Who framed and ratified the constitution . Because if they had thought about that, theres a real chance the senate may take a twomonth break right. Over christmas. Would there be any reason why they wouldnt have wanted the recess appointment power to apply there as well as at the end of the session . Your honor, our argument does not turn on that because to us it is not a temporal question. Its a procedural one. Back then, the senate had the power not to trigger the recess. Just like today, it has the power not to trigger the recess appointments power. The difference is not in principle. Its in historical context. At the time of the framing, they wanted to trigger the recess appointments power because when they left during long periods of time, they wanted the president to be able to act unilaterally since it was very difficult for them to get back. And if they didnt trigger the power, the only way the president could act unilaterally would the only way the president could confirm nomi
One flaw with your argument is t makes the words it may happen superfluous, that the clause would mean exactly what you say it means if you took those words out. And your response, the only one i could see on the reply, your reply brief, page 13, is that those words were put in there to, quote, confine the president to filling vacancies that actually exist at the time of appointment. Now, is that did you really think they put that language in there because they were afraid the president would fill appointments that dont exist . I dont know why they put the language in there, mr. Chief justice, but it doesnt it isnt superfluous because it does serve that function one reason is because they were afraid otherwise the president would have the power, simply, when somebody died two or three years before and theyve had a big fight in congress to save up all the controversial nominations and then put them through as recess appointments. That could be one thing they didnt want to happen. I dont
3, that since their meeting their recess was still on and lasted more than 3 days, it was a violation of that adjournment clause of the constitution. Now, thats one way to interpret it. Over a long period of time, they have apparently met pro forma on those days. Or we could try to make them mean the same thing, which would mean it was up to the senate. They consider that a meeting, its a meeting. What do we do . Or there is another option, Justice Breyer. Would you write that opinion, saying the senate of the United States has violated two provisions of the constitution . No, no. I dont think you need to write that opinion. All right. Why not . Because you might, perhaps, give the senate some deference with respect to requirements that apply only internally to the congress. But when what youre talking about is the senates use of pro forma sessions in a manner that deprives the president of authority that article ii would otherwise give would it i mean, thats my basic question really.
The executive was by rejecting the notion that the appointment power should reside with the senate. The framers considered that and they rejected it. And the reason they rejected it, as this court noted in its edmund opinion, was to protect the executive against encroachment by the legislature. But the compromise they settled on in moving away from that is that the president will nominate and the senate, if it so chooses, can confirm a nominee. You spoke of the intransigence of the senate. Well, they have an absolute right not to confirm nominees that the president submits. And it seems to me, following up on Justice Kagans point, youre latching on to the recess appointment clause as a way to combat that intransigence rather than to deal with the happenstance that the senate is not in session when a vacancy becomes open. Well, but those things there are often situations in which the senate is not in session when a vacancy becomes open or needs to be filled, i guess would be the more ac
1903 was about a disaster in canada. It happened in a town called frank in alberta, canada and it was the deadliest landslide ever in the history of that country. It was a little town in the foot of a mountain basically, and for some as yet unexplained reason in the middle of the night in april 1903, the top of that mountain decided to slide down that mountain and bury the town at the base. There apparently had not been any warning signs. This was a reconstruction that was done years later to explain what it might have been like. Obviously, this isnt footage of what happened. But the people in that poor town they did not have any warning signs, they did not have any idea this was going to happen. The whole town overnight basically got buried while they slept in their beds. This is one of the worst natural disasters in canadian history. And today that mountaintop is still sitting at the foot of that mountain where the town used to be and it makes for sort of an eerie moon light landscap