In most instances I would say the less time Congress is in session, the safer our freedom and liberties are. However, for the upcoming holiday break and the time between the swearing in of the new congress and the inauguration of President-elect Trump, this is not the case – at least for this year.
My concern is the vacancy on the Supreme Court left by the unfortunate passing of Justice Antonin Scalia. In March of this year President Obama fulfilled his constitutional duty of nominating Merrick Garland to fill that vacancy on the court. However, the Senate has stated they will not take up deliberations on confirming his appointment, which is both their constitutional responsibility and prerogative. This leaves us at a stalemate over the vacancy.
So what’s this got to do with Congress taking its traditional holiday adjournment and the break between their swearing in and the presidential inauguration? Article II, Section 2, Clause 3 of the Constitution states that “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.” In addition, Article I, Section 5, Clause 4 states that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.”
Should both houses of Congress agree to adjourn for more than three days during either of the two time periods I’ve mentioned, then President Obama could appoint a liberal, progressive judge to the Supreme Court without the consent of the Senate, and that individual would sit on the court until a new Congress is elected in 2018, at which time the Senate could confirm or deny confirmation, in which case that individual would be removed from the Court and President Trump would be free to nominate a conservative replacement. Indeed, there are some in the Democrat caucus in Congress that are encouraging President Obama to do just this. Yet if Congress remains in session he could not constitutionally make any appointments.
Hopefully the Republicans will not be so arrogant to think that President Obama would not do this or that if he did, they could undo the appointment in 2019. There are two serious dangers with this thinking. First, President Obama has shown in the past that he is indeed willing to make controversial recess appointments. In January 2012 he appointed three liberal, pro-union individuals to the National Labor Relations Board and it wasn’t until June 2014 that the Supreme Court ruled unanimously that the appointments were illegal. By then, however, those three individuals had done much damage in their rulings.
Second, consider what would happen if the Republicans fail to maintain their majority in the Senate in the 2018 elections. Then the Democrat-controlled Senate would confirm the appointment and that justice would have his/her life-time appointment to the Court. Not only this, but even if the Republicans maintained their majority status in the Senate in the 2018 elections, that would still give the Court a liberal majority for two years, during which time much mischief could be done to our Constitution, our freedom and our liberties.
So, there you have it. It is imperative that Congress put the wellbeing of the country and the future of the Supreme Court above their desire to “take a break” from their elected duties. Many in our military won’t be home for the holidays because of their duties in service to our country; why should members of Congress be any different?
-December 9, 2016