Why the Recess Appointments are Questionable

President Barack Obama’s recess appointment of three, National Labor Relations Board officers and Mr. Richard Cordray to the Consumer Financial Protection Bureau have been causing waves among bloggers, news junkies, politicos and talking heads. So far, from various sources, I have seen claims of unconstitutionality to necessary execution of Executive powers to defeat obstructionist Republicans in the Senate. Interestingly, only the bloggers (from the right/left and center) have only taken up an attempt to dig deeper into the situation.

In order to understand the effect of something, we look at the cause. The United States Constitution is the source and framework for our Federal Government. Article II, Section 2 Clauses 2 and 3 are what we are focusing on, as they deal with the nomination of an appointment; the advice and consent (or rejection) by the Senate; and what to do if the Senate is in recess.

U.S. Constitution - Article II, Section 2
Article II, Section 2, Clause 2 reads:

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…

Article II, Section 2, Clause 3 reads:

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.

The language is very clear and transparent in clause the clauses. It lets us know who has the authority to nominate, who confirms (or rejects) that nomination, and just who is needing nominations to be advised and consented for. Furthermore and respectively we know how vacancies can and shall be filled.

Interestingly on December the 12th the Congressional Research Service produced a FAQ for members of Congress (doesn’t it feel good to know that our members of Congress need these useless reports?). While sifting through the FAQ, I found an interesting paragraph.

Congressional Research Services

The records of debate at the Constitutional Convention and the Federalist Papers provide little evidence of the framers’ intentions in the recess appointment clause.

This little gem, presented to our Representatives both in the House and the Senate are led to believe that Article II, Section 2 is some mystical incantation left for us to decipher and decode because “little evidence of the framers’ intentions” is available. One thing to note; this researcher went straight to “[O]pinions of later Attorney Generals” and completely glanced over the Federalist Papers – even though he claims there was no evidence.

I refute that claim here. Federalist Papers 76, Hamilton, aims straight at Article II, Section 2 and its’ clauses. In that paper he explains the purpose that (emphasis is Hamilton’s) “…[T]he ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate”. Hamilton continues on to explain that such is impractical to maintain the Senate full-time and that “the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments “during the recess of the Senate…”

It seems Mr. Houge didn’t research to his fullest extent and there is in fact evidence of the intentions of recess appointments. I guess we can forgive him because the explanation is as clear as the language. This isn’t to discount his whole report, I just found it interesting that Mr. Houge decidedly skipped historical context.

This all brings us to less that clear House and Senate rules on recess. There are so many parliamentary rules in play and the general guideline that a “recess” is considered more than three days – the pro forma sessions where borne.

Pro forma sessions were implemented by Senator Harry Reid for the sole purpose of blocking recess appointments of then President Bush. The basic idea of these sessions was to hold them every 3-days to avoid being considered in “recess”; thus limiting the ability of the President to utilize a recess appointment. There is one problem though…

The Senate hasn’t changed this adoption and still maintains pro forma sessions. Furthermore, the Senate was conducting business (though they maintain they were not, but constitutionally they were in session) and was in session when the president made “recess” appointments. (The Senate did not request an adjournment and the House did not agree to any such adjournment; Article I, Section 4, Clause 4)

The president invoked his Constitutional authority of Article II, Section 2, Clause 3 while the Senate was still in-session. Further we enter new lands with regards to the recess appointment of a rejected appointee, Mr. Cordray. To me this speaks volumes as to the President’s understanding and disrespect for the document that controls and guides the administration and balance of our Federal Government. If this isn’t on shaky ground in regards to Constitutionality and blatant usurpation of the enshrined Checks and Balances of our Government, then I don’t know what is.

The president deliberately waited until the recess to make appointments that aren't critically necessary to the operations of the U.S. government. Then he says he has full authority to do so, even though the clause is there for temporary emergency appointments. Yet again, he is using his dictatorship to the fullest of his abilities.

/TOA

Sorry, as stated many times before in this forum the pro forma session that was held when Obama made the appointments was still a recess. There were not enough members of Congress present to form a Quorum and thus technically no business could be performed.

In a 1905 report that the Senate still considers authoritative, the Senate Judiciary Committee recognized that a "Recess of the Senate" occurs whenever the Senate is not sitting for the discharge of its functions and when it cannot "participate as a body in making appointments." The committee cautioned that a "recess" means "something actual, not something fictitious." The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question "is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word 'recess' a technical and not a practical construction, is to disregard substance for form."

www.washingtonpost.com...


