President Bush appointed me to the National Labor Relations Board during a Senate recess at the beginning of 2006. Like many, but not all, such appointments, it irritated members of the party not in the White House (Senator Kennedy referred to me as “Attila the Hun,” a demonstrably inaccurate reference as I more resemble Hannibal the Carthaginian). Nonetheless, the appointment was made during a recess.The legality of President Obama’s appointments to the NLRB and the CFPB turns on the definition of that term.
A 1921 Attorney General Opinion regarding whether the president had the power to make an appointment during a 28-day intrasession recess concluded that the “president is necessarily vested with large, although not unlimited, discretion to determine whether there is a genuine recess making it impossible for him to receive the advice and consent of the Senate.”
The administration and its supporters will rely on the puprportedly large discretion the president has in determining whether there’s a “genuine” recess. But others will point to the phrase “making it impossible for him to receive the advice and consent of the Senate.” Those others may include the D.C. Circuit Court, where any challenge to the appointments is likely to be heard.
In Mackie v. Clinton, the D.C. Circuit Court stated that “the President’s constitutional power to make a recess appointment depends literally and absolutely upon the evidence of a vacancy while the Senate is in recess.” (For the definition of a “vacancy” on a federal commission, agency, or board, see the D.C. Circuit Court case United States ex rel Kirsanow v. Wilson, involving the appointment of the aforementioned Hun to the U.S. Commission on Civil Rights — apparently my appearance is so off-putting that no organization will have me as a member.) The court went on to say:
It is apparent that the purpose of the Recess Appointments Clause was to prevent disruptions in the functioning of government occasioned by periods in which the Senate is unavailable to perform its role of advise and consent.[Emphasis added.]
In the present case of the recess appointments to the NLRB and CFPB, there doesn’t appear to be a recess. As stated in the Attorney General Opinion cited above, the president’s discretion is not unlimited but dependent on a recess “making it impossible to receive the advice and consent of the Senate.” The president was not faced with such impossibility here.
"The president was not faced with such impossibility here."
Okay, so where was the up-and-down vote on Cordray? Where was the advise-and-consent?
It seems to me that if the Senate abrogates it's duty - decides NOT to provide advise and consent - the exec. branch is not beholden to sit on it's thumbs in perpetuity. I think it would be quite difficult to argue otherwise, given the fact that the minority in the Senate is actively and publicly pursuing a strategy of nullification of the Prez' constitutionally-granted right to make appointments to positions.
Keep in mind that the founders NEVER envisioned a situation in which appointments could be filibustered by the minority party! You cannot claim that our modern situation represents their intent in any way, it clearly does not.
Reply to this commentLinkReport AbuseName a Founder who would applaud Obama.
Reply to this commentLinkReport AbuseGiven his rather unique personal characteristics amongst presidents, it's highly doubtful that ANY of them would have done so - don't you agree?
I think that your response qualifies as a 'non-answer.' It doesn't directly address any of the points I made, and instead seeks to change the subject to something you're more comfortable arguing about. That's fundamentally uninteresting to me.
Reply to this commentLinkReport AbuseIf the rules and customs of our founding are too trivial to discuss, then what the @#$!% is the point of even continuing the country? Why not adopt everything the EU is doing? Why not join every failed, corrupt nation that ever existed in human history? What's the point of standing out? Of being the best civilization the world has ever seen?
The points you made have everything to do with the question I asked, which you cannot answer; or would rather camouflage your genuine, non-answer with a stereotypical, lazy, stupid reference to slavery and racism, followed by a charge that I'm not answering you; or refuse to answer because what it would reveal would interfere with the wrecking ball the left uses to trash this country.
Reply to this commentLinkReport AbuseI'd like you to specifically point out which part of my argument your initial question related to. Otherwise, I'm going to have to conclude you have nothing meaningful to add to the conversation.
Your opinions are not material to the discussion; an answer that clearly shows you understand the way the GOP is manipulating the rules of the Congress in a way the founders never intended, and an argument that it is appropriate for them to do so, would add something material to the discussion. Are you prepared to actually discuss specific actions taken by the GOP caucus? Do you feel comfortable defending them? It seems not.
Reply to this commentLinkReport AbuseGee, I don't know, Fish. Take off your Super X-Ray Leftist Superiority Complex Goggles and maybe you'll pay attention to the Constitution, custom, precedent, original intent, presidential power, Congressional power and all that mumbo jumbo you've ignored up to now.
Reply to this commentLinkReport AbuseThere was no Filibuster in the original Senate; it is not a power that the founders intended or envisioned the minority to have. They did not foresee a situation in which the majority could not even VOTE on candidates for these positions, where the minority could PREVENT the Senate from providing advise and consent.
Do you agree or disagree with this statement? Your answer determines your level of seriousness regarding this discussion.
Reply to this commentLinkReport Abuse1.) The filibuster existed as an option pretty much since Day 1, Fish. You're flat out wrong. It wasn't used until the 1830s, I believe, but it's almost always been an option.
2.) The Founders would be apoplectic at what's going on now at the federal level, forget filibusters - I'm talking everything. You bringing those guys into the discussion just to validate your arguments for executive power is silly, Fish. Seriously. I know you aren't a dumb guy but the remarks you make aren't thought out very well. The country is so far removed from where it began and it's taking us down. Not a fan of that, and you shouldn't be, either. For some reason you support a big power grab by the president. Why? Just because it's your guy? That's stupid.
