Abuse Of Power: Obama’s Recess Appointments And The Constitution

Below is today’s column, which concerns the subject upon which I will be testifying this morning before the full House Judiciary Committee: recess appointments.

For most Americans, the term “recess” brings to mind fond memories of free time to play outside the strict rules of the classroom. For presidents, the term can have the same euphoric effect as a free hand to play outside the strict rules of the Constitution.

While the Constitution requires high-level officials to be confirmed by the Senate, an arcane provision in Article II states that a president can make recess appointments when Congress is not in session. However, what if Congress did not think it was recessed and a president handed out appointments over the equivalent of a long weekend? That is the controversy brewing in Congress, which is looking into four appointmentsPresident Obama made in January. Those appointments include that of Richard Cordray, who had been denied confirmation to a consumer protection board in a Republican filibuster.

For the record, I support Cordray, a well-qualified nominee who has been treated poorly by the political system. However, in a nation committed to the rule of law, it is often as important how you do something as what you do. This is not the way to win a fight with Congress over a nomination.

Partisan gamesmanship

The controversy is loaded with partisan rhetoric and chest pounding on both sides. It is the common lament of academics that the concern over the faithful interpretation of the Constitution arises only when it is politically expedient. Though there are exceptions in Congress, the Cordray appointment is a prime example. Many members who were silent during the recess appointments of George W. Bush have become vocal opponents of the practice under Obama. Conversely, Democrats who now stand silent once cried foul when Bush used recess appointments to circumvent significant opposition to nominees, such as John Bolton to be ambassador to the United Nations.

Yet the latest recess appointments push this controversy to a new extreme. The shortest prior period for a recess appointment in recent history was a break of 10 days. In this case, Congress did not intend to take such a recess and took steps to “stay in business” to prevent any end run by the president. Under the Constitution, neither chamber of Congress can recess for more than three days without the consent of the other chamber. This winter, the House expressly declined to give consent — holding sessions every three days to prevent any recess appointments. Moreover, this session was hardly “pro forma.” Just three days after going into the session in December, Congress passed the president’s demand for a two-month payroll tax holiday extension. So the Obama administration was doing business with Congress on important legislation while simultaneously claiming that Congress was functionally out of session.

Since the very first administration, presidents have taken advantage of this free hall pass to fill offices. The first five presidents made dozens of recess appointments, including five to the Supreme Court. Ironically, some of these appointments proved the wisdom of requiring confirmation. For example, George Washington gave a recess appointment in 1795 to John Rutledge of South Carolina to serve as chief justice. Rutledge was later described by his fellow South Carolinians as prone to “mad frollicks” and “frequently so much deranged, as to be in a great measure deprived of his senses.” Rutledge tried repeatedly to drown himself in various rivers before finally resigning within a year of his appointment.

The use of such unilateral power strikes at the very heart of our system of government and dangerously tips the balance of power. President Obama clearly wanted to make a point about his effort to protect consumers. But for the Constitution, that political point comes at too high a price. Replacing an intransigent Congress with an imperial president is no bargain for those who value our constitutional system.

When it made sense

While there can be debate over the precise meaning of Article II’s reference to “vacancies that may happen during the recess,” it was not intended to mean this. The earliest interpretations of this language took the plain meaning of the language as addressing vacancies that occur during a recess. In the early period of the Republic, Congress would often be recessed for six or even nine months out of the year. Alexander Hamilton and others argued that the provision simply reflected this practical necessity to fill positions during breaks.

With the long modern congressional sessions, the motivating concern behind the Recess Appointment Clause is largely gone. It is primarily used today for the purpose that the Framers clearly did not intend — circumventing Congress. For that reason, I have criticized past presidents for appointing submitted nominees who were not confirmed because of congressional opposition.

The Cordray appointment, like its recent precedents, threatens to turn a carefully balanced process of nominations and confirmations into little more than a type of blinking contest with Congress. Putting aside the contradiction with both the language and history of the Constitution, it is bad policy and an abuse of power that all citizens, regardless of party affiliation, should condemn.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors. He will testify on the recess appointment power before the House Judiciary Committee on Feb. 15.