As well a precedent has been set for these short-notice important-position appointments. The Great Teddy Roosevelt made 160 appointments in a recess of only a few hours and they were declared legal.
www.latimes.com...



Obama's recent recess appointments are completely within his Constitutionally defined powers. Just because you don't like the man and he has actually grown a pair and is finally doing what he promised does not make him a dictator. To call him so only makes you look petty and under-informed. Accepting ignorance as it were.

reply to post by The Old American


Here is some more food for thought. Two of the three appointees to the NLRB were scheduled for hearing; yet the president felt they were essential enough that they needed "recess" appointment. Mr. Cordray's nomination was voted down; yet the president felt via a "recess" appointment he knew better than the "advice and consent (in this case non-consent)".

The major problem here is that the Senate wasn't even in recess. The Senate, last Tuesday started their 2nd Session of the 112th Congress -- yet the appointment was made on Wednesday. Senate recess cannot occur without the consent of the House.

Of course, with complete lack of precedence, the argument has become "Well the Constitution doesn't say how long the recess needs to be" -- If that were the case, and clearly it isn't, what is to stop any president from making recess appointments over night from day to day while the Senate is "in session, but not really in session".

Please remember that this isn't a President Obama thing; just happens to be the President that felt his Executive powers trump established checks and balances and Constitutional authority.

Its also been stated before in this forum, regarding the executive branch and recess appointment:

Ronald Reagan made 243 recess appointments.
George W. Bush made 171 recess appointments.
President Bill Clinton made 139 recess appointments.
President Barack Obama had made 28 recess appointments (so far).

Every president since George Washington has made recess appointments.

Obama's recess appointments is below average compared to his predecessors.

I hate repeating myself, but every time this topic keeps getting revived then the same replies should be expected.

reply to post by ownbestenemy


People really need to put their Obama derangement syndrome away. No matter how you slice it, our representatives in congress are still the ones playing the dirtiest tricks, wasting the most time and money, to accomplish what?

I would really like to see a defense of their actions before any more of this nonsense about Obama appointing someone they agreed to appoint but chose not to just to hold things up for a change.

We can all hate Obama all we like but when did Congress get to be our best friend?

Originally posted by The Old American
The president deliberately waited until the recess to make appointments that aren't critically necessary to the operations of the U.S. government. Then he says he has full authority to do so, even though the clause is there for temporary emergency appointments. Yet again, he is using his dictatorship to the fullest of his abilities.

/TOA

WOW do you see what you just did?

First of all, that is not the story at all. It is not about Obama waiting, it is about whether or not there even was a recess.

What you just wrote out was exactly what George Bush was doing his entire term but I bet you cannot wait to vote Republican to save us from what you think you were just complaining about.

Originally posted by SG-17
Just because you don't like the man and he has actually grown a pair and is finally doing what he promised does not make him a dictator. To call him so only makes you look petty and under-informed. Accepting ignorance as it were.

I read all the way to here to realize that you wanted to make it a partisan issue. But let us discuss the issue of if the Senate was in fact in session or not.

If you want to discuss that issue that is fine; but if you want to paint me in a certain way via this forum, go for it. Actually I welcome it.

January 3rd, the Senate was in pro forma session (a beauty of a tactic that was implemented -- yet ignored now -- by Democratic Senator Harry Reid).

In pro forma session, no business can be conducted; but it leaves the Senate open so that no recess appointments can be made. That is the sole purpose of the Senate Rule enacted during the Bush Administration. Honestly, I do not abhor the practice as long as it is applied equally on both sides.

The issue here is the, it was the President who decided that the Senate was in fact in recess, when Constitutionally there was no agreement between the House of Representatives and the Senate on adjournment for more than three days -- which would be the Constitutional requirement for a recess and adjournment of more than three days.

Regardless of how many persons were in session during the pro forma session (again; the rule created to subvert former President Bush's recess appointments) as per their own rules, is in session. The three day adjournment does not constitute a recess and tramples precedence.

Originally posted by ownbestenemy

The major problem here is that the Senate wasn't even in recess.

What did they work on during that session?
This is important. Why is everyone rushing to defend the house? They are all the good guys now?

reply to post by Blackmarketeer


I am not arguing the number nor the validity of recess appointments. I am questioning if the Senate was in fact in recess or was it not.

