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  • Grassley Not Buying DOJ's Non-Recess Appointment Apologia

    Calling the president’s illegal non-recess appointments “an escalation in a pattern of contempt for the elected representatives of the American people,” Sen. Chuck Grassley (R-IA), ranking Republican on the Judiciary Committee, dismissed a Justice Department memo on Thursday that sought to lend retroactive constitutional weight to the president’s move.

    Grassley hinted at Senate “action to check and balance” the president’s power grab, though he declined to go into specifics.

    The DOJ Office of Legal Counsel’s memo, also debunked by Heritage’s Todd Gaziano, claims that pro forma Senate sessions do not preclude the president from unilaterally appointing federal officials. That legal opinion contradicts statements by former Obama Administration Solicitor General Elena Kagan – now a Supreme Court justice – and her deputy, Neal Katyal.

    The memo was released on January 6, two days after Obama non-recess-appointed Richard Cordray as head of the Consumer Financial Protection Bureau, meaning the president did not wait for DOJ’s official legal opinion before moving forward with the appointments.

    Here’s what Grassley had to say in a news release:

    The Justice Department opinion is unconvincing.  Its conclusion is at odds with the text of the Constitution and the administration’s own previous statements.  It fundamentally alters the careful separation of powers between the executive and legislative branches that the framers crafted in the Constitution.  It relies on no Supreme Court decision and many conclusions are unsupported in law or the Constitution.  It recognizes that the courts might well disagree.  And it flies in the face of more than 90 years of historical practice.  Taken together with a laundry list of other assertions of the power to act without Congress, this is clearly an escalation in a pattern of contempt for the elected representatives of the American people.  The Senate will need to take action to check and balance President Obama’s blatant attempt to circumvent the Senate and the Constitution, a claim of presidential power that the Bush Administration refused to make.

    Check out Gaziano’s response for a more detailed look at DOJ’s legal argument. Here’s an excerpt:

    The not-too-deft argument in the OLC memo is that the President is free to take the Senate at its word that it would not conduct business during any period it sees fit except that the basis for that assumption also applied from Dec. 17 to Jan. 3. With unanimous consent, such business clearly can and was conducted during the period of time that OLC ignores.  Moreover, those facts defeat the repeated finding in the opinion that the Senate is not available to receive messages from the President and act on them.  The action on Dec. 23 proves beyond any doubt that they can receive such messages, loudly and clearly, and can act when they want to do so.  Their desire not to act cannot be converted so easily into an inability to do so.

    Even more brazenly, the opinion states on page 21 that: “even absent a Senate pronouncement that it will not conduct business, there may be circumstances in which the President could properly conclude that the body is not available to provide advice and consent for a sufficient period to support the use of his recess appointment power.”  There is no limit on this open-ended assertion of authority of the President to determine when the Senate could properly act on his nominees.

    Posted in Scribe [slideshow_deploy]

    6 Responses to Grassley Not Buying DOJ's Non-Recess Appointment Apologia

    1. Bobbie says:

      the good of America is not buying it either, Mr. Grassley! there has to be accountabilities and we have to know what Americans the President is serving that he would slap Americans in the face with his acts of illegal conduct and call it good?

    2. Capt-Dax says:

      The U. S. Constitution: Article 1, Section 5 – Membership, Rules, Journals, Adjournment

      Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

      Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

      Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

      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

    3. Thomas Oliver says:

      It seems clear to me that we are no longer a nation governed by laws, but by regulations, composed by Czars, appointed by an insatiably power-hungry President.

    4. j7n2c9 says:

      Wake Up America! This communist neighborhood organizer's goal is to destroy America by taking away our freedoms and destroying the Constitution. REQUIRED READING Barack Hussein Obama aka Barry Sorento – Blueprint – Culture of Corruption – Demonic – Obama Nation – Crimes Against Liberty – The Manchurian President – The Roots of Obama’s Rage – Revolt! – Control Freaks – Liberty and Tyranny – The Shadow Party – Obamanomics – CONDUCT UNBECOMING

    5. AT least one member of the Senate has read the Constitution and recognizes the beauty of separation of power in this government.

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