USA Today February 15, 2012

69 thoughts on “Abuse Of Power: Obama’s Recess Appointments And The Constitution

  1. Of course you are correct Prof – BUT – there is no way you are going to put that genie back in the bottle. We have seen in recent years candidates for critical positions openly lie about their beliefs and their intent once taking the position. Lies that the media knew were lies, that the Senators knew were lies and lies that anyone who had studied their background (when, unlike say CJ Roberts they were not hidden) knew were lies. Bolton is a great example of this but their are some Supreme Court justices that would not be ripping apart the country for the corporate good if they had been honest.

    Politics has become about who is willing to make what they want to happen happen. The American people have too often ignored or been misdirected by the media what is being done to them. The only thing the powers of decency need do is to play by the rules of 50 years ago and we will all lose. The forces of darkness will not play by those rules, hell in the 6 years between 2000-2006 they proved they were willing to play well outside the rules to get what they wanted.

    So how do we get back to fair play?

  2. I do not see that the President has done anything different than any of his predecessors…. the powers that be have stalked him and anything he has done…. the house has even said that they would obstruct anything he try’s to do…not thst they have any say here… I do seem to recall Josh Bolten…a Bush recess appointment……

  3. Frankly hit the nail on the head. To allow the Senate to block any and all appointments for political reasons, but not allow Presidents the ability to get things done for our benefit is wrong and untenable.

  4. I totally agree with Jonathan. To many people are turning a blind eye or ignoring the constitution because of the affilitation. You can not pick and choose which ones you want to go by. Because another president has done something doesn’t make it right for another one. We need to get back to basics and the constittution, nation and principles of this country. In respect it is a lot like religion. The only reason there are different demonitions is basically they can not live by Gods rules. They change or put mans meaning in it to fit their will. We are and have been doing that for years with the constitution, a living and breathing document that has endured through time and will continue to do so as long and we respect it and stay by it. Do not destroy this document or nation because of political parties. Two wrongs don’t make a right.

  5. Based on my limited understanding, it is the Senates responsibility to ‘advise and consent’. If the Senate fails in its responsibility to vote up or down on a nominee, what else is the President supposed to do. Currently, a single Senator can stop the process by placing a ‘secret hold’ on the nominee.

    Should there be a timeframe for the Senate to hold an up or down vote instead of leaving the process hostage to a single senator’s whim.

  6. Professor Turley’s testimony before congress:

    “I have long favored the original interpretation of the Clause: that it applies only to vacancies occurring during a recess. This interpretation is truer to the Constitution and would avoid many of the controversies of modern times. I readily admit that I am in the minority on that view …”

    (from PDF of his testimony in previous post)

    What the Constitution says seems to be the minority view more and more.

    I am glad Professor Turley advocates what the text says in this case.

  7. I am a bit shocked by how many readers here seem completely willing to look past this exercise – this institutionalized practice – of authoritarian executive power, justifying it with excuses like “Yeah, well, Bush did it too,” or even worse, “Well The President needs to get things done, for us!”

    The first excuse is shamelessly political. The second excuse is a harbinger of autocratic government.

  8. So, what’s a President supposed to do, when a single Senator can prevent him from filling a vacant post? Sit on his hands and fret? Pace the Rose Garden, a la Carter?

    When the stated intent of the “loyal opposition” is to bring down the Administration, how is the Administration supposed to get the work of governance done?

  9. Yet again we find ourselves stuck with a false choice between strictly adhering to ambiguous language in an antiquated document or meeting the challenges of a modern society facing a political crisis.

    There are elements of our constitution that are explicit, such as freedom of speech, freedom from illegal search and seizure, and the right to a speedy and public trial. Our leaders trample these portions of the constitution on a daily basis, so forgive me for not getting terribly worked up over a recess appointment by a president facing unparalleled obstruction from the most inept congress in a century.

