Contempt for Congress...

[il Padrino Ute]

From today's WSJ.

As the column points out, Obamao is allowed to do it, but is supposed to do it when Congress is in recess. If Obamao really did believe that the Constitution is as important as he and his followers claim he is, he would respect it.

[Moliere]

From today's WSJ.

As the column points out, Obamao is allowed to do it, but is supposed to do it when Congress is in recess. If Obamao really did believe that the Constitution is as important as he and his followers claim he is, he would respect it.

I heard about this last night on the radio. Sounded like the GOP was gaming the system to stay in session. Both obama and the GOP are acting like 5 year old kids.

[TripletDaddy]

I'm glad Obama doesn't respect the Constitution. I don't respect it either!

[il Padrino Ute]

I heard about this last night on the radio. Sounded like the GOP was gaming the system to stay in session. Both obama and the GOP are acting like 5 year old kids.

I'm sure the GOP was sticking around to do this and Obama took the bait. The best thing the Repubs can do is not make a big deal of it right now and use it against him after their nominee is decided. As the election gets closer, they can show how this alleged Constitutional scholar ignores the Constitution to get his way.

[RobinFinderson]

The country is on the edge of its seat over the question of whether a 'pro forma' senate session (where there are no senators present, and the chamber isn't doing anything) is actually a 'recess!'

[venkman]

I heard about this last night on the radio. Sounded like the GOP was gaming the system to stay in session. Both obama and the GOP are acting like 5 year old kids.

True, except that one side has the constituion on their side. Obama comes across as a wannabe dictator. 'Hey, I'm willing to work with congress as long as they rubber stamp my decisions, otherwise I'll go it alone.' No, if congress won't approve your appointments then appoint someone else more acceptable. It's called separation of powers.

[Moliere]

True, except that one side has the constituion on their side. Obama comes across as a wannabe dictator. 'Hey, I'm willing to work with congress as long as they rubber stamp my decisions, otherwise I'll go it alone.' No, if congress won't approve your appointments then appoint someone else more acceptable. It's called separation of powers.

Can't a president make certain appointments during a senate recess without Congress' approval? Isn't that part of the Constitution? I really don't know but it sounds like that is something that is done all the time. It's only in this instance that the GOP is gaming the system to block his appointments. Yes, the GOP is playing a game of form over substance.

It reminds me of the stories of BYU students that went to Vegas for the weekend and gamed the law of chastity by getting married and divorced in the same weekend. In the end both sides end up looking ridiculous.

[il Padrino Ute]

Can't a president make certain appointments during a senate recess without Congress' approval? Isn't that part of the Constitution? I really don't know but it sounds like that is something that is done all the time. It's only in this instance that the GOP is gaming the system to block his appointments. Yes, the GOP is playing a game of form over substance.

It reminds me of the stories of BYU students that went to Vegas for the weekend and gamed the law of chastity by getting married and divorced in the same weekend. In the end both sides end up looking ridiculous.

Yes, he can make appointments while Congress is in recess. But Obama did this before Congress was in recess. That's the point. He ignores the Constitution like no other.

[venkman]

Can't a president make certain appointments during a senate recess without Congress' approval? Isn't that part of the Constitution? I really don't know but it sounds like that is something that is done all the time. It's only in this instance that the GOP is gaming the system to block his appointments. Yes, the GOP is playing a game of form over substance.

It reminds me of the stories of BYU students that went to Vegas for the weekend and gamed the law of chastity by getting married and divorced in the same weekend. In the end both sides end up looking ridiculous.

congress isn't in recess.

You can say that what the GOP is doing violates some spirit of the law, but the whole practice of recess appointments violates the spirit of the intended law anyway. This isn't the 18th century where congress is in session half the year and it would be difficult to have to wait six months to fill an appointment. Congress is almost always in session, it's not like they can't approve the President's nominations, it's that they won't. Generally, recess appointments are made to fill a position with someone congress won't approve, which in and of itself violates the "spirit" of the constitutional notion of separation of powers.

