Obama’s recess appointments are unconstitutional

[Greg Burnham]

​By Edwin Meese III and Todd Gaziano, January 05, 2012

President Obama's attempt to unilaterally appoint three people to seats on the National Labor Relations Board and Richard Cordray to head the new Consumer Financial Protection Bureau (after the Senate blocked action on his nomination) is more than an unconstitutional attempt to circumvent the Senate's advise-and-consent role. It is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.

Yes, some prior recess appointments have been politically unpopular, and a few have even raised legal questions. But never before has a president purported to make a "recess" appointment when the Senate is demonstrably not in recess. That is a constitutional abuse of a high order.

As a former U.S. attorney general and a former Office of Legal Counsel lawyer who provided advice to presidents on recess appointment issues, we have defended and will continue to defend the lawful use of the recess appointment power. Although originally conceived by the Framers for a time when communicating with and summoning senators back to the Capitol might take weeks, it is still valid in a modern age but only as long as the Senate is in recess. Not only was the Senate not in recess when these purported appointments were made, it constitutionally could not have been.

Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days.

The president and anyone else may object that the Senate is conducting "pro forma" sessions, but that does not render them constitutionally meaningless, as some have argued. In fact, the Senate did pass a bill during a supposedly "pro forma" session on Dec. 23, a matter the White House took notice of since the president signed the bill into law. The president cannot pick and choose when he deems a Senate session to be "real."


It does not matter one whit that most members of Congress are out of town and allow business to be conducted by their agents under unanimous consent procedures, because ending a session of Congress requires the passage of a formal resolution, which never occurred and could not have occurred without the consent of the House.

President Obama is not the first to abuse the recess appointment power. Theodore Roosevelt did as well, but for almost 90 years the executive branch has generally agreed that a recess as recognized by the Senate of at least nine to 10 days is necessary before the president can fill any vacancies with a recess appointment.

When Senate Majority Leader Harry Reid (D-Nev.) kept the chamber in pro forma sessions at the end of the George W. Bush administration, he declared that was sufficient to prevent Bush's use of the recess appointment power. Reid was right, whether or not his tactics were justified.
President Obama's flagrant violation of the Constitution not only will damage relations with Congress for years to come but will ultimately weaken the office of the presidency. There eventually may be litigation over the illegal appointments, but it will be a failure of government if the political branches do not resolve this injustice before a court rules. The White House has refused to admit or deny whether it received advice from the Justice Department (or overruled its advice), which is telling enough, but its campaign-style announcements about the propriety of its actions are not legally credible.

Congressional leaders of both parties must vigorously (though thoughtfully) defend their prerogatives. Senators could filibuster all presidential nominations, as Sen. Robert C. Byrd did in 1985 over a lesser recess appointment issue, until Obama rescinds these wrongful appointments. The House or Senate could condition all "must-pass" legislation for the remainder of 2012 on an agreement to rescind these appointments. The House also could require the attorney general to produce legal justification and testify at oversight hearings.


If Congress does not resist, the injury is not just to its branch but ultimately to the people. James Madison made clear that the separation of powers was not to protect government officials' power for their sake but as a vital check on behalf of individual liberty. To prevent future tyrannical usurpations of power, Congress must act to redress this serious threat to our liberty.

[Greg Burnham]

WASHINGTON A federal appeals court, dealing a defeat to President Obama, has sharply limited the chief executive's power to bypass the Senate and to make temporary "recess" appointments to fill vacant slots in government agencies.

The Court of Appeals for the D.C. Circuit, in a 3-0 ruling, said the president can make recess appointments only when the Senate has formally adjourned between sessions of Congress, not when lawmakers leave Washington for a brief break.

The Obama administration is almost certain to appeal the decision to the Supreme Court. But if the ruling stands, it strengthens the power of the Senate's Republican minority at the expense of Obama and the Democrats.

During his first term, Senate Republicans, led by Minority Leader Mitch McConnell (R-Ky), refused to approve Obama's nominees for several agencies, including the National Labor Relations Board and the new Consumer Financial Protection Agency created in the wake of the Wall Street collapse of 2008. McConnell could rely on the filibuster rule by which the minority can block a vote by the majority.

In response, Obama invoked his power under the Constitution "to fill up all vacancies that may happen during the recess of the Senate." Obama used this authority last January to appoint several new members to the National Labor Relations Board, ensuring the group had the necessary three members to make decisions. In addition to the NLRB appointments, Obama also installed Richard Cordray as director of the Consumer Financial Protection Bureau at the same time.

Business groups and Senate Republicans challenged the move, arguing the Senate was not truly in recess last January when it was out of session for several days.

In Friday's decision, Chief Judge David Sentelle ruled for the challengers and said a "recess" refers to the break when Congress formally adjourns after a two-year session.

"An interpretation of 'the Recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law," said Sentelle, an appointee of President Reagan. He was joined by Judges Karen Henderson and Thomas Griffith, who are also Republican appointees.

Cordray's appointment is being challenged in U.S. District Court in Washington, D.C., in a separate lawsuit by a Texas bank and two free-market advocacy groups. They also claim the appointment was unconstitutional because the Senate was not in a formal recess. The suit is pending. On Thursday, Obama renominated Cordray to the five-year term as director of the 2-year-old agency. Cordray's recess appointment expires at the end of the year.

Obama said Thursday that Cordray was qualified for the position, but "he wasn't allowed an up or down vote in the Senate, and as a consequence, I took action to appoint him on my own."

Staff writer Jim Puzzanghera contributed to this report.

[Phil Dragoo]

Greg

This president has over the years expressed dissatisfaction with the Constitution, that it only tells him what he can't do, not what he can; that it doesn't do enough to redistribute wealth.

He's one justice from pro forma absolute power.

Hamilton in Federalist Papers No. 67 at 409:

The ordinary power of appointment is confided to the President and Senate jointly, and can therefore only be exercised during the session of the Senate. . . .

There follows the allowance for appointments "during the recess of the Senate by granting commissions which shall expire at the end of their next session."

This is stated in Article II, Section 2, Paragraph 3 in which Recess is capitalized.

We are dealing with a President whose contempt for the Constitution is a couple of clicks off l'etat c'est moi.

I was telling several friends Goldwater and Kennedy could disagree civilly.

I found several references to what I remembered:

An avid pilot, Goldwater had planned to fly around the country with Kennedy, in what the two men believed would be a revival of the old whistle-stop campaign debates.

and

There was no doubt in 1964 that Goldwater would be the Republican Party's candidate for president and would run against John F. Kennedy. It is my understanding that though they were in different parties, JFK and Barry Goldwater were good friends and had planned to campaign together. The plan would take them both from town to town, where on one occasion John Kennedy would speak first and Barry Goldwater would rebut, and at the next town Goldwater would speak first while Kennedy would rebut. The assassination, of course, changed that.



And of course Bill Moyers immediately shrieked that Goldwater would nuke the little daisy-plucking girl--so let's go to Vietnam and nuke her.

[video]http://www.livingroomcandidate.org/commercials/1964/peace-little-girl-daisy[/video]