    We have real problems in this country. Big ones. And one of our two major political parties, instead of working to fix them, is deliberately sabotaging the political process to destroy the president. If he was forced to follow precedent and make a handful of recess appointments to address a few of those problems, great. Our congress can’t be bothered to hold real criminals accountable for the destruction of our economy, or for the war crimes committed in our name, but they’ll certainly take time to hold hearings over a handful of recess appointments. A perfect illustration of our broken government.

    I, frankly, do not care what a group of wealthy, partially slave owning, white men originally intended when they wrote “vacancies that may happen during the recess,” in our founding documents in the late 18th century. Their original intent is irrelevant to our modern society. Our government must quickly answers today’s problems with forward thinking solutions. We do not have time for this nonsense.

  10. Frankly wrote: “The forces of darkness will not play by those rules, hell in the 6 years between 2000-2006 they proved they were willing to play well outside the rules to get what they wanted.

    So how do we get back to fair play?

    Maybe what “Lottakatz” wrote in response to a question I once posed applies. He commented about “Unitary Executive” doctrine put in place by Bush/Cheney post 9-11. “We’ll never get those rights given back to us, power does not give itself up; once taken, it must be taken back.”

  11. I have a question. In Article II Section 3, the Constitution says, “…and 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; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

    I have read opinions that insist that the President has the power to put them in recess based on the above section and therefore, Obama put them in recess, making his appointment constitutional.

    Any thoughts on that?

  12. Frankly,

    “So how do we get back to fair play?”

    First, prosecute Bush/Cheney for treason and war crimes.

    Second, impeach Obama for his own unconstitutional overreaches and prosecute him for aiding and abetting treason and war crimes.

    Third, amend the Constitution to overturn Citizens United and limit both corporate personality and remove their ability to participate in political campaigning.

    Fourth, take the revolving door between K St./Wall St. and Congress, nail it shut and fill it with concrete.

    Fifth, prosecute Wall St. crime aggressively.

    That’d be a start.

  13. raff,

    Absolutely. The single biggest obstacle to progressive reform and the restoration of the Rule of Law in this country is without a doubt the obstructionist graft weasels in the Senate.

  14. Good on Diana, I had not heard that argument before.

    Addition to Gene’s suggestion: Amend the Constitution to provide that no representative district shall encompass a greater population than that of the least populous state.

    Also, get rid of the electoral college or require that the delegates be apportioned base of percentage of votes received — this may help form a third party.

    To back up what others are saying here I’m cross-posting the following:

    Well, based on the rule that the specific limits the general, the Constitution specifically provides when Congress must decide a matter by more than a simple majority vote and it never provides for anything less. The Senate’s “procedural rule” requiring at least 60 votes to bring the matter to the floor or its standards of professional courtesy which permits a single senator to place a hold on a bill or nomination appear to be unconstitutional. It is these tactics which permit politics to derail the legislative and advisory roles of the Congress.

    The fact that every state gets two Senators is the sole legislative protection which the Constitution offers states with small populations (the electoral college does the same re the executive) — not holds or filibusters. Hell, there are representatives who were elected with more votes that some senators!

    Yes, the United States of America is a republic, but it is way past time that it becomes a lot more of a democratic republic.

    I agree with the professor re the legal argument, I agree with the President on his action. I damn well oppose the judiciary being drawn into a political matter caused by the non-democratic actions of the Senate.

  15. I disagree with JT, but I am simultaneously heartened that he takes this stand and indeed other stands to point out to us that we need to return to the original intent of the Constitution and how far we’ve strayed from it. Our people needs such as JT to remind us of what we are supposed to be and how far short of those ideals we have fallen. In that role he can only be implacable in defense of Constitutional values and avoid partisan considerations.

