“A Travesty For Government Accountability”

The Obama administration continues to use the Constitution for toilet paper. If they get away with this, they’ll regret it when someone else comes to power. And the media, of course, lies for them and calls it a “recess appointment.”

[Thursday morning update]

Barack Obama’s tyrannical abuse of power.

[Bumped]

[Late-morning update]

The Constitution is clear on recess appointments. This isn’t one.

[Update a couple minutes later]

The appointment is Constitutionally dubious, and so is the job itself.

[Update early afternoon]

More thoughts from John Yoo:

President Obama is making a far more sweeping claim. Here, as I understand it, the Senate is not officially in adjournment (they have held “pro forma” meetings, where little to no business occurs, to prevent Obama from making exactly such appointments). So there is no question whether the adjournment has become a constitutional “recess.” Rather, Obama is claiming the right to decide whether a session of Congress is in fact a “real” one based, I suppose, on whether he sees any business going on.

This, in my view, is not up to the president, but the Senate. It is up to the Senate to decide when it is in session or not, and whether it feels like conducting any real business or just having senators sitting around on the floor reading the papers. The president cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa.

Is the president going to have the authority to decide if the Supreme Court has deliberated too little on a case? Does Congress have the right to decide whether the president has really thought hard enough about granting a pardon? Under Obama’s approach, he could make a recess appointment anytime he is watching C-SPAN and feels that the senators are not working as hard as he did in the Senate (a fairly low bar).

I think this will come back to bite him. And it’s all about his reelection.

74 thoughts on ““A Travesty For Government Accountability”

  1. Leland

    Perhaps he thinks a threat of impeachment will go over like it did in 1996, and therefore its his path to re-election. Wonder if he will pull out the “it’s the economy, stupid” bumper sticker too?

  2. rickl

    The Republican Congress won’t impeach him, no matter what. It would mean that they are racists or something. They won’t touch that with a ten foot pole.

    Obama knows that, which means that there is no way to stop him. He can rule by decree with absolutely no consequences whatsoever.

    Did I mention that he knows that?

    1. Josh Reiter

      Which makes it all the more bizarre that he actually thinks that will get him reelected. I’m firmly in the camp of, “really, why are you running for reelection again?”. He got his “signature legislation” pushed through and that’s about the only trick up his sleeve. At least Lebron somewhat amuses with his baby powder before the game routine.

      1. Mike Lorrey

        Obama is documented as being a believer in the principle that all power corrupts and that it is only a matter of time before he is fully corrupted by power, so the story goes, he intends to use the power he has as ruthlessly as he can to accompish what he can for as long as he can. I dont think he minds being a 1 term president, because he knows the historians are all leftists and will sanitize him in the history books, so his place in “history” as one of the “greatest presidents” is secure.

  3. Bob-1

    Regardless of the wisdom of the Obama and regardless of who controls Congress in the future, the Congress has an easy fix: Stay in session. Not in “pro forma session”; just stay in session, earnestly. No recess, no recess appointments, right?

    I think it would do the USA some good if members of Congress had to spend more quality time with each other, looking for good compromise solutions.

    1. Bob-1

      Of course, Senators may want to return to their home states for longer than 3 days, but they can easily pair up yay and nay votes to safely leave.

      I also just want to note that US senators in non-leadership positions make $174,000 a year, so it isn’t like they wouldn’t be highly compensated for managing to show up for work every three days.

    2. wodun

      I am sure that the Democrat controlled Senate will be more than willing to stay in session to prevent Obama from making recess appointments.

          1. Bob-1

            The current members know democrats will someday be the minority again. And thus, how enlightened of them to want to reform the filibuster. Or how short-sighted, if you prefer. Either way, Republicans should join them in reforming the filibuster. I think it should be dumped altogether.

          2. Karl Hallowell

            I disagree. There’s a good chance that we’ll see Republican majorities in both branches of Congress and a Republican president. You’d want the filibuster then to have even a modest brake on that.

