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Can Obama make a recess appointment to replace Scalia? Will he?

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On Friday, September 12, 2016 the United State Senate stood adjourned for the President’s week “recess“;

That when the Senate recesses or adjourns on any day from Thursday, February 11, 2016, through Saturday, February 20, 2016, on a motion offered pursuant to this concurrent resolution by its Majority Leader or his designee, it stand recessed or adjourned until 12:00 noon on Monday, February 22, 2016, or such other time on that day as may be specified by its Majority Leader or his designee in the motion to recess or adjourn, or until the time of any reassembly pursuant to section 2 of this concurrent resolution, whichever occurs first; . . .

Sec. 2. (A) The Majority Leader of the Senate or his designee, after concurrence with the Minority Leader of the Senate, shall notify the Members of the Senate to reassemble at such place and time as he may designate if, in his opinion, the public interest shall warrant it.

As reconvening the Senate will require the assent of Harry Reid (he won’t) it is

McConnell
McConnell

not likely that McConnell can reconvene the Senate within the 10 days of this current recess. Thus opening the door to allow President Obama, under precedent set in  Noel v Canning to make a recess appointment to the Supreme Court which will allow his appointed justice to sit on the Court until the beginning of the next Congressional session which begins on January 3, 2017.

Now as to the likelihood of this recess appointment to happen, past precedent holds no weight. Although Obama has used recess appointments in the past it would be unprecedented for him to make such an appointment. It would be handing the GOP a huge election year issue to hammer the Democrats with for the next 10 months and once the next Congress is in session the appointment will be cancelled and a new President will appoint his own choice for the seat.

 

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