In the early days of the Republic, the Congress that had been conceived by the Founders functioned as a part-time job. Its incumbents had no problem with that arrangement because, unlike the political hacks who currently inhabit the House and Senate, “doing time” in an elective office was considered a civic – and often an onerous -- duty, not the profession it has become. In those times, Congressional members and the President had farms to look after and a few of them also had additional pursuits that occupied their time.
The genius of the Founders’ design of divided government was to make it difficult to get things done. Writing in Federalist 51, Madison extolled the virtues of “checks and balances between the different departments,”
In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments.
… the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others… Ambition must be made to counteract ambition… such devices should be necessary to control the abuses of government… If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.
Today the people who wring their hands and bemoan the “gridlock” in Washington are obviously ignorant of the fact that the Founders designed government for gridlock in order to minimize the abuses they knew future Congresses and Presidents would heap upon the backs of citizens. The 55 men who met in Philadelphia during the summer of 1787 to design our government required even the most mundane appointments of the President to have the approval of the Senate to assure he didn’t have a free hand to put his cronies in power without oversight. And what happened if the President couldn’t get the Senate to approve his nominees? They didn’t get appointed. Article II, Section 2, paragraph 2 of the Constitution says:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
In a time before email, telephones, or even a good postal system, it was necessary to give the Executive limited power to conduct the affairs of the Republic when Congressmen were at their homes tending to their personal affairs – which was more often than the time they were in session tending to the government’s affairs. Because of weather, imperfect roads, and poor communications, the President couldn’t call Congress back to Washington (or Philadelphia in the days before there was a government seated in Washington) and thus the President was granted certain powers to act in their absence – among them the power to fill positions and vacancies without the advice and consent of the Senate, which is enumerated in Article II, Section 2, paragraph 3 of the 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.
Having just thrown off the shackles of one king, the citizens of the new Republic were not interested in getting another tyrant regardless of his title, so this provision of the new Constitution went down hard with citizens whose colonial representatives were expected to ratify it. Keep in mind that the Constitution was not ratified until May 1790 and the purpose of the Federalist Papers was to drum up support for ratification, particularly in New York. Its various essays were written by Alexander Hamilton, James Madison, and to a lesser extent, John Jay.
In Federalist 67, Hamilton explained the Constitution’s recess rule:
The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments "during the recess of the Senate, by granting commissions which shall expire at the end of their next session."
Although we now live in an era of modern communications and modern travel, which would allow the President to recall a Senate in recess to confirm an appointment to a key office, he isn’t obliged to do so under the Constitution. And as the Founders feared, recent generations of Presidents have gamed the recess mechanism, using it to install office-holders they knew wouldn’t pass Senate muster.
The briefest recess exploited by a President to by-pass Senate approval was pulled off by Teddy Roosevelt on December 7, 1903. In the seconds intervening the first session of the 58th Congress and the second session, which began immediately, Roosevelt made over 160 “recess” appointments, mostly military officers of his choosing. Harry Truman similarly used the two days between sessions of the 80th Congress to make a recess appointment. Presidents of both political stripes have made their fair share of recess appointments, most of them motivated to by-pass the Senate.
Frustrated by Democrat Senators who for five months had blocked his nomination for UN ambassador of John Bolton in 2005, George W. Bush appointed him during recess, for which Minority Leader Harry Reid called Bush’s appointment “an abuse of presidential power.” However, without even presenting a nomination to the Democrat-controlled Senate, Obama appointed Donald Berwick to head the Centers for Medicare and Medicaid Services, knowing Berwick’s controversial views on end-of-life deprivation of care and his adoration of the decrepit British National Health Service would lock his nomination in committee for months if not forever. Obama has also appointed more “czars” than any other president in order to by-pass Senate confirmation.
But no President has ever attempted to appoint people to federal office while the Senate was in session without Senate approval – until Obama did it last week.
On January 4 Obama made “recess” appointments for Richard Cordray to become the head of the Consumer Financial Protection Bureau, which was created under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (whose constitutionality is highly suspect), and he appointed three pro-union members of the National Labor Relations Board. The Senate was in session.
