SCOTUS’ meaningless ruling: Why its limit on recess appointment powers doesn’t really matter anymore

The court ruled that President Obama's recess appointments were illegal. Here's why they're too late

Topics: SCOTUS, Supreme Court, Stephen Breyer, law, Recess appointments, constitution, President Obama, White House, nlrb, appointments, Filibuster, Harry Reid, Editor's Picks,

SCOTUS' meaningless ruling: Why its limit on recess appointment powers doesn't really matter anymoreSupreme Court Justices Clarence Thomas and Antonin Scalia (Credit: AP/Pablo Martinez Monsivais/Jeff Malet Photography, maletphoto.com/photo collage by Salon)

This morning the Supreme Court ruled to limit the president’s recess appointment powers — but not eliminate them. It upholds a lower court ruling that several recess appointments President Obama made in early 2012 to the National Labor Relations Board were illegal. It does not, however, conclude that the recess appointment power is a thing of the past and should mostly be discarded, as the lower court previously had.

The good thing for the Obama administration, at least, is that in practical terms, today’s ruling no longer really matters. That’s because the Senate majority has since eliminated the filibuster on executive and judicial appointments that was the cause of this whole mess to begin with.

The ruling — in which the court considered the recess appointments clause for the “first time” — held that “The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess—intra-session or intersession—of sufficient length.” It defines “intra-session” recess as “breaks in the midst of a formal session” and “intersession” as “breaks between formal sessions of the Senate.” So the president, according to the majority opinion, still holds the power to make recess appointments to vacancies when the Senate is either taking a break between sessions or taking time off during a session.

Where the court found issue with President Obama’s 2012 appointments was the lack of “sufficient length,” (three days, in this case) of the intra-session recess in which the appointments were made. The period in question — Jan. 3-6, 2012 — came between so-called pro forma sessions of the Senate. Most senators were away on holiday break, but someone stuck around to gavel the Senate into session. The Obama administration argued that those pro forma sessions didn’t really count as the Senate being in session, since they effectively only existed to prevent Obama from making recess appointments. The majority opinion, written by Justice Breyer, doesn’t buy that argument. “The Senate is in session when it says that it is,” Breyer writes, “provided that, under its own rules, it retains the capacity to transact Senate business.” And so:



Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.

Okey-doke. Three days, not enough, looks like the president is trying to bypass the Senate’s advise and consent role, got it.

What the Obama administration was trying to do, more broadly, was force a nasty new political reality to a conclusion. Senate Republicans were filibustering nominees, and gaveling in pro forma sessions to prevent recess appointments of them, not because they had specific problems with those nominees. It was because they didn’t, and still don’t, believe in the very function of the NLRB, and would rather leave vacancies there vacant indefinitely. This was no way for a government to be run, so the Obama administration deemed that those pro forma sessions didn’t really count as the Senate being in session; Republicans were just acting in bad faith to stymie President Obama and Senate Democrats. The courts officially disagree.

This whole legal battle, though, could have been avoided had Senate Democrats done what they eventually did to solve the problem, but earlier: eliminate the filibuster on judicial and executive branch nominees, and then not worry about what does and doesn’t count as a recess appointment.

After the D.C. Circuit Court of Appeals ruled last year that the NLRB appointments were illegal, President Obama renominated appointees to fill those slots and submitted them to the Senate. What happened? Senate Republicans filibustered them forever, of course. Eventually, Senate Majority Leader Harry Reid got fed up and triggered the “nuclear option”: a Senate rules change that would require only 50 votes, instead of 60, to invoke cloture on executive and judicial nominations. The NLRB nominees, and several others that had been held up, made their way through.

Had Reid gone ahead and invoked the “nuclear option” earlier, President Obama never would have had to make those legally dicey recess appointments, and this issue never would’ve made it to the courts. But, hey, he eventually did. So today’s ruling, in practical terms, isn’t that big of a blow to the presidency.

Jim Newell covers politics and media for Salon.

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 14
  • Close
  • Fullscreen
  • Thumbnails

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Pilot"

    One of our first exposures to uncomfortable “Girls” sex comes early, in the pilot episode, when Hannah and Adam “get feisty” (a phrase Hannah hates) on the couch. The pair is about to go at it doggy-style when Adam nearly inserts his penis in “the wrong hole,” and after Hannah corrects him, she awkwardly explains her lack of desire to have anal sex in too many words. “Hey, let’s play the quiet game,” Adam says, thrusting. And so the romance begins.