          3. Bob-1

            The Senate is supposed to be a modest brake. The Supreme Court is a brake. The next election is a brake. Intraparty differences can be a brake. If the American people want a Republican House and Senate and Presidency, then I think they deserve an effective Congress which isn’t so braked that it is broken.

        1. M Puckett

          And I am sure they will still be in favor of it after they lose the Senate next November too!

  4. Chris Gerrib

    The Constitution clearly grants the President the power to make recess appointments. As outlined in this non-partisan report, Teddy Roosevelt made appointments during a recess of a few hours.

    It should be noted that a majority of the Senate did approve Cordray for the position (just not enough to overcome a filibuster, something not in the Constitution) and going back to 1905, the Senate itself recognized that pro-forma sessions don’t count for blocking recess appointments. So, yes, Rand, Obama has all the authority he needs to authorize a recess appointment.

    Regarding whether the CFPB is a good idea or not, it is currently the law of the land. The Republican minorities’ refusal to approve a Director is exactly the same as a cop’s refusal to arrest somebody because he doesn’t agree with the law. You don’t like the law – repeal it.

    Bottom line – just because a minority of US Senators don’t like something, it is neither illegal nor unconstitutional.

        1. Gregg

          Nonsense. First off, some bills (not this one) require a 2/3’s majority to pass. That means if they fall short of 2/3’s but get a yes vote of 51%, the minority rules. See “changing the Constitution”.

          Secondly, there are years of political thought and writing warning against the tyranny of the majority. That’s one reason why we have checks and balances.

          1. Chris Gerrib

            Gregg – you refute yourself. If the writers of the Constitution wanted appointments to require a supermajority, they clearly knew how to write that requirement into law. In this case, they didn’t.

            Yes, there is a body of thought on tyranny of the majority. Alas, that’s not on point in this case, as we’re not talking about infringing somebody’s rights.

          2. Karl Hallowell

            Where’s the example, Bob-1? I just see a link to filibuster practices in the US Senate. I suppose I need say that I don’t find that an example of your complaint.

        2. Gregg

          Chris:

          The only thing I’m refuting is your blanket statement, which was:

          “They [the minority] don’t have a right to perpetually block action.”

          And it is clearly nonsense. I gave you examples.

          Don’t blame me for the fact that you made a blanket statement and got called on it.

  5. bbbeard

    I might actually agree with Chris on this one, except that the Constitution actually 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.

    Whatever you may think of the CFPB, the vacancy in the directorship clearly did not “happen” during the Recess of the Senate. Through some skullduggery by many administrations down through the years, the original intent of this clause was completely gutted. Frankly I think the best outcome might be if the case is brought before SCOTUS and they decide that the original meaning — that the President can fill vacancies that “happen” during a Senate Recess, but not vacancies that merely overlap a Senate Recess — works just fine.

    The reductio ad absurdum is that the President never needs Senate approval for appointments — he just needs to wait for a Recess and then appoint all his cronies to positions of power. Is that really what people think Article II Section 2 means? Don’t forget that the President has the power under Article II Section 3 to adjourn Congress.

    The reality is that the President has to work with Congress. And the reality of that arrangement is that it takes 60 Senators to get anything done. Trying to stiffarm the minority is never smart.

    1. Chris Gerrib

      If you read this historical report, it seems that, as early as 1823, Presidents and Attorneys General were arguing that any vacancy existing during a recess of the Senate was eligible to be filled by a recess appointment. The first court case agreeing with that decision came in 1880.

      Since page 15 of the link above talks about a 1940 law governing paying people who were recess-appointed, and specifically authorizes pay “for appointees to an office for which a nomination was pending at the time of the recess,” one could argue that Congress agreed with Obama’s interpretation of recess appointments.

      The link also says that there is no legal difference between somebody appointed via recess appointment and via Senate confirmation. So, Cordray ‘s appointment is legal, he has full authority, and he gets paid.

      Constitutionally, 51 Senators beat 49 all day long.

      1. bbbeard

        Thanks for the link. Some interesting history. But as the report admits, the practice has always been controversial, with many changes in interpretation over the years, as administrations changed.

