PILOT SPIN
Spin Zone => Spin Zone => Topic started by: bflynn on January 02, 2017, 10:55:10 AM
-
This is kinda a preemptive post because I've started hearing the idea of recess appointments being floated during the 5 minute gavel-out / gavel-in session for the Senate.
To put it bluntly, no, president Obama cannot make a recess appointment during the five minutes that the Senate is not in session. This has been previously decided in the case of National Labor Relations Board v. Noel Canning, which was decided 9-0 that Obama's last try at doing this in 2012 was not legal. I don't recall it, but in 2012 Obama tried to make multiple appointments, including 5 to the NLRB during a 3 day recess. In 2014 the court ruled that a recess of less than 3 days does not trigger the recess appointment clause. Their reasoning was that the recess appointment exists to provide continuity in government not to bypass the will of the Senate. He did this 4 years ago and got slapped down for it, it will clearly be illegal if he tries it again.
So if you hear the idea, you are not informed enough to know that the Supreme Court already unanimously decided the issue.
-
I wouldn't put anything past him at this point.
-
The Washington Times has an article out on this today where they cite a law professor who disagrees with you. The professor states that several scholars believe that Breyer's writing in the opinion was non-binding and that for an intersession (what you're referring to as opposed to what the SCOTUS ruled on, intrasession) won't allow for it.
The article also suggests that it would be a really bad idea for President Obama to do this for a variety of reasons, not the least of which is that once Garland is replaced, he also can't go back to the previous court he sat on.
Some scholars say the 10-day rule in his opinion is “dicta,” or nonbinding verbiage that doesn’t constrain the courts. Activists suggest Judge Garland could test the boundaries of unusual circumstances that Justice Breyer left open.
http://www.washingtontimes.com/news/2017/jan/1/obama-could-still-force-merrick-garland-onto-supre/
-
Obama lost this exact court fight 2 years ago in a 9-0 decision. I think if he tries it again, everyone just laughs at him.
-
Obama lost this exact court fight 2 years ago in a 9-0 decision. I think if he tries it again, everyone just laughs at him.
Like their laughing at him now? Seriously, this guy is so arrogant I don't put anything past him in the next 17 days.
-
The big thing is garland would have to give up his current seat (on the 2d highest court) for a most likely fail, and best case a year.