How congressional Republicans subvert the Constitution
U.S. Rep. Diane Black, a Republican from Tennessee, has announced she will sponsor a House resolution condemning President Obama for using “recess appointments” to fill vacant slots at the National Labor Relations Board and at the Consumer Financial Protection Bureau.
Here’s how she put it in her press release Tuesday:
“It’s astounding to me that the president is claiming these are recess appointments and within his authority, when Congress was not in fact in recess,” said Black. “These appointments are an affront to the Constitution. No matter how you look at this, it doesn’t pass the smell test. I hope the House considers my resolution as soon as we return to Washington so we can send a message to President Obama.”
Let’s look at that last sentence once again, shall we?
“I hope the House considers my resolution as soon as we return to Washington so we can send a message to President Obama.”
Return to Washington from where? From the recess that they’re not having?
And why can’t the House consider that resolution say, today, three days after Black sent out that release? Because they’re still not in session to do the nation’s business, and haven’t been since before Christmas?
Later in her press release, the congresswoman registers the following complaint:
“… the NLRB appointments were jammed through by the president before the Senate even had the chance to consider the appointees. Their names were only put forward on December 15th, a mere two days before the Senate recessed for the holiday.”
Again, “a mere two days before the Senate recessed for the holiday”? You don’t say,
Black’s statement further complains about “an affront to the Constitution.” Let’s look at that a little more closely as well:
The Senate was given the power to advise and consent on appointments as a means of ensuring that the president appoints qualified people. That authority was never intended to be twisted into a tool for forcing federal agencies to stop doing business, which Senate Republicans admit is their goal. By refusing to fill those vacancies — by refusing to even allow a vote on filling those vacancies — they are trying to shut down agencies they don’t like.
Nothing in the Constitution gives them that authority. Nothing.
(Without new board appointees, the NLRB would not have a quorum and thus could not operate or make decisions. Without a director, the CFPB could not carry out many of its legal duties as well.)
As insurance against such abuse by Congress, the drafters of the Constitution gave the executive branch the power to appoint officials for limited terms whenever Congress went into recess and was not available to do its job. By any legitimate definition, Congress has been in recess since before Christmas and remains in recess today, as Black inadvertently acknowledges in her statement.
By pretending that it is never in recess, Congress is trying to permanently strip the executive branch of its recess-appointment powers. Never again can a president make such appointments, because never again will Congress admit it is in recess. Like the use of advise and consent to shut down agencies, it is an attempted de facto rewriting of the Constitution itself.
(And yes, Democrats used that same technique to block recess appointments under President Bush. The only thing you can say in their favor is that at least they were attempting to block nominees they did not like — a legitimate use of their constitutional authority — rather than trying to shut down entire agencies.)
It is certainly fair to argue that with his response, President Obama is himself stretching if not exceeding his constitutional authority. Under the circumstances, however, his only alternative would be to do nothing and allow the legislative branch to illegally poach on executive functions and permanently if unofficially alter the Constitution.
It is not a good situation.
– Jay Bookman
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553 comments Add your comment
Welcome to the Occupation
January 13th, 2012
4:05 pm
JamVet, I certainly agree that the individuals responsible for these are in the minority. But to make sure we don’t miss the point, we should remember two things:
1) the degradation of the nation’s moral character in the past decade under the ‘War on Terror’, and
2) the way that events like these — and Abu Ghraib — snowball in the minds of observers in other countries when looked at in the aggregate along with continuing security state measures (rendition, etc.), roll backs of civil liberties, drone attacks, extra-judicial measures (assassinations of citizens of the US and other nations abroad), not to mention excuses for torture and a belligerent posture in general, and other such actions which undermine our claims to be special representatives of moral principles in the world. Oh, and did I mention Guantanamo.
So yeah, the latest viral video would be easier to get over as an exception were it not for all of these other problematic facts.
(ir)Rational
January 13th, 2012
4:08 pm
get – Yeah, my uncle got free tickets to TN games when he was in college (worked for TVA) and used to take me. That’s the only reason I know about football at all. Didn’t know Brees went to LSU either.