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Elijah, "It's About Time"

    In an act of “betrayal” that messes up each of their relationships with Hannah, Marnie and Elijah open Season 2 with some more couch sex, which is almost unbearable to watch. Elijah, who is trying to explore the “hetero side” of his bisexuality, can’t maintain his erection, and the entire affair ends in very uncomfortable silence.

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Charlie, "Vagina Panic"

    Poor Charlie. While he and Marnie have their fair share of uncomfortable sex over the course of their relationship, one of the saddest moments (aside from Marnie breaking up with him during intercourse) is when Marnie encourages him to penetrate her from behind so she doesn’t have to look at him. “This feels so good,” Charlie says. “We have to go slow.” Poor sucker.

    13 of "Girls'" most cringeworthy sex scenes

    Shoshanna and camp friend Matt, "Hannah's Diary"

    We’d be remiss not to mention Shoshanna’s effort to lose her virginity to an old camp friend, who tells her how “weird” it is that he “loves to eat pussy” moments before she admits she’s never “done it” before. At least it paves the way for the uncomfortable sex we later get to watch her have with Ray?

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Hard Being Easy"

    On the heels of trying (unsuccessfully) to determine the status of her early relationship with Adam, Hannah walks by her future boyfriend’s bedroom to find him masturbating alone, in one of the strangest scenes of the first season. As Adam jerks off and refuses to let Hannah participate beyond telling him how much she likes watching, we see some serious (and odd) character development ... which ends with Hannah taking a hundred-dollar bill from Adam’s wallet, for cab fare and pizza (as well as her services).

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Booth Jonathan, "Bad Friend"

    Oh, Booth Jonathan -- the little man who “knows how to do things.” After he turns Marnie on enough to make her masturbate in the bathroom at the gallery where she works, Booth finally seals the deal in a mortifying and nearly painful to watch sex scene that tells us pretty much everything we need to know about how much Marnie is willing to fake it.

    13 of "Girls'" most cringeworthy sex scenes

    Tad and Loreen, "The Return"

    The only sex scene in the series not to feature one of the main characters, Hannah’s parents’ showertime anniversary celebration is easily one of the most cringe-worthy moments of the show’s first season. Even Hannah’s mother, Loreen, observes how embarrassing the situation is, which ends with her husband, Tad, slipping out of the shower and falling naked and unconscious on the bathroom floor.

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and the pharmacist, "The Return"

    Tad and Loreen aren’t the only ones to get some during Hannah’s first season trip home to Michigan. The show’s protagonist finds herself in bed with a former high school classmate, who doesn’t exactly enjoy it when Hannah puts one of her fingers near his anus. “I’m tight like a baby, right?” Hannah asks at one point. Time to press pause.

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Role-Play"

    While it’s not quite a full-on, all-out sex scene, Hannah and Adam’s attempt at role play in Season 3 is certainly an intimate encounter to behold (or not). Hannah dons a blond wig and gets a little too into her role, giving a melodramatic performance that ends with a passerby punching Adam in the face. So there’s that.

    13 of "Girls'" most cringeworthy sex scenes

    Shoshanna and Ray, "Together"

    As Shoshanna and Ray near the end of their relationship, we can see their sexual chemistry getting worse and worse. It’s no more evident than when Ray is penetrating a clothed and visibly horrified Shoshanna from behind, who ends the encounter by asking if her partner will just “get out of me.”

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Frank, "Video Games"

    Hannah, Jessa’s 19-year-old stepbrother, a graveyard and too much chatting. Need we say more about how uncomfortable this sex is to watch?

    13 of "Girls'" most cringeworthy sex scenes

    Marnie and Desi, "Iowa"

    Who gets her butt motorboated? Is this a real thing? Aside from the questionable logistics and reality of Marnie and Desi’s analingus scene, there’s also the awkward moment when Marnie confuses her partner’s declaration of love for licking her butthole with love for her. Oh, Marnie.

    13 of "Girls'" most cringeworthy sex scenes

    Hannah and Adam, "Vagina Panic"

    There is too much in this scene to dissect: fantasies of an 11-year-old girl with a Cabbage Patch lunchbox, excessive references to that little girl as a “slut” and Adam ripping off a condom to ejaculate on Hannah’s chest. No wonder it ends with Hannah saying she almost came.

  • Recent Slide Shows

Comments

Loading Comments...