An ex-professor of constitutional law, President Obama understands an unsettling truth about executive overreach: It’s unconstitutional only if somebody squawks. Sure, the Constitution says the president can’t make an appointment without the Senate’s consent. But if he does, and nobody objects, what’s stopping him?
Now Republicans are objecting to Obama’s appointment of Richard Cordray as director of the Consumer Financial Protection Bureau. They’re demonstrating another truth: Everyone’s a strict constructionist when he’s not in power. Still, they’re right. This so-called recess appointment is unconstitutional, because the Senate wasn’t in recess when Obama made it. It was holding pro forma sessions, and, contra the Office of Legal Counsel’s memo, those do count.
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Yet Obama has betrayed the original understanding of the Constitution in another sense — as did Pres. George W. Bush before him. Prof. Michael Rappaport of the University of San Diego has argued that the Constitution, as originally conceived, empowered the president to make recess appointments only to those vacancies that arose when the Senate was in recess. This vacancy, however, has existed since Obama signed the Dodd-Frank bill into law in July 2010.
If Republicans want to put teeth back into the Constitution, they should demand a return to the original understanding of the recess-appointment power in full.
First, consider the text. In Article II, Section 2, it 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.” Under current practice, the president treats the word “happen” as if it means “exist,” — that is, he makes appointments to offices that are vacant during the recess, whether or not those vacancies occurred before the recess.
This interpretation flouts the original understanding. Try this example: On April 2, 1792, Congress passed a law establishing the national mint, but Pres. George Washington failed to nominate a candidate for chief coiner before the Senate adjourned on May 8. Washington then asked his attorney general, Edmund Randolph, whether he could make a recess appointment. On July 7, Randolph replied in a written opinion that Washington could not make an appointment because “it is now the same . . . vacancy . . . [that] existed on the 2nd of April 1792.” The vacancy did not “happen” while the Senate was in recess; “it commenced . . . on that day” of enactment.
The president’s defenders point to an opinion written by Attorney General William Wirt in 1823, which argued the opposite. Taking a loose interpretation of the Constitution — as impatient politicians are wont to do — he argued, “The substantial purpose of the constitution was to keep these offices filled; and the powers adequate to this purpose were intended to be conveyed.” Therefore, the president could make recess appointments to offices that had become vacant before the recess. Nonetheless, Wirt admitted that the strict-constructionist view was more “accordant with the letter of the constitution.”
Corday's nomination went to the Senate back in July. The minority party in the chamber says it won't allow a vote on the nomination, unless the nominee's agency itself, already established by statute, is restructured according to the minority's demands.
Question for Brian Bolduc: When did any of the Framers of the Constitution endorse the nullification of an existing statute by a minority of Senators, via refusal to exercise the power of confirmation? Who ever said this is legitimate? Names and dates, please.
Okay, I know, you can't find any. But it becomes a fair question when you apply your originalist standard to only one side of a dispute - and then claim to be respecting the "spirit of the Constitution."
So, if the party of the president is the majority in the Senate, and they support this nomination and appointment, why have they not rammed it through?
Honestly, this arguement that because the Democratic party does not hold 100% of Congress that everything is now the Republican's fault is getting very old. Democrates hold the majority in the Senate and could confirm their nominees whenever they want.
The fact that they choose not to (or pass a budget for that matter) tells you something very important about their character. They are much more interested in their image and how it looks to their base then they are in doing the "right" thing from their point of view.
Though I agree with you, Mr. Lurker, we all have to recognize that the appointment process in the Senate (along with lots of other Senate processes) is a disgraceful mess.
You are correct except where you state that the agency is "restructured according to the minority's demands". The Republicans want to repeal the law that created the agency and are demanding that position never be filled. Yes, Republicans are violating the law and President Obama was justified in making this recess appointment.
You argue that the author's resort to the Constitution is one-sided because, as you imply, the Republican minority in the Senate failed to comply with the Constitution and confirm Cordray.
There may perhaps be legitimate reasons for concluding the actions of Senate Republicans are improper (as opposed to uncostitutional) in this case (e.g. demanding amendment of the law to place greater constraints on and oversight of Cordray's position - that, at least is arguable), but the reason you offer is without merit. Per the Constitution, such appointments are confirmed ONLY with the advice AND CONSENT of the Senate. The clear meaning is that the Senate, operating under its established rules of order, may refuse to give its consent to an appointment by the president. The Constitution does not set forth the reasons the Senate may withhold its consent.
