Hey, maybe Obama should use recess appointments to pack the courts before leaving office

posted at 6:01 pm on December 28, 2016 by John Sexton

New York magazine has published a piece by Ed Kilgore titled “Here’s How Obama Could Go Nuclear on Trump and the GOP Before Leaving Office.” The gist of the piece is that the GOP has violated all historical norms in opposing Obama so Obama should do likewise and do something really crazy before he leaves office:

If Obama is indeed in the mood for a final act of defiance toward these vandals, what can he do? Last-minute regulations (apart from some hard-to-reverse environmental actions that he has already taken like offshore drilling bans that are issued for fixed terms) aren’t very fruitful; some can be simply revoked by Trump or his agency appointees, and others Congress can kill under the Congressional Review Act. Yes, he retains the power to pardon right up to the end, but that’s not going to place a more permanent Obama stamp on the public sector.

That leaves one potentially big stick in Obama’s rapidly shrinking arsenal: recess appointments of judges to fill scores of federal-bench vacancies — up to and including Antonin Scalia’s seat on the Supreme Court.

There’s a problem with this, which is that the Supreme Court ruled in 2014 that Obama had no right to make recess appointments to the Labor Relations Board (in 2012) while the Senate was in pro forma session. But Kilgore suggests there is a way around this. In involves making the appointments in the seconds between the end of one Senate session and the beginning of the next one:

The Senate does have to eventually end the session before beginning a new one on January 3, 2017. And a precedent was set by none other than Republican Theodore Roosevelt that a president could make “intercession” recess appointments in the seconds between one swing of the gavel and the other. TR made 193 recess appointments at the beginning of 1903, and while the legality of the action has been questioned, it has never been clearly overturned. If Obama were to follow this procedure, it would take extensive litigation to reverse it, and it might stand after all.

Kilgore says Obama might even try this maneuver to fill the late Justice Scalia’s seat, but, ultimately, he agrees it won’t happen because, “Barack Obama isn’t built that way.” What’s interesting about this article is that it seems to perfectly encapsulate a common line of thinking on the left these days. It goes like this: Republicans have violated all the norms and Democrats have held back and played by the rules. And this, some add, is why Democrats always lose.

Needless to say, this is not quite how things have gone. The passage of Obamacare via reconciliation, the decision to use the nuclear option, the Senate Majority leaders lies about Mitt Romney’s taxes, the aforementioned “recess appointments” to the Labor Relations Board, the President’s unprecedented expansion of prosecutorial discretion under DACA, his kill list and use of drones against U.S. citizens, the payment of subsidies to insurers despite a requirement to make payments to the Treasury. Not to mention the Democrat-led attempts to request a blanket pardon for “dreamers,” to rally faithless electors to attempt to change the outcome of the election and to demand a special classified briefing for electors—all of which took place in the last month. Granted those last three didn’t work out but not for lack of trying.

The point is that the idea that Democrats have been playing by the rules while Republicans run roughshod over every norm is absurd. As the courts have pointed out in several cases (DACA, recess appointments), Democrats have gone well beyond the established norms. And that’s true of decorum as well as policy. Harry Reid’s lies and attacks on the Koch brothers are not the norm. And let’s not forget recent efforts by Democrats to pass a gun control bill. Anyone who thinks the GOP has violated norms while Democrats have been models of decorum should watch it a few times until it sinks in:


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