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Yet the latest recess appointments push this controversy to a new extreme. The shortest prior period for a recess appointment in recent history was a break of 10 days. In this case, Congress did not intend to take such a recess ...
Below is today?s column, which concerns the subject upon which I will be testifying this morning before the full House Judiciary Committee: recess appointments.
For most Americans, the term ?recess? brings to mind fond memories of free time to play outside the strict rules of the classroom. For presidents, the term can have the same euphoric effect as a free hand to play outside the strict rules of the Constitution.
While the Constitution requires high-level officials to be confirmed by the Senate, an arcane provision in Article II states that a president can make recess appointments when Congress is not in session. However, what if Congress did not think it was recessed and a president handed out appointments over the equivalent of a long weekend? That is the controversy brewing in Congress, which is looking into four appointmentsPresident Obama made in January. Those appointments include that of Richard Cordray, who had been denied confirmation to a consumer protection board in a Republican filibuster.
For the record, I support Cordray, a well-qualified nominee who has been treated poorly by the political system. However, in a nation committed to the rule of law, it is often as important how you do something as what you do. This is not the way to win a fight with Congress over a nomination.
The controversy is loaded with partisan rhetoric and chest pounding on both sides. It is the common lament of academics that the concern over the faithful interpretation of the Constitution arises only when it is politically expedient. Though there are exceptions in Congress, the Cordray appointment is a prime example. Many members who were silent during the recess appointments of George W. Bush have become vocal opponents of the practice under Obama. Conversely, Democrats who now stand silent once cried foul when Bush used recess appointments to circumvent significant opposition to nominees, such as John Bolton to be ambassador to the United Nations.
Yet the latest recess appointments push this controversy to a new extreme. The shortest prior period for a recess appointment in recent history was a break of 10 days. In this case, Congress did not intend to take such a recess and took steps to ?stay in business? to prevent any end run by the president. Under the Constitution, neither chamber of Congress can recess for more than three days without the consent of the other chamber. This winter, the House expressly declined to give consent ? holding sessions every three days to prevent any recess appointments. Moreover, this session was hardly ?pro forma.? Just three days after going into the session in December, Congress passed the president?s demand for a two-month payroll tax holiday extension. So the Obama administration was doing business with Congress on important legislation while simultaneously claiming that Congress was functionally out of session.
Since the very first administration, presidents have taken advantage of this free hall pass to fill offices. The first five presidents made dozens of recess appointments, including five to the Supreme Court. Ironically, some of these appointments proved the wisdom of requiring confirmation. For example, George Washington gave a recess appointment in 1795 to John Rutledge of South Carolina to serve as chief justice. Rutledge was later described by his fellow South Carolinians as prone to ?mad frollicks? and ?frequently so much deranged, as to be in a great measure deprived of his senses.? Rutledge tried repeatedly to drown himself in various rivers before finally resigning within a year of his appointment.
The use of such unilateral power strikes at the very heart of our system of government and dangerously tips the balance of power. President Obama clearly wanted to make a point about his effort to protect consumers. But for the Constitution, that political point comes at too high a price. Replacing an intransigent Congress with an imperial president is no bargain for those who value our constitutional system.
While there can be debate over the precise meaning of Article II?s reference to ?vacancies that may happen during the recess,? it was not intended to mean this. The earliest interpretations of this language took the plain meaning of the language as addressing vacancies that occur during a recess. In the early period of the Republic, Congress would often be recessed for six or even nine months out of the year. Alexander Hamilton and others argued that the provision simply reflected this practical necessity to fill positions during breaks.
With the long modern congressional sessions, the motivating concern behind the Recess Appointment Clause is largely gone. It is primarily used today for the purpose that the Framers clearly did not intend ? circumventing Congress. For that reason, I have criticized past presidents for appointing submitted nominees who were not confirmed because of congressional opposition.
The Cordray appointment, like its recent precedents, threatens to turn a carefully balanced process of nominations and confirmations into little more than a type of blinking contest with Congress. Putting aside the contradiction with both the language and history of the Constitution, it is bad policy and an abuse of power that all citizens, regardless of party affiliation, should condemn.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY?s Board of Contributors. He will testify on the recess appointment power before the House Judiciary Committee on Feb. 15.
Of course you are correct Prof ? BUT ? there is no way you are going to put that genie back in the bottle. We have seen in recent years candidates for critical positions openly lie about their beliefs and their intent once taking the position. Lies that the media knew were lies, that the Senators knew were lies and lies that anyone who had studied their background (when, unlike say CJ Roberts they were not hidden) knew were lies. Bolton is a great example of this but their are some Supreme Court justices that would not be ripping apart the country for the corporate good if they had been honest.
