Obama Defies Constitution To Make ‘Recess Appointment’ While Senate Is In Session

Posted on January 4, 2012 by

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Obama is defying the constitution’s “separation of powers” by skirting the constitutionally required Senate confirmation hearings to make a “recess appointment” WHILE THE SENATE IS IN SESSION. This is an impeachable offense.

If Obama is resorting to this level of dictatorial abuses of power in an election year, just imagine what naked force he’d unleash as a second-term president with no re-election to worry about.

Keith Koffler at White House Dossier warned this morning:

President Obama will ignore Senate objections and appoint Richard Cordray to lead the newly created Consumer Financial Protection Bureau, according to the Associated Press.

Obama will make the appointment even though Republicans have blocked it and the Senate is technically in session.

But the White House has concluded that the “pro forma” session is merely a ruse to keep him from making recess appointments, and that for all practical purposes the Senate is in recess.

The move is certain to create a firestorm – an possibly a court challenge – over the standards governing the separation of powers. It’s the latest demonstration of Obama’s resolve to ignore Congress as much as possible and govern by executive authority.

Obama is right that the Senate was only in session to keep him from making recess appointments.  He had abused the recess appointment process so extensively during his first two years – when his appointees were so extreme that he couldn’t get them past his own party’s majority in the Senate – that Speaker Boehner refused to allow the Senate to go into recess after the Republicans won the congressional majority in 2010.

Harry Reid used the same strategy to block George W. Bush’s judicial appointments.  The difference, of course, is that Bush respected the constitutional separation of powers and never tried to impose a “recess” appointment when congress and the senate weren’t in recess.   If Bush had done what Obama is doing now, Reid and the Democrats would have been screaming for his impeachment – and they would have been right!  Instead, Reid is hypocritically supporting Obama’s unconstitutional power grab.

The Heritage Foundation is calling it “A Tyrannical Abuse of Power“:

The Constitution, in Article I, section 5, plainly states that neither house of Congress can recess for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate—consistent with the requirements of the Constitution—is having pro forma sessions every few days. In short, Congress is still in session, and no one in Congress is saying (or can reasonably say) otherwise. It does not matter a wit that most Members of Congress are not in town voting on legislation, because ending a session of Congress requires the passage of a formal resolution, which never occurred.

Under Article II, section 2, clause 2 of the Constitution, the President has the power to fill vacancies that may happen during Senate recesses. That power has been interpreted by scores of attorneys general and their designees in the Department of Justice (DOJ) Office of Legal Counsel (OLC) for over 100 years to require an official, legal Senate recess of at least 10–25 days of duration. (There are a few outlier opinions, never sanctioned by the courts, that suggest a recess of six to seven days might be enough—but never less than that.)

The President’s purported recess appointment of Cordray would render the Senate’s advice and consent role to normal appointments almost meaningless. It is a grave constitutional wrong that Senator Mitch McConnell (R–KY) has already denounced. But it fits a pattern of extra-constitutional abuse by the White House that seems more interested in energizing a liberal base than safeguarding the office of the presidency.

As a former OLC lawyer, I have and will continue to defend President Obama’s issuance of signing statements and other powers that are truly his, but there is no argument that the President can make a recess appointment without doing serious damage to the office Obama holds.

Read more at the Heritage Foundation

Allahpundit at Hot Air has a good idea of why Obama is being so brazen:

Why would O risk a constitutional confrontation with Congress over something as minor as the NLRB or his new consumer board? Why, for the same reason he does everything: Because it might help him get re-elected. He’s going to run against a “do-nothing Congress” next year so he needs some dramatic examples of him heroically defying GOP obstructionism to serve the public good. And if that means taking a dump on the Constitution to help labor and impress middle-class voters, well, that’s just what strong, blue-collar presidents have to do sometimes. The legal argument against what he’s doing couldn’t be simpler, as David Freddoso explains. Essentially, Obama’s claiming that he gets to decide whether pro forma sessions of the Senate amount to real sessions for purposes of recess appointments; that sure sounds like a violation of separation of powers insofar as each branch typically sets its own rules, but the beauty of this maneuver from Obama’s perspective is that he probably can’t be sued over it. Federal courts will refuse to rule on certain turf-war disputes between the executive and the legislature on grounds that they represent a “political question” that should be decided by voters, not by judges. I’m not sure if that’ll apply here — what happens when someone ends up suing Cordray on the theory that he was never constitutionally appointed? — but that’s what The One’s counting on.

So shameless is this power grab, in fact, that even John Yoo, whose name is a curse word on the left when it comes to executive overreach, thinks Obama went too far. Lefty Timothy Noah, who supports Cordray’s appointment, candidly admitted today at TNR that he can’t figure out how this could possibly be constitutional. (If Obama has the power to define when the Senate is and isn’t in recess, writes Noah, then he could theoretically treat every weekend of the year as a recess.) In fact, according to Mark Calabria at Cato, not only does the Cordray appointment flaunt the Constitution, it actually violates the terms of the Dodd-Frank statute pushed through by O’s own party…  […]

Iain Murray at National Review reminds us that the names of the three NLRB appointees were only sent to the Senate three weeks ago. They haven’t been filibustered, so there’s no obstruction — yet. So eager is President Working Class Hero to start off an election year by defying Congress that he picked this fight before he had to.

Via CNS, here’s Carney warning the press corps yesterday that Obama was prepared to engage in unilateral executive action “small, medium, and large” to push his agenda. Let’s put this power grab in the “medium” category; “large” is reserved for wars like Libya that he’s undertaken without so much as a resolution of good luck from Congress. The more I think about this, the more it smells like O’s version of FDR’s court-packing plan, except (a) this is more constitutionally dubious and (b) this is transparently a cheap election-year pander. Exit question: What will the next Republican president use this exciting new precedent for, pray tell?

Speaker Boehner is denouncing Obama’s “unprecedented power grab,” but will he have the guts to do anything about it?

Cross posted at ThoughtsFromAConservativeMom.com

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