11/12/2023 0 Comments Senate pro forma session july 3 2017![]() They would cite the Senate’s use of the “ nuclear option” to end the filibuster on executive branch and judicial appointees (though not Supreme Court justices), and the Obama administration’s reliance on executive orders on policies like immigration. Republicans surely view Democrats in the same manner. The opposition party would never attempt to conduct foreign policy that differed from the president’s, until Republican senators tried it before the Iran deal.Īnd, of course, the year-long blockade of Garland, who has not even received a hearing in the Senate Judiciary Committee, violated a long-standing norm. A minority of the Senate prevented the confirmation for years of any director of the Consumer Financial Protection Bureau simply because they didn’t like the agency. Congress typically passes the debt limit without comment, but Republicans took the country to the brink of its first default, extracting concessions in the process. Tom DeLay saw advantage in doing a second redistricting in Texas in 2003 to pick up extra GOP seats, even though states normally redistrict every 10 years he succeeded. They turned the filibuster from a seldom-used tool to a routine exercise. Republicans have absolutely no problem breaking any norm in their path to power. ![]() That process would take several months, and all the while the Supreme Court would have a center-left majority.Īnd that’s the real point. And then they would have to move that case through the lower courts. However, it is likely they would need Garland to participate in a case that gets a ruling so they could have a plaintiff with standing to say they have been harmed by the Garland appointment. Conservatives would demand the Court immediately block the appointment. Indeed, it would make the nation’s collective head explode. It goes without saying that Obama appointing Garland in this fashion would be highly controversial. Collins specifically cited the Garland issue as his justification: “It’s been 111 days since President Obama nominated Merrick Garland for the bench and, while the Senate has continued to hold their ground on proceeding, we need to ensure the president cannot fill this slot-in the form of a recess appointment.” But we know that Congress understands the potential for inter-session recess appointments because Representative Chris Collins (a member of the Trump transition team) filed a constitutional amendment this year to end them. This is a highly aggressive and probably doomed strategy, without question. They say it goes beyond the facts before the Court, represents the individual views of the judge, and cannot be cited as legal precedent. ![]() The clause about the length of a recess, more provocative lawyers argue, is authoritative but not binding. However, legal scholars refer to this language as “ dicta.” It was not relevant to the actual decision in Noel Canning, which was solely about whether pro forma sessions were legitimate. Justice Stephen Breyer, writing for the majority, included language in the decision saying that Senate breaks of any kind, inter-session or intra-session, must be longer than ten days for appointments to be valid.
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