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  • Even Obama Agrees that the Senate Was Not in Recess

    President Barack Obama shakes hands with Richard Cordray (R) after announcing that he has appointed Cordray to head the Consumer Financial Protection Bureau during a trip to Cleveland, Ohio January 4, 2012. REUTERS/Kevin Lamarque

    Defenders of President Obama’s unprecedented “recess” appointments of Richard Cordray to the new Consumer Financial Protection Bureau and three members to the National Labor Relations Board argue that the Constitution is vague on when Congress is in session and that the President can therefore take a “functionalist” approach that considers whether the Senate is available to vote on nominations.

    Yet even the President doesn’t buy that argument.

    Proof is that on December 23, President Obama signed a two-month extension of the payroll tax cut.  He said that Congress passed the bill “in the nick of time” and that it was “a make-or-break moment for the middle class in this country.”  The compromise extension really did come through at the last minute, but in a different sense: most members of the Senate had already departed Washington, D.C.

    That’s why on December 17, the Senate agreed to an order instituting “pro forma” sessions, of the kind the President now claims are actually recess.  (See the PDF of the Congressional Record here.)  But it was at one of those sessions, on December 23, that the Senate passed the payroll tax cut extension that the President signed into law later that day.  (Again, see the Congressional Record entry.)

    Of course, if the Senate was actually on recess that day, it couldn’t have passed the bill, and the President couldn’t have signed it into law.  (The President has not claimed—at least, not yet—that he can enact laws that have not passed Congress.)  But in that case, the President chose to respect the Senate’s own view as to whether it was open for business.

    And he was right to do so.  The Constitution empowers the Senate to “determine the rules of its proceedings,” and that’s just what the Senate did by scheduling pro forma sessions at the end of the year.  That much of the Senate was out of town is irrelevant, as passage of the tax cut extension demonstrates.  Indeed, the Constitution specifically provides that, although it states that “a majority . . . shall constitute a quorum to do business” in the Senate, “a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members.”  In this way, the Constitution specifically authorizes rump sessions that, if necessary, can recall the rest of the body to conduct vital business.

    Nothing even suggests that the President gets to overrule Congress on this point.  To the contrary, the Constitution prevents either chamber from adjourning for more than three days “without the consent of the other” and, while it requires that all bills and resolutions be presented to the President for signature or veto, carves out a sole exception for votes “on a question of adjournment.”

    It is little surprise that an Administration which finds the Constitution flexible enough to support an individual mandate for individuals to purchase health insurance would also argue that its seemingly clear text is sufficiently pliable to empower the President to overrule Congress’s decision that it’s actually in session.

    But to make that argument less than two weeks after embracing the very opposite position, that takes chutzpah!

    Posted in Featured [slideshow_deploy]

    23 Responses to Even Obama Agrees that the Senate Was Not in Recess

    1. doowop says:


    2. I declare I will be in recess on April 15, and therefore unable to pay my taxes to King George Hussein Obama's gub'ment.

      d(^_^)b http://libertyatstake.blogspot.com/
      “Because the Only Good Progressive is a Failed Progressive”

    3. sbenard says:

      Obama has become a dictator! Emperor Obama! All bow in abeyance! Must we call him Caesar now, too?

    4. J. Cressman says:

      At this point, any true American should demand his resignation or impeachment. He has broken his oath of office to upload the Constitution by deliberately and, one might argue, maliciously violating the Constitution in this unprecedented and illegal abuse of Executive power.

      Why this isn't in the news everywhere is a sad, sad testement to how much like complacent little sheep most Americans have become. It strongly parallels Rome and the abuses of power Caeser was able to execute so long as the Romans got to watch their gladitorial games and enjoy the fat of the land. Same thing today – give people their sitcoms and sports, and they stick their heads in the ground and pretend these abuses are not happening.

      And the sad thing is, for all his bluster and critism of Bush… Obama has done more to destroy this country in the last 3 years than he ever could have accused Bush of.

      • MadMadMom says:

        I did, in an email to my Senator. But I'm not holding my breath that he'll actually DO anything – or even email me back. And since he hasn't bothered to grace us with his presence at any town hall meetings since his election, I won't get the opportunity to verbally demand he uphold the Constitution he swore an oath to.

        And my Senator is actually considered to be one of the 'good' ones and ranked quite high by conservative PAC's.

    5. VoterAnn says:

      Unconstitutional behavior from this president! What a shock! If this truly is yet another instance of "abuse of power", what is to prevent Congress (if the members can find their collective backbones) from impeaching him? If they do NOTHING, it's another symptom of dysfunction in Washington – and law-loving, honest Americans will be even further enslaved to this overarching federal government.

