Obama's recess appointments - a question

[woodsprite]

Has anybody heard freepers or "true constitutionalists" (as they like to call themselves) complaining that Pres. Obama violated the Constitution because Congress was not truly recessed? The wingnut survivalist group here at work are all back from vacation/sick leave today and they are going ON AND ON about this. Said both the House and Senate need to agree to recess. They said there was no agreement and pro-forma sessions were being held. I've been on DU sporadically since coming back to work, but don't remember seeing anything about this latest freeper rant. The jerk who makes the most noise is a Rush/Drudge devotee.

I haven't chimed in yet, but I may have to as I can feel my BP rising. Either that, or I'll have to crank up my earphones

The quiet holiday -- It was nice while it lasted.

[chemp]

1. I will just direct you to this link- explains it all.

http://www.democraticunderground.com/1002125560

[Richardo]

4. Yep - they said they couldn't take up the payroll tax matter because they were in recess.

Great link.

[liberal N proud]

2. Only the media is outraged!

That has been my experience.

[alc]

3. seems to set a new precedent

You can count on future republican presidents using the new definition of recess. It's obvious Congress was in recess but it's a manipulation of the rules that presidents accepted before. I'd guess that a future R president won't just want to match Obama's action, but one-up him.

[JoePhilly]

10. You need to read this ..

http://www.democraticunderground.com/1002125560

[bigtree]

5. Jonathan Cohn: Yes, Richard Cordray’s Appointment Was Constitutional | The New Republic:

Legally, the issue is very simple. If the Senate was not in session on Tuesday, then Obama had authority to make the appointments. That’s the whole point of the recess appointment power – to allow the president to fill positions and staff the executive branch when the Senate cannot perform its “advise and consent” function. But if the Senate was in session, then Obama didn’t have authority to make the recess appointments.

Senate Republicans say that it was in session – very much by design. Aware that Obama might use his recess appointment power, Republicans copied a strategy Senate Democrats developed at the end of the Bush era: They forced the majority party to accept an arrangement under which the Senate was in “pro forma session” at least once every four days. Nothing happened during these pro forma sessions: They lasted just a few moments each. But the effect was to prevent a formal, official recess. (By tradition and past interpretations, a recess doesn’t become official until it’s lasted more than three days.)

Here is how one senior administration official put it . . .

Our view is that they can't have their cake and eat it too. They can't say, on the one hand, we are not in recess for the purposes of the recess appointments clause and, on the other hand, we are in recess for every other purpose. ... And if the Senate doesn't want the President to make recess appointments, as he is entitled to do, the Senate can prevent that by staying in session and being available to provide advice and consent on his nominees.

The administration goes on to point out that Obama did not use the recess appointment power to fill every vacancy. He did so only for the new consumer board and the NLRB because, without the appointments, those particular agencies simply could not operate. Here’s what White House Counsel Kathy Ruemmler said:

These appointees were necessary for these government agencies to function. The agencies were created to enforce duly passed laws, the Dodd-Frank Act and the National Labor Relations Act. The president has a constitutional obligation to enforce the laws and to make sure that personnel necessary to enforce the laws are in place. That's the whole point of the recess appointment clause, to make it possible for the president to do that.


read more: http://www.tnr.com/blog/jonathan-cohn/99279/obama-cordray-nlrb-recess-appointment-session-constitutionality

[onenote]

6. How to respond to your strict constructionist colleagues

Here is the language of the Constitution: "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 session."

The Constitution doesn't define what a "recess" is. It does, however, state that "Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting."

So, reading the Constitution strictly, there is no express requirement that a recess be of a particular length. There is a requirement that a recess of more than three days be coordinated between the House and Senate, but implicit in that direction is the recognition that there can and will be Senate recesses of three days or less. Again, ask your colleagues where it says that a recess of three days or less is not a recess of the Senate but a recess of four days or more is.

At best, the wording is ambiguous, at which point one can and should resort to the intent of the provision and historical precedent. Historical precedent is that the recess appointment power was used (by Teddy Roosevelt and by Harry S Truman) when the Senate was in recess for three days or less and the Republic did not fall. As for intent, the entire structure of the Constitution is based on a series of checks and balances. Constitutionally, the Senate can avoid acting on presidential appointments. The President, on the other hand, can check the abuse of that power by making recess appointments. The Senate has the ability to check the President by condcuting an up or down vote on a recess appointee and rejecting the nomination. But attempts to nullify the constitutional exercise of the recess appointment power by having sham sessions at which no business can or is conducted are contrary to the intent of the framers. End of story.

[SaintPete]

7. No "Agreement" is needed, no 3 day "waiting period": Article II, Section 2, Clause 3

"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#A2Sec2

That's it. If the Senate is in recess, the President can grant commissions (make appointments).

Here's how the Senate defines a pro forma session:

"A brief meeting (sometimes only several seconds) of the Senate in which no business is conducted. It is held usually to satisfy the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other."

http://www.senate.gov/reference/glossary_term/pro_forma_session.htm

The only 3 day rule in the constitution is in article 1, section 5:

"Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting."

http://www.usconstitution.net/const.html#A1Sec5

So the three day restrictions are on the two Houses of Congress, not on the President

[TreasonousBastard]

8. Here's a link to the Congressional Research Service and its explanation of recess appointments...

(Why not go to the source?)


http://www.google.com/url?sa=t&rct=j&q=recess%20appointmernts&source=web&cd=8&ved=0CG8QFjAH&url=http%3A%2F%2Fwww.senate.gov%2FCRSReports%2Fcrs-publish.cfm%3Fpid%3D'0DP%252BP%255CW%253B%2520P%2520%2520%250A&ei=Z04HT4rkCYbZ0QH2r_3DAg&usg=AFQjCNFzwdxJcOO9L_7iMfm1G-EFUf4Z3A

If that humongous link doesn't work, just google "recess appointments" and go down about a half dozen entries to the PDF from CRS.

Now, understand that a real answer doesn't exist-- the CRS has documented many legal opinions on the matter, but there are no definitive court decisions or law on the matter and the Constitution is vague. Law professors are justifying their tenure by chiming in with equally irrelevant opinions.

Remember that when the recess appointments clause was put in Congress often met for less than six months and the plan was to keep the government running when you couldn't get horse and coach riding Senators from Maine to Georgia to Washington fast enough to approve a new Cabinet member. They already had some experience being under this time constraint with the British Parliament and Articles of Confederation.

Now that every Congresscritter should be able to get to DC in a day, and Congress is in virtually perpetual session anyway, the only reason for recess appointments involve political trickery and gamesmanship.

In this case, Republicans are using their refusal for consent as the next best thing to closing down the agencies (at least until after the election when they hope to be able close them down for good) and Obama has thrown down the glove-- let the games begin.

[woodsprite]

9. Thanks!!! I'll read up. I know the convo will continue tomorrow.

For this afternoon I resorted to headphones playing cranked up hits from "Queen". I haven't even been able to hear my phone ring