Obama’s non-recess appointments herald more bickering post-2012
There exists a hope that this November’s elections, with such a stark divide between Democrats and Republicans on many issues, will provide some political clarity for at least a couple of years. There’s a chance that comes to pass. Yesterday’s actions by President Obama, however, suggest the more likely outcome is an even nastier, dysfunctional Washington.
I’m talking about Obama’s appointment Wednesday of four officials: three to the National Labor Relations Board, and one as head of the Consumer Financial Protection Bureau, created by the Dodd-Frank financial reform law. He styled these as “recess appointments.” Which wouldn’t be problematic if Congress were in fact in recess. But it’s not: The House and Senate are conducting pro forma sessions expressly to avoid going into recess.
Democrats will point out that Republicans in the House forced this situation to prevent recess appointments, which are constitutional, and which President George W. Bush and others made at times to skirt Senate opposition to their choices. Republicans will point out that Democrats in the Senate — including then-Sen. Obama — employed the exact same tool for the exact same reason toward the end of the Bush years, and that Bush did not “go nuclear” by ignoring the pro forma sessions. A similar point could be made about the use of the filibuster.
I would say that, sooner or later, one party or the other was going to have to decide to unilaterally disarm when it comes to these disputes. Except that neither party has exhibited the kind of good faith that would indicate it would respond in kind to such a disarmament.
Until and unless that changes, I can only imagine these situations will continue to escalate until one side gets the judicial branch involved to decide on constitutional grounds. And I fear that, even then, the result will not be a resolution respected by all parties, but rather to make that branch even more politicized.
– By Kyle Wingfield
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251 comments Add your comment
John
January 5th, 2012
3:20 pm
UGA 1999
January 5th, 2012
3:06 pm
You have no point..it’s all irrelevant. All you are doing is showing everyone how unintelligent you are. Learn something about the electoral college and how it functions. Do some research…in 2008, Obama lost the state of GA (and it’s 16 electoral votes) yet he won the presidency. Just as he did in 2008, he can loose GA and still win the election…making GA irrelevant.
Your question has been answered…just because you don’t like the answer doesn’t mean it has not been answered. Are you seriously that unintelligent?
John
January 5th, 2012
3:21 pm
UGA 1999
January 5th, 2012
3:06 pm
You have no point..it’s all irrelevant. All you are doing is showing everyone how unintelligent you are. Learn something about the electoral college and how it functions. Do some research…in 2008, Obama lost the state of GA (and it’s 16 electoral votes) yet he won the presidency. Just as he did in 2008, he can loose GA and still win the election…making GA irrelevant.
UGA 1999
January 5th, 2012
3:26 pm
Darvocet….Is that all you think about is recess? Wow you are in 3rd grade!
UGA 1999
January 5th, 2012
3:28 pm
John…..NO KIDDING!!! However all of you liberals can come on here and spew your ignorance and know that the State of Georgia is RED! It doesnt matter what you say here on this blog!
Get it now? WOW!
UGA 1999
January 5th, 2012
3:28 pm
Chances of Obama winning the general election – 49%
Chances of Obama winning Georgia – 0%
Get it now?
St Simons - we're on Island time
January 5th, 2012
3:31 pm
huh? – two words – John Bolton
JV
January 5th, 2012
3:37 pm
Article II, Section 2 of Constitution:
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.
Just remember… what goes around comes around.
John
January 5th, 2012
3:39 pm
UGA 1999
January 5th, 2012
3:28 pm
And I take it you think Republicans should keep their mouths shut in all the blue stats?
Kyle Wingfield
January 5th, 2012
3:40 pm
JV @ 3:37: The problem is that the Senate is not in recess.
Michael H. Smith
January 5th, 2012
3:40 pm
Oh it is going to be fun when it is our turn.
td
January 5th, 2012
3:44 pm
UGA 1999
January 5th, 2012
3:28 pm
You better watch out these libs do not like it when you speak the truth about their vote in Georgia for Obama is not going to be counted. Even if Obama wins, history will show my vote was counted as 16 votes going to the Republican nominee from Georgia but ZERO votes will be cast for Obama from Georgia.
I swear I am going to actually think of all these libs on these blogs votes not being counted and laugh out loud in the voting booth when I cast my vote for the Republican.