[calicoug]

congress isn't in recess.

You can say that what the GOP is doing violates some spirit of the law, but the whole practice of recess appointments violates the spirit of the intended law anyway. This isn't the 18th century where congress is in session half the year and it would be difficult to have to wait six months to fill an appointment. Congress is almost always in session, it's not like they can't approve the President's nominations, it's that they won't. Generally, recess appointments are made to fill a position with someone congress won't approve, which in and of itself violates the "spirit" of the constitutional notion of separation of powers.

It's not nearly that black and white.

The Constitution permitted the president to make appointments when the Senate was not in session because it realized the government needed to be able to continue to operate even when Senators were far from DC (and back then, it would take a long time for them to return with no cars, trains, planes, etc.). The "spirit" of the provision was clearly to ensure that appointments would be made continuously. Similarly, the "spirit" of the Senate confirmation process was not that all nominees would be blocked for political gain but that they would actually deliberate and decide on each individual on the merits (something that the filibuster has long prevented).

So, what happens when the Senate refuses to confirm people through procedural tactics and then refuses to go into recess through "pro forma" sessions where they gavel in a meeting for less than one minute per day with only a handful of Senators present only to prohibit the president from filling positions?

Obama's legal experts decided under such circumstances the president has the power to declare the pro forma sessions a sham and recognize the Senate as being in recess (which it is, for all intents and purposes). Is he right? Well, many legal scholars say he is because the Senate is clearly abusing its powers. But it is debatable.

I personally think it is a very close call, and I might even side with the Senate on this one. The Constitution does give the president the power to make recess appointments, but that then depends on the definition of "recess." And who gets to determine what is a "recess?" The Constitution gives each house of Congress the sole power to determine its own rules of proceeding, and the Senate has determined its rules for how a recess is established. The Senate permits pro forma meetings to avoid calling a recess. So, if the Senate can make its own rules and its rules define a recess, we are only left to ask if there is some special reason that this particular rule would not be valid.

Obviously the president cannot override Senate rules as a general proposition. However, the Constitution presumably would not permit the Senate to write rules which nullify the powers of the president which are granted under the Constitution. One could argue that's exactly what the Senate has done here, and, if it is, the Senate would be nullifying a constitutional provision through its rulemaking ability which is certainly not acceptable. The debate, therefore, rests on whether the president's power has been nullified by rule of the Senate.

Keep in mind there are two types of recess appointments. Intersession and intrasession. Intersession takes place following a sine die adjournment and before the reconvening of the Senate. Under the 20th Amendment, the reconvening of the Senate occurs every year on January 3 (unless a different day is appointed by law). So, there is a fraction of a second on January 3 where the Senate is deemed to be in recess and therefore where an intersession recess appointment could be made. That means the president does have a time where he can exercise his recess appointment power no matter what rule the Senate adopts. Consequently, it makes it harder to argue that Senate rules have eliminated the president's power under the Constitution, and that suggests we should honor the Senate's constitutional authority to set its own rules.

Obama decided not to appoint on January 3 as an intersession appointment and instead did an intrasession appointment. Intrasession takes place when a Congress is in session but while they are out on recess. Obama effectively is arguing that the fraction of a second appointment power he has on January 3 is not the only period in which the Constitution intended for him to be able to exercise his recess appointment power and that it intended to cover intrasession recesses too (meaning the Senate can't by rule prohibit all intrasession recesses through pro forma sessions).

It's a power struggle between the executive and the Congress. Like I said, I don't know who has the better argument here (it's really, really a close call), but I suspect courts will defer to the executive as they have on most issues.

I would also say that it is quite complex as you can see above. Sorry if I wrote more than anyone cares to read on this topic but I find these types of issues fascinating.

[calicoug]

It's not nearly that black and white.

The Constitution permitted the president to make appointments when the Senate was not in session because it realized the government needed to be able to continue to operate even when Senators were far from DC (and back then, it would take a long time for them to return with no cars, trains, planes, etc.). The "spirit" of the provision was clearly to ensure that appointments would be made continuously. Similarly, the "spirit" of the Senate confirmation process was not that all nominees would be blocked for political gain but that they would actually deliberate and decide on each individual on the merits (something that the filibuster has long prevented).