(ir)Rational
January 13th, 2012
4:11 pm
Jay – I went back and saw your responses. While admitting that the Senate wasn’t recessed, technically, you then try and say it is still. If they’re not recessed, even technically, then how exactly were they recess appointments. I’m trying to understand. Even if it does come out argumentative. Also, once again, trying to figure out exactly how it is intellectually honest to use a statement made by a Representative about the House to apply to the Senate. If the rules set up in the Constitution say the Senate has to get the House’s permission to go into recess, and visa versa, and the House didn’t grant that permission, then the session never ended, no matter how you try and spin it. Or maybe I’m just not understanding. Which is the whole reason I come here.
Doggone/GA
January 13th, 2012
4:19 pm
“If the rules set up in the Constitution say the Senate has to get the House’s permission to go into recess, and visa versa, and the House didn’t grant that permission, then the session never ended, no matter how you try and spin it”
From the Constitution:
“Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting”
(ir)Rational
January 13th, 2012
4:21 pm
So, if the House denied permission, for whatever reason, then the Senate is still in session. That’s the way I read it.
TaxPayer
January 13th, 2012
4:22 pm
Poor Republicans, disarmed and defenseless but they can still talk the talk. Well, it is all they had anyway. A mighty fine bunch of black knights they are.
(ir)Rational
January 13th, 2012
4:27 pm
TaxPayer – Not sure how disarmed/defenseless they are. Seems they have the Constitution on their side.
Doggone/GA
January 13th, 2012
4:27 pm
“So, if the House denied permission, for whatever reason, then the Senate is still in session. That’s the way I read it”
Yep, it could be read that way. But there’s that little bit about “nor to any other Place than that in which the two Houses shall be sittin” Are they THERE? And if not, did they get each other’s permission to be somewhere else? And if not, why does not each house formally object to the other not being at that place, but somewhere else, without permission?
And since neither House has raised that objection, that COULD be interpreted as de facto permission to be in recess. In which case, they ARE in recess and the President can make recess appointments.
Welcome to the Occupation
January 13th, 2012
4:28 pm
The latest:
Poll: Ron Paul moves into top tier in South Carolina
Congressman Ron Paul (R-TX), a candidate for the Republican presidential nomination, has moved into the top tier in South Carolina. Mr. Paul surged four percentage points in the latest Rasmussen Reports poll of likely South Carolina Republican primary voters to tie former Pennsylvania Senator Rick Santorum with 16 percent of the votes each.
The poll, released Friday, was conducted after Tuesday’s New Hampshire Primary. Former Massachusetts Governor Mitt Romney bested former House Speaker Newt Gingrich in the South Carolina poll by a margin of 7 percentage points.
Read more: http://www.thestatecolumn.com/south-carolina/poll-ron-paul-moves-into-top-tier-in-south-carolina/#ixzz1jNNSLAva
Read more: http://www.thestatecolumn.com/south-carolina/poll-ron-paul-moves-into-top-tier-in-south-carolina/#ixzz1jNNAvM9a
(ir)Rational
January 13th, 2012
4:31 pm
Doggone – That’s a bunch of “ifs” considering, from what I’ve read, a group of Senators was meeting every three days to keep from violating the rules.
Doggone/GA
January 13th, 2012
4:32 pm
“That’s a bunch of “ifs” considering”
Certainly it is. But does mere “meeting” constitutute “not in recess” if there are not enough of them to meet a quorum and actually conduct the county’s business?
Jay
January 13th, 2012
4:35 pm
(ir)Rational, I can’t explain it any better than I have. If you’re going to use this fake “non-recess recess,” you have allowed Congress to negate the executive’s constitutional prerogative to recess appointments. I don’t think you can rewrite the Constitution in that regard.
Likewise, you can’t pervert the advise-and-consent into a weapon to shut down legitimate government activities that you don’t like. It was not designed or intended for that purpose. Given the attempt to usurp the executive’s constitutional powers, I don’t think Obama had a choice but to do as he did. Let’s see how the courts sift it out now; the challenge has been offered and met.