    Where I disagree though comes from the fact that I am convinced that this country is under siege by a loose cabal of people trying to drive it to become a Feudalistic Corporatocracy. Their means are ruthless and can often be violent. They are blatantly in violation of their oaths of office and they are in thrall to multi-national corporate interests who could care less how the people of the US fare, as long as the many can act as passive consumers. On an immediate political level to attempt to fight these interests as if it were a “fair” fight is dangerous folly. The Republican members of Congress are only concerned with destroying this Administration and then imposing their feudalistic corporatocracy as a theocratic state. If they are allowed to do so unopposed then the talk of returning to Constitutional government is but a pipe dream.

  16. I agree with Mike.

    i am reminded of the post about the Sioux tribe involving the beer stores in Whiteclay. Wasi’chu law, wasi’chu analysis. The lawsuit will be dismissed. Eventually the tribe is going to give up seeking redress in a system that just doesn’t care. Then it will take matters into its own hands and Whiteclay will be reduced to burnt dirt. At some point, the 99% just ain’t gonna take no more.

  17. Diana Hanford Demarest 1, February 15, 2012 at 10:33 am

    I have a question. In Article II Section 3, the Constitution says, “…and 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; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

    I have read opinions that insist that the President has the power to put them in recess based on the above section and therefore, Obama put them in recess, making his appointment constitutional.

    Any thoughts on that?
    First, the text:

    He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and 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; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

    (Art. II, Sec. 3)

    This is in the context of the State of The Union, bringing both houses together to hear him. The key to your argument is “in Case of Disagreement between them”, i.e., the Senate and House not agreeing on the time for adjournment.

    This is not the case PT is in reference to in his testimony to congress.

  18. Turley is right, and as for what we do instead, I think it is simple. Stop appointing people as direct officers of the federal government.

    One of the President’s titles is Chief Executive, which means he is in charge of all the civil servants. Which means, the President is free to run the Bureau himself. Which also means, he can appoint a civil servant “manager” of the Bureau that answers to him and runs the Bureau in the absence of a chief or Director, until such time as a chief or Directory can be confirmed by the Senate.

    For a hypothetical, presume a chief or director of the FBI (another bureau) died of a stroke. The FBI would still continue, and would still answer to the President, without a confirmed head.

    The same situation holds for any other department or bureau; the work of the organization does not just stop if the director is incapacitated or dies; a subordinate that was never confirmed by the Senate will run it and answer to the President until a new boss is confirmed.

  19. Aside from all the legalities:

    “Bette Noir
    1, February 15, 2012 at 9:49 am
    So, what’s a President supposed to do, when a single Senator can prevent him from filling a vacant post? Sit on his hands and fret? Pace the Rose Garden, a la Carter?

    When the stated intent of the “loyal opposition” is to bring down the Administration, how is the Administration supposed to get the work of governance done?”


    This agency needed someone to run it,on our behalf.Some Senators complaints was it gave the head too much power.WHAT?

    New Consumer Finance Protection Bureau Promises Agile IT
    While other federal agencies struggle with outdated legacy systems, the new Consumer Finance Protection Bureau aims to keep lean with agile processes, cloud computing, and open source.

    By J. Nicholas Hoover InformationWeek
    February 14, 2012 09:00 AM


  20. I am an Originalist of a different bent. The Framers of the Constitution would be a bit bent if George Washington had put up the name of say Sam Adams to be Secretary of State and then the Senate sat on the nomination because one Senator did not like anyone from Massassachusetts. And the Senate sat on the nomination for say six months.

    I think that this President shoudl inform the country that if a nomination is stalled, or if it is held up by one Senator, and more than three months go by, then the President will fill the recess appointment. We cannot have positions open and the business of the country bumbling along like this.

    If the position is that of Secretary of Homeland Security I would want a vote on the nomination within a shorter time.

    Judicial appointments are a different matter. But the ability of one schmuck to be able to hold up a vote is a disgrace. Up or down.

    The Republican Party has an agenda with one item on it: make the President look bad and do anything, even ruin the economy, to accomplish this.

    The Judiciary Committee needs to hear from a dog if they are going to listen to a Professor. I am sending this letter off to the Judiciary Committee.


