r/tuesday • u/coldnorthwz New Federalism\Zombie Reaganite • Nov 18 '24
The House Has No Authority to ‘Disagree’ with Senate’s Decision to Remain in Session | National Review
https://www.nationalreview.com/bench-memos/the-house-has-no-authority-to-disagree-with-senates-decision-to-remain-in-session/27
u/Palmettor Centre-right Nov 18 '24
While the court should decree that the president has no right to force the Senate to recess, the “would” question hangs there. I’m not one to doom and gloom about the current court, but these are strange times.
I also wonder about the time aspect. Would the Senate go into recess until SCOTUS said the president couldn’t force them to? That’d be enough for Trump to make those recess appointments, even if he loses the case (is it even a case?) later.
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u/EverythingGoodWas One Nation Conservative Nov 18 '24
I just don’t see any good coming from a President constantly pushing the limits of his own power even while curbing the limits of the Senate. His party will control the Senate soon, and any appointment who is so bad he can’t even get his own party to agree to them, shouldn’t be appointed
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u/tommyjohnpauljones Left Visitor Nov 18 '24
especially when at least members of his majority have openly opposed him in the past, and others in 2026 swing state races, or generally older Senate traditionalists, could still keep him from running off the rails. In theory.
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u/Traitor_Donald_Trump Right Visitor Nov 18 '24
In theory, pigs can fly in the back of an airplane cargo hatch.
Effectively, pigs can fly.They don’t, because it’s more beneficial to business to move them by truck or train.
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u/Flaky-Wallaby5382 Left Visitor Nov 18 '24
The US President is a leashed tyrant.
Presidential pushes for power have occurred throughout U.S. history, often sparking debates about the constitutional limits of executive authority. Here are some notable examples and their historical contexts:
George Washington (1793) – Neutrality Proclamation
• What Happened: Washington issued the Neutrality Proclamation during the war between Britain and France, asserting that the U.S. would remain neutral and bypassing Congress in making foreign policy. • Context: At the time, the constitutional boundaries of presidential power in foreign policy were unclear. Washington’s decision set a precedent for strong executive authority in foreign relations. • Impact: Critics, including Thomas Jefferson, argued that Washington overstepped his constitutional bounds. However, it established the president’s influential role in foreign affairs.
Andrew Jackson (1832) – Bank War
• What Happened: Jackson vetoed the recharter of the Second Bank of the United States, arguing that it was unconstitutional despite Supreme Court rulings upholding the bank’s legitimacy. • Context: Jackson framed the issue as a fight against elite economic interests and an assertion of popular sovereignty over judicial or legislative authority. • Impact: Critics accused Jackson of consolidating too much power in the presidency, coining the term “King Andrew I.” His actions reshaped the power dynamic between branches of government.
Abraham Lincoln (1861–1865) – Civil War Measures
• What Happened: Lincoln suspended habeas corpus, expanded the army without congressional approval, and issued the Emancipation Proclamation, which he justified as a wartime measure. • Context: Facing unprecedented national division, Lincoln believed these actions were necessary to preserve the Union. • Impact: While many saw Lincoln’s measures as necessary in a time of crisis, they also raised questions about executive overreach. His actions set precedents for the use of presidential emergency powers.
Franklin D. Roosevelt (1933–1945) – New Deal and Wartime Powers
• What Happened: FDR expanded the federal government’s role through the New Deal, creating agencies and programs to combat the Great Depression. During World War II, he issued executive orders for internment camps (e.g., Executive Order 9066) and centralized war efforts. • Context: FDR operated in a time of economic and global crises, using executive power to respond swiftly where he felt Congress was too slow. • Impact: His actions greatly expanded the scope of presidential authority, but they also faced significant backlash, including the Supreme Court’s rejection of some New Deal programs.
Richard Nixon (1969–1974) – Watergate and Executive Privilege
• What Happened: Nixon claimed executive privilege to withhold tapes related to the Watergate scandal, asserting that the president had broad powers of confidentiality. • Context: Nixon’s administration was mired in controversy over abuses of power, including illegal surveillance and interference in elections. • Impact: The Supreme Court in United States v. Nixon (1974) ruled that executive privilege is not absolute, curbing presidential power. The Watergate scandal led to Nixon’s resignation and a lasting distrust of unchecked executive authority.
