Seriously, does the man believe he is above the Constitution? It seems like it.

Defying Congress, President Obama used his recess appointment powers Wednesday to name a head for the controversial Consumer Financial Protection Bureau in a move Republican lawmakers said amounted to an unconstitutional power grab.

The president acted just a day after the Senate held a session — a move that breaks with at least three different precedents which have held that the Senate must be in recess for at least three days before a president can act. Mr. Obama himself was part of two of those precedents, both during his own time in the Senate and again in 2010 when one of his administration’s top lawyers made the three-day argument to the Supreme Court.

Does this mean the President can do whatever he wants if Congress is on lunch break? The reasoning, according to the White House:

The White House, though, argues Republican senators stonewalled the nominee for so long that Mr. Obama had no choice but to circumvent them.

The president introduced Mr. Cordray during a trip to Ohio Wednesday, telling a supportive crowd that the Senate Republicans’ ongoing blockade of his nomination “inexcusable.”

“I refuse to take ‘No’ for an answer. I’ve said before that I will continue to look for every opportunity to work with Congress to move this country forward. But when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them,” Mr. Obama said.

Democracy can be so inconvenient when you have a divine right to rule.

I pray there is a lawsuit.

I know Democrats believe this new bureaucracy will save the world. However, they should be concerned about an agency accountable to no one--as this one will be as its funding is set up independent of Congress.

Isn't this exactly how Bush appointed John Bolton as UN ambassador?

No.

Check the number of days.

So if he'd waited till tomorrow you wouldn't care ?

Sassenach wrote:So if he'd waited till tomorrow you wouldn't care ?

A recess appointment can only be done during a "recess." Does that confuse you?

Not at all, but the implication of the passage you quoted was that he used his recess appointment powers 1 day after the start of the recess rather than 3. I'm assuming that any recess is going to be longer than 1 day so in theory he could have done it a couple of days later and it wouldn't have bothered you ?

Sassenach wrote:Not at all, but the implication of the passage you quoted was that he used his recess appointment powers 1 day after the start of the recess rather than 3. I'm assuming that any recess is going to be longer than 1 day so in theory he could have done it a couple of days later and it wouldn't have bothered you ?

I am bothered by the fact that he did not adhere to the Constitution. Note the bold:

The president acted just a day after the Senate held a session — a move that breaks with at least three different precedents which have held that the Senate must be in recess for at least three days before a president can act. Mr. Obama himself was part of two of those precedents, both during his own time in the Senate and again in 2010 when one of his administration’s top lawyers made the three-day argument to the Supreme Court.

So, Obama himself, and his lawyers, have argued a recess appointment CANNOT be made in the precise circumstances under which he just made one. Whoops, sorry. He made 4--including the NLRB folks.

Steve,

It is not as black and white as you are making it appear. All Art. II, sec. 2 cl 3. says is

The President shall have to fill up all vacancies that may happen during a recess of the Senate, by granting commissions which shall expire at the end of their next session

There is nothing in there about how long the recess must be. Now, current interpretation is that 3 days is the shortest a break must be to be considered a recess for the clause to be able to be invoked. That is based on a Bush Administration opinion from 2007 from when the Democrats stayed in perpetual session to keep him from making recess appointments. However, this was not always the case.

If you look at the discussions during Constitutional convention about the Recess Appointments it was in regards to the Senate having to be in perpetual session in order to always be available to provide that advice and consent. The executive had to have an option available for when the Senate was unavailable to provide that advice and consent. An 1823 Attorney General opinion stated

all vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President

It is also my understanding this had been interpretation of the recess appointments clause for the majority of history. As an originialist, you should consider these facts more controlling then current interpretations.

So consider the current situation. The Senate is in recess except for a pro forma session that happens every 3rd day. What does this pro forma session entail? A member comes up to the Chair, gavels the session to order and immediately gavels the session adjourned. The entire thing takes approximately 30 seconds. I do not believe there is even any other members on the floor when this happens.

Therefore, I think there is a very strong argument that the Senate is unavailable for advice and consent. In that case, invoking the Recess Appointments clause at this time is entirely constitutional.

