Sunday, February 3, 2013

When 'originalist' hacks attack: Sentelle's partisan rewrite of the recess appointment power

Judge David Sentelle Judge Sentellle, providing hackery for over 3 decades.
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. - U.S. Constitution, Article II, Section 2, Clause 3
On January 25, 2013, a three judge panel of the US Court of Appeals for the District of Columbia Circuit issued  a decision (PDF) that was, in my view,  stunning in its partisan hackery. What it does, in essence, is eliminate the President's power to make recess appointments, despite the text of Article II, Section 2, of the Constitution.

The DC appeals court panel thrust itself into the political struggle between President Obama and the Republican caucus  in the House (this is due to the need for both houses of Congress having to agree to an adjournment (or recess?)  regarding the power of the President to name members of his Administration. It did so by legitimizing the Republican minority's use of the filibuster to prevent the President from naming members of his Administration subject to confirmation and delegitimizing the president's power to make recess appointments in response to Republican obstructionism.  

But why, you might ask, is the court's siding with the House, necessarily an act of partisan hackery? To me the answer is simple (as simple as thinking about Bush v. Gore): would this panel have issued this opinion if the president were a Republican and it was a Democratic House thwarting (through failing to agree to an adjournment of Congress)  the president's appointment power? Would THIS panel have ruled that a Republican president's recess appointments were invalid? Would it have even heard the case? I believe the answers are obvious: No. Never. No how. No way. YMMV.

Ok fine, you might say, the motivations were partisan, but what about the opinion itself? Does it hold up? Does it make sense? Well, here is the cherry on top - the opinion is not just partisan, it  is "originalist" partisan hackery.

I'll explain why I think so on the other side as I review the reasoning in the decision.

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