Hell, Teddy Roosevelt slammed through 160 recess appointments in one fell swoop. The practice has practical and important implications -- to the continuance of Government -- not to get in people that were A: Already rejected by the Senate and B: During a questionable time-period in which the the recess status is on shaky ground.

If I remember correctly, the consumer protection law under which Cordray was appointed, specifically spelled out that his appointment had to be approved by the Senate, making a recess apointment worthless.

reply to post by ownbestenemy

Please note that there is a precedence for recess appointments made in less than a day of recess.


As well I noted in my previous post:

In a 1905 report that the Senate still considers authoritative, the Senate Judiciary Committee recognized that a "Recess of the Senate" occurs whenever the Senate is not sitting for the discharge of its functions and when it cannot "participate as a body in making appointments."

Therefore a pro forma session without a Quorum is a valid recess.

Originally posted by Kafternin

Originally posted by ownbestenemy

The major problem here is that the Senate wasn't even in recess.

What did they work on during that session?
This is important. Why is everyone rushing to defend the house? They are all the good guys now?

The parliamentary tactics (in place by both parties) are within the bounds of their Constitutional authority -- no matter how pity (yes they are pity; you won't find me arguing that) or insane they may be.

But we can look at business conducted during pro forma sessions: On December 23rd, two democrats holding the pro forma session unanimously consented to 2011 Payroll Tax extension for two months. So its okay if only two people are there to conduct business (in which in pro forma such business is not to be conducted) yet now people want to say that there were not enough people on the 3rd of January for the pro forma to even count?

Originally posted by SG-17
reply to post by ownbestenemy

 

Please note that there is a precedence for recess appointments made in less than a day of recess.


As well I noted in my previous post:

In a 1905 report that the Senate still considers authoritative, the Senate Judiciary Committee recognized that a "Recess of the Senate" occurs whenever the Senate is not sitting for the discharge of its functions and when it cannot "participate as a body in making appointments."

Therefore a pro forma session without a Quorum is a valid recess.

Wait -- so there was enough of a quorum on the 23rd of the December when only two members of the Senate were holding pro forma to unanimously consent to a bill? Which is it? Follow a precedence when it is convenient and then ignore it when you want to swing the pendulum the other way?

In regards to end of the business day, is that how we are going to see the Senate as in "recess" now? Adjournment, regardless of any Senate report has to abide by the Constitutionally established clause found in Article I, Section 5.

Even if the trick by the House to not officially recognize the Senates resolution is nasty and playing politics, it was Constitutionally sound. While they may have finished business for the day, it by no means implies they are in "recess".

Originally posted by Kafternin

Originally posted by The Old American
The president deliberately waited until the recess to make appointments that aren't critically necessary to the operations of the U.S. government. Then he says he has full authority to do so, even though the clause is there for temporary emergency appointments. Yet again, he is using his dictatorship to the fullest of his abilities.

/TOA

WOW do you see what you just did?

First of all, that is not the story at all. It is not about Obama waiting, it is about whether or not there even was a recess.

What you just wrote out was exactly what George Bush was doing his entire term but I bet you cannot wait to vote Republican to save us from what you think you were just complaining about.

WOW, I bet you're wrong! It was a recess, therefore Obama deliberately waited to make these appointments when the recess was ongoing. A joule of work would tell you that my post history says that I decry any president that oversteps his authority. But Bush, Clinton, Bush, Reagan, etc., aren't in office today, are they? Our sitting president is not affecting "Change We Can Believe In" when he continues the execrable actions of his predecessors.

/TOA

THEN-SEN. BARACK OBAMA (D-IL): Recess appointments ‘the wrong thing to do.’ “‘It’s the wrong thing to do. John Bolton is the wrong person for the job,’ said Sen. Barack Obama, D-Ill., a member of Foreign Relations Committee.” (“Officials: White House To Bypass Congress For Bolton Nomination,” The Associated Press, 7/30/05)

· OBAMA: A recess appointee is ‘damaged goods… we will have less credibility.’ “To some degree, he’s damaged goods… somebody who couldn’t get through a nomination in the Senate. And I think that that means that we will have less credibility…” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05)

SEN. HARRY REID (D-NV): ‘An end run around the Senate and the Constitution.’ “I will keep the Senate in pro forma session to block the President from doing an end run around the Senate and the Constitution with his controversial nominations.” (Sen. Reid, Congressional Record, S.15980, 12/19/07)