Michael H. Smith
January 5th, 2012
3:44 pm
Kyle Wingfield
January 5th, 2012
3:40 pm
Exactly. But hey, it will be our turn soon. Like it was said, what goes around comes back around.
td
January 5th, 2012
3:47 pm
Kyle Wingfield,
Can you please tell Darvocet spending/Billy Mays Here/ alt name/altname/altname that uga 1999 and myself are two different bloggers. The silly little boy thinks everyone uses multiple names on these blogs. Maybe the little gnat will go away if he is proven wrong enough.
joe
January 5th, 2012
3:48 pm
Yet another example of Obama’s dictatorial rule. It is stuff like this that firms any doubt that he must be voted out come November. God help us if he gets another 4 years…we’ll be Greece for sure.
Junior Samples
January 5th, 2012
3:48 pm
UGA 1999
Because we live in a state that’s republican by majority, we have no rights, no voice, no opinions, right? It’s clear that’s what you’re trying to say.
I suppose that’s your version of democracy, but we’ll have no part of it.
This isn’t your blog, your website, your newspaper, or your state.
You cannot tell us what to do.
This is a prime example of freedom of expression.
Get over yourself. We can agree to disagree, but your attempts to silence anyone here are contradictory to laws you so adore.
Chew on that.
Stop being a troll and make your mother proud for once.
td
January 5th, 2012
3:52 pm
Junior Samples
January 5th, 2012
3:48 pm
The only thing wrong with your point (that has been pointed out to me several times by liberal bloggers on liberal blogs) is that this is not the public but instead a privately held forums the host can band any blogger anytime they choose. Now I am pretty sure as long as people abide by the rules Kyle will not ban anyone but it is within his rights on a private blog.
John
January 5th, 2012
3:55 pm
Kyle Wingfield
January 5th, 2012
3:40 pm
By whose definition? If the Senate is not in recess, what are they working on? If they are in session, are all our senators in Washington D.C. right now doing the work we’re paying them to do? Playing these games could mean the Senate is never in recess. That could also mean, recess appointments could be prevented from expiring since there would never be a next session if both parties play these games.
Linda
January 5th, 2012
3:56 pm
The controversy is not about the number of recess appointments or by whom. During the last two years of the Bush presidency, Reid kept the Senate in pro forma sessions to prevent recess appointments. Bush HONORED the rule & showed RESPECT for congress. Yesterday was the first time in history that any president has made recess appointments when congress was in a pro forma session.
During the White House briefing yesterday, a reporter asked Carney about the monarchy. Carney said, “We can’t wait for congress to act.” The president has finally succeeded in making congress irrelevant. Give him a robe & a crown.
saywhat?
January 5th, 2012
3:58 pm
Of course by td-UGA reasoning, THEIR votes and Georgia’s 16 electoral votes counted for nothing in 2008, much as they will in 2012. Think about THAT while you giggle in the voting booth. Me, I will just keep laughing at the sad sack republican whiners for 5 more years,just as a I have the last three, in or out of the voting booth.
As for the topic on hand, yes Obama’s recent recess appointments were unprecedented in that they didn’t reflect the traditional arbitrary Senate 3-day rule. However, the Republicans abuse of that rule is also unprecedented. The abuse came not in the pro-forma sessions themselves, which do have precedent, but the reasoning behind them, i.e. prevention of the function of government. THAT was the initial escalation, but I am sure the Republicans will whine and complain if a future Democratic house of Representatives attempts to nullify a law by the same actions. The Republicans have also been unprecedented in their abuse of the filibuster, requiring a supermajority in the Senate to pass even what is considered routine legislation. I have no pity for the grand obstructionist party. They reap what they sow.
jconservative
January 5th, 2012
3:59 pm
The history of “recess appointments” is pretty complete. George Washington made the first and about every president since has taken advantage of Article II, Section 2.
Teddy Roosevelt holds the record with an appointment while the Senate was in a one-half day recess.
The last Federal Court case on the issue was over a recess appointment by George W Bush that Ted Kennedy sued over in Federal District Court. Kennedy lost.
This is about politics, pure and simple politics.
And I disagree with Kyle, this will in no way contribute to the worsening of political strife in Washington. Anyone paying attention knew this was going to happen.
But if this is really, truly, important to McConnell he can sue in Federal Court. As a Senator he has standing in any case over the matter.