George W. Bush (2001–2009) – Post-9/11 Measures
• What Happened: Bush authorized the use of warrantless wiretapping, military tribunals, and indefinite detention of terrorism suspects at Guantanamo Bay. • Context: After the September 11 attacks, Bush claimed broad executive powers under the Authorization for Use of Military Force (AUMF) to combat terrorism. • Impact: Critics accused Bush of eroding civil liberties and bypassing Congress. These actions led to legal challenges and congressional efforts to limit executive overreach.
Barack Obama (2009–2017) – Immigration Executive Orders
• What Happened: Obama issued the Deferred Action for Childhood Arrivals (DACA) program through executive order, protecting certain undocumented immigrants from deportation after Congress failed to pass immigration reform. • Context: Obama argued that the gridlocked Congress left him no choice but to act unilaterally on an urgent issue. • Impact: While DACA was widely praised by some, critics argued that Obama exceeded his constitutional authority. The courts later blocked a similar program (DAPA).
Donald Trump (2017–2021) – Emergency Declaration for Border Wall
• What Happened: Trump declared a national emergency to reallocate funds for building a border wall after Congress refused to fully fund it. • Context: This action tested the limits of the National Emergencies Act and highlighted partisan divisions over executive authority. • Impact: Legal challenges and congressional pushback followed, with critics arguing Trump was abusing emergency powers to bypass Congress.
Conclusion
Presidential pushes for power often arise during times of crisis or gridlock, where swift action is deemed necessary. However, such actions frequently spark debates about the balance of power, setting precedents for future administrations. The enduring tension between the branches ensures these actions remain subject to scrutiny and, in some cases, correction.
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u/TheDemonicEmperor Social Conservative Nov 18 '24 edited Nov 18 '24
Presidential pushes for power often arise during times of crisis or gridlock, where swift action is deemed necessary
And this is the real problem. Politicians (and by extension the American people) think everything is a crisis that needs to be solved with the snap of a finger. As you pointed out, it's not just newer generations. We've had people like that since the birth of America. Though I do think the Washington and Trump examples are far weaker than the others and can be more chalked up to partisan opposition rather than actual Constitutional concerns. Jefferson didn't even oppose Washington's power, actually just that he wanted Washington to leverage it to extort other countries in payment for neutrality.
When their legislation isn't popular enough to pass, everyone starts rooting around for tricks and loopholes to abuse. Truly, we'd all be better off if we stopped caring so much about wanting the federal government to solve every little problem we have.
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u/SerialStateLineXer Right Visitor Nov 18 '24
Biden's abuse of executive power to cancel student loan debt is another big one.
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u/TheDemonicEmperor Social Conservative Nov 18 '24
I just don’t see any good coming from a President constantly pushing the limits of his own power even while curbing the limits of the Senate.
While I do think it's rich that people only care about a president having unlimited power while a Republican is in office, I obviously have to agree here.
I think there's been enough limits set that Trump can't do much. But I certainly wouldn't complain if this wakes people up into giving less power to the government. (Although I have my doubts, people only think it's a problem because Trump is in power - see Pramila Jayapal and her open hypocrisy on the matter)
I think, obviously, would I be, am I championing getting rid of the filibuster now, when the Senate has the trifecta?” Jayapal continued. “No, but had we had the trifecta, I would have been
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u/TheDemonicEmperor Social Conservative Nov 18 '24
While the court should decree that the president has no right to force the Senate to recess
Sorry, but this is just playing the same game Trump and Progressives are playing. You can't only like rules until Trump uses them to his advantage.
The court has ruled on the Senate recess plenty enough after Obama abused it.
https://en.wikipedia.org/wiki/NLRB_v._Noel_Canning
Essentially, from an originalist and constitutional perspective, the original idea for the confirmation process was that Senators were getting to Washington by horse and buggy after they recessed and the president required a nominee confirmed immediately.
The presidential recess appointment power is not going anywhere and the court decision directly contradicts the opinion in the article. However, there needs to be enough time between sessions for a recess appointment, which actually cannot happen unless both the House and Senate are complicit. The House alone can only adjourn for a shorter time than the recess appointment process. The court already has enough rules in place to prevent abuse of recess appointments.
So that said, it's disappointing to see both people on the left and people on the right who espouse rule of law blatantly wanting the mirror opposite of Trump. We can't just change the rules solely because we don't like Trump or his picks.
He's president and gets to offer up a pick to the Senate. The court should not be ruling anything to the contrary just because you despise Trump's picks.
