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  • An Abuse of Power: President Obama's "Recess" Appointments

    President Obama’s stunning appointments of Richard Cordray to the Consumer Financial Protection Bureau and of three more bureaucrats to the National Labor Relations Board has been described by many observers as a serious blow to the Constitution and the separation of powers.

    In addition to the strong Constitutional argument against the President’s actions, there are several signs that the President’s interpretation of recess appointments has not always been the same. As Andrew Grossman points out that several weeks ago, President Obama signed a two-month extension of the payroll tax cut which had been passed by the Senate in a pro forma session. As Grossman explains if the Senate was actually on recess, it couldn’t have passed the bill and the President couldn’t have signed it.

    And as the Washington Examiner noted, President Obama’s own deputy solicitor general admitted recess appointments can’t be made with the Senate in session during oral arguments before the Supreme Court last year.

    It would seem the President is trying to have it both ways. Check out our newest video which highlights these are other points to explain why the President’s decision was unconstitutional.

    Posted in Featured, Ongoing Priorities [slideshow_deploy]

    36 Responses to An Abuse of Power: President Obama's "Recess" Appointments

    1. Teri Newman says:

      Ok, we all know he's way overstepped his authority. The question now is: WHAT ARE THEY GOING TO DO ABOUT IT? If I were in Congress right now, my staff would be working overtime drawing up articles of impeachment to bounce this dictator wannabe.

      • Jeff, Illinois says:

        Teri, I think point for point of what you stand for could be argued against, if you were ever willing to be debated thoughtfully. One thing speaks volumes from your website, TV shows . . FOX News. That says it all!

        • Jason says:


          Please tell us why you think the Senate was in recess?

          • Jeff, Illinois says:

            Please tell me what was being accomplished while the Senate was not in recess or what a working day in the Senate looked like during such periods. When gamesmanship is "abused" beyond any rational sense of reasonable, something had to give. And to get what done . . oh yeah . . appoint a head to a comission that had already been approved and was intended to protect the consumer . . (( Wow . . how horrible ))! Two other points: Scott Brown from the GOP thought the move ultimately was acceptable. And in general if what the president did was / is a problem take him to court. The GOP won't do that for two reasons 1) they more than suspect they'd lose or that the case would never be heard 2) they want to do the same thing when and if they gain the presidency .

            • Lachlan Markay lmarkay says:

              "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting." -US Constitution, Article 1, Section 5

              "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." -Obama DOJ's Deputy Solicitor General Neal Katyal

              So: Per the Constitution the House must vote if the Senate is to recess for more than three days. It did not. It is the Obama administration's own legal opinion that recess appointments cannot be made within three days of adjournment. Ergo, by this administration's – not Fox News's – standard, the appointments were illegal.

            • Lachlan Markay lmarkay says:

              Also, your statement that the GOP would take Obama to court if they thought they could win is plain false. In order to have standing to sue, one must be able to demonstrate tangible damages. The only parties that would be on a solid legal footing in a lawsuit would be the companies that must endure losses at the hands of a constitutionally errant NLRB. Hence, no one will likely have legal standing until the new NLRB issues its first rule and that rule goes into effect.

            • Jeff, Illinois says:

              . . thus the statement . . "or the case would never be heard"

            • Lachlan Markay Lachlan says:

              Wrong again. The case would be heard, the GOP would argue, among many other points, that they have standing for whatever reason, and they would likely lose on the grounds that they don't. If they decide not to sue because of that likely outcome, saying "the case won't be heard" is wrong. There won't be a case!

              But I digress. You've drawn me into semantics – though I do take that as a tacit admission of the erroneousness of your original comment and its "Fox News" quips.