Since we have no angels to appoint to this position, it may well be the exercise of good judgment to refuse consent to any appointee.
Nobody has nullified anything. And nowhere in the Constitution does it stipulate that senators must justify their refusal to vote on a nominee. They can do so for any reason whatsoever.
Finally, I criticize both Bill Clinton and George W. Bush for making recess appointments. How is that applying a standard "to only one side of a dispute"? Unless you think I am a partisan of the Senate . . .
You employ one standard to criticize a recess appointment (the "original understanding of the recess-appointment power," for which you cite historical examples) - and a different standard to justify the Senate's inaction on the nomination, as an exercise of the advice-and-consent power (your own personal interpretation of that clause, and the rest of the Constitution).
You don't provide any historical evidence to support the second of these two positions. I'd say this is because your own position actually conflicts with any plausible "original understanding" of the advice-and-consent power.
The framers and their fellow senators did not filibuster executive appointments, then claim to have exercised their authority of consent. According to their understanding, withholding consent meant voting no. For the Senate minority to deny a vote to a nominee with majority support - and then keep pro forma sessions going in an effort to delegitimize a recess appointment - has no originalist justification. It's an effort to break new ground, and claim more power.
If you wish to read the text of the Constitution as permitting this - or, for that matter, as permitting Cordray's recess appointment - you can certainly do so. But you chose originalist grounds for your objections to the recess appointment. You are not in a position to offer principled support for the Senate minority's power grab.
And yes, obviously this is an act of nullification as well - it's strange to disregard the immediate practical effect of all this, and to deny it seems disingenuous. In order for the statute establishing CFPB to be implemented, a director is to be appointed and must take action. I don't think you can say that the "original understanding" of this statute was that its provisions could be rendered inoperative, indefinitely, because of a Senate minority's share of the advice and consent power.
I think you're conflating originalism with tradition. The Constitution says, "Each House may determine the Rules of its Proceedings," so it allows the Senate to create the filibuster and to use it any which way it wants. Just because a political party uses a legislative maneuver in a particularly novel way doesn't mean it's unconstitutional; it simply means it's unprecedented.
I'm pretty sure I've carefully maintained the distinction between originalism and tradition. I think you are actually conflating a couple of separate principles.
You've defended the Senate minority's "legislative maneuver" by referring to the Rules of Proceedings Clause. I think that's really beside the point. I didn't question the constitutionality of a filibuster.
My point was about the advice-and-consent clause. Does it really allow you to use your filibuster so as to nullify a duly enacted statute? An originalist treatment - like the one you applied to the recess-appointment clause - suggests not. Again, the "original understanding" was that a "no" vote was the means by which consent would be withheld from executive nominees. A refusal to act on a nomination was not recognized as a means of exercising the power.
Since then, as we all know, the Senate has evolved rules which are permissive about blocking such votes, and members have applied these rules more aggressively to prevent the Senate from acting. As I've said, in practice, this allows a minority of the Senate to try to claim enormous new powers, not simply over appointments themselves, but over the implementation of duly enacted statutes.
If the minority can block a recess appointment as well as a formal vote on CFPB director, then it can keep the agency from acting, and thereby nullify the law establishing it. Again, this appears to me to be the essential yet unacknowledged purpose of arguments like yours. Since CFPB is funded outside the appropriations process, its congressional opponents seem most willing to push this envelope. I'd just point out that if they can get away with doing this, it won't stop with CFPB.
I'd also argue that on nominations - or at least on recess appointments - the changing threshold for formal action, and the changing definition of a congressional recess, are together going to have to be reflected in our chosen definition of "consent." It's not the same as passing a bill, and it's not defined specifically by Article II, any more than "advice" is. No inevitable logic, and nothing written in stone, makes us equate inaction with the withholding of consent. The Senate may make its own rules, but that by itself doesn't give it the final authority over the constitutional question.
It's fair to bring this matter before judges who can weigh the Justice Department's arguments, as well as yours and whatever other claims are made on behalf of the Senate. In order to keep something like the balance of powers that has historically been maintained, I think some discretion for executive recess appointments should be explicitly affirmed.
The office was created in July 2010. Obama waited a year to nominate a director in which time his party lost a filibuster-proof majority so he has no one to blame but himself.
There is nothing in the Constitution saying the Senate has to approve a nominee. It says the president may only appoint if the Senate consents. In essence the Senate has a veto.
