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  • Obama DOJ Undercuts President's 'Recess' Appointment Stunt

    The White House announced Wednesday that President Obama would recess-appoint Richard Cordray as chairman of the new Consumer Financial Protection Bureau, and three new members to the National Labor Relations Board.

    There’s just one problem: The U.S. Senate is not in recess. The decision to appoint these officials nonetheless appears to contradict the Obama administration’s own stated position on the issue.

    According to Obama’s own Justice Department, the president is in the wrong. During a 2010 Supreme Court hearing, Chief Justice John Roberts and Deputy Solicitor General Neal Katyal had this exchange, in which the latter admitted that recess appointments may not be made within three days of adjournment:

    CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?

    MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board. If there are no other questions –

    CHIEF JUSTICE ROBERTS: Thank you, counsel.

    Heritage’s Todd Gaziano called Obama’s move a “tyrannical abuse of power.”  Gaziano explained earlier today that the Senate is not even in a recess, which would allow a recess appointment.

    The Constitution, in Article I, section 5, plainly states that neither house of Congress can recess for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate—consistent with the requirements of the Constitution—is having pro forma sessions every few days. In short, Congress is still in session, and no one in Congress is saying (or can reasonably say) otherwise. It does not matter a wit that most Members of Congress are not in town voting on legislation, because ending a session of Congress requires the passage of a formal resolution, which never occurred.

    Under Article II, section 2, clause 2 of the Constitution, the President has the power to fill vacancies that may happen during Senate recesses. That power has been interpreted by scores of attorneys general and their designees in the Department of Justice (DOJ) Office of Legal Counsel (OLC) for over 100 years to require an official, legal Senate recess of at least 10–25 days of duration. (There are a few outlier opinions, never sanctioned by the courts, that suggest a recess of six to seven days might be enough—but never less than that.)

    The President’s purported recess appointment of Cordray would render the Senate’s advice and consent role to normal appointments almost meaningless.

    The case in which Katyal made his comments about recess appointments appears below. The exchange with Chief Justice John Roberts appears on page 50.

    Posted in Scribe [slideshow_deploy]

    7 Responses to Obama DOJ Undercuts President's 'Recess' Appointment Stunt

    1. Bobbie says:

      What "people" has the president been elected to "serve" that he would serve them using America's tax dollars and not America as a whole? why would he consciously defy rules of protocol for the "people" he serves? the best way for him to serve the people would show him capable of his oath of office. after three years we have come to observe his disparagement for it while putting sacrifice on many needlessly. He has no plans to serve the people what is expected of him and he has no plans to live up to his oath of office. Please correct the situation. He doesn't have the discipline to lead this country with the strength she needs and proves it by ignoring the rules.

    2. Hildesius says:

      Obama thinks that he is Louis XIV of France: "L'État, c'est moi" ("I am the state"). He must be stopped before he wreaks further havoc upon the government of the States.

    3. Heather says:

      Does anyone believe these people care about the Constitution and the rule of law?

    4. Odie1956 says:

      The constitution is just a speed bump in the road to Obama's coronation as king.

    5. guest says:

      RE: APPOINTING WHEN THERE IS NO RECESS
      Q. Have these 4 been sworn in? Ever done it before and for what reason?
      Q. Has this administration attempted other power grabs & if so, is there a list – with specific references to executive orders, Friday night or weekend signings, acts of Czars, Agency or Departmental acts as to any circumventing Congress or the Constitution w. rules, regulations, policy?
      Q. Is this impeachable, have there been any other "I" offenses w. O, what's on that list if anything?

    6. Guest says:

      Sorry to be a pedant, but shouldn't that be, "It does not matter a WHIT" (emphasis mine)?

    7. eagle275 says:

      It won't take these guys long to put that list together…………..

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