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Were the Presidentís Recess Appointments Constitutional?
American Enterprise Institute ^ | 02/23/2012 | Staff

Posted on 02/23/2012 7:45:07 AM PST by Martin_Schmidt

Tuesday at AEI, four distinguished lawyers aggressively debated the constitutionality of the president’s recent "recess" appointments during the Senate's 2011-2012 pro forma sessions. First, Morton Rosenberg asserted that the president was explicitly violating the Constitution by making recess appointments when the Senate was in pro forma sessions, thereby avoiding recess by its own constitutional authority to develop its own rules. Douglas Kmiec countered that the Senate's creation of pro forma sessions simply to inhibit the executive branch violated the honest interface that the framers intended between the branches of government. David Rivkin Jr. concurred with Rosenberg's conclusion about the unconstitutionality of the appointments, also noting that the session could not have been pro forma at all, since the Congress did perform legislative tasks during the recess period, including passage of the payroll tax cut extension. Peter Wallison (AEI), who moderated the event, questioned whether the Senate could possibly protect itself from the president's appointing officials without its consent, but the debate over the recess period continued to dominate the discussion among the panel members. Panelist Walter Dellinger said that from December 17, 2011, to January 23, 2012, the Senate was in session only when it met every third day for pro forma sessions; consequently, he sided with Kmiec in advocating that the administration was not wrong in its recess appointment.

(Excerpt) Read more at aei.org ...


TOPICS: AMERICA - The Right Way!!; Business/Economy; Education; History
KEYWORDS: constitution; davidrivkin; recessappointments; senate
Its not up to the POTUS to decide Senate is working properly.
1 posted on 02/23/2012 7:45:10 AM PST by Martin_Schmidt
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To: Martin_Schmidt

To the headline: NO, because congress was not in recess.


2 posted on 02/23/2012 7:46:46 AM PST by svcw (Only difference between Romney & BH is one thinks he will be god & other one thinks he already is.)
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To: Martin_Schmidt

Yet they all just rolled over and let him get away with it. No pushback whatsoever from congress.


3 posted on 02/23/2012 7:47:58 AM PST by Semper911 (When you want to rob Peter to pay Paul, you'll always have the support of Paul.)
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To: Martin_Schmidt
No they were not. There was no recess and yet he appointed them anyway.

The GOP should be raising unholy you know what over it...load and clear.

A Bill of Impeachment over this issue alone, IMHO, would be warranted.

The man, Obama, is a marxist ideolog, and is acting like a tyrant and we need reps and senators with the spine to call him out on it and put him on trial. Even if they cannot get there in the Senate, in the House they could make the case and show the whole country what he is doing.

4 posted on 02/23/2012 7:49:03 AM PST by Jeff Head (Liberty is not free. Never has been, never will be. (www.dragonsfuryseries.com))
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To: Martin_Schmidt
"Were the President’s Recess Appointments Constitutional?"

No.

5 posted on 02/23/2012 7:49:46 AM PST by RightOnline
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To: Martin_Schmidt

(shrug) Obama can do whatever he wants. Who’s gonna stop him?
Holder’s FBI, lol?


6 posted on 02/23/2012 7:59:01 AM PST by Lancey Howard
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To: Martin_Schmidt
Article II, Section 2

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.

Everyone ignores the "... that may happen during ..." part.

There is a good reason for this exact wording. The Senate was not continually in Session and adjournments were sometimes quite lengthy. The Government however, needed to continue to function in the event of a sudden vacancy.

It is simply ludicrous to claim that the founders truely contemplated allowing the president to appoint during a brief recess, thereby defeating the "advice and consent" clause ...

So, it is not a question of how long the Senate was not in session ... instead it is a question of when the vacancy occured!

7 posted on 02/23/2012 7:59:59 AM PST by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: Martin_Schmidt

Obama thinks he was made, “Supreme Leader”


8 posted on 02/23/2012 8:04:10 AM PST by molson209
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To: Martin_Schmidt

I’m not a lawyer or a “constitutional scholar.” But, AFAIK, the president can make recess appointments only when the Senate is in recess. And I’ve read nothing to indicate the Senate was in offical recess when nobama did his blatantly unconstitutional thing.

It appears to me nobama got pissed because the Senate would not go along to get along, unilaterally decided to got around the Senate, do the appointments, and dare anybody to call him on it. Worst and saddest of all, it appears he got away with it. God please help our poor country.


9 posted on 02/23/2012 8:05:04 AM PST by upchuck (Let's have the Revolution NOW before we get dumbed down to the point that we can't.)
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To: Martin_Schmidt

In my book, this President is not Constitutional.