            • Jeff, Illinois says:

              Skipping pass the verbal ping-pong . . President Obama is OUR president, and I believe is a thoughtful earnest leader. The context for the whole recess appointment debacle needs to be considered. The GOP refuses to affirm any aspect of his administration's efforts PERIOD. We had the "Tea Party" downgrade, the refusal to support infrastructure building, the ridiculously disengenuous position of the House Repubs. on the middle class tax extension, all preceded by Mitch McConnell's stated NUMBER 1 goal .. to guarantee that Obama would be a one term president. How supportive . . how American . . how bipartisan! Obama has simply had enough and (rightfully so). Thank God he's willing to take a stance against relentless obstructionism. Even so, the GOP will continue to work to demonize his every effort to regain political power. Even if the GOP has philosophical differences, wouldn't it be better to disagree agreeably, give him some support here and there. Show the nation that when 50 odd percent of the people vote for someone, they're not all buffoons. What's the fear?

            • Jeff, Illinois says:

              The previous administration put us in two massive ground invasions, and watched the economy tank. Give this president some support!!!! Stop believing that he's some manchurian candidate. I'm amazed at how poor a judge of character contributors are on this website. And I'm discusted with endless fault spinning.

        • Jim PA says:

          God forbid a mainstream journalism outlet like FOX news reports the stuff you would rather not be reported Jeff. Your tired FOX News talking point is not a logical rebuttal, just a knee-jerk liberal "insult". Why is FOX bad? Because they report on things inconvenient to your side? Why was FOX the only one to report that our ever-ignorant DOJ dropped the voter intimidation case against the new black panthers in Philadelphia? They're the only one reporting truths about Fast & Furious – Sharyl Attkisson of CBS was but she's now mysteriously disappeared from on-air and has been working the blogs. Wonder why. You malign FOX because they embarrass your corrupt gangster govt heroes when they deserve to be embarrassed. If not for FOX, this nation would be completely in the dark. So go ahead please, and debate thoughtfully. Tell us why we should only have news through a liberal filter. Go.

          • jammin2011 says:


          • Jeff, Illinois says:

            Jim if you would only make the effort to get both sides of the news you might then take the edge off your emotion driven stance.

            • Bobbie says:

              Jeff, you're drowning in fox news! oh no! both sides might nail you in the middle! How can you take both sides in? oh that's right, you can't so no one else should? poor little, Jeffy. Is it lonely where you are? Probably NOT! Ignorance breeds like rabbits. Those who want the truth will come to know it.

          • americanwoman2 says:

            I am sorry to tell you this, you can fact check or watch the full conversations on the video's FOX takes out of context, habitually, and you will see more of flat out lies and deception put out on their air waves. Birther's, death panels, Muslim, Really! When in rhe civilized US have you seen a protest where guns were toted, NEVER! When this President was talking about assault weapons and need of. I have deer hunted from a teenager to about ten years ago, never used a AK-47. What going to be lazy and field dress it, instead of using your knives. Come on, there is too many children being mowed down by these assault weapons. Why don't we clean up our streets as part of fixing our infrastructure.

      • Dick says:

        I think the repub majority in the house is afraid any such effort would be branded as racist in the press and further energize the leftist and independent base this guy already has. And I think barry is counting on it.

      • Frank T Mamat says:

        What is Congress doing about it? what is the Heritage FOudnation doing about it?

    2. coddeau says:

      If only the Congress could have allowed an up or down vote on Cordray, the President would not be forced to do this.
      This agency is created through law passed through Congress and signed by the President, why does GOP suddenly want to rescind on this?

    3. Brian says:

      What about this?

      Recess appointments are authorized by Article II, Section 2 of the U.S. Constitution, which states:

      The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

    4. Tim says:

      I would hope that Heritage woud put full court press on this issue. Clearly the President made these appointments illegally, being unconstitutional. Leaving it up to the courts to resolve means Congress punted on its requirement to "uphold the constitution as they said they would in taking their oath of office. This is a fundamental fundational issue and should be given the full force of those of us that u-phold the constitution.

    5. Mike, Wichita Falls says:

      The Great One, Mark Levin, also pointed out in Article 1, Section 5 that one chamber cannot adjourn for more than three days without the consent of the other. While the House was waffling on approving the Senate's short-term payroll tax extension or standing by their year-long version, the Senate had already left town more than three days without the House's consent. Boehner wanted the full Senate back for debate, but only a handful stayed behind for their pro forma session which still counts.