Yes, the Obamaphiles cried, but those were just pro-forma “pretend” Senate sessions. Republicans were using them to block Obama’s recess authority. Those bad ol’ Republicans were just faking; they’d call the Senate into session, conduct mundane business or no business at all, and then adjourn minutes later.
Memo to Obamaphiles: Yes, the pro-forma session held by the Republicans did accomplish very little work. But from a legal and constitutional standpoint, that is irrelevant. The Constitution does not say the Senate is required to work at any time. In fact there are more than a few people who wonder, despite the time it spends, if the Senate ever performs any “work.” If your Maximum Leader can decide when the Senate is working and when it isn’t, he can decide at any time that it is in recess. This would nullify the Senate’s role to advise and consent. Or did you guys bother to think about that?
The Obamaphiles, of course, didn’t bother to mention that pro-forma sessions have been used by both Democrats as well as Republicans for decades to block the recess appointment authority of presidents. And during one of these pro-forma sessions, the Senate extended the payroll tax holiday on December 23, which Obama had been whining to have passed for weeks.
Regardless of whether anyone thinks pro-forma sessions are an abuse of procedure or not, it was Minority Leader Harry Reid who called Bush’s recess appointment of Bolton “an abuse of presidential power” and then Majority Leader Reid announced on December 19, 2007 that the Senate would be "going ... into pro forma session so the president (Bush) cannot appoint people we think are objectionable."
If voters don’t like these procedural shenanigans, then they should complain to their Senators to stop the gamesmanship and get on with the people’s business – like submitting the nominee to the full Senate for an up or down vote instead of bottling up the nomination in committee.
But before you dial your Senator – and for those of you in Palm Beach County Florida, the land of the hanging chads, there are two at-large Senators per state – you’d best refer to your pocket copy of the US Constitution in which Article I, Section 5, paragraph 2 says:
Each House may determine the Rules of its Proceedings …
Wow! This Constitution thing has got a lot of stuff in it! And this provision happens to be pretty important. Like it or not, the House and Senate can pass a rule to build campfires in the middle of their chambers and toast marshmallows all day if they like. And they can pass rules that keep a chamber in session using pro-forma meetings if they like. They can say they are in session regardless of the amount of “work” produced. The President may not like it, but he should take his complaint to the people – not violate the Constitution as Obama did in appointing Berwick in recess without nominating him and appointing Cordray and three union sympathizers to the NLRB while the Senate was legally in session.
Additional memo to Obamaphiles: Senate rules are called "standing orders." They are the rules of order by which its procedures are governed. Sorta’ like Robert’s Rules of Order. You’ve heard of that, haven’t you? This may shock you guys, but most of the Senate’s work is done by unanimous consent – a parliamentary procedure that allows a proposal to carry without a vote or quorum unless there is an objection from any Senators present. Using unanimous consent a single Senator present on the floor can change the standing order and conduct business. That’s what the Senate did on December 23 to pass Obama’s payroll tax holiday – during a pro-forma session it changed a standing order by unanimous consent. Your guy Obama signed that bill. Either the bill was properly enacted into law, making his bogus recess appointments unconstitutional, or the payroll extension is illegal because it was unconstitutionally enacted. Which is it? You guys can’t have it both ways.
I don’t know who started the silliness with the pro-forma rule, but I do know it will be played tit-for-tat until one side decides to stop. When the Democrats used it to prevent a Republican president from exercising his recess authority, the Republicans stuck it to the Democrats when they were in power. And when the majority shifts parties again, the hits will keep on comin’ as sure as night follows day.
Then there is Article I, Section 5, paragraph 4 of the Constitution which says:
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.
Oops. Did anyone check to determine if both the House and Senate complied with this provision? It makes no difference that many members of Congress are out of town. Business can be conducted by their appointees using unanimous consent. Ending a session of Congress, however, requires a formal resolution, which never occurred. And even if the Senate passed an adjournment resolution, it has no effect until the House does the same. Read the constitutional provision again. The House never resolved to adjourn.
Now, I know Obama is the smartest president we’ve ever had and he is an expert in the Constitution, having been a Professor of Constitutional Law, but let’s take another peek at Article II, Section 2, paragraph 3, a section of which I’ve capitalized:
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.