· REID: ‘They are mischievous.’ “Also, understand this: We have had a difficult problem with the President now for some time. We don’t let him have recess appointments because they are mischievous, and unless we have an agreement before the recess, there will be no recess. We will meet every third day pro forma, as we have done during the last series of breaks.” (Sen. Reid, Congressional Record, S.7558, 7/28/08)

· REID: Recess appointments an ‘abuse of power.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)

· REID: A recess appointee will have ‘a cloud hanging over his head.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)

SEN. DICK DURBIN (D-IL): ‘Troubling.’ “When you have an appointment that is this critical and this sensitive, and the president basically says he’s going to ignore the will of the senate and push someone through, it really is troubling.” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05)

· DURBIN: ‘Could easily be unconstitutional.’ “I agree with Senator Kennedy that Mr. Pryor’s recess appointment, which occurred during a brief recess of Congress, could easily be unconstitutional. It was certainly confrontational. Recess appointments lack the permanence and independence contemplated by the Framers of the Constitution.” (Sen. Durbin, Congressional Record, S.6253, 6/9/05)

SEN. JOHN KERRY (D-MA): Recess appointments an ‘abuse [of] the power of the presidency.’ “‘It’s sad but not surprising that this White House would abuse the power of the presidency to reward a donor over the objections of the Senate,’ Kerry said in a statement …” (“Recess Appointments Granted to ‘Swift Boat’ Donor, 2 Other Nominees,” The Washington Post, 4/5/07)

SEN. FRANK LAUTENBERG (D-NJ): “…bends the rules and circumvents the will of Congress.” (“President Sends Bolton to U.N.; Bypasses Senate,” The New York Times, 8/2/05)

SEN. MAX BAUCUS (D-MT): “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered…” (“Dem Baucus Joins GOP In Blasting Obama CMS Recess Appointment,” The Hill, 7/7/10)

www.powerlineblog.com...

*yawn*
As seen by the quotes above, when it was done by Bush, the libs and dems wee'd themselves over it.

And that's when it was a legitamate recess.

reply to post by The Old American


While you and I may differ on if the Senate was or was not in session and was in recess is something I wouldn't mind this discussion to go. There are valid points on both sides if we look at it in a vacuum. The second-half of the 112th Congress has been convened (as per the 20th Amendment) and was holding their now customary pro forma sessions because Article I, Section 5 (rules of adjournment) were not met.

If the Senate was not in session, there still resides the questions that I presented earlier: Why recess appoint 2 nominees when they were already scheduled for their hearings and why recess appoint a nominee that was rejected?

There are fundamental issues here. It will be interesting to see if the White House ever comes out with its legal justification that they felt the Senate was in recess; when Constitutionally it was not.

-------

More so and not direct towards you TOA, but I was trying to keep this fairly objective (except my closing paragraph) and yet so far I have been labeled an Obama hater....interesting...

Originally posted by The Old American


WOW, I bet you're wrong! It was a recess, therefore Obama deliberately waited to make these appointments when the recess was ongoing.

That makes no sense. I say it was a recess as well. It is the Republicans and the righties in this thread, aside from you, that are arguing otherwise. So how does you agreeing with me make me wrong and you not insane?

A joule of work would tell you that my post history says that I decry any president that oversteps his authority. But Bush, Clinton, Bush, Reagan, etc., aren't in office today, are they?

Nor can I find anything in your post history about any of them and this particular issue so the entire statement above is worthless.

Our sitting president is not affecting "Change We Can Believe In" when he continues the execrable actions of his predecessors.

/TOA

See my next post to Bezzer.

Originally posted by beezzer


*yawn*
As seen by the quotes above, when it was done by Bush, the libs and dems wee'd themselves over it.

And that's when it was a legitamate recess.

Actually there were those of us that had a third view. I kept pointing out that if you defend Bush when he does it, eventually a Democrat will be in that office with that precedent set for him and the Republicans will have no recourse whatsoever other than to whine about it on internet forums.

I would love to know what I got wrong.

Originally posted by ownbestenemy


More so and not direct towards you TOA, but I was trying to keep this fairly objective (except my closing paragraph) and yet so far I have been labeled an Obama hater....interesting...

Maybe you had not noticed but the entire premise of this thread is based on the idea that whatever congress did was good, just, and right. The only question you have is how bad Obama screwed up. See how that looks? I am actually quite disgusted with congress over this nonsense myself and yet the premise starts with them just being the good guys, just doing politics, just doing their job.

They are collecting our tax dollars as salary for this #.