Archduke Russell John wrote:Steve,

It is not as black and white as you are making it appear. All Art. II, sec. 2 cl 3. says is

The President shall have to fill up all vacancies that may happen during a recess of the Senate, by granting commissions which shall expire at the end of their next session

There is nothing in there about how long the recess must be. Now, current interpretation is that 3 days is the shortest a break must be to be considered a recess for the clause to be able to be invoked. That is based on a Bush Administration opinion from 2007 from when the Democrats stayed in perpetual session to keep him from making recess appointments. However, this was not always the case.

If you look at the discussions during Constitutional convention about the Recess Appointments it was in regards to the Senate having to be in perpetual session in order to always be available to provide that advice and consent. The executive had to have an option available for when the Senate was unavailable to provide that advice and consent. An 1823 Attorney General opinion stated

all vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President

It is also my understanding this had been interpretation of the recess appointments clause for the majority of history. As an originialist, you should consider these facts more controlling then current interpretations.

So consider the current situation. The Senate is in recess except for a pro forma session that happens every 3rd day. What does this pro forma session entail? A member comes up to the Chair, gavels the session to order and immediately gavels the session adjourned. The entire thing takes approximately 30 seconds. I do not believe there is even any other members on the floor when this happens.

Therefore, I think there is a very strong argument that the Senate is unavailable for advice and consent. In that case, invoking the Recess Appointments clause at this time is entirely constitutional.

I'd love to see it in court.

Furthermore, why did Obama's solicitors make the three day case themselves?

Finally, it is my understanding that the agency CANNOT do anything until the guy is voted on by the Senate (that was in the bill), so I've a feeling this isn't over yet.

Could somebody help me out with the background to this ? The way I've interpreted it is that the Republicans in the Senate disagree with the creation of this agency and so they're perpetually stonewalling the appointment of anybody at all to run it, knowing that this will prevent the organisation from doing any work until hopefully there's a Republican President next year who can scrap it. Steve approves of this. Obama has used something of a ruse which may or may not be legal to get around the Senate block by appointing his favoured candidate during a 'recess'. Steve wholeheartedly disapproves of this (quelle surprise), although if it had happened a mere two days later Steve would of course have been perfectly happy about the whole thing...

Except of course it couldn't have happened 2 days later due to the little Senate ruse described above by Russ in which one member turns up every 3 days just to ensure that there's a 'session' on going despite the rest of them being away. So in other words both sides in this are guilty of playing silly games.

I think that the point is that Congress has purposefully NOT gone into recess in order to prevent a recess appointment, and Obama did it anyway.

Yeah, it's against the rules. Funny that THIS, of all things, is the abuse of executive power steve is afraid of. Order the assassination an American citizen without trial? No problem. Appoint a department head without Congressional approval? TREASON!!!!

Sassenach wrote:Except of course it couldn't have happened 2 days later due to the little Senate ruse described above by Russ in which one member turns up every 3 days just to ensure that there's a 'session' on going despite the rest of them being away. So in other words both sides in this are guilty of playing silly games.

So, when is the last time that Congress were in a proper session - ie: when enough of them were around to actually do anything. So is it really 'in the rules' for Congress to pretend to be in session when they are all away?

Each house apparently has a quorum of 50%+1 (ie: a majority of members have to be present before it can do business). Usually that only comes into effect if there's a vote going on, but basically, without that quorum present, Congress could not approve (or actively oppose) an appointee.

Seems to me that both sides are playing fast and loose with the constitution (lower-case because I can't see much in the actual document that applies to the minutea, so it's just interpretation, precedence and standing orders), and how angry you are about it is probably proportional to how blinkeredly partisan you are.

Sassenach wrote:Could somebody help me out with the background to this ? The way I've interpreted it is that the Republicans in the Senate disagree with the creation of this agency and so they're perpetually stonewalling the appointment of anybody at all to run it, knowing that this will prevent the organisation from doing any work until hopefully there's a Republican President next year who can scrap it. Steve approves of this.