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u/Palmettor Centre-right Nov 18 '24
I think you may misunderstand my point, or I might not have explained it clearly. From my understanding, no president may require the Senate to recess. My motivation is not to block Trump’s picks, but rather to say that neither he nor anyone else should be able to make their appointment process easier to end-run around the Senate confirmations. I also don’t see this as a “both the rich and poor will face consequences for stealing bread” situation. It seems like a sketchy way to appoint people to important offices in general. I’m concerned with following the plain text of the Constitution irrespective of who’s in office (blame my Presbyterian-ness for strict adherence to procedure), and it so happens that Trump forcing the Senate to recess goes against that, from what I can tell.
I also don’t see how NLRB v Cannon bears on the question here. I gathered that it allows for the filling of empty positions if the Senate is in recess, no matter how those positions were emptied. Well and good. That prevents the Senate from using wonky definitions of “recess” to indefinitely block appointments they don’t like, which makes sense. I don’t see how that’s related to the President’s ability to cause a Senate recess. Maybe I missed something.
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u/TheDemonicEmperor Social Conservative Nov 18 '24 edited Nov 18 '24
From my understanding, no president may require the Senate to recess.
He can't. That's not the plan. The Senate will either recess itself or the House will force it to recess. The president has no involvement here. As noted, there's already enough guardrails from the Obama decision.
I’m concerned with following the plain text of the Constitution irrespective of who’s in office
Right, the plain text says that the House can go through with this plan. The fact is that Trump is doing nothing illegal with this plan. No one is forcing the Senate to recess except potentially the House. The House is not Trump.
I also don’t see how NLRB v Cannon bears on the question here
Because, as noted, this is literally the same situation as the Obama appointments. The court already provided guidelines to the legality of recess appointments and the timeline needed for them to qualify.
As previously noted, the House alone can only adjourn for a shorter time than the recess appointment process. The Senate would need to adjourn along with it, willingly.
That prevents the Senate from using wonky definitions of “recess” to indefinitely block appointments they don’t like
Ah, well here's the confusion. Because the determination was actually the opposite. The Senate found that it can have pro-forma sessions to prevent a full recess and prevent the need for a recess appointment. As noted previously, the court understood that recess appointments were for a time period when Congress couldn't remotely complete their job. The Senate can block appointments they don't like because it's their job to approve or deny a pick.
That's the checks and balances here. President gets to pick, Senate gets to turn him down because the pick is unqualified. Again, there's literally no reason to have another court decision to change the rules just because you don't like the rules.
And, for what it's worth, they should deny Gaetz, Tulsi, and possibly Hegseth and RFK. Trump doesn't get full discretion on his picks, nor should he.
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u/Palmettor Centre-right Nov 18 '24
Apologies for not using quote blocks. It’s tricky on my phone.
I’m going to be a little picky on the president’s involvement. This whole plan hinges on him using Article II Section 3 to cause the Senate to adjourn if the House votes to adjourn and the Senate does not. If Trump doesn’t exercise Article II Section 3, the Senate stays in session. It also comes down to the precise meaning of “Time”, whether it means duration or moment. Reading over it, I am inclined to go against the article a bit and say that Time refers to a moment because of this sentence: “he may adjourn them to such Time as he shall think proper”.
I do see how NLRB v Canning applies a bit more, given that it allows the Senate to effectively indefinitely recess without recessing (yep, I definitely misread the opinion the first time).
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u/TheDemonicEmperor Social Conservative Nov 19 '24
This whole plan hinges on him using Article II Section 3 to cause the Senate to adjourn if the House votes to adjourn and the Senate does not.
So yeah, let me explain what would happen. He can forcibly adjourn the Senate with only the House.
Because, by the way, he already threatened this back in 2020.
"If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both chambers of Congress."
What he can't do here is adjourn them for longer than it takes for a recess appointment unless the Senate agrees to it..
https://clerk.house.gov/Help/ViewLegislativeFAQs
" Neither the House nor the Senate may adjourn for more than three days (excluding Saturdays, Sundays, and holidays) without the concurrence of the other Chamber."
It takes 10 days without Congress in session for a recess appointment.
So, again, the rules are already clear. Just because MAGA doesn't know them doesn't mean we need another court case.
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u/Palmettor Centre-right Nov 20 '24
I see. That makes sense; I think I misunderstood some of the specifics.
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u/Thadlust Right Visitor Nov 18 '24
It’s absolutely bonkers that his picks are so bad he needs recess appointments while his party controls the senate.
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u/SloppyxxCorn Right Visitor Nov 21 '24
Woo, can't wait to centralize power. Screw these checks and balances.
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