    6. Not Likely says:

      You ignore the difference between a Senate with enough members to actually pass legislation and perform their duties on Dec 23 and the two member gaveling team that was in place Jan 3.

      • Koozebane says:

        And you ignore the difference between the Senate determining its own rules and a President who takes it upon himself to dictate whether those rules are valid and convenient enough for him to accept.

        If the Senate decides two guys are enough to be in session, that is entirely their right to do so…not the President's…..or yours.

      • DNB says:

        Did you read this part of the column? "The compromise extension really did come through at the last minute, but in a different sense: most members of the Senate had already departed Washington, D.C."

        There was not a quorum of 51 Senators present on December 23rd when the Senate passed a two-month extension of the payroll tax cut.

        It's an end run around the Constitution by Obama and if this had been done by a Republican, the mainstream media would have been howling.

      • Jill says:

        According to the Constitution, that "two member gaveling team" has the right to call the entire body back to DC.

    7. Steves says:

      Funny how the right wing posters here are soooo concerned about the Constitution that they have never read and certainly don't understand. If you really care about the truth, go to a real news outlet (NY Times or USA Today or Washington Post are a few examples) and you will find plenty to explain why President Obama was correct in making these appointments (the GOP has been thwarting the Constitution by using appointment holdups to stop laws that were passed by a full Congress and signed into law by the President).

    8. disagree says:

      Before we impeach the president, how about kicking all of Congress out? If they were in any normal job most of them would be fired for their total lack of performance. If they are going to hold office and ADMIT with pride that they won't let anything pass or get anything done just to spite Obama, then they should be ashamed. Truly. Whatever you believe–republican, democrat or independent, the behavior is childish and harmful.

      • Bobbie says:

        agree, with the understanding we do not know what goes on behind closed doors? the way the president blatantly lies to the public only reaches those that know which leads to believe his crew is pretty hard to work with as childish and destructive as they are, they are ALL still adults which makes it more difficult.

    9. stlpm636 says:

      First, I will admit to extreme ignorance of the ins and outs of politics (and I'm damn proud of it, too, as politics is a dirty ugly reality). According to my VERY limited information and knowledge, GW did the same thing when he was in office … appointing several folks to positions while everyone was on recess. And, regardless of who you are and what party you are affiliated with, we all know that "pro forma" sessions are BS all the way around. If the members of the Senate and the House are not in town, and business as usual is suspended, then business is suspended, period. Either the payroll extension AND the appointment of Mr. Cordray stand, in light of the constitutionality of an active "pro-forma" session, or they are BOTH null and void and "pro-forma" sessions should be outlawed.

      The lack of respect for the American people that is continuously displayed by BOTH parties, the President, the House and the Senate, as well as the majority (if not all) of the political experts is so amazingly disheartening, frustrating and disturbing.

      • REM1875 says:

        Were you of the same opinion when the democrats invented this move to block Pres Bush's appointment ?He did not appoint while the pro-forma sessions were in order or the media would have loudly demanded his impeachment.
        A certain senator from Ill did not object when the democrats did this

    10. Tom Godwin says:


      The real reason is that the old bureaucratic Republican (GOP) leaders have forfeited their constitutional conservative heritage and are destroying those, including the ”Tea Party”, that are trying to regain it.

    11. Adam says:

      In addition to what Not Likely said, the author also twists the functionalist approach around. The functionalist approach looks past the label to see if the Senate is actually capable of performing its duties, which it is if it is actually legislating. It doesn't matter if the Senate calls a session a "pro forma" one. The so-called pro forma session in December witnessed the Senate legislating, so it was available. The rest of the pro forma sessions have seen no legislating, as the Senate intended. Under the president's view then, the Senate, during that December session, came out of recess to pass the payroll tax cut extension, and then went back into recess. When the Senate was in session in December, I doubt the president would have tried to make any recess appointments. Maybe this point — that there was a difference between the Dec. and Jan. sessions — is way too sophisticated for the Heritage Foundation?

    12. coddeau says:

      They were in recess, any legal opinion would tell you that. Recess appointments have been done umpteen times. Why as soon as Obama does it it is impeachable?

      What is wrong with following through on the law creating this agency and making it work for Americans, when Congress refuses?

      • allen says:

        it is not going to work nomatter how much hope and change you throw at it

      • Bobbie says:

        coddeau, why did he appoint members that lead to controversy in various areas? Americans don't have to look to government to make "laws" for it to work for Americans as the government is an expense to us that shows conflicts of our interest and are a control of their own beyond the control of Americans.

    13. Mike says:

      Can FOUNDRY please NOT do the same as I saw done one CNN and NBC sites and indicate that Cordray is the person on the right side of the photo. It make it appear to the unknowing (although not far off mark) that Cordray is a Republican.

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