StrangeSox Posted January 12, 2012 Share Posted January 12, 2012 (edited) I can't find where Balta originally posted the news that Obama had appointed Cordray and three NLRB members recently, but thought this was important enough of an issue to merit its own thread. The Office of Legal Council released it's legal opinion on the legality of Obama's appointments today. It lays out their justification that these appointments were in fact legal. http://www.justice.gov/olc/2012/pro-forma-...ons-opinion.pdf The executive summary: The convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a “Recess of the Senate” under the Recess Appointments Clause. In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments. The fact that the Senate actually did conduct business at one of the pro forma sessions outside of the scope of this opinion may undercut their claims. Also that they use pro forma sessions to meet their Jan. 3rd Constitutional obligations. Edited January 12, 2012 by StrangeSox Link to comment Share on other sites More sharing options...
StrangeSox Posted January 12, 2012 Author Share Posted January 12, 2012 Does anyone have a good proposal for reforming this sort of Congressional sham of refusing to advise and consent on Executive appointments (yes, it goes both ways)? The few I've seen raise significant problems of their own and limit the ability of the Senate to actually advise and consent. Link to comment Share on other sites More sharing options...
Balta1701 Posted January 12, 2012 Share Posted January 12, 2012 QUOTE (StrangeSox @ Jan 12, 2012 -> 01:09 PM) Does anyone have a good proposal for reforming this sort of Congressional sham of refusing to advise and consent on Executive appointments (yes, it goes both ways)? The few I've seen raise significant problems of their own and limit the ability of the Senate to actually advise and consent. Any proposal that would actually be effective seems to me to involve Congress giving up a substantial fraction of their power in order to make the executive branch run more smoothly. I can't foresee any case where that will happen. Link to comment Share on other sites More sharing options...
StrangeSox Posted January 12, 2012 Author Share Posted January 12, 2012 QUOTE (Balta1701 @ Jan 12, 2012 -> 12:18 PM) Any proposal that would actually be effective seems to me to involve Congress giving up a substantial fraction of their power in order to make the executive branch run more smoothly. I can't foresee any case where that will happen. Right, you don't want to remove or cripple the Senate's ability to actually advise and consent on a nominee. At the same time, something is clearly broken when a minority can refuse to confirm any nominee until substantial legislative changes to the department are made. Maybe the long-needed reformation of filibuster rules would be all that's needed. Link to comment Share on other sites More sharing options...
Balta1701 Posted January 12, 2012 Share Posted January 12, 2012 QUOTE (StrangeSox @ Jan 12, 2012 -> 01:22 PM) Right, you don't want to remove or cripple the Senate's ability to actually advise and consent on a nominee. At the same time, something is clearly broken when a minority can refuse to confirm any nominee until substantial legislative changes to the department are made. Maybe the long-needed reformation of filibuster rules would be all that's needed. No, because the Senate can still delay the process of bringing guys through committee. The real problem is that under Kennedy, there were about 300 positions requiring Senate approval. Now there are about 1200. It's not just the directors, there are literally over a thousand everyday positions that require Senatorial consent. On top of that, there are about 3000 officer positions in the military which also require Congressional approval. There's just too much there for the Senate. Everyone realizes it, but it can't even get moved forwards when the 9/11 commission says "Streamline the process for this because it contributed directly to the worst terror attack on U.S. soil". Even bills to reform the process only do so piecemeal. The Senate likes it this way, and they're not giving that up. Link to comment Share on other sites More sharing options...
StrangeSox Posted January 12, 2012 Author Share Posted January 12, 2012 (edited) Could a minority party hold things up in committee still? Obviously, if there's a D in the WH and an R Senate, they can just vote his appointments no if they so choose. There's political and philosophical reasons not to, but they could. But when there's a minority with 40-45 seats, could they really hold up nominees like that? It also seems like giving the Senate a bit of a pass by pointing out how many more people they need to confirm. It's not like it's just taking them a long time to vet and confirm, they're completely stopping the process. edit: I'm not asking for ideas that will actually be implemented, because I seriously doubt the Senate (or any branch of government) will voluntarily give themselves less control, even if their exercise of that control is reckless. Edited January 12, 2012 by StrangeSox Link to comment Share on other sites More sharing options...
Balta1701 Posted January 12, 2012 Share Posted January 12, 2012 QUOTE (StrangeSox @ Jan 12, 2012 -> 01:34 PM) Could a minority party hold things up in committee still? Obviously, if there's a D in the WH and an R Senate, they can just vote his appointments no if they so choose. There's political and philosophical reasons not to, but they could. But when there's a minority with 40-45 seats, could they really hold up nominees like that? It also seems like giving the Senate a bit of a pass by pointing out how many more people they need to confirm. It's not like it's just taking them a long time to vet and confirm, they're completely stopping the process. Absolutely. A single Senator can pretty much shut down the Senate if he or she chooses to do so. If one Senator makes it clear they will not let a candidate come up for a vote, that candidate will not come up for a vote any time in the near future. Link to comment Share on other sites More sharing options...
StrangeSox Posted January 12, 2012 Author Share Posted January 12, 2012 QUOTE (Balta1701 @ Jan 12, 2012 -> 12:36 PM) Absolutely. A single Senator can pretty much shut down the Senate if he or she chooses to do so. If one Senator makes it clear they will not let a candidate come up for a vote, that candidate will not come up for a vote any time in the near future. The first stipulation was a reformation of the filibuster rules such that this tactic is only possible if they legitimately hold the floor by talking indefinitely. Link to comment Share on other sites More sharing options...
EvilMonkey Posted January 13, 2012 Share Posted January 13, 2012 When these appointed positions can be ran as fiefdoms with no oversight except by the President and have the effect of making 'rules' that are de facto laws without congressional approval, you will never get it streamlined. Link to comment Share on other sites More sharing options...
Balta1701 Posted January 13, 2012 Share Posted January 13, 2012 QUOTE (Alpha Dog @ Jan 13, 2012 -> 11:44 AM) When these appointed positions can be ran as fiefdoms with no oversight except by the President and have the effect of making 'rules' that are de facto laws without congressional approval, you will never get it streamlined. Except for when Congress approved the positions and their abilities to create rules. And when Congress gets to evaluate them. It's a really fun game actually. Congress passes the buck on writing rules, so that they can drag the process out, pull in more lobbying money, still pretend that it has no responsibility, then complain and blame the executive branch when the executive branch tries to use the authority Congress granted to it. Link to comment Share on other sites More sharing options...
StrangeSox Posted January 13, 2012 Author Share Posted January 13, 2012 Yeah maybe Congress shouldn't have delegated its powers to the Executive if it wanted to hold on to them! But there's good reasons shield some agencies from routine politics since politicians would opportunistically cripple agencies that they cannot manage to change legislatively. See: CFPB. Link to comment Share on other sites More sharing options...
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