  21. Lets face it, there are good comments for both sides of this issue, in the sense that everyone realizes a real problem exists.

    A problem that impairs a rationally functioning government and can even paralyze segments of government on occasion.

    That much can certainly be conceded by either side of the issue.

    The rub comes when we submit our solutions.

    Should we blame the constitution by watering it’s text down with “interpretation”, or rather should we blame the Senate for stonewalling appointments, and hose them down instead?

    The people are supposed to punish the Senate by voting them out … problem is that can only take place each six years.

    The president is not supposed to punish the Senate, by ignoring their advice and consent, either.

    What were the framers thinking when they expected the Senate and President to act like mature adults?

    AS IF !!!!!!!!!!!!!!!!!!!! ;)

  22. What Mike S. said!
    Gene, if the Citizens United doesn’t get quickly overturned, nothing else is possible. Hell, the Right is now claiming that corporations have religious beliefs! How is that possible?

  23. Hey big govt liberals will use the “necessary and proper” clause argument as usual. Maybe the interstate commerce clause, who knows but almost nothing that passes for legislation or executive order follows the constitution anymore. Republicrats are all the same, one wants war the other socialism, hey let’s meet in the middle and have them both. In the process who cares if we destroy the dollar and the rule of law. Mr. Corday is being appointed to an office that shouldn’t exist, it will simply make a thousand more rules that favour big business and stifle competition, if the federal reserve created most of the mess, then why should we allow them to control the solutions by putting this beaureau in their control, outside congressional oversight? Because they don’t want the public to fully understand how rigged the game is.

  24. “However, in a nation committed to the rule of law …” when it doesn’t interfere with politics

    I’m 100% in agreement with Gene and others but I’m restating Gene’s words:

    “Absolutely. The single biggest obstacle to progressive reform and the restoration of the Rule of Law in this country is without a doubt the obstructionist graft weasels in the Senate.”

  25. Why is it not alright for the president to make a recess appointment in this instance but it is alright for Congress to lie through it’s teeth and say it is still in session when only one or two folks stay in town to keep the lights on and bang a gavel every so many days? It seems to me that Congress started that fight and it’s not one that any President will back down from. When Congress starts doing it’s job and filling the vacancies timely and doing it on the merits of the nominees (rather than brinksmanship), the problem of recess appointments will go away automatically.

  26. D.S.
    You are absolutely wrong about Cordray’s appointment. HIs office will go far in checking big business. That is why the Republicans refused to allow his appointment to be voted on with a majority vote.

  27. @Cheryl: If you had bothered to read Professor Turley’s testimony, you would discover it has been the Presidents that started the fight, by trying to circumvent the Constitution in the first place.

    The Constitution demands that appointments be confirmed, and all the historical quotes from the founding fathers indicate that the “recess” appointment was a power only to be exercised if a vacancy occurred during a recess, and if it would be months before the Congress could decide on an appointment. Not minutes or hours or days.

    The Senate decided on Cordray, they rejected confirmation by allowing a filibuster, as was their Constitutional right. It is the President trying to circumvent the Constitution, not the Senate. The President is clearly required by the Constitution to pick somebody they are willing to confirm, and the charade of pro forma sessions was just a way for the Senate to hold Obama to the Constitution, which he has violated once again.

    The Constitution does not give the President the power to appoint officers of the government without approval by the Senate, if that results in a deadlock, so be it. That is clearly what the founders wanted, either we compromise or we leave things as they are, there is no mandate that we must change, and thus no need to give one side the power to force their will upon the other.

  28. Holy Cow!

    What about signing statements and the “line item veto”, what about executive privilege and his declaring war (by sending in our troops and material) without declaring war (which is Congress’ job, last i looked, but it doesn’t matter as long as they financially support it, or them in our case)?

    It’s gettin’ pretty close to dictatorship of some sort here, but we keep just going along with all this. Where’s the outrage? This is exactly how dictatorships start – if the populace are pushovers, they’ll take advantage of the power and use it against the citizenry. One of the problems of “government”.