Hmm. The vacancies that the President may fill without the advice and consent of the Senate have to happen DURING the Senate recess. The President doesn’t have recess appointment authority if the vacancy occurred before or after recess. He has no authority to make recess appointments if his candidate is stuck in committee and the Senate goes on recess because the vacancy obviously occurred before the recess.
Since Obama is the smartest president in the history of the Republic, he must know the Berwick, Cordray, and NLRB vacancies didn’t occur DURING a recess. His confrontation with the Senate in these appointments was not only an illegal circumvention of the Senate duty to advise and consent, it was a flagrant violation of the separation of powers – something this President has had problems with since the day he took office. Just look at the executive orders he has issued and the agency regulations he has implemented in total disregard of the legislative branch of government. Just look at his flimsy rationale for going to war in Libya without a congressional declaration authorizing him to do so.
So when Obey did his tough guy imitation in an interview last month saying, "Where Congress is not willing to act, we're going to go ahead and do it ourselves,” he was saying in effect, “To hell with the Constitution!” When he blustered and preened before his adoring campaign audience in Ohio last week, saying that "I refuse to take 'no' for an answer!" concerning Cordray and the NLRB appointees, he was really saying that the Senate was irrelevant – their refusal to confirm his guys is unacceptable to him. But since he swore to “protect and defend” the Constitution, if he really means what he said on these occasions, then he has committed impeachable offenses under the misdemeanor provision of Article II, Section 4 of the Constitution.
As I said earlier, the Founders intended to hamstring the Congress and the President by dividing government so they had to cooperate, thus preventing one branch of government from ramming through its agenda as Obama is wont to do. Divided governance is frustrating but gridlock was part of its design – thank heaven! No president should be permitted to use unconstitutional methods to circumvent it.
Obama has now thrown down the gauntlet at the feet of the Senate. What are they going to do about it?
Probably nothing.
But taken together, Obama’s executive orders, the czars, the illegal regulations, and now these illegal appointments without recess puts the relevance of Congress at risk. If the 112th Congress does nothing, this and future presidents will be emboldened to make “recess” appointments of their cronies when the chambers close for a weekend or even one night. Worse still, the bar will be lowered for future usurpations of power.
The genius of the Founders’ design of divided government was to make it difficult to get things done. Writing in Federalist 51, Madison extolled the virtues of “checks and balances between the different departments,”
In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments.
… the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others… Ambition must be made to counteract ambition… such devices should be necessary to control the abuses of government… If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.
Today the people who wring their hands and bemoan the “gridlock” in Washington are obviously ignorant of the fact that the Founders designed government for gridlock in order to minimize the abuses they knew future Congresses and Presidents would heap upon the backs of citizens. The 55 men who met in Philadelphia during the summer of 1787 to design our government required even the most mundane appointments of the President to have the approval of the Senate to assure he didn’t have a free hand to put his cronies in power without oversight. And what happened if the President couldn’t get the Senate to approve his nominees? They didn’t get appointed. Article II, Section 2, paragraph 2 of the Constitution says:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
In a time before email, telephones, or even a good postal system, it was necessary to give the Executive limited power to conduct the affairs of the Republic when Congressmen were at their homes tending to their personal affairs – which was more often than the time they were in session tending to the government’s affairs. Because of weather, imperfect roads, and poor communications, the President couldn’t call Congress back to Washington (or Philadelphia in the days before there was a government seated in Washington) and thus the President was granted certain powers to act in their absence – among them the power to fill positions and vacancies without the advice and consent of the Senate, which is enumerated in Article II, Section 2, paragraph 3 of the 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.
Having just thrown off the shackles of one king, the citizens of the new Republic were not interested in getting another tyrant regardless of his title, so this provision of the new Constitution went down hard with citizens whose colonial representatives were expected to ratify it. Keep in mind that the Constitution was not ratified until May 1790 and the purpose of the Federalist Papers was to drum up support for ratification, particularly in New York. Its various essays were written by Alexander Hamilton, James Madison, and to a lesser extent, John Jay.
