President Obama could well take place of the Congress holiday recess and make a temporary appointment to the Supreme Court? How is that possible, and what can be done to prevent this? Are the Republican leaders on the Hill making bets that Obama would not do this? This sounds like a big gamble.
As Written By Ed Straker for American Thinker:
Last week, I warned that if Congress adjourned for the year too soon, it could open a window to give President Obama a Supreme Court pick. That’s because of a provision of the Constitution that allows the president to make recess appointments that can last two or more years. Now we get word that Congress is planning to adjourn early, which will give Obama an opportunity to appoint Merrick Garland to the Supreme Court.
This discussion is fairly complex, involving both constitutional and statutory law, so bear with me.
1) Why does Congress want to adjourn early? Members of Congress want to adjourn early this year so they can kill last-minute Obama regulations. According to a 1996 law, Congress has 60 legislative days in which to disapprove of presidential regulations. If Obama makes some horrendous last-minute regulations, by ending its session early, Congress has more time to overrule those regulations. That’s why congressional leaders are tentatively planning to adjourn by December 9.
2) What does this have to do with the Supreme Court vacancy? Under Article II, Section 2 of the Constitution:
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.
Courts have interpreted “recess” to mean a ten or longer-day gap between sessions of the Senate. That means Obama, during the recess, could appoint Merrick Garland to the Supreme Court, since by adjourning for the year on December 9, the Senate will be gone for far longer than ten days.
3) But doesn’t Congress have the power to say whether it is in recess or not? Kind of. In NLRB v. Noel Canning, the Supreme Court said Congress has the power to decide whether it is in recess or not, but only up to a certain point. If Congress does not at least hold pro forma sessions, it cannot say it is in recess (see pages 4-5 of the actual opinion).
4) But wouldn’t an appointment last only until the beginning of January? Note the words of Article II, Section 2 above. Note the word next, as in …..
FULL STORY HERE