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January 04, 2012

Obama Administration Proudly Announces They Are Violating The Constitution

Yesterday news broke that Obama was going to recess appoint Richard Cordry to head the Consumer Financial Protection Bureau. There's just one slight problem, the Senate isn't actually in recess.

Today the Obama administration announced it's rationale for this extraordinary power grab.

Here are the facts: The Constitution gives the President the authority to make temporary recess appointments to fill vacant positions when the Senate is in recess, a power all recent Presidents have exercised. The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks. In an overt attempt to prevent the President from exercising his authority during this period, Republican Senators insisted on using a gimmick called “pro forma” sessions, which are sessions during which no Senate business is conducted and instead one or two Senators simply gavel in and out of session in a matter of seconds. But gimmicks do not override the President’s constitutional authority to make appointments to keep the government running. Legal experts agree. In fact, the lawyers who advised President Bush on recess appointments wrote that the Senate cannot use sham “pro forma” sessions to prevent the President from exercising a constitutional power.

Because of the President’s leadership and decisive action, the American people will have a consumer watchdog fighting tooth and nail on their behalf. The President knows this is a make or break moment for the middle class and he’ll continue to build an economy that’s based on the values of fairness and shared responsibility. Today’s announcement is a critical piece to strengthen the economy and restore the economic security for the middle class and those trying to reach it. Mr. Cordray is the right man for the job and we’re pleased he’s finally in place to continue his important work.

Emphasis mine.

Let's look at the relevant words of Article II, Section II 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 next Session.

Funny, I don't see anything about "effectively" being in recess.

This is a blatant violation of the Constitution and he's doing it simply to pick a fight with congressional Republicans and energize his base.

Part of his strategy is dependent upon the MFM ignoring this power grab and early reports seem to indicate they will come through for him.

As for the politics of this...we're going to see calls for the GOP to begin impeachment proceedings. Let's just not even think about that. It's simply not going to happen and it'll give Obama exactly what he wants. He'll claim that Republicans are focusing on political games instead of helping the American people, blah, blah, blah.

There's really not much the GOP can do. A lawsuit will never work (any court will call it a "political question" and punt) and going nuclear will play into Obama's hands.

Basically Obama is running for President and he wants his opponent to be "Congressional Republicans". Sometimes the best strategy is to skip a fight you want to have and should have simply because simply engaging in it is a win for your opponent.

Think of it as ignoring a comment troll. It's unsatisfying but effective.

Let the GOP candidates take this fight to Obama while the House actually focuses on things like the tax bill that's coming up in 2 months.

Added: The Congressional Research Service has an analysis off the recess appointment power and it doesn't support Obama (pdf).


The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over time, the Department of Justice has offered differing views on this question, and no settled understanding appears to exist. In 1993, however, a Department of Justice brief implied that the President may make a recess appointment during a recess of more than three days.10 In doing so, the brief linked the minimum recess length with Article I, Section 5, clause 4 of the U.S. Constitution. This “Adjournments Clause” provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ....”11 Arguing that the recess during which the appointment at issue in the case was made was of sufficient length, the brief stated:

If the recess here at issue were of three days or less, a closer question would be presented. The Constitution restricts the Senate’s ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. ... It might be argued that this means that the Framers did not consider one, two and three day recesses to be constitutionally significant. …

Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.

The logic of the argument laid out in this brief appears to underlie congressional practices, intended to block recess appointments, that were first implemented during the 110th Congress.


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posted by DrewM. at 12:26 PM

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