordray in charge of the Consumer Financial Protection Bureau. Resolving the fate of the individuals in question was among the key features of a July deal that (only temporarily, as it turned out) prevented the use of the “nuclear option” to effectively change the Senate’s rules to eliminate the ability of the GOP minority to block nominees.

Cordray was eventually confirmed to the CFPB position, but Obama agreed to replace the questionable NLRB nominees.

“Last year, the President made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even trying to obtain its advice and consent,” Minority Leader Mitch McConnell, R-Ky., said in a statement announcing the amicus brief.

The brief, which is available here, makes many of the same arguments made by Senate Republicans at the D.C. Circuit Court of Appeals.

As he has previously, Miguel Estrada is serving as the lawyer for the Senate GOP in this matter. The former assistant to the solicitor general was himself denied confirmation to the D.C. appeals court during the George W. Bush administration, a point that Republicans highlighted repeatedly during the recent battles over filling three vacant seats on that court, which resulted in Majority Leader Harry Reid, D-Nev., using the nuclear option.

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  1. Defend Liberty

    Nov. 26, 2013
    2:51 a.m.

    If we are to continue discovering better ways of doing things, as many people as possible must be as free as possible to experiment and innovate.

  2. Chredon

    Nov. 26, 2013
    10:56 a.m.

    “…while the Senate was meeting regularly…”

    Bull. The Senators had all gone home, the chamber was empty. But they had someone come in a bang the gavel every morning to open a session, and bang the gavel to close it ten minutes later. The group that is playing fast and loose with the rules here is the Senate GOP, not Obama.

    • Lorehead

      Nov. 26, 2013
      4:56 p.m.

      Not quite. The Democrats held the Senate at the time, but the Constitution says that neither house of Congress can adjourn for more than three days without the consent of the other, so the Republicans used their majority in the House to deny the Senate permission to ever adjourn for what had previously been considered long enough to make a recess appointment. President Obama then attempted to make appointments during recesses of less than three days.

      The D.C. circuit then ruled that what presidents have been doing since 1921 is unconstitutional, and appointments can only be made between sessions of Congress, not during adjournments of any length.

      If that ruling stands, and the Senate refuses to confirm any appointments made by the other party, it will be a disaster: as soon as the Senate and the President are from different parties, the Senate will block any appointment of judges and possibly even cabinet members. We’ve seen some signs of holding hostage even nominations to traditionally apolitical jobs such as the Federal Reserve Board and the Joint Chiefs. The President will be able to fill all those vacancies temporarily, but they would expire at the end of the next session of Congress, allowing the next president to make new appointments. Not only would that give the next president with a Senate majority power to appoint the entire Federal judiciary for life, while we waited for that to happen, it would in effect transform the Constitutional system of independent judges appointed for life into a system of two-year political patronage appointments.

      • Chredon

        Nov. 27, 2013
        3:25 p.m.

        Thanks for the clarification, Lore.

  3. dectra

    Nov. 26, 2013
    12:10 p.m.

    So………they don’t like the fact President Obama is doing the SAME thing GOP presidents have done…..for no other reason than…..they HATE HIM

  4. kernals

    Nov. 26, 2013
    1:04 p.m.

    The only logical explanation for the GOP doing this is that they WANT to waste time, if the nominations are struck down by the court, the Democrats can now confirm them in the Senate with a simple majority

  5. George Allegro

    Nov. 26, 2013
    6:37 p.m.

    Since liberty begets courage and industry, people in free states have the opportunity to make the most of their talents and contributions.

    • Lorehead

      Nov. 26, 2013
      7:04 p.m.

      This has precisely nothing to do with the topic of the article.

  6. Don Miller

    Nov. 27, 2013
    5:08 a.m.

    I find it utterly amazing that there’s people on this site still defending that evil idiot in the White House. Do any of you really think that Obama cares about the Constitution, the separation of powers or the rule of law? I have never seen and never thought it would be possible that a U.S. president could act like a Third World dictator and get away with it because no one dares to stop him.

    • Gregory Williams

      Nov. 27, 2013
      7:57 a.m.

      Thanks to Obamacare YOU can get treatment for that severe case of ODS you have.

      • frankstclair

        Nov. 27, 2013
        8:22 a.m.

        Sure. 12k a year with a 12k deductable. Try the news sometime. It’s very enlightening.

      • HJD

        Nov. 27, 2013
        10:01 a.m.

        ODS, does that stand for, in your case, Obama Denial Syndrome?

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