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Are Obama’s Recess Appointments Unconstitutional? Probably NotFrom OutsidetheBeltway.com QuoteThis issue has not been dealt with by the Courts on many occasions. Most recently, it occurred in 2004 when President Bush used a Recess Appointment to name William J. Pryor to the 11th Circuit Court of Appeals. Lawsuits were filed challenging the appointment, but the challenge was ultimately unsuccessful: During the presidency of George W. Bush, Democrats actively filibustered the confirmation of federal appeals court nominee William Pryor, largely because of the conservative reputation he gained while serving as the attorney general of Alabama. A Republican-led Senate coalition fell seven votes shy of invoking cloture to end this filibuster. Following this defeat, Bush circumvented the Senate by recess appointing Pryor, during a ten-day Senate recess in February 2004. Outraged Democrats, led by Senator Ted Kennedy (D-MA), filed an amicus curiae brief in support of a lawsuit that challenged the legality of Pryor’s appointment. Kennedy asserted that it was unconstitutional to make recess appointments during the short intrasession recesses that occur during a congressional session. Eight months later, the Eleventh Circuit Court of Appeals rejected Kennedy’s challenge, ruling that the Constitution “does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clauseâ€The Supreme Court refused to take up the appeal of the case, and the decision still stands as good law. So, as a matter of law, it does not appear that the President acted unconstitutionally at all. Whether he’ll pay a political price for it is, of course, a different question. There will no doubt be legal challenges filed over these appointments, but it seems unlikely to me that whatever Court happens to hear them is going to go any further than the 11th Circuit did just 7 years ago. For one thing, there is no hard-and-fast definition of “recess†in the Constitution. For another, the Courts simply aren’t going to involve themselves in what is ultimately a political dispute between the two other branches of government. http://bit.ly/xQVq6vSomeone else earlier posted a portion of the constitution that stated that if it's good for the country, the President can override Congress (or something to that effect). I looked for the post but couldn't find it; hopefully, they'll see this thread and post that.
This issue has not been dealt with by the Courts on many occasions. Most recently, it occurred in 2004 when President Bush used a Recess Appointment to name William J. Pryor to the 11th Circuit Court of Appeals. Lawsuits were filed challenging the appointment, but the challenge was ultimately unsuccessful: During the presidency of George W. Bush, Democrats actively filibustered the confirmation of federal appeals court nominee William Pryor, largely because of the conservative reputation he gained while serving as the attorney general of Alabama. A Republican-led Senate coalition fell seven votes shy of invoking cloture to end this filibuster. Following this defeat, Bush circumvented the Senate by recess appointing Pryor, during a ten-day Senate recess in February 2004. Outraged Democrats, led by Senator Ted Kennedy (D-MA), filed an amicus curiae brief in support of a lawsuit that challenged the legality of Pryor’s appointment. Kennedy asserted that it was unconstitutional to make recess appointments during the short intrasession recesses that occur during a congressional session. Eight months later, the Eleventh Circuit Court of Appeals rejected Kennedy’s challenge, ruling that the Constitution “does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clauseâ€The Supreme Court refused to take up the appeal of the case, and the decision still stands as good law. So, as a matter of law, it does not appear that the President acted unconstitutionally at all. Whether he’ll pay a political price for it is, of course, a different question. There will no doubt be legal challenges filed over these appointments, but it seems unlikely to me that whatever Court happens to hear them is going to go any further than the 11th Circuit did just 7 years ago. For one thing, there is no hard-and-fast definition of “recess†in the Constitution. For another, the Courts simply aren’t going to involve themselves in what is ultimately a political dispute between the two other branches of government. http://bit.ly/xQVq6v
sabrina 1 (22,851 posts) Profile Journal Send DU Mail Ignore2. Thanks. Claims are being made that it was unconstitutional but I could not find anything thatconfirmed that. And if Bush was able to do it, it's typical Republican hypocrisy to be whining about it now, if they did not do so then.
Response to justiceischeap (Reply #4)Thu Jan 5, 2012, 05:09 PM onenote (19,352 posts) Profile Journal Send DU Mail Ignore6. I don't think that bit you are looking for actually existsI've read the constitution a few times in my day, and if there is a provision that gives the President power to override Congress because he unilaterally thinks its in the interest of the country to do so, I've missed it every time. There is a provision that could have been put in play with regard to the recess appointment impasse but wasn't. The Constitution gives the president the authority "on extraordinary occasions" to "convene both Houses, or either of them; an d in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper." So, imagine the following scenario. The House, controlled by the repubs, adjourns for three days at a time in an effort to prevent the Senate from adjourning for a longer time (relying on the provision in the Constitution that bars either House from recessing for more than 3 days without the other's consent). The Democrats in the Senate, deciding that the House 3 day recesses are a sham, go ahead and recess for a longer period of time. The President, citing his authority to adjourn both houses and set a new date for reconvening when the two houses are in disagreement as to the time of adjournment, adjourns both houses for two weeks, and then uses that extended recess as the basis for making recess appointments. Now that would have been fun to watch!!
Spazito (23,645 posts) Profile Journal Send DU Mail Ignore8. This is Section 2 of Article II - The Executive Branch...Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. 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. http://www.usconstitution.net/const.html#A2Sec1 This is all I can find that addresses the issue of appointments and can find nothing that gives the President the power to override Congress.
justiceischeap (6,201 posts) Profile Journal Send DU Mail Ignore13. I think they shouldn't have rules that impede the governing of our nationjust to play political games. I don't care that it was Harry Reid who started it."There's something deeply wrong with putting the rights of a minority up to a majority vote" -Evan Wolfson Reply to this postBack to top Alert abuse Link here Permalink
Response to justiceischeap (Reply #13)Thu Jan 5, 2012, 06:58 PMProgressiveEconomist (4,102 posts) Profile Journal Send DU Mail Ignore16. 'I don't care that it was Harry Reid'who came up with the 'pro forma' session strategy-- Yes, Democrats bamboozled Bush into not making any more recess appointments, just the way President Obama bamboozled Boehner into getting the debt ceiling raised, with deceptive budgeting proposals. Republicans are single-minded but frequently slow-witted!
When a republican president does this it will again be unconstitutional. Don't worry.
And hopefully, said (R) President will throw it right back in their faces. Karma's a bitch.