Michael H. Smith
January 5th, 2012
4:03 pm
Even Obama Agrees that the Senate Was Not in Recess
Nothing even suggests that the President gets to overrule Congress on this point. To the contrary, the Constitution prevents either chamber from adjourning for more than three days “without the consent of the other” and, while it requires that all bills and resolutions be presented to the President for signature or veto, carves out a sole exception for votes “on a question of adjournment.”
It is little surprise that an Administration which finds the Constitution flexible enough to support an individual mandate for individuals to purchase health insurance would also argue that its seemingly clear text is sufficiently pliable to empower the President to overrule Congress’s decision that it’s actually in session.
But to make that argument less than two weeks after embracing the very opposite position, that takes chutzpah!
http://blog.heritage.org/2012/01/05/even-obama-agrees-that-the-senate-was-not-in-recess/
Junior Samples
January 5th, 2012
4:03 pm
td,
I’m not trying to silence or ban anyone. Just pointing out his “if you don’t like it in Georgia since we’re republican-get out” mentality.
If everyone either “pro” or “con” it’s a boring and one-sided debate.
Isn’t that what a forum is supposed to be?
BT
January 5th, 2012
4:04 pm
Good point Joe. Because Obama has done something that pretty much every President before him has done, but there might be a small technicality in the way he’s done it, it’s a clear indication that he is dictatorial and we are headed the way of Greece. Nice catch. I’m sure your new found love of sticking to the letter of parliamentary procedure (appointing John Bolton is okey dokey, but this is treason!) is strictly borne out of a love for rules, and is in no way influenced by the fact that you would hate any President with a (D) after his name, right?
John
January 5th, 2012
4:05 pm
joe
January 5th, 2012
3:48 pm
I like how you throw the words dictatorial rule around. Not a single person has responded to the fact that Republicans are trying to ignore the Constitution and create or block laws using parliamentary games. They are trying to shut down the government (or parts of it) by now following the Constitution and laws they swore to uphold when they took their oath. If Republicans want to change the law, the Constitution tells they how to do it, yet they are ignoring it.
Can anyone point out in the Constitution where it gives Republican congressional members the right to do what they are doing? Remember, Republican insist all powers are specified in the Constitution and it’s not there, congress doesn’t have the power.
Michael H. Smith
January 5th, 2012
4:10 pm
First of all John clear something up… are you saying the constitution authorized the creation of a labor relations broad or consumer protection agency? If so please point out where that is found in the “written version” not the so-called liberals living version?
carlosgvv
January 5th, 2012
4:11 pm
The Republican Party is in the iron grip of Big Business money. So, you may forget the idea of them ever showing any “good faith” either to the Democrats or to the American people. Instead, look for them to continue faithfully executing the orders of their corporate masters.
John
January 5th, 2012
4:14 pm
Linda
January 5th, 2012
3:56 pm
“The controversy is not about the number of recess appointments or by whom. During the last two years of the Bush presidency, Reid kept the Senate in pro forma sessions to prevent recess appointments. Bush HONORED the rule & showed RESPECT for congress. ”
So Bush was too weak to challenge Congress on it and President Obama isn’t. Right now Republicans are trying to use Senate rules, which are not laws, to challenge the President and he’s fighting back. As I’ve stated before, this is not about the appointment process…this is about Republicans trying to use Senate rules to create (or change) laws by passing the Constitution. 45 Republican Senators have signed onto a letter stating they will oppose ANY and ALL nominations because they don’t like the law. They have sworn to uphold the laws (all laws) and if they don’t like it, the Constitution gives them they remedy to change it. Outside of that, I see it as abuse of power.
Stephenson Billings
January 5th, 2012
4:15 pm
“According to a 1993 brief from the Clinton Justice Department, Congress must remain adjourned for at least three days before the adjournment constitutes a “recess” for the purposes the recess appointment power.
The origin of this three day period is Article I, Section 5 of the Constitution, which states: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.”
In other words, the president can only recess appoint when the Senate has adjourned for more than three days, and the Senate cannot adjourn for more than three days without the consent of the House.
There is recent precedent for this action and for its legitimacy.In fact, then-Obama Solicitor General Elena Kagan wrote to the Supreme Court on April 26, 2010:“Although a President may fill such vacancies through the use of his recess appointment power … the Senate may act to foreclose this option by declining to recess for more than two or three days at a time over a lengthy period. For example, the Senate did not recess intrasession for more than three days at a time for over a year beginning in late 2007.””