    2. Bob-1

      Don’t forget that the President has the power under Article II Section 3 to adjourn Congress.

      The House and the Senate have to disagree on when to adjourn before he has that power. he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;

      I honestly don’t see why the legislative branch has to adjourn at all – the executive branch doesn’t adjourn.

      1. bbbeard

        Well, if you believe the CFPB vacancy “happened” during a Senate Recess, I’ll think it likely you could find a battery of lawyers to argue that the Senate and House disagree on adjournment. Anytime you want.

        And frankly, I don’t understand the need for a full-time legislature. I understand why the executive is full-time. But once you set up the rules, why is there a perpetual need for new rules? Sure, appropriations have to be dealt with every year, but why is that full-time?

        1. Bob-1

          Congress does more than make new rules. It supposedly debates. And holds hearings. And then there is the need, often discussed here, to take the time to read bills before voting on them. And hey, most of the reader of this blog want to dismantle various rules and regulations — well, that’s a lot of work too (or at least, it should be, if you want to make big changes but do it with due diligence.)

          I think the above is a good reason for a full time congress, but for $174,000 a year, they could at least stick around doing nothing but being “on call” if something should come up. Even in horse and buggy days, congress could have had a majority of members in session, and now that we have jet airplanes, there is no reason not to stay in session even if members want to go back to the people who sent them to Congress.

          Or we could just dump the filibuster and stop all this nonsense.

      2. bbbeard

        On the other hand, one could take the position that modern telecommunications technology has completely obviated the practical problem of obtaining the Advice and Consent of the Senate during a protracted recess. If there ever were to be another Constitutional Convention, God forbid, I doubt that there would be any need for recess appointments. In the modern world, the President should make a nomination, and the Senate should debate and vote, online if necessary, on Christmas break, if necessary. Once upon a time the Senate would vanish for six months out of the year, and the functioning of government would seem to require such a thing as a recess appointment. No longer is this the case. But for the foreseeable future, we have to live with the current practice.

      3. Karl Hallowell

        I honestly don’t see why the legislative branch has to adjourn at all – the executive branch doesn’t adjourn.

        They have to be present in the Capitol to vote. They have to be present in their districts to communicate with their constituency.

        1. Bob-1

          The US President has a nationwide constituency, and yet this doesn’t force the President to adjourn. California, to pick one large state, is an enormous constituency, and the overwhelming majority of Californians are not going to communicate with their senator in person whether their senator is in California or Washington. But if presence at home is really necessary, there is time for that via these newfangled jet aeroplanes, since Congress must only meet every three days to stay in session. And as I mentioned above, members can rotate between being in town and not leaving the necessary quorum in town, and finally, pairing yay with nay votes allows members of congress to safely leave town for more than three days even during voting.

          1. Karl Hallowell

            Bob-1, the US president visits that constituency as well. Oddly enough, he does a lot of that when Congress is out of session. As to your proposal, it’s utterly ridiculous. I pointed out that members of Congress have a reason to be in two places at one time. The current system of active Congress interspersed with Congressional recesses works just fine. There’s no need to come up with some elaborate, gamable scheme merely to defend yet another reprehensible decision by Obama.

    3. Eric Weder

      So what happened to “expire at the end of their next session”? Seems to me this was written to require the Senate to approve the appointment or the guy gets turfed next time the Senate recesses.

  6. wodun

    This is just Obama’s effort to run against congress. Picking fights with congress will become more and more common.

    1. Leland

      Yep. And the more he does it, the more he looks more totalitarian.

      And it’s not to difficult to show how smaller government solves the problem of both the President and Congress.

      1. Daveon

        Yes, because running against a body which has a 9% approval rating, versus his 49% or so is going to really work against him eh?

        Next Republicans will be complaining he signed their law which allows for indefinite detention of US citizens and then where would we be???

  7. Mike Lorrey

    Ya everybody hates congress right now, so its a popular pick boy, and deservedly so. Its the only institution more reviled than Obama.

  8. Peterh

    A non-partisan test: Imagine the worse administration in the nation’s history. Would you want them to have the power being proposed for the president and his officers to have?