So, what happens when the Senate refuses to confirm people through procedural tactics and then refuses to go into recess through "pro forma" sessions where they gavel in a meeting for less than one minute per day with only a handful of Senators present only to prohibit the president from filling positions?

Obama's legal experts decided under such circumstances the president has the power to declare the pro forma sessions a sham and recognize the Senate as being in recess (which it is, for all intents and purposes). Is he right? Well, many legal scholars say he is because the Senate is clearly abusing its powers. But it is debatable.

I personally think it is a very close call, and I might even side with the Senate on this one. The Constitution does give the president the power to make recess appointments, but that then depends on the definition of "recess." And who gets to determine what is a "recess?" The Constitution gives each house of Congress the sole power to determine its own rules of proceeding, and the Senate has determined its rules for how a recess is established. The Senate permits pro forma meetings to avoid calling a recess. So, if the Senate can make its own rules and its rules define a recess, we are only left to ask if there is some special reason that this particular rule would not be valid.

Obviously the president cannot override Senate rules as a general proposition. However, the Constitution presumably would not permit the Senate to write rules which nullify the powers of the president which are granted under the Constitution. One could argue that's exactly what the Senate has done here, and, if it is, the Senate would be nullifying a constitutional provision through its rulemaking ability which is certainly not acceptable. The debate, therefore, rests on whether the president's power has been nullified by rule of the Senate.

Keep in mind there are two types of recess appointments. Intersession and intrasession. Intersession takes place following a sine die adjournment and before the reconvening of the Senate. Under the 20th Amendment, the reconvening of the Senate occurs every year on January 3 (unless a different day is appointed by law). So, there is a fraction of a second on January 3 where the Senate is deemed to be in recess and therefore where an intersession recess appointment could be made. That means the president does have a time where he can exercise his recess appointment power no matter what rule the Senate adopts. Consequently, it makes it harder to argue that Senate rules have eliminated the president's power under the Constitution, and that suggests we should honor the Senate's constitutional authority to set its own rules.

Obama decided not to appoint on January 3 as an intersession appointment and instead did an intrasession appointment. Intrasession takes place when a Congress is in session but while they are out on recess. Obama effectively is arguing that the fraction of a second appointment power he has on January 3 is not the only period in which the Constitution intended for him to be able to exercise his recess appointment power and that it intended to cover intrasession recesses too (meaning the Senate can't by rule prohibit all intrasession recesses through pro forma sessions).

It's a power struggle between the executive and the Congress. Like I said, I don't know who has the better argument here (it's really, really a close call), but I suspect courts will defer to the executive as they have on most issues.

I would also say that it is quite complex as you can see above. Sorry if I wrote more than anyone cares to read on this topic but I find these types of issues fascinating.

Didn't mean to kill the thread.

[SoCalCoug]

Didn't mean to kill the thread.

Arguments are more fun when you get to ignore reason. You ruined the fun.

[Pelado]

So, what happens when the Senate refuses to confirm people through procedural tactics and then refuses to go into recess through "pro forma" sessions where they gavel in a meeting for less than one minute per day with only a handful of Senators present only to prohibit the president from filling positions?

When did the President give the Senate the opportunity to confirm his appointments for these positions? I don't remember the filibustered nomination hearings or other "procedural tactics" undertaken by the Senate to refuse confirmation to the President's nominees.

[calicoug]

When did the President give the Senate the opportunity to confirm his appointments for these positions? I don't remember the filibustered nomination hearings or other "procedural tactics" undertaken by the Senate to refuse confirmation to the President's nominees.

Republicans said several times they wouldn't confirm anyone to fill those positions. No matter who the nominee was.

[Pelado]

Republicans said several times they wouldn't confirm anyone to fill those positions. No matter who the nominee was.

So the "procedural tactics" the Senate used was telling the President, "No."