SEE: Obama still might be able to put Merrick Garland on the Supreme Court


”Remember Merrick Garland, the judge President Obama nominated for the Supreme Court? Back in March, Republicans said they would not consider the nomination because it came too late in Obama's term to be considered, and they would leave it to the next President to choose a nominee.

But Democrats never give up, and President Obama may have a unique opportunity when the Senate goes into recess. Under the law, when the Congress is in recess for at least ten days, the President can make what's called recess appointments.”


In fact, our Supreme Court addressed this very question the case, National Labor Relations Board v. Noel Canning holding the Recess Appointments Clause authorizes the president to fill any existing vacancy during any recess – whether occurring during or between sessions of Congress – of sufficient length. However, for purposes of the clause, the Senate is in session whenever it indicates that it is, as long as – under its own rules – it retains the capacity to transact Senate business.

The Court stated:

”The Clause does not say how long a recess must be in order to fall within the Clause, but even the Solicitor General concedes that a 3-day recess would be too short. The Adjournments Clause, Art. I, §5, cl. 4, reflects the fact that a 3-day break is not a significant interruption of legislative business. A Senate recess that is so short that it does not require the consent of the House under that Clause is not long enough to trigger the President’s recess-appointment power. Moreover, the Court has not found a single example of a recess appointment made during an intra-session recess that was shorter than 10 days. There are a few examples of inter-session recess appointments made during recesses of less than 10 days, but these are anomalies. In light of historical practice, a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. The word “presumptively” leaves open the possibility that a very unusual circumstance could demand the exercise of the recess-appointment power during a shorter break.”

Let us hope Mitch McConnell leaves no room for Obama to have the legal opportunity to appoint our next Supreme Court Justice under the recess appointment clause in our Constitution.

JWK



The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.
_____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)