“Under [the D.C. Circuit's view,] it is painfully evident what a president may do if (a) he sends to the Senate a timely nomination for an executive branch position that becomes vacant while the Senate is formally convened and (b) a minority of senators just sit on the nomination and refuse to bring it to a vote. In a word, “nothing.””

Yes, precisely, and that’s what the President is supposed to be able to do under such circumstances: Nothing.

Just like, if one or the other chamber refuses to bring to a vote a law the President wants, he may do, “nothing”, rather than just going ahead and enforcing the law Congress didn’t enact.

We’ve got a Constitution which creates a system of legislative supremacy. Legislative refusal to act is SUPPOSED to trump Executive desires.

“We’ve got a Constitution which creates a system of legislative supremacy.”

We don’t. A supporter of gun rights knows this obviously so the term is being used here loosely to mean supreme in a certain fashion. Few systems don’t give the legislature SOME sort of supremacy in that limited fashion.

Now the debate remains what being vacant means under the terms of the clause, a matter that is far from crystal clear as is use of phony sessions (as is argued) to block an out here, recess appointments. The (in)ability to really get advise and consent in the forty five seconds of a pro forma session, for instance.

We should avoid stupidity and bad results when possible. Sometimes we can’t. Sometimes, especially if we don’t use “originalist” arguments that were in some fashion rejected when some framers were still alive, we can.

Yes, we do.

The Legislature can remove a President or Judge. Presidents and judges can not remove members of the legislature.

The legislature can enact laws over a Presidential veto. The President can not enact laws over legislative inaction.

The legislature, in cooperation with the states, can amend the Constitution. The President has no imput or veto over this.

Declaring war is reserved for the legislature, not the executive.

Fundamentally, if the executive comes into conflict with a united legislature, the legislature in all cases prevails under the Constitution. I think this is fairly characterized as “legislative supremacy”, and one aspect of it is that the Executive is not entitled to his own choice of subordinates, if the Senate does not agree to them.

Presidents and judges also can do things that legislatures cannot do. Legislatures also cannot do anything they want. There are various constitutional checks. This means that legislature is not supreme. That is unless “supremacy” is given a curiously narrow definition.

Presidents can prosecute and have prosecuted sitting legislators and judges. Congress can not do that. They can at best remove people from certain offices and it’s harder for them to do that in practice.

Presidents execute the laws and legislatures cannot execute the laws. Congress cannot send police offices out to make sure their laws are enforced generally speaking.

Presidents have their own powers, including pardons, that legislatures don’t have much “input” over either.

The executive has the power to address sudden attacks, including ways that can lead to extended conflicts. It has a c-i-c function that is some way, such was the very point, that is unilateral. Congress can restrain it only so much. At some point, the President makes command decisions.

In reality, the legislature is repeatedly not “united” given the nature of the body, which is partially why the Constitution gives the President certain powers not given to the legislature. It is not “fairly” considered supremacy when it is far from supreme. The other branches can do things it cannot and no branch has the (licit) power to overrule certain limits put on all.

No, we don’t.

Of possible interest: “the justices may not be willing to upend settled practice on the basis of a grammatical distinction that may or may not have been intended by the Framers two centuries ago.”
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I think the DC Circuit got it right, but do think J. Griffiths was correct to say the court should have stopped with the resolution of “the Recess” issue.

The upshot of this case will be to force the resolution of the filibuster “nuclear option” discussion. Yes, the Senate must be consulted, but it should also be able to act with a majority where the text of the Constitution doesn’t prescribe a super-majority requirement.

If the opinion was decided on narrow grounds, particularly, it probably would have applied to too few cases for it to settle the discussion cited. I’m doubtful it will do so even if the USSC upholds the opinion in full.