10 posted on 02/23/2012 8:06:03 AM PST by Gaffer
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To: Martin_Schmidt

Not only should the House start drafting articles of impeachment (but don’t hold your breath waiting for anyone in the GOP-controlled house to grow a spine), but a vote should be scheduled to issue to the states a proposed amendment to get rid of these “recess appointments”. The whole rationale for the provision is based on eighteenth century considerations that are preposterous in today’s context. In the late 1700s Congress only met periodically and it took week to assemble the representatives and senators to conduct business. Today if a matter was urgent the entire flock of crooks could be gathered together in 24 hours from their various homes or wherever they happened to be on congressional junkets.


11 posted on 02/23/2012 8:06:52 AM PST by Spartan79 (I view great cities as pestilential to the morals, the health, and the liberties of man.)
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To: Semper911

Exactly, why not take him on regarding this violation of rules. Neither Bonehead nor McCavein have the balls to do it.


12 posted on 02/23/2012 8:10:44 AM PST by Mouton (Voting is an opiate of the electorate. Nothing changes no matter who wins..)
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To: Martin_Schmidt
When someone tells you that the Constitution is a “living document” what they are really saying is that it is dead.
13 posted on 02/23/2012 8:15:06 AM PST by BenLurkin (This is not a statement of fact. It is either opinion or satire; or both)
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To: An.American.Expatriate
Bingo - the clause was absolutely not intended to be a means of subverting the process: it's a means of maintaining the flow of government.

I'm also gonna go out on a limb and suggest that the phrase "shall expire at the End of their next Session" probably wasn't intended to last as long as common convention believes, either.

Heck, the Senate itself - Democrats as well - should have jumped all over this. It's a theft of one of their key roles in the entire checks-and-balances system.

14 posted on 02/23/2012 8:18:07 AM PST by alancarp (Liberals are all for shared pain... until they're included in the pain group.)
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To: Martin_Schmidt
So what is anybody doing about it??

By not doing anything, they are giving their consent.

15 posted on 02/23/2012 8:20:12 AM PST by oldbrowser (They are Marxists, don't call them democrats)
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To: Martin_Schmidt

Everybody has this issue wrong.

Bush wanted to make appointments = Bad!
0bambi wanted to make appointments = Good!
/s


16 posted on 02/23/2012 8:21:51 AM PST by NTHockey (Rules of engagement #1: Take no prisoners)
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To: svcw

Neither House nor Senate can go into recess without the permission of the other. Unless that permission was given, they are not in recess.

I agree. No. If these people are paid, who ever signs the check should be prosecuted under RICO.


17 posted on 02/23/2012 8:26:33 AM PST by donmeaker (Blunderbuss: A short weapon, ... now superceded in civilized countries by more advanced weaponry.)
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To: Martin_Schmidt

People, people... you are wasting your time. The Repubs remain gutless cowards and Obama is going to cruise to re-election. Dems will probably take back the House, too. You see, when you are afraid to fight, you lose. 2016 will see a new party replace the by then defunct Republicans. By then, though, you will not recognize the country. Look to your family and community and hold on tight.


18 posted on 02/23/2012 8:31:30 AM PST by pabianice (")
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To: donmeaker

Couldn’t we just banish them to some deserted island somewhere and start over?


19 posted on 02/23/2012 8:31:55 AM PST by svcw (Only difference between Romney & BH is one thinks he will be god & other one thinks he already is.)
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To: An.American.Expatriate
So, it is not a question of how long the Senate was not in session ... instead it is a question of when the vacancy occured!

An excellent point; I had not noticed it before.

20 posted on 02/23/2012 8:37:23 AM PST by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: DuncanWaring

It is amazing how clear the constitution really is on just about everything! There is literally no need to “interpret” anything.

We have been told for decades that the President can “Recess Appoint” a nominee that had not yet been approved by the Senate. No one ever questions it. And even the “debaters” in the article seem to ignore these words completely.


21 posted on 02/23/2012 8:52:48 AM PST by An.American.Expatriate (Here's my strategy on the War against Terrorism: We win, they lose. - with apologies to R.R.)
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To: Martin_Schmidt

“...Were the President’s Recess Appointments Constitutional?...”

The REAL questions are these: is ANYTHING this idiot does constitutional? IS he Constitutional?


22 posted on 02/23/2012 9:15:16 AM PST by NCC-1701 (In Memphis on January 20, 2009, pump price were $1.49. We all know what happened after that.)
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To: An.American.Expatriate

Good post.

Always go back to the actual text when discussing the meaning of a law.


23 posted on 02/23/2012 11:02:08 AM PST by LucianOfSamasota (Tanstaafl - its not just for breakfast anymore...)
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To: molson209

Ja, der Führer.

Bald flattern Hitlerfahnen über alle Straßen.


24 posted on 02/23/2012 11:07:28 AM PST by LucianOfSamasota (Tanstaafl - its not just for breakfast anymore...)
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