Are Obama’s Recess Appointments Unconstitutional? Probably Not

[justiceischeap]

From OutsidetheBeltway.com

This issue has not been dealt with by the Courts on many occasions. Most recently, it occurred in 2004 when President Bush used a Recess Appointment to name William J. Pryor to the 11th Circuit Court of Appeals. Lawsuits were filed challenging the appointment, but the challenge was ultimately unsuccessful:

[div style="margin:0 25px 0 25px;"]During the presidency of George W. Bush, Democrats actively filibustered the confirmation of federal appeals court nominee William Pryor, largely because of the conservative reputation he gained while serving as the attorney general of Alabama.

A Republican-led Senate coalition fell seven votes shy of invoking cloture to end this filibuster. Following this defeat, Bush circumvented the Senate by recess appointing Pryor, during a ten-day Senate recess in February 2004. Outraged Democrats, led by Senator Ted Kennedy (D-MA), filed an amicus curiae brief in support of a lawsuit that challenged the legality of Pryor’s appointment. Kennedy asserted that it was unconstitutional to make recess appointments during the short intrasession recesses that occur during a congressional session. Eight months later, the Eleventh Circuit Court of Appeals rejected Kennedy’s challenge, ruling that the Constitution “does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause”

The Supreme Court refused to take up the appeal of the case, and the decision still stands as good law. So, as a matter of law, it does not appear that the President acted unconstitutionally at all. Whether he’ll pay a political price for it is, of course, a different question. There will no doubt be legal challenges filed over these appointments, but it seems unlikely to me that whatever Court happens to hear them is going to go any further than the 11th Circuit did just 7 years ago. For one thing, there is no hard-and-fast definition of “recess” in the Constitution. For another, the Courts simply aren’t going to involve themselves in what is ultimately a political dispute between the two other branches of government.

http://bit.ly/xQVq6v
Someone else earlier posted a portion of the constitution that stated that if it's good for the country, the President can override Congress (or something to that effect). I looked for the post but couldn't find it; hopefully, they'll see this thread and post that.

[treestar]

1. Some helpful information

Rec'd

[sabrina 1]

2. Thanks. Claims are being made that it was unconstitutional but I could not find anything that

confirmed that. And if Bush was able to do it, it's typical Republican hypocrisy to be whining about it now, if they did not do so then.

[justiceischeap]

4. The whole argument balances on whether the pro forma session of Congress

is considered a real session. No one has ruled on that. Bush lawyer's have stated that pro forma sessions aren't real sessions and that Bush could have made appointments during them, though he didn't. I think, if this goes to a law suit, this will be used.

Really, though, I'd like to find that bit of the Constitution that I mentioned in the OP.

[sabrina 1]

5. Again, thanks. From what I have read although Bush may not have done so, it has been done in

past, although rarely. But with no legal ruling on it, it seems to me that it is still legal and any challenge would not change this decisions even if it got a ruling in favor of making it illegal.

However, I can't see Republicans throwing away a tool they might want to use themselves sometime which is probably why it has still not been dealt with.

Not a fight they should want to have right now. The public wants oversight of Wall Street and the President can always use it against them if they try ~ 'Republicans are opposed to oversight of Wall Street'. Not a good thing in today's political climate. I have a feeling they will whine, and then move on.

[DCBob]

19. I agree the GOPers are not going to push to get this to the court..

The optics are not good to be fighting against consumer protection.

[onenote]

6. I don't think that bit you are looking for actually exists

I've read the constitution a few times in my day, and if there is a provision that gives the President power to override Congress because he unilaterally thinks its in the interest of the country to do so, I've missed it every time.

There is a provision that could have been put in play with regard to the recess appointment impasse but wasn't. The Constitution gives the president the authority "on extraordinary occasions" to "convene both Houses, or either of them; an d in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper."

So, imagine the following scenario. The House, controlled by the repubs, adjourns for three days at a time in an effort to prevent the Senate from adjourning for a longer time (relying on the provision in the Constitution that bars either House from recessing for more than 3 days without the other's consent). The Democrats in the Senate, deciding that the House 3 day recesses are a sham, go ahead and recess for a longer period of time. The President, citing his authority to adjourn both houses and set a new date for reconvening when the two houses are in disagreement as to the time of adjournment, adjourns both houses for two weeks, and then uses that extended recess as the basis for making recess appointments.

Now that would have been fun to watch!!

[justiceischeap]

7. That may be what I read earlier.

and why I was having troubles finding it. Thanks for the info.