    1. Bob-1

      A test of partisanship: People who

      a) complain about the powers of the presidency with regard to completely preventable recess appointments (preventable by not going into recess)

      but

      b) don’t complain about the defense bill the president just signed which allows the indefinite incarceration of natural born American citizens suspected of terrorism without a trial.

      1. wodun

        Plenty of people have been complaining about Obama’s defense bill just not in this thread.

        Somehow the bill is the Republican’s fault?

        1. Bob-1

          My thought was that the folks here would be pleased with the defense bill’s anti-terror provisions, and so would overlook the “power being proposed for the president” in that case. If they really cared about limiting presidential powers regardless of political party, and didn’t just want a partisan opportunity to make overblown claims about tyranny, then they’d either be outraged about both issues, or just focus on the indefinite incarceration issue, as it is more central to the topic of liberty.

        2. Titus

          Indeed. I am certainly not happy with the indefinite incarceration issue. Habeas corpus and all that…

    2. Chris Gerrib

      You mean like Bush appointing that idiot John Bolton to be Ambassador to the UN? This is a power that every President since Washington has had and used.

      If the Senate doesn’t want somebody appointed to a post, they can simply vote “no” at that person’s confirmation hearings. You can’t recess-appoint somebody rejected by the Senate. Since, in this case, the Republicans didn’t have the votes, they tried an end-run.

  9. Rand Simberg Post author

    If you want to be seen as an idiot, a sure-fire way to do it is to call John Bolton one. And unlike this, that was a true recess appointment.

    But I’m all in favor of a Constitution amendment banning them. As others have pointed out, modern technology renders them unnecessary.

    1. Bob-1

      Do you support fillibusters for presidential nominations? If so, why? Imagine a libertarian president and a libertarian congress with a 51% majority – do you want their goals thwarted by dead-enders in the old two party system?

    2. Daveon

      Oh, me! ME! This is John Bolton, the guy who went on The Daily Show to say that Lincoln had hadn’t had a bi-partisan cabinet, when actually he had? There are websites dedicated to John Bolton’s greatest gaffes. But, hey, when have facts got in the way of a good rant Rand?

      Anyway, that’s me for another 6 months. Back to watching the GOP screw the primaries and all that.

    1. Leland

      The recess appointments broke with legal precedent, as they while the Senate is holding regular pro forma sessions. Republicans insist the Senate has not been in recess thanks to the seconds-long sessions held every few days, but White House attorneys determined the procedural move is a gimmick that can be ignored by the president.

      Gee, I wasn’t aware Article 1, Section 5 of the US Constitution provided for the rights of the White House to determine Senate’s Rules of Proceedings and determine whether those rules where valid. I suspect US Chamber’s of Commerce attorneys will determine the White House’s procedural move is a gimmick that can ignored as well.

      Maybe we should thank Obama for deauthorizing the NLRB?

      1. Chris Gerrib

        It’s not a gimmick? It’s not a gimmick for two Senators to breeze into a room, pound a gavel, count to ten and pound the gavel again? Because that’s what a “pro forma” session is. The law requires and allows for common sense.

        Here’s the bottom line – if the Republicans have the votes to repeal the law or block the nominee, they should do so. If they don’t, and instead rely on gimmicks, then they can’t complain if they get called out on the gimmick.

        1. Leland

          The law requires and allows for common sense.

          Indeed, such as noting that a campaign flyer asking for donations is not an incitement to violence.

  10. Larry J

    Via law professor’s blog (The Volokh Conspiracy):

    Legality of Cordray Appointment Under Dodd-Frank
    Todd Zywicki • January 4, 2012 5:04 pm

    Leaving aside the constitutional questions, there is a potential statutory problem with the legality of the Cordray appointment under Dodd-Frank. Section 1066 of Dodd-Frank provides that the Secretary of the Treasury is authorized to perform the functions of the CFPB under the subtitle transferring authority to the CFPB from the other agencies “until the Director of the Bureau is confirmed by the Senate in accordance with Section 1011.” It turns out that section 1011 is a defined term which provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”

    This seems to suggest that even if the President might be able to appoint Cordray under the recess power the full grant of statutory authority wouldn’t transfer to the Bureau unless the statutory language was fulfilled as well.

