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Wednesday, January 4, 2012


Obama to Make Controversial Recess Appointment


Obama's Cordray Appointment Mocks the Constitution

In 2008 candidate Sen. Barack Obama famously said: “This is part of the whole theory of George Bush that he can make laws as he is going along. I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We are not going to use signing statements as a way of doing and end run around Congress.”

Now, we find that not only was he kidding about signing statements – he recently used one to ignore about 20 provisions of the omnibus spending bill – but Obama also believes he can decide for himself that the Senate is in recess when it is not, overturn at least a hundred years of precedent, and bypass the Constitution’s advice and consent requirement.
Moreover, the president now considers it a political virtue that he is doing precisely what he criticized George Bush for doing: “make laws as he is going along.” Obama now says: “I refuse to take 'No' for an answer… when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them.”

If he were acting within the confines of the law and the Constitution, the argument might make sense.  But Obama has now adopted a theory of executive power so expansive that a reporter at a recent press conference understandably asked whether the president believes we have a virtual monarchy, a president of unlimited powers subject only to periodic elections but not to the rule of law.

According to a 1993 brief from the Clinton Justice Department, Congress must remain adjourned for at least three days before the adjournment constitutes a “recess” for the purposes the recess appointment power.  

The origin of this three day period is Article I, Section 5 of the Constitution, which states: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” 

In other words, the president can only recess appoint when the Senate has adjourned for more than three days, and the Senate cannot adjourn for more than three days without the consent of the House.  Speaker John Boehner has properly withheld that consent to prevent Obama from installing radical appointees into key positions.

There is recent precedent for this action and for its legitimacy.  In fact, then-Obama Solicitor General Elena Kagan wrote to the Supreme Court on April 26, 2010:  “Although a President may fill such vacancies through the use of his recess appointment power … the Senate may act to foreclose this option by declining to recess for more than two or three days at a time over a lengthy period.  For example, the Senate did not recess intrasession for more than three days at a time for over a year beginning in late 2007.”

Obama’s attempt to “recess appoint” Richard Cordray while the Senate is in pro forma session is especially galling in light of the history of the new Consumer Financial Protection Bureau (CFPB) and the broad powers that Cordray – if Obama’s sleight of hand is permitted by the courts – will wield over the United States economy.

The CFPB has the power to interfere with every consumer financial transaction in the economy. It is housed in the Federal Reserve and funded out of Fed operations, not congressional appropriations, avoiding effective congressional oversight.  

All power is vested in one individual – now, presumably Cordray – with no board or commission.  None of this was part of Elizabeth Warren’s original design, which included a five-member commission that was funded and overseen by Congress.  Senate Republicans have correctly called for reforms to make the new agency accountable before confirming a nominee and allowing it to begin writing rules that could have a major negative impact on the economy.

Obama doesn’t care.  He’s making is up as he goes along.  What a difference four years makes.

Phil Kerpenis vice president for policy at Americans for Prosperity and author of Democracy Denied: How Obama is Ignoring You and Bypassing Congress to Radically Transform America – and How to Stop Him.
 Obama Administration Tests Constitutional Power After Controversial Appointment
The U.S. Chamber of Commerce may sue the Obama administration over President Obama's controversial appointment of Richard Cordray to head a controversial consumer financial board, officials from the business group told Fox News on Wednesday after an unprecedented display of executive power that is sure to poison already-strained relations with the GOP.

Chamber spokeswoman Blair Latoff and colleague Bryan Goettel both told Fox News that their understanding is that "we are not ruling it out." However, they said they still "need to understand the specifics of the appointment to determine if a legal challenge is even possible."

The chamber was early in its criticism of the president's move Wednesday to appoint Cordray to chair the Consumer Financial Protection Bureau in a move that invites legal challenge but which administration officials say is perfectly within the president's authority to do.

"To say we are disappointed in the move by the president today would be a gross understatement," Chamber President Tom Donohue said in statement. "This controversial appointment is unprecedented, constitutionally questionable, and puts the authority of the director and the validity of the bureau’s work in legal jeopardy. What's more, it ignores repeated calls to reform the bureau by restoring basic checks and balances."

Others are also questioning the validity of the president's move. Senate Minority Leader Mitch McConnell, R-Ky., who could become the majority leader in 2012, released an ominous statement Wednesday, saying the appointment "lands this nominee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress' role in providing a check on the excesses of the executive branch."

One senior GOP aide told Fox News to expect a lawsuit from an outside group that would fall under CFPB's regulatory jurisdiction since Congress itself would lack the authority to sue.

"It's our understanding that someone affected by the CFPB would have standing here, not the House," another aide told Fox Business Network. "So some business that gets clobbered by the agency could sue."