IMO, that's what he should have done and then made a whole bunch of recess appointments. It seems to me the Repubs are purposely blocking his appointment of judges, so when they regain power they can load the benches.

[Spazito]

8. This is Section 2 of Article II - The Executive Branch...

Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

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.

http://www.usconstitution.net/const.html#A2Sec1

This is all I can find that addresses the issue of appointments and can find nothing that gives the President the power to override Congress.

[justiceischeap]

9. Thanks. I obviously mixed up what I was reading. onenote had the right section. nt

[ProgressiveEconomist]

12. Yes, 'pro forma' sessions are the crux

of any Cordray appointment cases. I'm glad someone mentioned them.

Democrats devised them in November 2007, and then Bush made no further recess appointments during his final year in the WH. But most believe that he COULD have. IMO, the 'pro forma' session strategy to block recess appointments is pretty preposterous. An important Presidential power can be abrogated by handfuls of minority Senators banging a gavel in a near-empty chamber every few days, departing after a minute or so? Please.

The NY Times had a great article on pro forma sessions this week and we had a very good GD discussion of it at http://www.democraticunderground.com/1002119693 .

[justiceischeap]

13. I think they shouldn't have rules that impede the governing of our nation

just to play political games. I don't care that it was Harry Reid who started it.

[ProgressiveEconomist]

16. 'I don't care that it was Harry Reid'

who came up with the 'pro forma' session strategy--

Yes, Democrats bamboozled Bush into not making any more recess appointments, just the way President Obama bamboozled Boehner into getting the debt ceiling raised, with deceptive budgeting proposals. Republicans are single-minded but frequently slow-witted!

[AtomicKitten]

3. Beyond their bellyaching, I suspect the GOP knows the president's position is solid.

[Nuclear Unicorn]

10. Legal or not the senate's role of advise and consent is essentially dead

[madrchsod]

11. well reagan was the king of recess appointments...

no one that they were unconstitutional....

[Tx4obama]

14. Congress has admitted that they ARE IN RECESS. See, below

Here: http://www.democraticunderground.com/1002125560

[justiceischeap]

15. yes, I saw that post.

Though it doesn't really touch on the legality of what he did, just the "gotcha" portion of it.

[ProgressiveEconomist]

17. If 'form follows function'

for the current right-tilted crew on the USSC, then you are correct. As the NY Times article I mentioned above (at http://thecaucus.blogs.nytimes.com/2012/01/04/obama-tempts-fight-over-recess-appointments ) argues, the 'functional' definition of a Senate session leaves no doubt that Cordray's appointment is unassailable.

But, if the USSC believes that 'function follows form', then it will deligitimize Cordray's recess appointment.

[Tx4obama]

18. Here's another article/link

that sites some court cases/precedent

http://www.outsidethebeltway.com/are-obamas-recess-appointments-unconstitutional-probably-not/

Thought I'd pass that one long in case anyone missed it.

[razorman]

20. Frankly, this worries me. I am not an expert on the subject, so

I can't speak to the constitutionality of the appointments. But, I am concerned about the precedent that is being set. We may like these particular appointments, but we must remember that, if President Obama can do this now, any future president (including a Republican) will be able to do the same thing.
President Bush was stopped from making recess appointments by Senator Reid's use of the same "pro forma" gimmick. President Obama is simply ignoring the phony sessions. He may or may not succeed, depending on how jealously Congress (both Dems and Repubs) guards its power. If he succeeds, then Harry Reid has used the "pro forma" sessions for the last time, if he happens to still be in office the next time we have a Republican president.
From now on, any president will be able to declare when Congress is or is not in session, even over a long weekend. We have to consider the long term.

[Spazito]

21. No President can declare when Congress is or is not in session...

What it may well do, however, is force Congress to actually sit "in session" if they choose not to allow a vote on a nominee. No more going home for all but one local congress person who takes 5 seconds to pound the gavel. I really don't see a downside to that if it were to happen.

[justiceischeap]

22. I totally agree with your comment Spazito!

I think these fake sessions, and I don't care whom they benefit, should go.

We've watched the Republicans play with the American people and the political system for the last 3 years because they don't want the President reelected and instead of standing on merit to win elections, they fuck with every American's life in their immature little game and, frankly, I'm tired of it. I don't care who is in power, they shouldn't be allowed to do the shit they've been doing. I wouldn't want to see the Dems do it any more than I like seeing the Repubs.