After some research, I find Carney's statement of "150 years of precedents" laughable. First we have to go back further in our nation's history to
get a solid grasp of the situation. During our formative years after ratifying the United States Constitution, Congress wasn't in long-session as we
are used to seeing in our modern political makeup. In fact, the Constitution only sets the minimum for when Congress shall meet and for the most
part, Congress wasn't meeting day in, day out for months at a time to conduct business.
During those years, vacancies in certain positions in which the Executive must appoint an officer to the advice and consent of the Senate, fell
typically within a recessed Congress. It was seen, at that time, that a full-time Congress was not needed and typically they met only for a couple
months at a time and the rest of the time was spent in their respective states.
This brings us to the our modern day Congress and how they handle their sessions. From what I have gathered, the first year-long session of Congress
was the 65th Congress of 1917. They operated from December to November. After that it started to continually grow and eventually into a year-round
This form of our Legislature has created this ambiguity when it comes to "recess" or "adjourned" sessions. Some historical precedents regarding
recess appointments follows:
Senator Gore debated the action of President Madison and his appointment of an officer to an office that didn't exist (yet created during
recess and thus considered "vacant"). He resolved that for an office to be vacant, it must be full first. In dissent to this view, Senator Horsey
stated that regardless of how the vacancy occurs, as so long as that vacancy occurs during a recessed Senate
, it can be temporarily filled by
As read, the authority of the President to fill a vacancy has certain clauses that need to be met:
1 - Senate must be in recess
2 - That vacancy occurred during that recess.
This isn't an either/or situation and must both be met before the President has the Constitutional authority to appoint a temporary officer to a
Senate Committee on Military Affairs concluded the following view upon the recess appointment clause:
The committee believe[s] this is the fair construction of the Constitution, and the one heretofore observed. For many instances have occurred
where offices have been created by law, and special power was given the President to fill those offices in the recess of the Senate; and no instance
has before occurred, within the knowledge of the committee, where the President has felt himself authorized to fill such vacancies, without special
authority by law.
This states unless authorized by law, the President hasn't the power to fill an office that is brought into effect during a recessed Senate.
So far, the Executive was trying for a power grab at this point by holding onto the wording "may happen" to fill vacancies that had the prospect of
being vacant during the Senate session but filled during them during recess by presidential appointment.
This brings us up to Carney's claims of precedents. In a way, he is correct but it is still laughable. During the Civil War, the Executive flexed
its muscle and held the view that not only can the president fill vacancies that had the potential during Senate sessions but only became vacant
during recess, but that it could fill vacant spots that predate that recess (here is that "precedent" that the Obama Administration is sighting; used
of course by other administrations).
Further, not only did the Executive grab this power, Congress acquiesced it willfully by only threatening to withhold pay of those appointments.
Which then leads us to today. Ultimately in 1855 the Senate made its objections known and vehemently opposed this power-grab; but they have since
edit on 26-1-2013 by ownbestenemy because: (no reason given)