The GOP aide added that aside from an almost immediate challenge, even if Cordray moves into the post, he will face a wall of opposition at every turn.

Cordray "will get absolutely nothing done. Also, funding (for the CFPB) will be in some peril," the aide said.
The White House might not mind a fight during a presidential campaign year, as Obama looks to frame the battle as one against obstructionist congressional Republicans who are against middle-class Americans.

"I nominated Richard for this job last summer, so you may be wondering why am I appointing him today," Obama told supporters in Ohio, where Cordray appeared with him in Shaker Heights. "It would be a good question. ... The only reason Republicans in the Senate have blocked Richard is because they don't agree with the law that set up a consumer watchdog in the first place. They want to weaken the law. They want to water it down."

Republicans made clear both during Cordray's nomination and on Wednesday that they have no problem with Cordray personally, but want changes in the massive new watchdog agency, including a budget and nominee subject to congressional oversight and other reforms in its wide-ranging rule-making authority.

"The president should stop allowing his Chicago political campaign to make his Washington policy decisions," Rep. Patrick McHenry, R-N.C., chairman of the Oversight Subcommittee on TARP, Financial Services and Bailouts of Public and Private Programs, said Wednesday in a statement in which he criticized Obama's claims of transparency in his administration. McHenry also invited Cordray to appear on Jan. 24 before his committee to answer questions about how he would implement policies as head of CFPB.

"There are legitimate policy concerns about the structure of the CFPB. They can be reconciled, but the president refuses to even have the conversation," he said.

Cordray, who was successfully filibustered by Republicans last year, will remain in the job until Jan. 3, 2014, unless confirmed by the Senate sooner, an unlikely event given the current partisan move by the White House.

While controversial, nowhere in the Constitution is a recess expressly defined, though the document does give the chief executive the "power to fill up vacancies that may happen during the recess of the Senate."
As a result, a loose understanding has arisen over the years as to what constitutes a recess.

Most, including Obama's own acting solicitor general, appear to hold to a three-day minimum for a recess, arising from the congressional adjournment clause in the Constitution which states that no chamber may break for longer than three days without the approval of the other chamber.

In a 2010 Supreme Court case, "New Process Steel vs. National Labor Relations Board," acting Solicitor General Neal Katyal referenced the three-day minimum, during which no recess appointment could be made and cited a Department of Justice brief issued in 1993 by Attorney General Janet Reno.

But the document is vague.

In the brief, which was used to argue against a controversial recess appointment by former President George H.W. Bush, Reno called the three-day recess a "requirement." But it went on to say "the Constitution provides no basis for limiting the recess to a specific number of days."

That does not negate the understanding that appears to have arisen in modern times among members of Congress, Democrat and Republican alike. Democrats in 2008 held the Senate in "pro forma" session to block recess appointments by President George W. Bush. At the time, Obama and Vice President Joe Biden, while serving in the Senate, strenuously argued against such an exercise of presidential power.

When Bush appointed John Bolton as ambassador to the United Nations, then-Sen. Obama said the nominee was, as a result of the temporary position, "damaged goods." Noting the Senate had rejected the nominee -- though unlike Cordray, Bolton faced bipartisan opposition -- the senator said the U.S. would have "less credibility" at the world body.

At a Foreign Relations Committee hearing, Biden said, "No president is entitled to the appointment of anyone he nominates," adding, "That's why they wrote the Constitution the way they did. It says 'advice and consent.'"
According to a Congressional Research Service report, since the administration of President Ronald Reagan, no recess appointment has been bestowed upon a nominee during a recess that was shorter than 10 days.
Nonetheless, a senior administration official told Fox News that the White House is on solid ground with the maneuver.
Thus, it is the interpretation of the White House that the Senate is in fact "in recess" and the administration can make appointments.

Despite the predicted fight over the CFPB nominee, one congressional GOP source predicted the fight will have no effect. The aide sited polls that, according to the source, show Americans disinterested in the watchdog agency, with few knowing about Cordray.

"It's just not a 'top of mind' issue. It's nowhere on the radar of anyone," the aide said.
Fox News' Chad Pergram contributed to this report.


Recess Appointments by the President: What Our Constitution Really Says

If the Senate rejects any nomination, the President may not circumvent that rejection by unconstitutional gimmicks such as those proposed by Arkush~

Much misinformation about The Constitution is put out by those who seek to circumvent its clear provisions. In Peter Schroeder’s recent article in The Hill, he reports that David Arkush, director of Public Citizen’s Congress Watch division, makes two arguments which Arkush claims permit the President to make a “recess” appointment of someone (Richard Cordray) whose nomination has already been blocked by the Senate.