    1. Chris Gerrib

      As was pointed out in the comment thread to Todd Zywicki’s post, that language is used in a lot of laws, including, for example, the act creating the Department of Homeland Security. Obama has already made a recess appointment to that department. So, if you take that law to ban recess appointments, then it’s unconstitutional.

      1. Larry J

        So Democrats Dodd and Frank wrote an unconstitutional law? Who knew? Anyway, the law is the law. Congress passed it and Obama signed it. That clause is in the law and Obama does not have the authority to break the law. If the law professor is correct, even if Obama’s recess appointment was legal, it is illegal for the guy to assume the authority of the office. The office itself is so poorly defined that they can do almost anything they want. Gee, Dodd-Frank is bad law. Who knew?

        1. Chris Gerrib

          No, the law is fine – your reading of it is wrong. It’s a general rule of reading laws that if you can interpret something two ways, one of which is unconstitutional, that the interpretation which makes the law constitutional is the correct one. This interpretation is supported by the fact that the exact same language is used in dozens of other laws regarding Presidential appointments.

          So, either Congress has been banning recess appointments for decades, or the phrase means “follow the Constitutional appointment process we’ve been using since 1792.” I take it to mean the later.

          1. Larry J

            It isn’t my reading, I’m just citing a law professor. I don’t pretend to be a lawyer. Are you?

            According to the professor, the clause is in the law. The law was passed and signed by Obama. No one, especially any president, is above the law. So, the law professor’s question remains – even if the appointment was legal (and there are is a lot of debate about that), the law states he must be approved by the Senate and he wasn’t.

  11. Jim

    Obama’s actions are legally dubious, and (if successful) could set a terrible precedent. On the other hand, the alternative is to give the Senate minority the power to nullify duly passed laws (in this case Dodd-Frank and the Wagner Act) by blocking confirmation votes. Nothing in the Constitution anticipates a minority of Senators blocking Presidential appointments, much less nullifying laws, but that’s what you get with pro-forma sessions and the filibuster.

    This situation highlights the fragility of presidential systems, with policy-making power split between government branches that are often controlled by opposing parties. Both sides can claim democratic legitimacy and have reason to escalate disputes in order to protect their share of power, and at some point one of these disputes could trigger a constitutional crisis. Around the world you don’t see many long-lived presidential systems; the US is a rare exception. At some point there’s a showdown, and either the legislature wins (replacing the president with a parliamentary executive) or the executive does (instituting dictatorship). In the past, US political parties were not as cohesive and disciplined, which made bi-partisan governing coalitions feasible. That time seems to have passed.

    1. Chris Gerrib

      Sorry to disagree with you, but there’s nothing legally dubious here. If Teddy Roosevelt can appoint 160 people during a 2-hour recess, then Obama can appoint people during a multi-week period in which the only “business” conducted is gaveling to order and gaveling to adjourn.

      The real truth about the fragility of political systems is that democracies are always fragile. They require people to do something that they don’t want to do (especially the high-ego types attracted to politics) – admit defeat.

      1. Bob-1

        A quick quibble: winning is easiest but admitting defeat isn’t that hard for politicians — it lets them act aggrieved, promote the politics of resentment, etc. What’s hard to create a good compromise, the way the Gang of 14 did. It appears to be increasingly difficult for members of Congress to act that way, but I hope not.

      2. Daveon

        Let us not forget that St Ronald the Reagan did 240 recess appointments, George the elder, 77, Clinton, 140 and W 177…

        Obama’s 30odd make him look like a bit of a weakling not prepared to stand up for his choices against the senate.

        Which is interesting, because that’s entirely what he’s looked like for most of his presidency. Maybe this is indicative that buoyed by the general incompetence of the GOP senate and congress leadership he’s feeling more confident.

        I’m not holding my breath mind you.

