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Sunday, January 27, 2013

Just A Few Quick Notes About Intrasession Appointments

Much news about the DC Circuit's slapping down of Obama's recess appointments to the NLRB.  I don't find the hyper-parsing argument compelling, and now we've got a 7-10 split in the circuits that Scalia will have to bowl through.

The 11th in Evans v Stephens (2004):

Twelve Presidents have made more than 285 intrasession recess appointments of persons to offices that ordinarily require consent of the Senate. So, given the words of the Constitution and the history, we are unpersuaded by the argument that the recess appointment power may only be used in an intersession recess, but not an intrasession recess. Furthermore, what we understand to be the main purpose of the Recess Appointments Clause—to enable the President to fill vacancies to assure the proper functioning of our government —supports reading both intrasession recesses and intersession recesses as within the correct scope of the Clause.

SCOTUS in Stuart v Laird (1803):

To this objection, which is of recent date, it is sufficient to observe, that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, afford an irresistible answer, and have indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.

Scalia in McIntyre v Ohio Elections Commission (1995):

But there is other indication, of the most weighty sort: the widespread and longstanding traditions of our people. Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness. A governmental practice that has become general throughout the United States, and particularly one that has the validation of long, accepted usage, bears a strong presumption of constitutionality. 

You can't always justify things simply because they've ever been thus, but when it comes to determining the constitutionality of a practice, there's a great need to provide an extremely compelling reason supported by incontrovertible logic to undo something that has long precedent.


January 27, 2013 in Constitution, Schmonstitution | Permalink


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When some dude in EIGHTEEN FUCKING OH THREE says that the practice has gone on long enough to be settled law, then you have to have a *special* kind of stupid to suggest that the precedent should be overturned because those Founders meant something else.

Posted by: Snarki, child of Loki | Jan 28, 2013 12:12:58 PM

LOL, yeah.

Posted by: NTodd Pritsky | Jan 28, 2013 1:07:48 PM

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