Why are Republicans so angry? Whats up with that?
January 5th, 2012
4:17 pm
@Jimmy62 January 5th, 2012 12:16 pm – He can do the most evil and illegal thing in the world, then say the Republicans made him do it, and people like you will congratulate him for it. Y’all don’t actually care about the rule of law, just winning.
****************************************************
Jimmy Boy if you think Obama can do the most evil and illegal thing in the world, IF SANTORUM was YOUR president YOU WOULD SEE WHAT evil LOOKS LIKE.
Santorum said that he BELIEVES IN WEALTH INEQUALITY. In other words if you are NOT RICH he does not gave a rats arse about YOU.
Santorum makes Obama look like a SAINT!
Linda
January 5th, 2012
4:21 pm
The reasoning of the Republicans was not the prevention of the functioning of government, but rather the prevention of more government overreach.
The entity that blew its top the furthest yesterday was the US Chamber of Commerce. Their concern is business, i.e. the ECONOMY, stupid. They have noticed that both the number of widgets we are producing & the number of employees that are assembling them are each fewer than the number of employees in the Compliance Departments. Checked the price of widgets lately?
We need jobs more than we need financial protection. We need protection from the federal government more than we need protection from lenders.
Why are Republicans so angry? Whats up with that?
January 5th, 2012
4:22 pm
@Jimmy62 January 5th, 2012 12:17 pm – You seem to forget that the GOP did have the chance to do this very thing, but they didn’t do it. Because it’s against
*******************************************************
Before you get on these blogs, you need to get your facts right. Not spreading LIES TO MAKE YOUR POINT..
IT IS NOT AGAINST THE LAW. LOOK IT UP.
Even Gingrich admitted it was not against the law.
John
January 5th, 2012
4:23 pm
Michael H. Smith
January 5th, 2012
4:10 pm
Here it is…it’s article 1 section 7 which defines how bills become laws. These departments were created by law via the Constitutional process. Got it?
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but
if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
Why are Republicans so angry? Whats up with that?
January 5th, 2012
4:24 pm
@@Jimmy62 January 5th, 2012 12:17 pm – You seem to forget that the GOP did have the chance to do this very thing, but they didn’t do it. Because it’s against
***********************************************************
P. S.
If it is against the law, George Bush did it 30 TIMES.
Clinton did it 17 Times.
Obama has only done it 9.
YOU PEOPLE ARE SO IGNORANT!
Stephenson Billings
January 5th, 2012
4:24 pm
Flip-flop again:
“As a candidate in 2008, Barack Obama promised that if he was elected president he would not issue obscure declarations known as signing statements that thwart the intent of laws passed by Congress. But as the president now seeking reelection in 2012, on at least 20 occasions Obama has embraced the same tactic he criticized George W. Bush for using, raising allegations of double-dealing in Congress and questions of constitutionality from the American Bar Association.
Obama’s most recent signing statement came on New Year’s Eve, when he autographed a 13-paragraph memorandum declaring he did not intend to follow several sections of the National Defense Authorization Act that funded the military for 2012. The president said his lawyers had concluded the provisions interfered with his constitutional duties to carry out foreign policy.
The signing statement essentially declares Obama’s intention to ignore requirements in the law, including restrictions on data transfers to Russia, new authorities to detain suspected members of al Qaeda, and sanctions against the central bank of Iran. The move has alienated members of Congress who claim the White House reneged on promises it made during backroom negotiations to get the long-stalled legislation passed just before lawmakers left for the holidays.”
Michael H. Smith
January 5th, 2012
4:26 pm
I still waiting for constitutional references as requested, the commerce clause does not “specifically list” a labor relation broad or consumer protection agency. If these two laws that created these two entities are constitutional give me their constitutional bases please?
Why are Republicans so angry? Whats up with that?
January 5th, 2012
4:29 pm
@@@ January 5th, 2012 12:41 pm – Yesterday’s actions by President Obama, however, suggest the more likely outcome is an even nastier, dysfunctional Washington.
Maybe he’s wants to leave the earth scorched before his exit in 2013.
*******************************************************************
The only thing that will be SCORCHED is the REPUBLICAN PARTY when the american people GIVE THEM THE BOOT!
Mark my words.
