Tuesday, January 14, 2014

SCOTUS overstepping?

By Carl

That’s what I think in light of the flapdoodle at SCOTUS over recess appointments:


WASHINGTON—The Supreme Court seemed inclined to rein in the president's power to make "recess appointments" when the Senate is out of town, as justices on Monday suggested the practice under both parties had exceeded constitutional limits.

The Constitution grants the president power "to fill up all Vacancies that may happen during the Recess of the Senate," allowing appointees to serve temporarily without confirmation—including some whose prospects for Senate approval were unlikely.

But justices of all ideological stripes suggested Monday that a tool intended to keep the government running during the republic's early days had morphed over the centuries into a weapon to be wielded in power struggles between Congress and the White House.

There’s a bit of historical perspective to be put in place here: When the Constitution was written, it was rare for Congress to break, but when they did, it was for long periods of time.

After all, even a horseback ride along the east coast to Maine or South Carolina was a substantial investment of time, and Congress was not considered the primary source of a representative’s income back then.

Recess appointments made sense then: a president often couldn’t wait the month or so for the Senate to return.

The prevailing opinion is that the Senate is much more “reachable,” much more available to consider appointments now, despite the fact they work less than half a year.

Ah, but the prevailing opinion is not important here, because the counterargument is that the Senate used to rubber stamp appointments unless there was a genuine reason to delay or even turn down a nominee. That’s no longer the case.

SCOTUS, I think, is overstepping its jurisdiction here, because in truth the only way to remedy the recess appointment concern is to overhaul the entire Senate “advise and consent” process, something justices should be loathe to do.

This power is written into the Constitution. If you’re going to claim to be a strict constructionist, you want to leave this alone.

(Cross-posted to Simply Left Behind.)

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