Politics has become about who is willing to make what they want to happen happen. The American people have too often ignored or been misdirected by the media what is being done to them. The only thing the powers of decency need do is to play by the rules of 50 years ago and we will all lose. The forces of darkness will not play by those rules, hell in the 6 years between 2000-2006 they proved they were willing to play well outside the rules to get what they wanted.
I do not see that the President has done anything different than any of his predecessors?. the powers that be have stalked him and anything he has done?. the house has even said that they would obstruct anything he try?
Frankly hit the nail on the head. To allow the Senate to block any and all appointments for political reasons, but not allow Presidents the ability to get things done for our benefit is wrong and untenable.
I totally agree with Jonathan. To many people are turning a blind eye or ignoring the constitution because of the affilitation. You can not pick and choose which ones you want to go by. Because another president has done something doesn?t make it right for another one. We need to get back to basics and the constittution, nation and principles of this country. In respect it is a lot like religion. The only reason there are different demonitions is basically they can not live by Gods rules. They change or put mans meaning in it to fit their will. We are and have been doing that for years with the constitution, a living and breathing document that has endured through time and will continue to do so as long and we respect it and stay by it. Do not destroy this document or nation because of political parties. Two wrongs don?t make a right.
Based on my limited understanding, it is the Senates responsibility to ?advise and consent?. If the Senate fails in its responsibility to vote up or down on a nominee, what else is the President supposed to do. Currently, a single Senator can stop the process by placing a ?secret hold? on the nominee.
Should there be a timeframe for the Senate to hold an up or down vote instead of leaving the process hostage to a single senator?s whim.
?I have long favored the original interpretation of the Clause: that it applies only to vacancies occurring during a recess. This interpretation is truer to the Constitution and would avoid many of the controversies of modern times. I readily admit that I am in the minority on that view ??
I am a bit shocked by how many readers here seem completely willing to look past this exercise ? this institutionalized practice ? of authoritarian executive power, justifying it with excuses like ?Yeah, well, Bush did it too,? or even worse, ?Well The President needs to get things done, for us!?
So, what?s a President supposed to do, when a single Senator can prevent him from filling a vacant post? Sit on his hands and fret? Pace the Rose Garden, a la Carter?
When the stated intent of the ?loyal opposition? is to bring down the Administration, how is the Administration supposed to get the work of governance done?
Yet again we find ourselves stuck with a false choice between strictly adhering to ambiguous language in an antiquated document or meeting the challenges of a modern society facing a political crisis.
There are elements of our constitution that are explicit, such as freedom of speech, freedom from illegal search and seizure, and the right to a speedy and public trial. Our leaders trample these portions of the constitution on a daily basis, so forgive me for not getting terribly worked up over a recess appointment by a president facing unparalleled obstruction from the most inept congress in a century.
We have real problems in this country. Big ones. And one of our two major political parties, instead of working to fix them, is deliberately sabotaging the political process to destroy the president. If he was forced to follow precedent and make a handful of recess appointments to address a few of those problems, great. Our congress can?t be bothered to hold real criminals accountable for the destruction of our economy, or for the war crimes committed in our name, but they?ll certainly take time to hold hearings over a handful of recess appointments. A perfect illustration of our broken government.
I, frankly, do not care what a group of wealthy, partially slave owning, white men originally intended when they wrote ?vacancies that may happen during the recess,? in our founding documents in the late 18th century. Their original intent is irrelevant to our modern society. Our government must quickly answers today?s problems with forward thinking solutions. We do not have time for this nonsense.
Frankly wrote: ?The forces of darkness will not play by those rules, hell in the 6 years between 2000-2006 they proved they were willing to play well outside the rules to get what they wanted.
Maybe what ?Lottakatz? wrote in response to a question I once posed applies. He commented about ?Unitary Executive? doctrine put in place by Bush/Cheney post 9-11. ?We?ll never get those rights given back to us, power does not give itself up; once taken, it must be taken back.?
I have a question. In Article II Section 3, the Constitution says, ??and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.?
I have read opinions that insist that the President has the power to put them in recess based on the above section and therefore, Obama put them in recess, making his appointment constitutional.
Third, amend the Constitution to overturn Citizens United and limit both corporate personality and remove their ability to participate in political campaigning.
Absolutely. The single biggest obstacle to progressive reform and the restoration of the Rule of Law in this country is without a doubt the obstructionist graft weasels in the Senate.
Addition to Gene?s suggestion: Amend the Constitution to provide that no representative district shall encompass a greater population than that of the least populous state.
