Another big new push from the left in response to the Trump victory has arrived. This time, they are trying to convince president Obama to make recess appointments to all open federal judge positions between the end of the current Senate session and the start of the next session. It's a joke of a position.
The Constitution allows the president to make so called recess appointments during times when the Senate is in recess. Just two years ago, the Supreme Court interpreted that section of the Constitution for the first time. It held that for a recess appointment to be valid, the recess in question had to be long enough to prevent the Senate from being able to deal with a regular appointment in the usual manner. The Supreme Court held that any recess shorter than ten days would not be enough to permit the president to use his power of to make recess appointments. Here's the summary from the Court's syllabus of the decision:
The Constitution allows the president to make so called recess appointments during times when the Senate is in recess. Just two years ago, the Supreme Court interpreted that section of the Constitution for the first time. It held that for a recess appointment to be valid, the recess in question had to be long enough to prevent the Senate from being able to deal with a regular appointment in the usual manner. The Supreme Court held that any recess shorter than ten days would not be enough to permit the president to use his power of to make recess appointments. Here's the summary from the Court's syllabus of the decision:
The Clause does not say how long a recess must be in order to fall within the Clause, but even the Solicitor General concedes that a 3day recess would be too short. The Adjournments Clause, Art. I, §5, cl. 4, reflects the fact that a 3-day break is not a significant interruption of legislative business. A Senate recess that is so short that it does not require the consent of the House under that Clause is not long enough to trigger the President’s recess-appointment power.Moreover, the Court has not found a single example of a recess appointment made during an intra-session recess that was shorter than10 days. There are a few examples of inter-session recess appointments made during recesses of less than 10 days, but these are anomalies. In light of historical practice, a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. The word "presumptively" leaves open the possibilitythat a very unusual circumstance could demand the exercise of therecess-appointment power during a shorter break. Pp. 9–21.
So the Supreme Court has already held that Obama does not have the power to make the recess appointments that the left is currently pushing. Why do they bother?
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