In Federalist 67, Hamilton explained the Constitution’s recess rule:
The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments "during the recess of the Senate, by granting commissions which shall expire at the end of their next session."
Although we now live in an era of modern communications and modern travel, which would allow the President to recall a Senate in recess to confirm an appointment to a key office, he isn’t obliged to do so under the Constitution. And as the Founders feared, recent generations of Presidents have gamed the recess mechanism, using it to install office-holders they knew wouldn’t pass Senate muster.
The briefest recess exploited by a President to by-pass Senate approval was pulled off by Teddy Roosevelt on December 7, 1903. In the seconds intervening the first session of the 58th Congress and the second session, which began immediately, Roosevelt made over 160 “recess” appointments, mostly military officers of his choosing. Harry Truman similarly used the two days between sessions of the 80th Congress to make a recess appointment. Presidents of both political stripes have made their fair share of recess appointments, most of them motivated to by-pass the Senate.
Frustrated by Democrat Senators who for five months had blocked his nomination for UN ambassador of John Bolton in 2005, George W. Bush appointed him during recess, for which Minority Leader Harry Reid called Bush’s appointment “an abuse of presidential power.” However, without even presenting a nomination to the Democrat-controlled Senate, Obama appointed Donald Berwick to head the Centers for Medicare and Medicaid Services, knowing Berwick’s controversial views on end-of-life deprivation of care and his adoration of the decrepit British National Health Service would lock his nomination in committee for months if not forever. Obama has also appointed more “czars” than any other president in order to by-pass Senate confirmation.
But no President has ever attempted to appoint people to federal office while the Senate was in session without Senate approval – until Obama did it last week.
On January 4 Obama made “recess” appointments for Richard Cordray to become the head of the Consumer Financial Protection Bureau, which was created under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (whose constitutionality is highly suspect), and he appointed three pro-union members of the National Labor Relations Board. The Senate was in session.
Yes, the Obamaphiles cried, but those were just pro-forma “pretend” Senate sessions. Republicans were using them to block Obama’s recess authority. Those bad ol’ Republicans were just faking; they’d call the Senate into session, conduct mundane business or no business at all, and then adjourn minutes later.
Memo to Obamaphiles: Yes, the pro-forma session held by the Republicans did accomplish very little work. But from a legal and constitutional standpoint, that is irrelevant. The Constitution does not say the Senate is required to work at any time. In fact there are more than a few people who wonder, despite the time it spends, if the Senate ever performs any “work.” If your Maximum Leader can decide when the Senate is working and when it isn’t, he can decide at any time that it is in recess. This would nullify the Senate’s role to advise and consent. Or did you guys bother to think about that?
The Obamaphiles, of course, didn’t bother to mention that pro-forma sessions have been used by both Democrats as well as Republicans for decades to block the recess appointment authority of presidents. And during one of these pro-forma sessions, the Senate extended the payroll tax holiday on December 23, which Obama had been whining to have passed for weeks.
Regardless of whether anyone thinks pro-forma sessions are an abuse of procedure or not, it was Minority Leader Harry Reid who called Bush’s recess appointment of Bolton “an abuse of presidential power” and then Majority Leader Reid announced on December 19, 2007 that the Senate would be "going ... into pro forma session so the president (Bush) cannot appoint people we think are objectionable."
If voters don’t like these procedural shenanigans, then they should complain to their Senators to stop the gamesmanship and get on with the people’s business – like submitting the nominee to the full Senate for an up or down vote instead of bottling up the nomination in committee.
But before you dial your Senator – and for those of you in Palm Beach County Florida, the land of the hanging chads, there are two at-large Senators per state – you’d best refer to your pocket copy of the US Constitution in which Article I, Section 5, paragraph 2 says:
Each House may determine the Rules of its Proceedings …
Wow! This Constitution thing has got a lot of stuff in it! And this provision happens to be pretty important. Like it or not, the House and Senate can pass a rule to build campfires in the middle of their chambers and toast marshmallows all day if they like. And they can pass rules that keep a chamber in session using pro-forma meetings if they like. They can say they are in session regardless of the amount of “work” produced. The President may not like it, but he should take his complaint to the people – not violate the Constitution as Obama did in appointing Berwick in recess without nominating him and appointing Cordray and three union sympathizers to the NLRB while the Senate was legally in session.
