Under Article II, section 2, clause 2 of the Constitution, the President has the power to fill any vacancies that may happen during when Senate is in recess. Over the past 100 years, a legal and official Senate recess has been interpreted by scores of Attorneys Generals and the Department of Justice (DOJ) from both Republican and Democratic Party's as the Senate being out of town and not conducting any business at all for at least 10–25 days of duration. No one, not even crazy right or left wing professors or lawyers, has ever before even suggested anything of six to seven days might be enough to count as a recess (source).
Right now the Senate is not in a recess. Every three days it opens up a brief session for a half hour or so and then adjourns for three days before it then has another brief 'pro forma' session. This means that officially, technically, and according to the rules and procedures of the United States Senate, it is still in session. This tactic was invented and used first by the Democrats to block President Bush recess appointments, and it was successful, because legally the President can not make appointments while the Senate is in session.
And so it was quite a surprise to me today that President Barack Obama (one-term Democrat), made several recess appointments, illegally and against the laws of our nation. Check out the many stories on this issue on memeorandum found here or here.
President Obama argued that under his and Democrats leadership America has fallen into such a crisis that he no longer has to follow the laws of our nation. He can simply deem that the Senate is effectively in a recess, and thus appoint whomever he wants to whatever he wants, even without Senate confirmation.
Many bloggers and professors and lawyers have jumped to his defense, arguing that the Senate is indeed in a recess, but that's contrary to what the White House memo says- it does not say 'the Senate is in a recess and the President is making several appointments'- nope, the memo says "Senate has effectively been in recess"- in other words, not technically, not officially, not legally, but "effectively", and so Obama was going to technically, officially, and legally make appointments that would be effective immediately.
Many other bloggers and professors are arguing that the President had the right to break the law here because the Senate wasn't advising and consenting and was simply blocking the one appointment of Richard Cordray to lead the Consumer Financial Protection Bureau, but their arguments were again made into useless junk by the President later making further 'recess' appointments to the NLRB, and some of these appointments had been opposed because the Senate opposed the people involved and did not want to give their assent.
Look, there is no defense for breaking the laws of our nation. None. The ends do not justify the means. I don't care if its a conservative, Tea Party Republican, or a socialist, communist Democrat- the President only has the power to make appointments when the Senate is officially in a recess of longer than 10 days. Period. Anything other than that is breaking the law, and is unconstitutional, and deserving of impeachment.
That won't happen though- bit by bit, crisis by crisis, American citizens are learning to tolerate law breaking. Ignoring established bankruptcy laws to 'save the automobile industry' was okay. Pressuring immigration officials to ignore fraudulently filled out forms and security threats in order to increase the number of immigrants in America is okay. Passing a law ordering people to buy a product or face fines is okay. And making recess appointments while the Senate is officially/legally/technically in session and not in recess is okay. Bit by bit, little tyranny by big, we are learning to accept that one man is greater than the system and can destroy it if he thinks by doing so he can save us.
This incident once more reminds me of a post I wrote last year called America is a Republic- It Shouldn't Matter if Most Want to Tax Millionaires More. In it, I wrote:
Our nation is approaching a key election in 2012, much as Rome faced a key turning point in its history when Lucius Sergius Catilina attempted to overthrow the Roman Republic by playing to the lures of democracy and populism. Catiline rallied the poor to his banner by arguing for debt relief for the poor people of Rome, and many supported him because there are always more people who are poor than there are people who are truly wealthy. Because of the destructive policies of the government, which had collapsed the housing market and had taxed and regulated the small farms and small businesses to the brink of destruction, there were many people out of work who listened to the siren song of 'support me, I'll claim majority rule, and take from those who have wealth and give to those who do not.' Thankfully, Rome had an ardent defender of the Republic in a man like Cicero, and the conspiracy was foiled, but I believe that it had come close enough to succeeding to inspire men like Julius Caesar and Pompey to try again soon after, and they were successful in harassing the forces of democracy to institute a dictatorship over the masses.Obama is following in the footsteps of Catiline, and bit by bit breaking the laws and traditions and precedents of our Republic. He might be stopped, but the damage he is doing is surely going to inspire a Caesar to put an imperial dictatorship on my children and grandchildren.
UPDATE: Let's make this issue even clearer. On Tuesday, January 3rd, the Senate was in session. You can view their schedule here, and see from it that they were called to order at 11:01 AM. They engaged in legislative and executive business. They adjourned over an hour later after completing the session's business. Several hours later, Barack Obama appointed several people to several different positions, arguing that the Senate was 'effectively in a recess' and that he therefore had the authority to make recess appointments.
Liberal bloggers and news pundits and radio hosts are arguing that since the Senate was in a recess for 3 days it was okay- but in reality, the Senate had adjourned for only several hours, and there is no way, no way at all, that an adjournment of several hours can be considered a 'recess'.
The only argument is that the Senate session held on Tuesday for over an hour that accomplished several items of note wasn't a real session, and that argument is utterly laughable beyond question.
The Senate was not in a recess, and thus the recess appointments were unconstitutional and illegal. President Barack Obama acted in a criminal and illegal fashion yesterday, and the only real question I have is whether he did it on accident (believing that the Senate was in fact in a recess) or on purpose (knowing they were not and not caring and breaking the law).
Thank you Powerlineblog for bringing this point to me attention.
UPDATE II: Several days after his power grab, President Barack Obama went further, telling a group of Consumer Financial Protection Bureau bureaucrats that "Now that Richard [Cordray] is your director, you can finally exercise the full power that this agency has been given to protect consumers under the law." The only problem with this statement is that the legislation that created the CFPB includes a section that says many of the bureau’s new powers are to be held by the secretary of the Treasury “until the Director of the Bureau is confirmed by the Senate.” Cordray was not confirmed by the Senate- he was appointed to the position while the Senate was in session in violation to the Constitution.
So how does President Obama's pronouncement square with the law? I have two theories- one, that President Obama is ignorant of the law and incompetent in his understanding of it; or two, that President Obama is competent and knowledgeable and just doesn't care one bit about the law and what's legal.
Source- The Daily Caller, via Doug Ross.
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