Arkush reportedly claims that Art. 2, Sec.3, U.S. Constitution, allows the President to force the House and Senate to adjourn; and then, pursuant to Art. II, Sec. 2, last clause, he would be permitted to make a “recess” appointment of his rejected nominee. 1 

Arkush’s next claim is this: The 20th Amendment states that Congress shall assemble at least once a year, with each session beginning on Jan. 3. Arkush says that in order to be able to start a session on Jan 3; Congress would have to have stopped a previous session—and between the stopping of the old and the starting of the new, the President may slip in there and make a “recess” appointment of his rejected nominee!
So! Let us see how easy it is to look things up in Our Constitution. You do not have to settle for the rubbish spewed by others and uncritically reported by journalists. You can find out for yourself what Our Constitution really says.

Look It Up In Our Constitution!

FIRST: What does Our Constitution say about presidential “appointments”? Article II, Sec. 2, cl. 2, says:
...he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone…[emphasis added]
Do you see? The constitutional scheme is that the President nominatesthe Senate confirms or rejects the President’s nomination. This is the “check” which Our Constitution imposes on the President’s nominations. The purpose is to protect us from the loons, incompetents, or toadies whom various presidents have, from time to time, nominated.
NOW let us see what Our Constitution says about recess appointments. Article II, Sec. 2, last clause, says:
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. [emphasis added]
Do you see? The Vacancy must have happened at a time when the Senate was already in Recess!
So! The President may not properly circumvent the Senate’s constitutionally granted power to reject his nominations by means of cheap gimmicks such as forcing the Congress to adjourn, or by waiting until Congress is in recess, to “recess appoint” someone whom the Senate has already refused to approve!

Check It Out In The Federalist Papers!

The Federalist Papers are authoritative on the genuine meaning of Our Constitution, 2 so you always want to see what they say about any clause in Our Constitution. Here is an online edition of The Federalist Papers with a searchable text. If you type in “recess”, you will get hits for The Federalist Papers which use that term.

Throughout Federalist No. 76, Alexander Hamilton explains the reasons for the constitutional provision requiring nominations by the President to be submitted to the Senate for their approval or disapproval. In the last 3 paras, Hamilton points out that the Constitution “requires” the cooperation of the Senate in appointments in order to “check” the President and “to prevent the appointment of unfit characters”; and that “the necessity of its [the Senate’s] co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate [the President].”
Now, let us see what The Federalist Papers say about “recess” appointments. In Federalist No. 67 (next to last para) Hamilton is very clear that Article II, Sec. 2, last clause, means what it says:
...The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for 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, by granting commissions which shall expire at the end of their next session.”... [caps are Hamilton’s]
Do you see? Article II, Sec. 2, last clause, means exactly what it says. Before this clause even kicks in, the vacancy must have happened while the Senate was in “recess”.
So! The Constitution requires the President to submit his nominations to the Senate for their approval. A President who disbands Congress so that he can circumvent the constitutional provisions which grant to the Senate the power to reject the President’s nominations, is a usurper & a tyrant who should be promptly impeached and removed from office. 3
If the Senate rejects any nomination, the President may not circumvent that rejection by unconstitutional gimmicks such as those proposed by Arkush.
If people wish to show how clever, creative, or original they are, then they should write a novel. When applying Our Constitution, we must display only Obedience.
Now you know how to look things up in Our Constitution and check it out in The Federalist Papers. Political consultants, journalists, TV pundits, talk show hosts, candidates for office, people in Congress, in the Executive Branch, and sitting on Federal Benches don’t know how to do this. So you must do it and spread the Word if we are to restore our Constitutional Republic. PH


1 Article II, Sec. 3 authorizes the President to adjourn Congress only when there is a “Disagreement” between the Houses “with Respect to the Time of Adjournment”. He is not permitted to adjourn Congress so that he may then circumvent the constitutional provisions which grant to the Senate the Power to reject the President’s nominees!
2 See the Minutes of March 4, 1825 of the Board of Visitors of the University of Virginia (Thomas Jefferson & James Madison were present) where they voted to make The Federalist Papers one of the texts books for the Law School. They said:
...on the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independence, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to its genuine meaning.... (page 83) [emphasis added]
3 On impeaching the President for usurpations of power—i.e., acting outside the few enumerated powers granted to the President by Our Constitution—see Federalist No. 66 (2nd para) & Federalist No. 77 (last para.) PH

Richard Cordray appointment 'turns lights on' at consumer bureau
Obama DOJ Undercuts President’s ‘Recess’ Appointment Stunt 
Obama's Recess Appointments Are UnConstitutional And An Abuse of Power  

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