…to reverse the administration power grab. I like John Yoo’s solution, which doesn’t involve Congress at all:
Most importantly, private parties outside government can refuse to obey any regulation issued by the new agency. They will be able to defend themselves in court by claiming that the head of the agency is an unconstitutional officer, and they will have the grounds for a good test case. They can call Richard first, me second, for advice!
I hope we don’t have to wait until the regulations are issued to resolve it, though.
In the meantime businesses have to plan for either outcome. It’s an uncertain environment, which is what business hates most of all. And people wonder why growth is zero/anemic.
It will be interesting to see if the Supreme Court decides that Congress needs to actually be in session when it claims to be in session. I.E. what is illegally a session of Congress. And this is a question the Supreme Court to rule on as required by the Constitution.
But if the Congress really believes this is wrong why don’t they just deliver a Bill of Impeachment against President Obama? They have been wanting to do so since they were elected last year and this may be the Tea Party’s last chance to do so given what is likely to happen in the election.
As a side note, this wouldn’t be an issue if Gov. Perry gets his part time Congress that only meets once every two years as the Texas Legislature does. This will give the President plenty of time to make recess appointments
There is no chance a Democratic Senate would vote to convict.
I agree it’s moot if Obama loses. But if he wins, this could be an early item of business for the GOP House and the (newly) GOP Senate).
The President is not empowered by the Constitution to decree when the Congress is or is not in recess.
True. But neither is the Speaker of the House is empowered by the Constitution to block Presidential appointments. By attempting to bar all recess appointments the Congressional GOP exceeded its constitutional powers (as Reid and Senate Dems did earlier). Obama leapfrogged their extra-constitutional power grab to restore a privilege that was available to all past presidents, one that he has exercised quite rarely.
None of the proposed GOP responses will work politically. The GOP is going to block must-pass bills, shutting down the government, in order to protect Congress (9% approval), and defend Wall Street from a consumer protection office? That’s a fight that Obama and the Dems would love to have this year.
Jim, I am delighted to see this originalist argument from you and look forward to hearing more. No indeed, the House was not explicitly supposed to be a check on Presidential appointments–though I am sure you will agree with me that from a purely technical point of view the House in fact did have the power to prevent a Senate recess, since the words are very plainly written.
Now that we have decided that originalism shall prevail, will you join me in demanding the end of such things as the “living Constitution”, “penumbras”, and so forth? Or are you simply interested in supporting a faction over supporting consistency?
Referencing the text of the Constitution does not constitute an endorsement of originalism. As I wrote, the text of the Constitution provides ammunition for both sides in this fight, and there remains much that is a matter of interpretation (e.g., the text does not indicate who has the power to decide when the Senate is in recess). It’s just the sort of question that originalism is powerless to answer.
Jim writes:
“True. But neither is the Speaker of the House is empowered by the Constitution to block Presidential appointments.”
Correct..I do not believe the House has anything to do with this at all. And therefore isn’t involve din this debate.
Boehner is refusing to consent to a Senate recess.
What does Boehner have to do with whether or not the Senate recesses?
I’m still waiting to hear from you how Boehner – Speaker of the House of Representatives – has a say in whether or not the Senate can recess.
“By attempting to bar all recess appointments the Congressional GOP exceeded its constitutional powers”
no they did not.
The Constitution says that the Senate can advise and consent. It does not say that a minority of Senators can veto all appointments, and thereby nullify duly passed laws. The very idea is senseless: why would you require consent of House, Senate and President (or a super-majority veto override) to pass a law, but only 40 Senators to nullify it?
If the Senate has that power delegated to it by the Constitution, and they do, then yes, the Constitution does allow a sufficiently large minority of senators to block any and all appointments as they see fit.
and thereby nullify duly passed laws.
So what is the problem suppose to be here? It takes a considerable number of senators to block appointments. Merely, not having an appointed head doesn’t mean that the bureaucracy in question can’t function and fulfill it’s duties. For example, the president can always just run things directly or appoint temporary heads.
. It does not say that a minority of Senators can veto all appointments, and thereby nullify duly passed laws.
Actually, the Constitution says the Senate, and only the Senate, can set the rules in which it conducts business. So if the Senate rules allow for a minority to block the consent of appointments, then that’s their rule to make.
And if the Senate conducts business, such as pass a law during a session, then that definitely means the Senate is not in recess. If the Senate wasn’t in session, then Jim, are you saying the 2-month extension of the payroll tax holiday is nullified because it wasn’t a duly passed law? I’m just trying to figure out if your logic adds up, Jim.
Bingo.
The Congress is supposed to make law. They are perfectly capable of making a simple clear law about this that will keep things straight from here on in.
I doubt they will do that: both sides love the fuzziness of the situation.
I don’t know if it has been discussed, but I’ll add another one: it seems to me that anybody who spends money only upon the authorization of these officials will be manifestly guilty of misuse of government monies, and should be prosecuted. Some might think it draconian, but there is actually a reason these authorization requirements exist, and merely accepting it and following orders when someone comes around and says “I’m in charge” is unacceptable. Anyone who has a fiduciary duty to spend monies only via proper processes is going to have to be held accountable if they do not do so. Or else the system will have shown itself to have a fatal weakness in fiscal controls that the Democrats would never accept from a corporation–and for which people have been prosecuted in e past.
To avoid this problem in the future, we are going to have to go back to the old style of paper-based warrants or commissions, with a Senate seal and a Executive branch signature required to be considered official. No paper, no seal, no signature– no authority. No more of this “this guy is in charge because I said so”.
No more of this “this guy is in charge because I said so”.
This isn’t a problem that can be solved with paper and wax. The argument isn’t whether Cordray has the Senate seal of approval, but whether he needs it, and there’s a case to be made either way.
Jim, imagine you were appointed official advisor to Congress & the President in charge of avoiding this problem in the future, when new people are in office. What would your advice be on this issue? Do you support the nuclear option?
The argument isn’t whether Cordray has the Senate seal of approval, but whether he needs it, and there’s a case to be made either way.
The case that is legal is that Cordray needs Senate approval. I can’t help but think that you will experience a really, really bad case of buyer’s remorse once all these extra-constitutional games get used by someone you don’t ideologically agree with.
Gregg, Article 1, Section 5, U.S. Constitution.