Obama has one last chance to force his pick for the Supreme Court, Merrick Garland, on to the highest court in the land.
Obama can attempt to force his Supreme Court pick Merrick Garland to the highest court in the land and he has a vehicle for doing it. There is something known as the “intersession recess”. It’s only a five minute window.
The Washington Times has reported that it’s a legal gamble and while he can get away with it, there would be a risky fight involved.
There is a five minute window that the Senate gavels the 114th Congress out of session and the 115th begins. This is known as the “intersession recess” and it is his opportunity to force through Garland.
The recess has been used once before by President Theodore Roosevelt but later repudiated.
While legal liberal scholars are pushing for it, others say it is unconstitutional.
The recess appointments are only temporary and expire at the end of the senate session.
Writing at the Washington Post’s Volokh Conspiracy, professor Jonathan Adler of Case Western University School of Law explains the appointment theory, which has gained traction in left-leaning liberal circles as almost certainly unconstitutional.
We have a recent ruling in the NLRB case in which Obama appointed members to the board during a recess. It was ruled unconstitutional.
Adler, explaining the ruling, says the Breyer opinion in the case explicitly bans as unconstitutional the sort of recess-appointment scheme some have pushed the president to pursue for Judge Garland.
Garland isn’t counting on the appointment and has arranged to hear cases again in January.
Obama has already proven that he doesn’t care if his actions are unconstitutional.
The Daily Kos, a Soros publication, is urging him to do it.
— Every Savage (@EverySavage) January 1, 2017
The New Republic does as well.
— Jamil Smith (@JamilSmith) December 31, 2016