    Cheryl: exactly. And look what they’re doing in the name of abortion prevention!


  29. Tony C.,
    The Senate never voted on Cordray’s appointment. The only vote was to overturn the filibuster which did not pass. The President is not required to pick someone that the minority is willing to confirm.

  30. I completely disagree, what is the S.E.C for? Never mind the other regulatory bodies that already exist? There is no real interest in reigning in banks or they would have been let to fail. They have only grown since the crisis and if my reading is correct once the fed stops giving them free money, they will fail again. More agencies, regardless of who is at the helm are not going to help, are you going to hire the whole country to look at every transaction, bankruptcy would have straightened out the system, not more suits with political interests.

  31. @rafflaw: The Senate chooses its own rules, by the Constitution. They have chosen rules that allow a minority veto, they can change that rule at the beginning of any session and they know it, but they have not. The filibuster was the minority veto of Cordray’s appointment. They voted on it, they knew what they were voting for, and by their rules the Senate consent was not provided.

    How the Senate operates was largely left up to the Senate by the founding fathers. The Constitution says in some circumstances how much of a majority is needed (2/3 for a treaty, for example) but in this case it does not, it leaves that up to the Senate.

  32. @rafflaw: So the President is required to pick somebody the Senate approves and at least currently by the Senate’s own rules that approval can be withheld by a minority using the filibuster, and that is all 100% Constitutional.

    The whole point of Turley’s testimony was that IS the reading of the plain language of the Constitution, and Obama is violating it.

  33. Actually Tony C., the Constitution does not mention the filibuster. The language in the Constitution does allow each House to do its own rules, but how can a minority rule be constitutional? How can a minority veto something or someone that the majority is in favor of? The Senate rules need to improve or remove the filibuster and special holds rules. Without that, the appointment process will never be improved.

  34. @rafflaw: The Constitution does not mention the filibuster because it is an invention of the Senate, in forming their rules.

    >> how can a minority rule be constitutional?

    Do you believe it is fair that a jury must be unanimous on a verdict, or do you think a jury should be majority rule?

    Do you think it is fair that minority religions are protected, or do you think that if a majority of America wants Christianity to be encoded in law, it should be done?

    In order to ratify a treaty, it requires 2/3 of the Senate. Do you think that is unfair, that 34 Senators can block a treaty?

    There are many examples of a minority having a power that the majority cannot overturn, that are entirely Constitutional. The Senate chooses its own rules, and the filibuster preventing a confirmation is a result of the Senate following its own rules about what it takes to limit debate. Constituionally.

    (I am not saying it is fair or sensible, but one should not think of “following the Constitution” being synonymous with producing either fairness or sensibility).

  35. @Elaine: Yes, because the Constituion gives the Senate the right to make up its own rules and run itself however it wants, and the rules the Senate came up with include (or imply) the filibuster. The Senate could create a rule that all Senators must wear hats on Thursdays, and that would be Constitutional.

  36. A foolish consistency is the hobgoblin of little minds. Allowing the country to be destroyed, or evil done, or an administration sabotaged for political gain, by a set of arbitrary rules put in place to placate a malignant minority does not make sense to me. I understand Tony your dislike for Obama, but it is your rigidity in insisting that he plays by rules that others are exempt from that is perplexing. You seem to get that a minority is disrupting normal governmental processes, but you can’t get that just because it is vaguely constitutional, makes it no less destructive of Constitutional government.

  37. @rafflaw: You fail to answer the questions. There are many reasons for allowing a minority veto, including the reasons we allow a minority veto on a jury or for a treaty, because we want a level of certainty beyond the 50%+1 implied by a majority vote.

    So the Senate has chosen a higher level of certainty, namely 60%+1, for the confirmation process. Presumably they want to be more sure than 50%, because they haven’t overturned that rule yet, even though a majority could have overturned it as recently as 2010.

    There is also nothing in the Constitution that expressly demands the House or Senate, as a matter of course, operate on majority rule, or that majority rule is the default.