0311/1811
January 13th, 2012
5:11 pm
Jay:
I have read your previous posts. That is what debate is about. Wish you would have done it sooner even though your replies were not directed to me.
Points:
1) There is a difference between “shutting down” and “standing up” an agency but according to the facts you provided the agencies could not “function”.
I stand corrected on that point as to any agency that could not function.
2) Again, I hope the SCOTUS sorts it out definitively and that no one complains when Republicans make the same type of appointment down the road.
0311/1811
January 13th, 2012
5:20 pm
P.S.
Jay:
Your howls would still be echoing through the land if a Republican president had tried that first.
md
January 13th, 2012
5:23 pm
“1) the degradation of the nation’s moral character in the past decade under the ‘War on Terror’, and”
Hate to break the news, but the “nation’s moral character” started tanking way sooner than the last decade……..
The "What If" Card
January 13th, 2012
5:31 pm
“Your howls would still be echoing through the land if a Republican president had tried that first.”
Your vehement consent would be echoing also.
0311/1811
January 13th, 2012
5:36 pm
The “What If” Card :
You may be right on a tough Constitutional issue that hasn’t been decided.
I admit that ……………. Jay won’t.
bman
January 13th, 2012
5:49 pm
what does taking a recess from work mean? I’d sure like to know.
Welcome to the Occupation
January 13th, 2012
5:52 pm
Your howls would still be echoing through the land if a Republican president had tried that first
Doubt it, his howls would probably be drowned out by your howls at his howls.
How congressional Republicans subvert the Constitution | Jay Bookman « Palace Car
January 13th, 2012
6:13 pm
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(ir)Rational
January 13th, 2012
6:22 pm
Jay – Thanks for an attempt at an explanation, but I’m still not satisfied. I don’t see the Senate technically not being in recess, as a “fake non-recess recess” as you called it. A technicality yes, an attempt at blocking the President from doing what he wants/sees as necessary yes, but all the same it is real. If memory serves, the democrats tried this in 07(?) to try and stop Bush from making recess appointments. I would guess that if I went through your posts from then, you would probably have at least one defending the action then and saying that Bush had been wrong to do what you’re now defending. As I said, except for a purely academic interest, I don’t care one way or the other. If it turns out that Obama has gone against both the letter and intent of the constitution, I would hope that he is taken to task for it. I would also hope that you would be intellectually honest enough to do at least one article denouncing his actions for it. Guess we’ll all just have to wait and see.
I’m personally not trying to pervert anything into meaning anything else. I’ve expressed before that I don’t think it was right the way they were trying to do it. If they think the American people would be better served without the agencies in question, then they need to go on record voting to dissolve or consolidate them with other agencies. It is their prerogative though to find the technicalities in the law that allows them to do what they feel is necessary, and our prerogative to vote them out of office for doing so if we don’t agree. It isn’t a perfect system, but it is our system.
Oh, and my internet quit working, and just got started back up, otherwise I would have responded sooner.
0311/1811
January 13th, 2012
6:47 pm
(ir)Rational :
“I would also hope that you would be intellectually honest enough to do at least one article denouncing his actions for it.”
Don’t hold your breath.
0311/1811
January 13th, 2012
6:48 pm
(ir)Rational :
P.S.
We could use your communication skills and objectivity on here.
Stay with us down the road !
(ir)Rational
January 13th, 2012
7:11 pm
Been here off and on for months. Got tired of y’all turning everything into a race issue and quit posting for a couple of months, but I’m back now. But thanks.
zeke
January 13th, 2012
7:30 pm
My only objection is to the leftist incompetents he appointed! All pro labor morons to the NLRB? ETC.!!
zeke
January 13th, 2012
7:34 pm
And, in fact, OBOZO has repeatedly subverted and blatantly violated the Constitution numerous times! He should be impeached for violating his oath of office!! That is to protect and defend the Constitution from enemies BOT FOREIGN AND DOMESTIC!!!
