Obama Doubles Down on Lawless Czar Appointment

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On January 4, 2012 President Obama announced four unilateral appointments, citing the Recess Clause of the Constitution. These involved the appointment of the first director of the new Consumer Financial Protection Bureau, former Ohio Attorney General Richard Cordray, and appointees to fill three vacancies on the National Labor Relations Board. Predictably, the Obama Justice Department ratified his abuse of his constitutional recess appointment power. In a legal memo dated January 6, 2012, Virginia A. Seitz, the assistant attorney general for the Office of Legal Counsel, concluded that the Senate’s “pro forma” sessions counted as recesses even though the Senate did not regard them as recesses. Why? Because the president says so.

Seitz claims that if during any period the Senate cannot actually conduct business on the spot and is “unavailable to perform its advise-and-consent function,” the president is free to deem the Senate in recess and make his own “recess” appointments. The absurdity of such logic means that any time between Friday and Monday when the Senate often does not conduct official business, the president can make all of the appointments he wants to.

Seitz admits that the practice of holding “pro forma” Senate sessions that were not deemed recesses by the Senate began when the Democrats controlled the Senate and a Republican occupied the White House:

Beginning in late 2007, and continuing into the 112th Congress, the Senate has frequently conducted pro forma sessions during recesses occurring within sessions of Congress… The Senate Majority Leader has stated that such pro forma sessions break a long recess into shorter adjournments, each of which might ordinarily be deemed too short to be considered a “recess” within the meaning of the Recess Appointments Clause, thus preventing the President from exercising his constitutional power to make recess appointments.

Seitz even quotes a 2007 statement by Senate Majority Leader Harry Reid (D-Nev.): “[T]he Senate will be coming in for pro forma sessions . . . to prevent recess appointments.”

Reid is still the Senate Majority Leader under whom the very same pro forma procedure is being followed this time around. The only real difference – there is now a Democrat occupying the White House.

Seitz tries to draw another distinction between then and now. In 2007-2008, she says, the Senate really wanted to block recess appointments by using the pro forma sessions. This time, Seitz argues, the House of Representatives made the Senate do it by refusing to pass any resolution to allow the Senate to recess or adjourn for more than three days:

While this practice was initiated by Senate action, more recently the Senate’s use of such sessions appears to have been forced by actions of the House of Representatives.

Under the Constitution, as Seitz acknowledges, “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” (U.S. Const. Art. I, § 5, cl. 4 ). But Seitz tries to turn this provision around to her favor by arguing that, since the House prevented the Senate from adjourning for more than three days even if it wanted to, the president can help the Senate out and decide for himself that the Senate was really on an extended recess.

Seitz then proceeds to the heart of her legal argument in support of Obama’s “recess” appointments.  She states that under a test first articulated by Attorney General Daugherty in 1921, and subsequently reaffirmed and applied by several opinions of the Justice Department, the “constitutional test for whether a recess appointment is permissible is whether the adjournment of the Senate is of such duration that the Senate could ‘not receive communications from the President or participate as a body in making appointments.’”

Seitz proceeds to take quotes out of context from the Daugherty opinion, which she uses to support her argument, such as the following:

[T]he president has broad discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the Senate.

Seitz neglects to mention that Attorney General Daugherty was dealing with the issue of whether the president can make appointments during a recess, no matter how long, if the recess occurred within a single session. Daugherty concluded that a 28-day intra-session break clearly did constitute a recess for purposes of the Recess Appointments Clause. However, he wrote that a break “for only 2 instead of 28 days” did not constitute such a recess. “Nor do I think an adjournment of 5 or even 10 days can be said to constitute the recess intended by the Constitution.”

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  • Jim

    commissar would be a better word

  • umustbkidding

    This is an election year and Obama is doing this????

    Does this mean that elections no longer matter – he's not leaving period.

    Or does it mean that he is soooo delusional that he thinks everyone will forget?

    In either case, is anyone going to do anything about it?


  • umustbkidding

    Why is the Tea Party no longer on the map?

    I hope we the people are still going to them in droves.

  • Texasron

    When the hell will the Republicans take legal action against our Marxist president? The Democrats are not following the constitution and are laughing at the rest of us. No budgets for the last 3 years, ignore recess requirements, etc.

    • umustbkidding

      It seems to me that they MUST be part of the problem. They think the Dems will treat them like team players. Suckers.

      A couple of years ago I wrote my congressman Charlie Dent. I told him that pointing out what the ramifications are for all the Marxists style legislation the Dems are pushing, would be like shooting fish in a barrel for a Republican who – should – be the opposing party of the Democrats. Instead all we got was silence.

      I'm a realist, they are part of the problem.


  • wsk

    Republicans are such cowards! They won't lift a damn finger because they believe in "civil discourse" and don't know how to act like winners.

    • Maxie

      Here's the problem of long standing. The GOP is consists of two factions, the Ruling Elite RINO's (the (Majority) and the Constitutionalist conservatives (the Minority). The latter are principled, law & order people while the former are the Golden Rule folks: Those who give us the gold will have our rule; money talks, people. They do what the lobbiests pay them to do; not what the Constitution and honesty require of them. They just want to stay on the Beltway gravy-train; Cocktail party circuit not rock any boats. Not a few of them are liberals in disguise (Re: Arlen Specter). http://www.americanthinker.com/2011/05/gop_what_g

  • Tanstaafl

    Qbama once taught constitutional law, now he dictates it.

    • Raymond in DC

      I wonder… Are the student evaluations – like his own school records – also locked up?

      • Texasron

        It's true that Barack Obama is withholding his college grades. That's his right but, besides wondering why he feels the need to conceal his grades, I wonder something else.

        I wonder which college and class he attended that taught him that there are 57 states to these United States?

        I wonder which college and class he attended that taught him that Hawaii is in Asia?

        I wonder which college and class he attended that taught him that it was Lincolns' administration that built the "intercontinental" railroad? (I wonder which continents the railroad connected?)

        I wonder which college and class he attended that taught him that it was Abraham Lincoln who founded the Republican Party?

        Now I really wonder which of Obama's schools will own up to answering the questions above? He attended Columbia, Harvard, and Occidental Colleges.

        Certainly one of them should be proud to claim him.

  • mrbean

    Keep your eye on Waukesha, WI. Their biggest employer just moved out.

    General Electric is planning to move its 115-year-old X-ray division
    from Waukesha, Wis. to Beijing. In addition to moving headquarters, the company will invest $2 billion in China and train more than 65 engineers and create six research centers. This is the same GE that made $14 billion in the United States last year, but paid no taxes – the same company that employs more people overseas than in the United States. So let’s get this straight. President Obama appointed GE CEO Chairman Jeff Immelt to head his commission on job creation (Job Czar). He is supposed to help create jobs. I guess the President forgot to tell him in which country he was supposed to be creating those jobs. Soon, you all will understand that Obama has an agenda, and that this agenda is to remove the last super power from the world. Please pass this information to others and think about it before you buy a GE product.