It's not a matter of whether I approve of this. It's a matter of legality. Democrats did precisely the same thing to Bush to prevent him from making appointments. I didn't "approve" of it, but it was legal.

Obama has used something of a ruse which may or may not be legal to get around the Senate block by appointing his favoured candidate during a 'recess'.

Focus on the word 'legal.'

Steve wholeheartedly disapproves of this (quelle surprise), although if it had happened a mere two days later Steve would of course have been perfectly happy about the whole thing...

Apparently, the liberal mind is incapable of comprehending the difference between objective and subjective. My opinion of the action is NOT the driving force, but the question of Constitutionality.

Except of course it couldn't have happened 2 days later due to the little Senate ruse described above by Russ in which one member turns up every 3 days just to ensure that there's a 'session' on going despite the rest of them being away. So in other words both sides in this are guilty of playing silly games.

Again, I know this is a difficult concept for those with as flimsy a grasp on reality as you demonstrate on this matter, but it is not anything more or less than the Constitution in question here. Please note: Obama also appointed three members to the NLRB in this same time frame. If this understanding of "recess" is held up in court (presuming it comes to a court), there won't be much of anything to stop any President at any time from making whatever appointment he/she wants as it gives the President the right to decide what is/is not a legitimate "recess." That is an erosion of the checks and balances provided by the Constitution.

Furthermore, the problem the GOP has with the appointment of Cordray is a larger issue: his agency has a funding mechanism that basically puts it beyond oversight of Congress. In effect, this new agency will be an independent branch of government. The Republicans want to modify that. The President, ever willing to sit down and negotiate (not!), says he'll do that after the Senate approves Cordray. So, to resolve the impasse, the President could have sat down with Republicans and, *gasp*, led. Instead, he decided to employ rule by royal fiat.

Some insight from the left-leaning Politico:

Three years after pledging a new era of post-partisan cooperation, President Barack Obama on Wednesday declared war with congressional Republicans by unilaterally installing his nominee to head a new consumer protection bureau.

And the White House sees only political gold in doing so.

Obama inflamed Washington Republicans by using a rarely invoked legal argument to appoint former Ohio Attorney General Richard Cordray — a move ensuring that an irate Congress may truly do nothing this year except extend the payroll tax cut. But Obama had abandoned hopes of a real working relationship with Republicans long before Wednesday.

So instead, he tried to reap the benefit once again of playing an outside game, aligning himself with voters against a Congress that they hold in historically low regard on an issue that crosses party lines.

It was the latest milestone in Obama’s journey from bipartisan conciliator to partisan agitator, perhaps the starkest break to date from his campaign promises to change the tone in Washington.

In other words, pure politics trumped any Constitutional concerns.

theodorelogan wrote:Yeah, it's against the rules. Funny that THIS, of all things, is the abuse of executive power steve is afraid of. Order the assassination an American citizen without trial? No problem. Appoint a department head without Congressional approval? TREASON!!!!

1. I did not call it treason. I do think it is a flouting of the Constitution.

2. Al-Awlaki should have been captured. Obama did not do that because, frankly, it would be a political problem for him. However, I'm not crying for the imam of the Internet. As with any American who aligns himself with the enemies of the US in encouraging war against the US, I believe he forfeited his Constitutional protections.

3. However, and this is a big however, I don't like the fact that Al-Awlaki was not declared an enemy of the State by Congress or some independent panel, or even tried en absentia. There should be some mechanism for making such declarations, not just the President's say-so. That gives one man entirely too much power.

Steve, I just don't see your point on this as flouting the Constitution. Both sides play these sorts of games all the time. After everyone marshals their arguments, (plays their cards, beats their chests, engages in other primate behavior, etc.) this is probably not a Constitutional crisis. If it is, the S.C. can take it and we can all abide by their decision. More likely it's just business as usual. Both sides are making political calculations based on the upcoming presidential election. Obama has shown his colors (hyper-partisan not post-partisan), but so have the Republicans by holding out on many appointments. Now we'll see lots of discussion ultimately aimed at the 10% of us who are independent.