Lubie
January 13th, 2012
7:47 pm
Of course Bookman is silent on killing american citizens without due process as Obama has done and continues to assert his right to do. What a hypocrite Hypocrite. Bookman does not give a fig for the Constitution, only for partisan advantage. Nothing he has to say is relevant any longer.
Bill Campbell
January 13th, 2012
7:52 pm
Obama is a Communist! He is ruining the country!!
Adam
January 13th, 2012
8:10 pm
Thulsa: You continuing on this vein that someone answering a phone number of a government agency proves that it is FULLY functional and does everything it was designed to do is a little bit off base. Actually it’s a LOT off base, but I would hope you would at least admit that you have not proven the CFPB was unlimited in all of what it could do, AND AND AND that you have somehow disproven Jay’s original statement (since you’re staying on topic) of: Without a director, the CFPB could not carry out many of its legal duties as well.
Come on. Can’t you admit you are wrong that someone answering the phone does NOT disprove Jay’s statement?
Adam
January 13th, 2012
8:14 pm
(ir)Rational: The problem is that the Senate was never actually in recess in the sense that it was intended by the Founders. This is true regardless of one’s justifications for why they support the tactic one time and not another (which Jay has already also responded to), but for the record I think the tactic was wrong no matter who did it. It was a crappy attempt to prevent nominees from even coming to a vote, which is wrong no matter who does it in my opinion. If you want to stop a nominee, put your votes on the table. I could care less if you personally think your vote of “no” is somehow political suicide.
Get Real
January 13th, 2012
8:51 pm
Puleez…..The democrats wrote the book on subverting the Constitution…nice try Jay
Paddy O
January 13th, 2012
9:00 pm
The Senate is in recess. The President, just like all before, are utilizing a loop hole to appoint people who have languished in the Senate, Nothing odd. Not surprising the story is on a female.
Paddy O
January 13th, 2012
9:01 pm
Obama does not respect the value of the US dollar, and can’t say no to spending. He should be leading the charge to balance the budget, but he is too much of a coward. That would require firing quite a few federal employees.
Jason
January 14th, 2012
5:36 am
Actually, I think the conflict is a reflection that our system of checks and balances is working. I am a fan of strong leadership, but I also know that our democratic republic can easily give way to a presidential empire if from time to time the other two branches of the federal govt and/or the states do not work to limit the power of the chief executive. Historically, this tension has existed in cycles. In my lifetime, Congress has sought to hold the president in check after Nixon, in 1994 under Gingrich, and after the 2010. I think after 10 years of Bush and Obama using Executive Power with not much restraint I’m glad to see Congress and for that matter the States push back.
Stan Smith
January 14th, 2012
8:58 am
The operative word until January 2013 is containment
sheepdawg
January 14th, 2012
9:01 am
typical gop right wing sociopath….bless her little heart, she doesn’t know better
GT
January 14th, 2012
9:06 am
I think we are going to see more of this aggressiveness from the president. He has really been trying to not take the gloves off, let the public see what passive behavior can cost the country with these Republicans. Now his aggressive moves will be welcomed as opposed to questioned as a president over stepping his constitutional boundary. His shutting down the Commerce Department, and moving the inefficiencies to the Interior Department, is another brilliant move that will highlight the Tea Party’s real agenda which is to terrorize the government to the point of shutting down operation. Without firing a shot the Tea Party hopes to burn down Washington, which is not in the constitution either. The trouble, they will find, is this one black man is smarter than they are. The Tea Party will understand that the Harvard degree they question, that Obama has, is real and why this minority ,one trick pony, terrorist group could use a few literate people on their side if they want to persist in conducting this kind of extortion.
Super packs, minority extortion and terrorist conduct, Newt running for president, all this should scare even a high stakes poker player, as a very small group of America are forcing their will on a majority and in doing so are falsely playing the victim role. Newt has even said he wants the Supreme Court judges front and center to answer their decisions in front of Congress. It is a joke these people even mention the constitution in their lust for unconstitutional power.
Skip
January 14th, 2012
9:54 am
Running the country has turned into a Parker Brothers board game, that’s a shame.
