The Supreme Court made a good ruling this week and I discussed it on my show. It required that law enforcement obtain a warrant before searching a cell phone and that it was not the same as searching a wallet. That was a good ruling. But we had two bad rulings. One was the ruling that President Obama violated the Constitution by his appointing three people to the National Labor Relations Board during what he believed was a Congressional recess. The other ruling struck down a buffer zone law that required people protesting abortions to stay back a certain number of feet even if they were on public property (like a sidewalk). I will deal with that second ruling in another post.
In the ruling of the non-recess appointments the Supreme Court had ruled that a 3 day recess was not a long enough recess to justify a recess appointment. Arbitrarily Justice Breyer said that a recess less than 10 days would be too short. I am not exactly sure where that figure comes from, since no where does the Constitution place a requirement on the number of days a recess might be. There has been a tradition of Presidents not making such appointments during breaks less than 10 days. That tradition is not found in any law. However, I guess a line has to be drawn somewhere so that isn’t my issue with the ruling.
My issue with the ruling is the trampling or even usurpation of the Presidential authority to make recess appointments by making bogus “pro-forma” sessions in order to block such appointments. What happened in this case is that the House required the Senate to have meetings called “pro forma” sessions of the Senate every third day in order to keep the President from saying that the Senate was actually in recess. What happened during these sessions? One Senator came in and banged a gavel. That’s it. No business was conducted. So how on earth can the Supreme Court justify calling such meetings an interruption of a recess? It is just absurd.
The ruling could have been worse. According to the minority opinion they believed that recess appointments should only happen if the vacancy starts during the recess. This is the wording of the Constitution on the matter:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
It seems to me that all that the Constitution requires is for the vacancy to exist during the Recess of the Senate (i.e. it must be happening during the recess). It doesn’t require the vacancy to start in that vacancy. But saying it could have been worse does not make me feel better about a bad ruling. The idea that one person banging a gavel in the Senate because the House requires it is enough to call it no longer a recess is a trampling of a constitutional authority of the President and that the court couldn’t see that disturbs me greatly.