What Fresh Hell Is This?

February 5, 2013

Recess Appointments - Trib Style

A few days ago the editorial board of Richard Mellon Scaife's Tribune-Review published an editorial.  They wrote:
A federal appellate court ruling that President Obama's January 2012 “recess” appointments of three National Labor Relations Board members were an unconstitutional end run around Congress is a victory for the Constitution.

The Framers intended recess appointments to fill vacancies only after Congress — then able to meet just a few months a year because traveling to Washington took so long — had finished a year's work and couldn't confirm nominees.

But particularly in the past 60 years or so, presidents have stretched that power to evade Senate unwillingness to confirm certain nominees, and lawmakers have gaveled in and out of brief “pro forma” sessions to evade adjourning for the year — as they were when those NLRB appointments were made.
They go on to call for Obama's impeachment if he knew he was making the appointments knowing it was an abuse of power.  This is how they put it:
And if supposed constitutional scholar Obama didn't know better than to misuse recess appointments, he's no constitutional scholar. If he did know better, he committed an abuse of power that rises to the level of an impeachable offense.
Interesting that the braintrust points out how "presidents have stretched that power" over the last 60 years or so.  I mean considering this report from the Congressional Research Service.

The CRS did some work and found out how many "recess appointments" would not have been allowed had the appellate court ruling been in place since, say, late January of 1981.

I'll give them an exposition:
On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) issued its opinion in Noel Canning v. National Labor Relations Board (hereafter Noel Canning).  In its ruling, the court determined that the President can make recess appointments only during intersession recesses, and that such appointments can be made only to vacancies that have occurred during the recess in which the appointment is made. The court also appeared to support the position that the recess appointment power may not be used to fill newly established positions, although that question was not before the court. [Italics in original]
In a footnote, they define "intersession" and "intrasession" this way:
Intersession recess appointments are those made between annual sessions of the Senate. The court indicated in Noel Canning that intersession recesses are only entered into when Congress adjourns sine die to end the session of Congress. Intrasession recess appointments are those made during recesses within annual sessions of the Senate. {Italics in original.]
Guess what they found?

Of the total number of 652 intra- and intersession appointments made between 1/20/1981 to the present nearly 36% of them (72 intra-and 160 intersession appointments) came from one man: Ronald Wilson Reagan.

Another 26% (141 intra- and 30 intersession) came from George W. Bush.

Looks to me, that's more than half of the appointments.

According to this report, had Canning been in place Jeanne Kirkpatrick could not have been appointed by Ronald Reagan as "Representative, U.N. General Assembly Session" on September 8, 1981, and William Bennett could not have been appointed as "Chair, National Endowment for the Humanities" by Ronald Reagan. Alan Greenspan could not have been appointed "Chair, Board of Governors, Federal Reserve System" by George H. W. Bush on August 10, 1991.

A question to my friends on Scaife's braintrust: tell me again how it rises to the level of impeachment?

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