Don Abernethy
January 14th, 2012
9:55 am
Obama subverts the constitution more than anyone except maybe the Democrat federal judges.
GT
January 14th, 2012
10:31 am
D. Abernethy, this is the kind of comment that is fast and loose in American folklore. How does Obama subvert the constitution? Is it like Bush who only served at the pleasure of a Supreme Court decisions and a minority of the American vote? Does Obama subvert it by protecting the weak against the bullies, one of the primary reasons the constitution was written in the first place? Was that super pack decision what you had in mind where a “Mr Potter” with one vote can make the whole country into a Potterville? One thing I do give you is Christians don’t mind the money of gambling and certainly keep religion out of government when it comes to trying to buy an election. Just think if the Angelico Christian right controlled Nevada this money may not have been available for your boy Newt, and we might still have Hope Scholarships and employment in Georgia if they didn’t control this place. Why not reach out and get a little of that drug money they are making in California selling legalized pot while you are at it? But seriously Don ,you who rape and steal, tell me where you see yourself next to Obama in subverting the constitution? Where do you see your principles superior to anybody’s?
joe suggs
January 14th, 2012
10:33 am
You are funny Bookman. That idiot Obama is out to destroy this country and you are spouting the Constitution.By the way there are tens of millions illegals that have broken the law .
Obama is over
January 14th, 2012
11:22 am
You realize that Obama’s great victory with the payroll tax extension was passed during the Senate’s pro forma session and thus according to Bookman’s logic shouldn’t be valid. Obama has a history of using executive orders to circumvent legislative channels. When cap and trade failed in Congress, the EPA announced it was going to enforce the rules. When labor union card check was shot down in Congress, the NLRB took over. The war in Libya went around the War Powers Resolution and therefore was not considered an official “hostility” by the administration. Harry Reid was actually the guy who established the pro forma sessions on the Hill to prevent Bush from making recess appointments. I think that the Democrats are making a dangerous mistake here in that they like Obama and his policies and are willing to overlook Constitutional oversite to support their man. The danger here is that all of this sets a precedent for the next administration and ALL of Obama’s accomplishments in office are going to be challenged and thrown out by the legal system. Last week the Supreme Court unanimously rejected the Obama administration in Hosanna-Taylor vs. EEOC where the Adminstrations’ position was that the Federal Government through the NLRB had the right to regulate how houses of worship hired their employees. This was a significant blow to Obama/Holder and another example of Obama’s lack of respect for the Constitution and the seperation of Church and State. Our forefathers designed the system to include checks and balances for a reason and Obama is learning the hard way why the Constitution prevents us from making fatal errors.
Adam
January 14th, 2012
11:59 am
GT: Without firing a shot the Tea Party hopes to burn down Washington, which is not in the constitution either.
Actually it is. It’s called Treason.
Adam
January 14th, 2012
12:07 pm
Obama proposes shrinking the size of government. Cons continue to say he is for huge intrusive government. Obama puts tax cuts in the stimulus, Cons continue to say Obama raises taxes. Obama puts the Heritage Foundation’s idea of a NATIONAL mandate to buy health insurance into law, Cons suddenly say it is overstepping of Constitutional authority. Cons propose cap and trade, Obama agrees, and suddenly Cons are against it.
You guys earn a 10 i the Mental Gymnastics competition. You also win the Hypocrite Award and 5 Internets.
GT
January 14th, 2012
12:27 pm
The separation of state and church is not a two way street. The church cannot make law for the state, but the state can make law for the church, more exacting the church members. There is not diplomatic immunity given to a church or its members. Among a sundry list of many things not protected by the law for a church is discrimination.
Pro forma session is according to Bookings logic is entirely constitutional as is the act of Obama during the recession of Congress. I don’t see this history of executing executive orders being nearly used enough by Obama. He restrained in using it during the budget ceiling crisis, a totally fabricated event that caused real harm to the nation’s credit rating and of which he had the full constitutional right to an executive order, similar to declaring war for the welfare of the nation.
The real event here is the far right’s self inflected damage to our country while the rest of us have to stand around watching. If they blew up buildings or kidnapped hostages there would be no question of his presidential rights. .