Additional memo to Obamaphiles: Senate rules are called "standing orders." They are the rules of order by which its procedures are governed. Sorta’ like Robert’s Rules of Order. You’ve heard of that, haven’t you? This may shock you guys, but most of the Senate’s work is done by unanimous consent – a parliamentary procedure that allows a proposal to carry without a vote or quorum unless there is an objection from any Senators present. Using unanimous consent a single Senator present on the floor can change the standing order and conduct business. That’s what the Senate did on December 23 to pass Obama’s payroll tax holiday – during a pro-forma session it changed a standing order by unanimous consent. Your guy Obama signed that bill. Either the bill was properly enacted into law, making his bogus recess appointments unconstitutional, or the payroll extension is illegal because it was unconstitutionally enacted. Which is it? You guys can’t have it both ways.
I don’t know who started the silliness with the pro-forma rule, but I do know it will be played tit-for-tat until one side decides to stop. When the Democrats used it to prevent a Republican president from exercising his recess authority, the Republicans stuck it to the Democrats when they were in power. And when the majority shifts parties again, the hits will keep on comin’ as sure as night follows day.
Then there is Article I, Section 5, paragraph 4 of the Constitution which says:
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.
Oops. Did anyone check to determine if both the House and Senate complied with this provision? It makes no difference that many members of Congress are out of town. Business can be conducted by their appointees using unanimous consent. Ending a session of Congress, however, requires a formal resolution, which never occurred. And even if the Senate passed an adjournment resolution, it has no effect until the House does the same. Read the constitutional provision again. The House never resolved to adjourn.
Now, I know Obama is the smartest president we’ve ever had and he is an expert in the Constitution, having been a Professor of Constitutional Law, but let’s take another peek at Article II, Section 2, paragraph 3, a section of which I’ve capitalized:
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.
Hmm. The vacancies that the President may fill without the advice and consent of the Senate have to happen DURING the Senate recess. The President doesn’t have recess appointment authority if the vacancy occurred before or after recess. He has no authority to make recess appointments if his candidate is stuck in committee and the Senate goes on recess because the vacancy obviously occurred before the recess.
Since Obama is the smartest president in the history of the Republic, he must know the Berwick, Cordray, and NLRB vacancies didn’t occur DURING a recess. His confrontation with the Senate in these appointments was not only an illegal circumvention of the Senate duty to advise and consent, it was a flagrant violation of the separation of powers – something this President has had problems with since the day he took office. Just look at the executive orders he has issued and the agency regulations he has implemented in total disregard of the legislative branch of government. Just look at his flimsy rationale for going to war in Libya without a congressional declaration authorizing him to do so.
So when Obey did his tough guy imitation in an interview last month saying, "Where Congress is not willing to act, we're going to go ahead and do it ourselves,” he was saying in effect, “To hell with the Constitution!” When he blustered and preened before his adoring campaign audience in Ohio last week, saying that "I refuse to take 'no' for an answer!" concerning Cordray and the NLRB appointees, he was really saying that the Senate was irrelevant – their refusal to confirm his guys is unacceptable to him. But since he swore to “protect and defend” the Constitution, if he really means what he said on these occasions, then he has committed impeachable offenses under the misdemeanor provision of Article II, Section 4 of the Constitution.
As I said earlier, the Founders intended to hamstring the Congress and the President by dividing government so they had to cooperate, thus preventing one branch of government from ramming through its agenda as Obama is wont to do. Divided governance is frustrating but gridlock was part of its design – thank heaven! No president should be permitted to use unconstitutional methods to circumvent it.
Obama has now thrown down the gauntlet at the feet of the Senate. What are they going to do about it?
Probably nothing.
But taken together, Obama’s executive orders, the czars, the illegal regulations, and now these illegal appointments without recess puts the relevance of Congress at risk. If the 112th Congress does nothing, this and future presidents will be emboldened to make “recess” appointments of their cronies when the chambers close for a weekend or even one night. Worse still, the bar will be lowered for future usurpations of power.
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