President Obama's recent appointments

[Curtis, Michael K.]

Just a preliminary, tentative  thought. In response to Scott's
thoughtful question about constitutionality, it occurs to me that the
filibuster is nowhere in the constitution, is a comparatively recent
tradition, and is now being used in a different way than ever
before--more often, you don't actually need to talk, etc. In other cases
where the constitution requires a super majority, it spells it out.  The
constitutional issue is for the senate but it strikes me that the
constitutional arguments against the current practice are as strong or
stronger than those on the other side.  At any rate a recess appointment
frustrating a filibuster that frustrates the will of the majority does
not seem to me to rise to the level of a constitutional violation.  I
guess the argument on the other side would be that the senate has a
right to advise and consent and if the senate rules allow a minority to
prevent all or some presidential appointments from being considered
without a 60 vote majority, then that violates the constitutional role
of the senate.  This argument does not strike me as strong, but here as
elsewhere perhaps too often where we come out depends on where we go in.

Michael Curtis



-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Gerber, Scott
Sent: Sunday, March 28, 2010 8:09 AM
To: conlawprof at lists.ucla.edu
Subject: President Obama's recent appointments


3/28/10
According to the attached NYTimes story, President O'Bama recently made
a number of recess appointments.  Here's the story:
http://www.nytimes.com/2010/03/28/us/politics/28recess.html?th&emc=th
 
I'd like to focus on Craig Becker's recess appointment to NLRB.
According to the NYTimes story, the Senate voted last month 52-33 not to
end the filibuster over his nomination, yet the president appointed him
anyway.  The primary constitutional arguments in the president's favor
seem to be (1) the Constitution permits him to make recess appointments
and (2) there seems to be majority support in the Senate for confirming
Mr. Becker.  The primary constitutional argument against the recess
apointment of Mr. Becker is that the Senate--including very
recently--refused to end the filibuster over his nomination.
 
I'd be grateful for any thoughts the list may have on this issue.  For
the record, I have no horse in this race, I'm simply asking a
constitutional law question.
 
Thanks,
Scott
 
 
 
*****************************
Scott Douglas Gerber
(on leave during 2009-10 at Brown University's Political Theory Project)
Ella & Ernest Fisher Chair in Law and Professor of Law
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty_staff/faculty_profiles/scottgerber.html

 
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