There is a very interesting wrinkle in all of this, which is brought up by John Elwood of the Vinson & Elkins law firm. Actually, there are 2 points.
1) The most obvious is what happens if the Senate, in it's role of advise and consent, refuses to advise and consent. If the Senate is not doing it's job, it make a case that Obama can actually make the recess appointments Constitutionally.
2) How would Obama be justified in doing so? From the Constitution:
According to the Constitution, Obama can consider both Houses adjourned, due to the extraordinary occasion that the Senate is refusing to do it's job. I believe that this is the argument that the Obama administration is going to make, should this end up in court. Here is the analysis, which appeared in the Wall Street Journal.Originally Posted by Article 2, Section 3
Last edited by danarhea; 01-10-12 at 12:22 AM.
The ghost of Jack Kevorkian for President's Physician: 2016
If he did...okay, he might have a leg to stand on.
If he didn't, then he doesn't. He can't, after the fact, say he could have invoked Article 2, Section 3 as a justification for his actions if he didn't actually do that.
-I don't trust a man who talks about ethics when he's picking my pocket.- Time Enough For Love - Robert A Heinlein
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Another nice op-ed from the Wall Street Journal
Michael McConnell: Democrats and Executive Overreach - WSJ.com
Article I, Section 5, Clause 4 requires the concurrence of the other house to any adjournment of more than three days. The Senate did not request, and the House did not agree to, any such adjournment. This means that the Senate was not in adjournment according to the Constitution (let alone in "recess," which requires a longer break).
Others have argued that the president can make recess appointments during any adjournment, however brief, including the three days between pro forma sessions. That cannot be right, because it would allow the president free rein to avoid senatorial advice and consent, which is a major structural feature of the Constitution. He could, for example, make an appointment overnight, or during a lunch break. In a brief in the Supreme Court in 2004, Harvard law professor Laurence Tribe dismissed as "absurd" any suggestion that a period of "a fortnight, or a weekend, or overnight" is a "recess" for purposes of the Recess Appointments Clause.
It's not reserved for when "the Senate refus[es] to do it's job"; the President can adjourn either or both houses "in Case of Disagreement between them". Is the matter of adjournment "disagreement" enough for the executive to effectively shut down Congress? This should yield some interesting legal arguments. I have absolutely no idea how it's going to shake out.According to the Constitution, Obama can consider both Houses adjourned, due to the extraordinary occasion that the Senate is refusing to do it's job. I believe that this is the argument that the Obama administration is going to make, should this end up in court. Here is the analysis, which appeared in the Wall Street Journal.
"Political speech and writing are largely the defense of the indefensible. . . . Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness."
~Orwell, Politics and the English Language
Ahhh, don't you just love the hypocrisy ..............
THEN-SEN. BARACK OBAMA (D-IL):
Recess appointments ‘the wrong thing to do.’ “‘It’s the wrong thing to do. John Bolton is the wrong person for the job,’ said Sen. Barack Obama, D-Ill., a member of Foreign Relations Committee.” (“Officials: White House To Bypass Congress For Bolton Nomination,” The Associated Press, 7/30/05)
A recess appointee is ‘damaged goods… we will have less credibility.’ “To some degree, he’s damaged goods… somebody who couldn’t get through a nomination in the Senate. And I think that that means that we will have less credibility…” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05)
SEN. HARRY REID (D-NV):
‘An end run around the Senate and the Constitution.’ “I will keep the Senate in pro forma session to block the President from doing an end run around the Senate and the Constitution with his controversial nominations.” (Sen. Reid, Congressional Record, S.15980, 12/19/07)
‘They are mischievous.’ “Also, understand this: We have had a difficult problem with the President now for some time. We don’t let him have recess appointments because they are mischievous, and unless we have an agreement before the recess, there will be no recess. We will meet every third day pro forma, as we have done during the last series of breaks.” (Sen. Reid, Congressional Record, S.7558, 7/28/08)
Recess appointments an ‘abuse of power.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)
A recess appointee will have ‘a cloud hanging over his head.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)
SEN. DICK DURBIN (D-IL):
‘Troubling.’ “When you have an appointment that is this critical and this sensitive, and the president basically says he’s going to ignore the will of the senate and push someone through, it really is troubling.” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05)
‘Could easily be unconstitutional.’ “I agree with Senator Kennedy that Mr. Pryor’s recess appointment, which occurred during a brief recess of Congress, could easily be unconstitutional. It was certainly confrontational. Recess appointments lack the permanence and independence contemplated by the Framers of the Constitution.” (Sen. Durbin, Congressional Record, S.6253, 6/9/05)
SEN. JOHN KERRY (D-MA):
Recess appointments an ‘abuse [of] the power of the presidency.’ “‘It’s sad but not surprising that this White House would abuse the power of the presidency to reward a donor over the objections of the Senate,’ Kerry said in a statement …” (“Recess Appointments Granted to ‘Swift Boat’ Donor, 2 Other Nominees,” The Washington Post, 4/5/07)