Reply to this commentLinkReport AbuseOnce again, you've chosen to write a whole lot of words that are meaningless to the actual conversation, instead of discuss the actions of the GOP in modern times. I could care less about your opinions regarding the modern Dems and their 'power grabs;' the fact of the matter is that you are unwilling to admit that the modern GOP is engaged in hostage-taking and that this is a strategy you support and think is appropriate.
Well, I don't support it; I don't think it's appropriate, and I do support the Exec. branch asserting itself in this area. Your unwillingness to actually discuss the core issue has ended my interest in furthering our conversation, so I wish you good day, sir.
I will say this, as a closing point: from any objective standard, our country is not 'heading down.' The average citizen enjoys a higher standard of living and better prospects for advancement than almost any other point in our past. Our citizens enjoy greater equality and rights than at any point in the past. Our crime statistics are far lower than in the past and our lifespans are longer. I cannot agree with your drumbeat of pessimism regarding the state of the nation - and this isn't a recent thing, related to either the Dems or GOP being in control of various branches of our government, either. The truth is that America - as both a concept and a nation - has been a stunningly successful experiment, and is highly likely to continue to be successful in the future.
Reply to this commentLinkReport AbuseI could care less about your opinions regarding the modern Dems and their 'power grabs
This is a crock because you can't shut up about them. By the way, it's "I could not care less..."
Reply to this commentLinkReport AbuseColonel,
How did you insert italics into your post? I've tried html, and it doesn't work for me (at least in the previews).
Reply to this commentLinkReport AbuseYou can do so using the < em> tags.
Reply to this commentLinkReport AbuseThanks!
Reply to this commentLinkReport AbuseNot a founder, but:
"John Marshall has made his decision, now let him enforce it!"
Reply to this commentLinkReport AbusePerhaps the founders didn't envision a situation where appointments could be filibustered by a minority party, but they gave the Houses wide latitude in setting their own rules:
"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member."
Reply to this commentLinkReport AbuseThe individual 'rules' of each house were never intended to remove granted authority from the executive branch, so I can't accept that as a valid response.
Otherwise, a Dem-led Congress could pass a 'rule' that says they NEVER go into recess, they are ALWAYS technically 'in session' and effectively remove the prez' recess-appointment rights. It is quite obvious that not all rules comply with the Constitution.
I do appreciate the response and discussion, though.
Reply to this commentLinkReport AbuseThis is simply bad reasoning. The President doesn't have some inherent power under the recess appointments clause - he has no "rights" that the Senate could infringe upon. So in actuality the Senate COULD adopt a rule that it is never in recess. The President's power arises only if and when the Senate is in recess. Whether the Senate is in recess is entirely a matter for the Senate to decide.
What if the Senate decided to hold debate and votes every day of the year - real debate and roll call votes? That would just as effectively dent the President his "rights" to recess appoint. Is that unconstitutional? Such an argument would be dumb but it is not all that different from the argument you're making.
So the question is, who gets to decide if and when the Senate is in session or in recess. And that clearly is a matter for the Senate to decide under its power to adopt its own rules. If the Senate says it is in session, it is not for the President or the courts or anybody else to decide whether they are or are not in session.
Reply to this commentLinkReport Abuse"So in actuality the Senate COULD adopt a rule that it is never in recess."
This would never stand up to review - it would be an attempt by Congress to remove the president's explicit powers, granted in Article II, section 2 of the Constitution.
"What if the Senate decided to hold debate and votes every day of the year - real debate and roll call votes? That would just as effectively dent the President his "rights" to recess appoint. Is that unconstitutional? Such an argument would be dumb but it is not all that different from the argument you're making. "
It is VERY different than the argument I am making, and not farcical in the slightest. If the Senate wishes to continually work, they can do so; what they cannot do is not work and call it 'work' in order to limit the prez' powers.
"If the Senate says it is in session, it is not for the President or the courts or anybody else to decide whether they are or are not in session."
You're absolutely incorrect. The executive branch has always reserved the right to interpret laws and the Constitution in ways that are advantageous to themselves. I would suggest you review pretty much the entire term of the last Republican president for many examples of this.
Reply to this commentLinkReport AbuseNo. It is not "remov[ing] the president's explicit powers" since those powers are limited by the Advice and Consent clause. The Senate doesn't consent, he *does NOT* get to do an end-run around.
And, as I said above, he is *not* interpreting a law. He is trying to limit the Senate's Constitutional power to set its own rules. Unless you mean he can interpret the Advice and Consent clause in the Constitution. Which I think a great many commenters would agree that he is doing!
Reply to this commentLinkReport Abuse"No. It is not "remov[ing] the president's explicit powers" since those powers are limited by the Advice and Consent clause."
No, they are not. The Prez' power to make RECESS APPOINTMENTS is clearly spelled out in Article II, section 2 of the Constitution. The fact that the Senate wants to change the definition of the word 'recess' using procedural tricks does not limit the pres' Constitutionally granted rights. Arguments otherwise would allow our Congress to redefine almost any word they wanted, in order to increase their power. I doubt that would be well received by the courts or most Conservatives.
And, I would argue that the vast majority of the posters here at NRO have often taken the exact opposite position regarding the exec' branch responsibility to respect the laws of Congress. Do you recall the persistent refusal of the Bush admin to respect the subpoenas of various advisers of the president from Congress during the last administration? That 'interpretation' of the law clearly violated Congress' oversight duties, and yet, it was consistently argued by the GOP that the Exec branch had the perfect right to interpret the law any way they liked, and if the Dems didn't like it, they could take the Exec branch to court. This happened on many occasions.
Remember that? At what point did the primacy of Congressional law become a rallying cry for the GOP exactly? Hmm, I think I can identify it..
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