      If you say Congress is in session, the President violated the Constitution. If you say Congress is in recess, the Senate violated the Constitution. Just another normal day in D.C.

    6. Scot - New Jersey says:

      Jeff from Illinois will not respond…how can he? He has nothing. The appointments were illegal, there is no alternate interpretation that would make them legal.
      Now…who has the ball to recind the appointments? DOJ…pretty sure nothing will happen there…Congress? That would require a spine…sorely lacking so far…the Senate…they can't even pass a budget.

      What it comes down to is the election…the only way we can undo the damage that has been and continues to be done, is to elect officials…AT EVERY LEVEL OF GOVERNMENT! that believe in the Constitution of the United States and are willing to fight for it.

    7. dan schmutz says:

      president Obama has openly bypassed the rule of law and the congress should promptly make an issue of his actions.

    8. Docfreeman says:

      Now let us look at some facts.
      Presidents oath of office:
      “I Barrack Hussein Obama do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to be best of my Ability, preserve, protect and defend the Constitution of the United States.”
      1. Obama and Eric Holder have refused to uphold the Marriage Act. Because they do not want to.
      2. Obama has not honored his oath of office because he did not request that Eric Holder prosecute the NBPP over voter intimidation.

    9. Docfreeman says:

      3. Obama Blatantly Ignores the Constitution
      Word leaked that President Obama would "recess" appoint Richard Cordray to head the Consumer Financial Protection Bureau, even though the Senate is not in recess. Created by the Dodd-Frank law, the CFPB wields tremendous regulatory powers with almost no checks or balances. Basically, President Obama ignored Congress and the Constitution to advance his radical liberal agenda and appoint a new "super bureaucrat."

      4. Obama violated Constitution by not getting Congressional authority to launch war against Quaddafi

    10. Docfreeman says:

      5. The Obama Administration today announced a virtual amnesty-by-decree for hundreds of thousands of illegal aliens, whose deportations will be “indefinitely delayed”. In addition, Obama finally announced a jobs program – but for ILLEGAL ALIENS, not citizens – as those 300,000 illegals will also become eligible for “work permits“.
      Article IV Section 4 of the Constitution of the United States of America
      The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion and on Application of the legislature, or of the Executive (when the legislature cannot be convened), against domestic violence

      • Kath says:

        That is also 300,000 votes he is going to slip through. That is how he won the last election !!! Check it out in Las Vegas !!!

    11. Docfreeman says:

      6. President says he won’t abide by spending bill he signed
      When the president of the United States signs a bill into law, it’s expected that he will abide by it. That’s not the case with President Obama, who has a sudden interest in novel legalistic interpretations getting him off the hook from laws he doesn’t like. High-level White House appointments aren’t confirmed by the Senate but are central to implementing Mr. Obama’s liberal agenda. Lawmakers specifically blocked funding for salaries and offices for four of his nine czars: health care (who coordinates Obamacare), automobile industry (“car czar”), urban affairs and climate change. The president protested that defunding those positions “could prevent me from fulfilling my constitutional responsibilities, by denying me the assistance of senior advisers and by obstructing my supervision of executive branch officials.” Thus, he’s going to interpret the law as he sees fit.

    12. Docfreeman says:

      7. Selective Enforcement of Federal Law: Rather than push Congress to repeal federal laws against marijuana use, Obama’s Justice Department decided in 2009 that it would simply stop enforcing those laws. Proposals to legalize marijuana at the federal level consistently fail to win congressional approval, but the Obama Administration decided to implement its agenda in spite of that lack of legislative support. Thus going around Congress as usual.
      8. Regulating the Internet: Obama’s Federal Communications Commission (FCC) decided late last year to assume authority over Internet regulation despite a ruling by a federal appeals court explicitly denying the commission that authority. In contradiction of the court’s ruling, the FCC voted 3–2 in December to pass the first-ever federal regulations on Internet traffic. The House has voted to block those regulations, but Obama has pledged to veto any such legislation.