Get Real
January 5th, 2012
4:29 pm
I just a vido from 2008 with then canidate Obama stating that in his White House he WILL NOT be by passing congress…whatever gets you elected…..
td
January 5th, 2012
4:32 pm
carlosgvv
January 5th, 2012
4:11 pm
The Republican Party is in the iron grip of Big Business money
The myths are flying today. Just go and google business donations in 2008 presidential election and you will find one article after another where Obama received a great deal more money then McCain. It is the Dems that are in the pockets of big business and you poor libs are buying into their argument that they are for the little man.
Why are Republicans so angry? Whats up with that?
January 5th, 2012
4:32 pm
@John January 5th, 2012 12:42 pm – This has NOTHING to do with the nomination process or recess appointments…it has to do with trying to use games and gimmicks in trying to unconstitutionally create laws.
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YOU ARE RIGHT JOHN BOY…..this has NOTHING TO DO WITH the nomination process.
What it does have to do with is that Obama OUTFOXED the Republicans. AGAIN
John
January 5th, 2012
4:32 pm
Michael H. Smith
January 5th, 2012
4:26 pm
Neither does it specifically list a Department of Homeland Security….guess that’s unconstitutional as well.Oh, wait…that was passed by a Republican Congress and signed by a Republican President so I guess it doesn’t matter if it’s Constitutional or not.
Michael H. Smith
January 5th, 2012
4:33 pm
John
January 5th, 2012
4:23 pm
The request was not what gives congress power to create a law, so your answer was not good enough John. Got it!?
I’m asking for what enumerated power is given to Congress to create a labor relation broad or consumer protection agency, that should be found in article one section eight if they are indeed constitutional as you claim.
Linda
January 5th, 2012
4:33 pm
John@4:14, I used the words HONOR & RESPECT when referring to Pres. Bush’s following the pro forma session rules. If you want to confuse those traits with being “too weak,” you go right ahead & bow to your new king.
Michael H. Smith
January 5th, 2012
4:35 pm
John
January 5th, 2012
4:32 pm
Oh wait it was passed by the demands of the Democrats but it still doesn’t make it constitutional John, so stop saying things are constitutional when they are not, that is my point – GOT IT!
John
January 5th, 2012
4:38 pm
Michael H. Smith
January 5th, 2012
4:33 pm
Exactly, it’s you and Republicans that claim all powers of Congress are enumerated in the Constitution and Congress has no other powers outside of that. So, where does in state anything about the Department of Homeland Security?
td
January 5th, 2012
4:38 pm
John
January 5th, 2012
4:23 pm
Ok. Now go to the law that creates the agency or department and read it and see if there is a little pesky clause about the head of such agency has to be appointed by the President and APPROVED by the Senate. Until conformation then that person is not the head of the agency or department. Now the President could run down there and become hands on and run the agency his self and it would be Constitutional and legal.
Ross Perot
January 5th, 2012
4:39 pm
If Republicans don’t like the laws, they can change it through the Constitutionally based process not through some childish unconstitutional game.
They childish games have been played by the dems before too buddy. Your boy President Debt wants to grant himself Dictator power and you subjects follow along blindly. I can’t wait for this freedom taker to get flushed in the next election like the t#rd that he is.
Michael H. Smith
January 5th, 2012
4:42 pm
td, it really isn’t constitutional, like so darn many other laws we have aren’t constitutional. We even have members of congress that will openly tell you that half of what they do is not constitutional and they laugh like hell when they say it. It really has become just too much of a pathetic joke.
Stephenson Billings
January 5th, 2012
4:42 pm
I’m sure that the Dems would have had their thongs in a wad too if Bush did the same thing when Reid held the Senate in “session” for almost a whole year for the expressed purpose of preventing Bush from making Recess appointments.
(BTW, Recess appointments aren’t permanent and aren’t even for the whole term of the president. This guy will have to eventually come up again for appointment at the end of the next “session” of Congress)
BT
January 5th, 2012
4:43 pm
You stay classy Ross!
John
January 5th, 2012
4:43 pm
Linda
January 5th, 2012
4:33 pm
Are Republicans showing any HONOR and RESPECT for the President or the law or even the Constitution? Republicans have said blocking the nomination of Mr. Cordray has nothing to do with his qualifications…as a matter of fact, he has bipartisan support among his peers of state’s attorneys generals. The Republicans said they will block any and all nominations because they do not like the law. They are trying to bypass the Constitution and create a new way to create or change laws.