        1. Josh Reiter

          I believe Reagan used recess appointments to effectively neuter appointments that he deemed as anti-business. Many of his early recess appointments were to put basically do-nothing people into positions of the NLRB, the Legal Services Counsel, and other “Labor” related positions. But the fact that under his Presidency the U.S. experienced 90 straight weeks of continual economic growth tells me that he was quite possibly onto something. Now that is of course not to say that regardless of the outcomes it certainly did strain the concept of the recess appointment by the President.

          But I believe a great deal of the source of people’s ire toward Obama’s implementation of it is his own rheteric, “Where Congress won’t act I’ll do what must be done!” as he pounds the podium with his finger. His flouting of our representative republic when bills like the Cap n’ Trade get voted down; the EPA went ahead and said it was going to enforce stringent regulations on CO2 emissions. The “leading from behind” in Libya. The “tell me who’s ass to kick” attitude towards businesses and job creators that aren’t a part of his list of high-end-donor Wall Street money managers. Then there is also the 38 czars that were put in place before he even really got onto the business of making appointments that his job position entitles him to do. You see, if Obama had done all these things and unemployment was low, the economy soaring, and baskets of kittens were on everybody’s doorstep then I don’t think we’d really be all that concerned.

  12. Chris Gerrib

    I do have to say, taking legal advice from “Mister Torture” John Yoo is like taking medical advice from Dr. Kevorkian. Or as one of the commentors to Yoo’s post said, “Shorter John Yoo – I’m in favor of broad Executive action when done by Republican Presidents but against it when done by Democratic ones.”

  13. Josh Reiter

    So was it a gimmick when the Democrats used Pro Forma sessions to block Bush’s recess appointments back in 2008? Back then it was the noble efforts of Harry Reid and his cadre of gavel bashing Jr. senators doing everything they could to stop the evil RethugliKKKans from shredding the Constitution. But now it’s the loving Democrat who’s acting bodly to thwart the efforts of a “do nothing” congress. Mind you that Bush let these blocks appointments slide whereas Obama cleverly tilts that chin and pushes three more appointments through whom were only named 3 weeks ago.

    Hell Cheney makes an off-handed comment that the VP serves at their leisure in the Senate and Rahm Emmanuel puts forward a motion to pull funding for the VP’s Senate chamber office. Seems that Democrats have a real hard time understanding Separation of Powers and that each branch maintains their own rules for how they govern. It’s the voters who get to ultimately decide if they feel the politicians within those respective branches overstep their bounds. Thus the shellacking the Dem’s took after the debacle of slipping Obamacare through at Midnight on Christmas Eve.

    Seriously what’s the dang point of even pretending we are following this like really old, like 100 year old dusty document anymore? All we need to govern is the Interstate Commerce clause, the general welfare clause, and oh look; its the weekend; Congress is out of session: appointment for the grand czar of catnip, appointment for the inspector general of clown noses, appointment for the governing body of plumbers cracks, appointment for the council of toastmasters who really do in fact like buttery toast. I say that since it seems painfully obvious that Presidents are in fact going to get their silly recess appointments anyways then we might as well give Congress a real recess and kick their ass out of D.C. for 8 months. That’s 8 less months that they can “work” to lie, cheat, and steal or hard earned money and freedom.

      1. Bob-1

        I agree, the Democrats were wrong on this one — both sides have abused the filibuster. I’m surprised to see “but the other side did it too” is being advanced as an argument, and then praised, since that tactic is usually roundly criticized here.

        1. Gregg

          Bob-1 wrote:

          “I’m surprised to see “but the other side did it too” is being advanced as an argument,…”

          Not sure many are advancing that argument. What I see (and definitely what I think) is that it’s the sheer brazen, astonishing, unbelievable hypocrisy of the Dems (in this case).

          Well ok it’s not so unbelievable.

          That they would use a technique (on Bush) and then steamroller the very same technique, and do it with a shrug of the shoulders and without the slightest regard for how hypocritical it looks leaves one breathless.

          It’s the lack of regard for what people think. It’s the situational ethics. It’s the utter lack of honor in steamrolling their own technique, and assuming the sheep will let them get away with it.

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