Obama is over
January 14th, 2012
2:53 pm
GT- You are right. obama is a benevolent dictator and knows what is best for the country. A divided governent system designed to create factions to debate issues aka DEMOCRACY should not apply to Obama because american citizens have 100% faith in his all knowing decisons. The NLRB should be able to tell churches, synogoges, hindu temples, and moslem mosques who to lead their congregations because that way they could generate more union dues and they know more about religion than clergymen.. obama should be able to represent us to declare war on anyone/anything he sees fit without any rational debate because he should be omniscient in his authority because Americans are too stupid to think for themselves. Just like the Carter era, Iran is becoming beligerant because they perceive weak leadership in the U.S. I prefer to make my own decisions. Don’t complain when the Dems are in the minority in 2013 and the new administration usurps the legislative branches based on precedents being established today. A leader should have the ability to bring different factions together to get things accomplished. If he can’t what are we paying him for?
liberalefty
January 14th, 2012
3:56 pm
@OBAMA IS OVER
OBAMA has kept america safe unlike DUMB DUBYA…..youre just mad because america is getting darker and darker…u hate that this black man is your president, admit it you’ll feel better…OSAMA BIN LADEN made a fool out of DUBYA, didnt he,lol? DUBYA was the most weakest inept president ever…just ask OSAMA,,,…thats right hers deasd courtesy of OBAMA…LOL.
liberalefty
January 14th, 2012
4:03 pm
THANK GOD OBAMA has kept america safe…i know u christian conservatives wanted america to get attacked like DUMB DUBYA allowed it to get attacked on 9/11 due to his utter ncompetence…but have no fear BARACK HUSSEIN OBAMA is on the job…
liberalefty
January 14th, 2012
4:10 pm
Enter your comments here
by the way ,why come u repubs never mention DUBYA ? all the clowns{gop candidates} arent mentioning him either…all they do is talk about REAGAN, the man who legalized millions of illegal aliens, and on his watch 241 marines got killed in BEIRUT? after which he cut and ran…i think OBAMA should legalize the illegals too, and be like RONNIE….u cons wouldnt object to that would you, afterall ya’ll think RONNIE could do no wrong…oh yeah REAGAN did protect us from GRENADA…hahahahahaha
liberalefty
January 15th, 2012
1:48 pm
i meant, “he’s dead courtesy of OBAMA”..
thomas gambeski
January 16th, 2012
4:12 pm
Obama has increased the national debt to 16 trillion,actual unemployment is at 16% for whites, 25% for African Americans.
He’s divided our nation with class warfare rhetoric and is attempting to cause envy and hate for certain segments of our society.
We conservatives are trying to stop Obama’s onslaught of regulation and tax increases that will eventually make us a Greek type economic basket case.
We are trying to stop Obamacare which will undoubtedly lead us further toward bankrupting and loss of more of our freedoms and propel us toward a Socialistic state.
And what is Jay Bookman worried about, conservatives in Congress not willing to work with Obama to pass more of the same?
cranky old man
January 17th, 2012
11:28 am
“The Republican senators who had resisted the appointment of the director want three changes to the bureau: the right for Congress to review its budget; an agency management with a board rather than a single leader; and a method for ensuring that bureau’s actions do not produce bank failures” – the economist
“…review its budget;” = Make sure it does not have enough funding and personnel to actually do the job.
“…an agency management with a board rather than a single leader;” = Make sure they get to appoint people who are hostile to the agencies mission to sabotage its efforts from within.
“…and a method for ensuring that bureau’s actions do not produce bank failures” = The obligatory scare tactic warning of impending financial apocolypse if this agency is allowed to run roughshod over their campaign contributors.
Jim Turner I I I
January 17th, 2012
11:58 am
Not quite a fair article! They were not in recess and the Constitution is very specific about how to recess. Your mention of Bush is correct, however he did not make any appointments during a pro forma session as Obama has done. He tried and was admonished thus he waited to make true recess appointments. No one since, I believe Truman, has tried to actually “do an end run” on the Constitution until now.