Kagan said the clause may be a “historic relic” from “the horse and buggy era,” when presidents needed the authority to fill vacancies because lawmakers were out of town and could not return on short notice. More recently, she said, presidents of both parties have used the appointment power “as a way to deal, not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the president thinks ought to be approved.”Partisan politics aside, yes, Kagan is right that recess appointments are from the horse and buggy era. Yeah, the entire body of our constitution is. So's every amendment before the 16th. Tell that to Scalia and his moronic "originalism." Doorknob, I wish more Americans in general would stop worshiping the body part of our constitution like holy writ. It's not. It's not even close. It's hopelessly anachronistic in today's era of computers and nuclear weapons.
She suggested that the new use of the clause was problematic.Justice Stephen G. Breyer said he had scoured the historical and legal materials. “I can’t find anything,” he said, “that says the purpose of this clause has anything at all to do with political fights between Congress and the president.”The problem of congressional absence no longer exists, Justice Ruth Bader Ginsburg said. “The Senate — I think to be candid — the Senate is always available,” she said. “They can be called back on very short notice.”
Solutions? I'd love to scrap a lot of it, but given today's climate, amending the constitution would draw Tea Party nonsense enough to stuff a room to the raptors. We've already heard plenty of Tea Party talk about junking the 17th Amendment and direct election of U.S. Senators.
And, partisan politics not aside, per SCOTUSblog, Obama's going to lose this one. Because, per Lyle Denniston, the Senate controls when it's in session or not, as notes the Chief, John Roberts, its power to confirm or block presidential appointments is absolute. And, I really don't see five Justices finding a non-originalist interpretation to preserve some degree of presidential recess appointment power for the world of the 21st century. I hate to think this, because a purely partisan action by Senate Republicans brought us to this point, but on the letter of the law, Obama doesn't have a leg to stand on.
On the spirit of the constitution? Depends on whether your spirit is originalist, or even close. Frankly, this is one of those era where horse and buggy is so far away from today, reflecting Frederick the Great's doubt that the US would survive, that I don't see how constitutional scholars can agree on a non-originalist interpretation.
Solution? Parliamentary government, of course, with a relatively disempowered Senate, and a prime minister and cabinet officials as part of the House. Add in electing part of the House off a national list, like Germany and others, so as to get third parties into the House, and there you go.
Chances of getting adopted? The same as Sarah Palin outing herself as a lesbian who had a threesome with both Mary and Liz Cheney.
Minor tweak? Now that Harry Reid's curtailed the filibuster, a Senate majority can always take the next step, and control Senate rules on exactly how a recess is defined, and do its best to kill the phantom recess.