So by your logic the Congress could enact a budget in disregard of the president's veto if he makes what they view as unreasonable or unrelated demands. But they can't (assuming no two-thirds majority), and so they negotiate. Which is exactly what the Senate expected of Obama before consenting to Cordray. But Obama doesn't negotiate - he demonizes the opposition and steamrolls them if he can.
And if the squawking continues what happens?
The new director continues to hold Press Conferences and create policy - with squalling in the background.
The other option, the Senate sues to have him removed.
So Cordray continues to hold Press Conferences and create policy - while the SCOTUS determines if it will hear the case and if so when it would rule on it.
We'll be well into the next Congress by then; THAT is a lot of policy being made in time enough to earn half of an Associate Degree. No one was even willing to put HealthCare on the fast track, so how important can this be by comparison?
This Congress has done nothing but prove R's and D's hold the same Big Government Agenda, and the ruling Bourgeoisie is getting that much closer to allowing we Proletariats to "vote" to elect our dictator.
Ya know, it might behoove the SCOTUS to sue and declare this unConstitutional. I think their usefulness to the Bourgeois is near an end.
If this is allowed to stand, we may as well schedule an official ceremony to shred and burn the Constitution (since it will no longer mean ANYTHING - or EVERYTHING), announce the disbanding of SCOTUS and Congress, and officially declare BHO "President-for-life".
This is clearly a Constitutional breech by this President. However, we do, live in post-Constitutional America.
If we have no Constitution, do we have nation? If we have no Constitution, do we have rights? If those we elect can ignore at will the foundational document of the land can we trust them with anything? Can we call ourselves a free people in any regard?
I say no.
Take the Constitution, and put it behind Plexiglas at the Smithsonian, it's a meaningless relic of a bygone era. . .put it next Lincoln's top hat, or Washington’s wooden dentures, or Dorothy’s ruby slippers if you must.
We now exist by the transient whims of tyrants, not by anything set forth in the Constitution.
Obama was never a professor. He was a part time instructor. The famous picture of him teaching shows him explaining Alinsky's Rules for Radicals on the chalkboard.
The University of Chicago considered him a professor, though his title technically was "senior lecturer." Here's an excerpt from the university's press release:
"From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a professor in the Law School. He was a Lecturer from 1992 to 1996. He was a Senior Lecturer from 1996 to 2004, during which time he taught three courses per year. Senior Lecturers are considered to be members of the Law School faculty and are regarded as professors, although not full-time or tenure-track. The title of Senior Lecturer is distinct from the title of Lecturer, which signifies adjunct status. Like Obama, each of the Law School's Senior Lecturers has high-demand careers in politics or public service, which prevent full-time teaching. Several times during his 12 years as a professor in the Law School, Obama was invited to join the faculty in a full-time tenure-track position, but he declined."
What happened to bumers law license?? Why was it some professors did not want him around them? Does moochie still hav her law license? Just asking since you hav everything down pat.
The President and the First Lady were no more a Professor or an Executive at the UofC than Al Gore was elected President; instead they had two high-paying "no-show" jobs in which they demonstrated (a) the UofC had to play ball with the corrupt political class of Chicago, (b) why they love corrupt labor unions and (c) their complete absence of honor or integrity.
Most colleges and universities only consider their full time and tenure track people as professors. Otherwise they are considered instructors by the students, staff and professors and are not called professor by anyone. I would think that is the case most of the time at the University of Chicago as well, but due to this particular case, they are backtracking to make him look like he had a bigger role there. He was never more then a part time instructor, and I doubt they really offered him more back then. Guys like him are a dime a dozen.
I would sure like to know what kept him from accepting tenure track though if they did actually do so. He never really had a real job before entering politics. Being in the Illinois state senate wouldn't have kept him from being a "full time" professor. Most of those jokers do that on a regular basis. So in addition to being lousy politicians, they are often lousy professors as well.
Thank you, Mr. Bolduc. I knew recess appointments (legal ones that is) were an abuse given modern transportation and Senate availability, but I did not realize they explicitly excluded existing vacancies. Reading it again, it is plain as day. This certainly makes much more sense as it prevents the president from running out the clock on Senate sessions so he can appoint an unpopular nominee. I had always found that a troubling loophole that overly empowered the executive, but it is no loophole, but an illegal act no one has sought to challenge.
I hope the district court issues a quick injunction as soon as Cordray or NLRB make any substantive move. There is no reason to give the executive branch deference and wait for all appeals to be exhausted as that would create tremendous regulatory uncertainty.
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