    13. KellyV says:

      Let's inject a little history here, shall we? Total recess appointments made per President:

      Ronald Reagan: 240
      George H.W. Bush: 77
      William Clinton: 140
      George W. Bush: 171
      Barack Obama (to date): 32

      Clearly an unprecedented abuse of Constitutional authority by Obama. Only… y'know, not.

      • Bobbie says:

        the amount of recess appointments isn't the issue. grow up.

        • KellyV says:

          My apologies, I forgot we're supposed to be focusing on the fact that the Senate was in "pro forma" session, which anyone with two brain cells to rub together realizes is a bogus act of gamesmanship no matter which side is pulling it. It was crap when Reid did it under George W. Bush, and it's equally crap now. Kudos to Obama for treating it (and disregarding it) as the obstructive ruse it clearly is. If it goes to court it would undoubtedly get shot down, just like in 2004 when Ted Kennedy challenged just such an appointment made by Dubya.

          Look, both sides of the aisle are awful, and often in quite similar ways. I'm here at Heritage in an attempt to take my liberal blinders off, and I'm mainly seeing people happily stuck in the conservative echo chamber instead. We need to rise above all this partisanship as a nation, or there won't be much of a nation left to squabble over.

          • Lachlan Markay lmarkay says:

            So you're upset that the GOP used a gimmicky pro forma session, but you're not upset that Obama used a gimmicky recess appointment to install federal officials? You should note that recess appointments were intended to be used in emergenies (real emergencies, not "waaaah Congress won't do what I tell it to" emergenies) when it could take three weeks for a legislator to return to the capital for a session of Congress. It was never meant as a way to circumvent the legislative branch. If you're upset that pro forma sessions are being abused, you had best also be upset that recess appointments are being abused as well.

            And don't give me the "obstructionist" line. Two of the nominees to the NLRB were submitted to the Senate 2-3 weeks before Obama decided he'd waited long enough. The Senate committee handling the nominations didn't even have a chance to conduct routine background checks, to say nothing of a hearing or – heaven forbid – a vote. The GOP wasn't obstructing them – they never got the chance!

            And let's not forget that the president's duty is not to do what he thinks is right, it is, first and foremost, to uphold and protect the Constitution. So if the president is implying that he only violated the Constitution because Congress wouldn't do what he wanted them to, then, sorry, but that makes him derelict in his duty to the country.

            These non-recess recess appointments were blatantly in violation of the Constitution (see my reply to Jeff above), unlike pro forma sessions. If the latter are so bad, then maybe a constitutional amendment is necessary. But unless and until one passes, saying "they're not doing anything" or "it's just a gimmick" is irrelevant – it's legal, unlike Obama's unprecedented power grab.

    14. Scot - New Jersey says:

      As long as Congress was in recess, this appointments were legal…that's the real issue here…stay focused.

    15. Bill says:

      Obama compares with President Andrew Johnson who was impeached (but not convicted) for bypassing a Republican Congress with his own policies and appointing and firing people without Senate approval. He demonized Republicans and appealed to the people. Strange how similar this is and yet no one is talking about it. Lis Wiehl on Fox said that Obama’s transgressions don’t rise to high crimes and misdemeanors and yet there is this precedent. President George Washington in his Farewell address foresaw all this by stating that politicians shouldn’t put party before patriotism or the Constitution will be usurped.

    16. O.L.Shepard says:

      Who pays these illegally appointed SCZARS? Why do our Senators and Representatives allow this to happen?We the people over pay them to see that this injustice can not happen. What can we the people do to stop this? WE NEED A COMPLETE OVERHAUL IN THE HOUSE AND SENATE! TERM LIMITS, RETIREMENT COMPENSATION, INSURANCE COVERAGE ALL NEED TO BE CHANGED.

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