Also, get rid of the electoral college or require that the delegates be apportioned base of percentage of votes received ? this may help form a third party.
Well, based on the rule that the specific limits the general, the Constitution specifically provides when Congress must decide a matter by more than a simple majority vote and it never provides for anything less. The Senate?s ?procedural rule? requiring at least 60 votes to bring the matter to the floor or its standards of professional courtesy which permits a single senator to place a hold on a bill or nomination appear to be unconstitutional. It is these tactics which permit politics to derail the legislative and advisory roles of the Congress.
The fact that every state gets two Senators is the sole legislative protection which the Constitution offers states with small populations (the electoral college does the same re the executive) ? not holds or filibusters. Hell, there are representatives who were elected with more votes that some senators!
I agree with the professor re the legal argument, I agree with the President on his action. I damn well oppose the judiciary being drawn into a political matter caused by the non-democratic actions of the Senate.
I disagree with JT, but I am simultaneously heartened that he takes this stand and indeed other stands to point out to us that we need to return to the original intent of the Constitution and how far we?ve strayed from it. Our people needs such as JT to remind us of what we are supposed to be and how far short of those ideals we have fallen. In that role he can only be implacable in defense of Constitutional values and avoid partisan considerations.
Where I disagree though comes from the fact that I am convinced that this country is under siege by a loose cabal of people trying to drive it to become a Feudalistic Corporatocracy. Their means are ruthless and can often be violent. They are blatantly in violation of their oaths of office and they are in thrall to multi-national corporate interests who could care less how the people of the US fare, as long as the many can act as passive consumers. On an immediate political level to attempt to fight these interests as if it were a ?fair? fight is dangerous folly. The Republican members of Congress are only concerned with destroying this Administration and then imposing their feudalistic corporatocracy as a theocratic state. If they are allowed to do so unopposed then the talk of returning to Constitutional government is but a pipe dream.
i am reminded of the post about the Sioux tribe involving the beer stores in Whiteclay. Wasi?chu law, wasi?chu analysis. The lawsuit will be dismissed. Eventually the tribe is going to give up seeking redress in a system that just doesn?t care. Then it will take matters into its own hands and Whiteclay will be reduced to burnt dirt. At some point, the 99% just ain?t gonna take no more.
I have a question. In Article II Section 3, the Constitution says, ??and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.?
I have read opinions that insist that the President has the power to put them in recess based on the above section and therefore, Obama put them in recess, making his appointment constitutional.
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
This is in the context of the State of The Union, bringing both houses together to hear him. The key to your argument is ?in Case of Disagreement between them?, i.e., the Senate and House not agreeing on the time for adjournment.
Turley is right, and as for what we do instead, I think it is simple. Stop appointing people as direct officers of the federal government.
One of the President?s titles is Chief Executive, which means he is in charge of all the civil servants. Which means, the President is free to run the Bureau himself. Which also means, he can appoint a civil servant ?manager? of the Bureau that answers to him and runs the Bureau in the absence of a chief or Director, until such time as a chief or Directory can be confirmed by the Senate.
For a hypothetical, presume a chief or director of the FBI (another bureau) died of a stroke. The FBI would still continue, and would still answer to the President, without a confirmed head.
The same situation holds for any other department or bureau; the work of the organization does not just stop if the director is incapacitated or dies; a subordinate that was never confirmed by the Senate will run it and answer to the President until a new boss is confirmed.
So, what?s a President supposed to do, when a single Senator can prevent him from filling a vacant post? Sit on his hands and fret? Pace the Rose Garden, a la Carter?
When the stated intent of the ?loyal opposition? is to bring down the Administration, how is the Administration supposed to get the work of governance done??
While other federal agencies struggle with outdated legacy systems, the new Consumer Finance Protection Bureau aims to keep lean with agile processes, cloud computing, and open source.
I am an Originalist of a different bent. The Framers of the Constitution would be a bit bent if George Washington had put up the name of say Sam Adams to be Secretary of State and then the Senate sat on the nomination because one Senator did not like anyone from Massassachusetts. And the Senate sat on the nomination for say six months.
I think that this President shoudl inform the country that if a nomination is stalled, or if it is held up by one Senator, and more than three months go by, then the President will fill the recess appointment. We cannot have positions open and the business of the country bumbling along like this.
Judicial appointments are a different matter. But the ability of one schmuck to be able to hold up a vote is a disgrace. Up or down.
The Republican Party has an agenda with one item on it: make the President look bad and do anything, even ruin the economy, to accomplish this.
The Judiciary Committee needs to hear from a dog if they are going to listen to a Professor. I am sending this letter off to the Judiciary Committee.
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