Disaster in the DC circuit

Disaster in the DC circuit

by digby

So the DC circuit decided that recess appointments are only allowed between sessions of congress, not during intersession recesses. Scott Lemieux:
The opinion is an atrocity, classic “hack originalism for dummies,” relying heavily on the fact that recess appointments during nominal sessions of the Senate are a relatively recent phenomenon (although there’s precedent going back to 1867, and “[t]he last five Presidents have all made appointments during intrasession recesses of fourteen days or fewer”), without considering that the Senate systematically refusing to consider presidential nominees is also a contemporary phenomenon. The “pro forma” sessions the D.C. Circuit sees as breaking the constitutional “Recess” are intended solely to prevent the president from exercising the recess appointment power, the very check that the framers included to counteract the possibility that the Senate would obstruct the functioning of government by serially refusing to consider nominees. Separation of powers analysis that refuses to acknowledge how the government actually functions provides a clinic in the limitations of law-office history.
But while they were at it, they also reversed a decision that's been in effect since 1823. So much for stare decisis. But then I guess David Sentelle probably knows the intent of the founders better than the court of that era, so that makes sense.

Volokh (who seems surprisingly non-plussed by this decision as well) explains:

But the court also held (or at least stated) that the recess appointment power may only be used to fill vacancies that arise during the recess of the Senate. The text of the Clause provides:

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.

Although the first Attorney General, Edmund Randolph, read “happen” to limit the power to filling vacancies that arise during the recess of the Senate, by 1823, Attorney General William Wirt had reversed course and said it extended to vacancies that “happened to exist” during the recess. And there it has remained ever since. The D.C. Circuit’s conclusion conflicts with the Eleventh Circuit, the en banc Ninth Circuit, and the Second Circuit on this score.
I wonder why.

The point of this appears to be to hamstring the executive branch's regulatory ability which as Lemieux archly observes, "and — what are the odds? — it just happens that the result coincides with the policy preferences of the Republican author of the opinion, who considers the 20th century regulatory state unconstitutional."

On the other hand, there's this inexplicable behavior:
Of course, also important here that between Obama’s strange inattention to federal judicial appointments and Republican filibusters he’s the first president in at least 50 years not to get a single nominee confirmed to the D.C. Circuit.
I don't know what that means, but it sure does have a lot of people scratching their heads.

Oh, and this isn't the only ridiculous decision by this circuit in recent days:
Marijuana will continue to be considered a highly dangerous drug under federal law with no accepted medical uses, after a U.S. appeals court Tuesday refused to order a change in the government’s 40-year-old drug classification schedule.

The decision keeps in place an odd legal split over marijuana, a drug deemed to be as dangerous as heroin and worse than methamphetamine by federal authorities, but one that has been legalized for medical use by voters or legislators in 20 states and the District of Columbia.
Funny, they sure do give deference to federal regulators when it comes to drugs.

All I can say to that is if pot were as lethal as heroin and meth, everyone I know would be dead by now. It's the most absurd pile of nonsense ever perpetrated by the government. It will be remembered as right up there with believing that bleeding the patient will cure diseases.