    With the exception of the cases where specific ratios are mentioned, the Constitution is silent on the question of how the House or Senate will decide anything, and expressly leaves it up to them to form their own rules. So minority veto is not prohibited by the Constitution (and is expressly allowed in certain cases like refusing treaty ratification, Impeachment, Constitutional Amendments or refusing to override a Presidential veto, in all such cases a minority of (1/3)+1 can veto.

    Majority rule is not ensured by the Constitution, and the founders obviously found many decisions warranted something more than a simple majority.

  38. @Mike: I do not exempt anybody from the rules. What you do not seem to get is that only following the rules you like leads to chaos and anarchy, which leads to monarchy, which is what Obama (and Bush before him) are exercising; unilateral rule without any checks or balances.

  39. Tony C.,
    I wasn’t suggesting that the Congress Is mandated to follow a majority rule process, but all of their votes, once the Republican’s filibuster or secret holds are overcome, are majority rule. Just a coincidence? I think not. Aren’t the House votes all on a majority rule basis?
    Mike S.,
    Well said.

  40. If we look to the “original intent” of the Framers of the Constitution and inject thier known attitudes towards, say judicial appontments, then historians would be telling the Judiciary Committee that they should not be appointing African Americans, women, Catholics or Jews to the Supreme Court. An historian might wager that the Framers would be against appointing only graduates of Harvard or Yale. Since we have shorter recesses then the original Framers would say that the Congress has more time in session to act quickly on nominations, not less. So why does the present Congress intentionally sit on nominations for month after month? This President has waited too long to make Recess Appointments and needs to make more of them.

  41. How much more failure will the it take for the US Nation to admit their particular brand of democracy is broken? The Constitution is imperfect (but has a mechanism for improvement), the Judiciary is politicised, the financially weak are powerless and human rights are optional.

    Where have all the critical thinkers gone?

    I’m glad I live in Australia.

  42. The matter of the filibuster and secret holds was addressed in 2011 when it was a hot issue and very little substantive change took place, the Senate maintained the power of the filibuster and holds, just not secret holds. Looking to the Senate to clean out its own stall is as effective as handing your horse a rake, ain’t gonna’ happen :-)

    I’m with the the ‘vote ’em out’ crowd, that’s the remedy people have. If the President is blocked by specific Senators then the DNC needs to do its job and fund candidates against them and the President needs to do some campaigning and name some names.

    I’ve always been leery of the Senate because it was constructed as a brake on the will of the ‘rabble’: the House which is more directly representative of the citizens. The game has always been rigged. But then you look at the House and….. hmmmmm, maybe not such a bad idea. The virtue of the house is the term of office is shorter, citizens can bring on change (or chaos) more quickly.

    There is an argument for gridlock. Was it Mark Twain that said to the effect that the citizenry is only safe from the State was when the Legislature was in recess? There is truth to that too.

    Vote ’em out.

    From Jan. 2011
    “Senate to nix secret holds but keep filibuster rules intact”


    “The first three:
    1. Eliminating “secret holds,” which can delay a nomination or legislation
    2. Eliminating the tactic of forcing the Senate clerk of reading of an amendment aloud if it has already been publicly available for 72 hours
    3. Creating legislation to exempt about 1/3 of all presidential nominations from the Senate confirmation process. These would primarily be low-level nominations for positions not directly involved with policy decisions.

    In the remaining two:
    4. Republican Leader McConnell agreed that he too would not try to change the Senate rules with the constitutional option “in this congress or the next Congress.”
    5. McConnell agreed to reduce his use of the filibuster on motions that bring the bills to the floor for debate. (There was no agreement on the frequency of filibusting bills before passage.) And Reid agreed to reduce his practice of “filling the tree,” which blocks Republicans from offering amendments.”

    The first two items in the agreement will be codified with votes later today, which are expected to pass.


  43. @zvy thank you! Most of the arguments here are for interventionism, but fail to address what causes most problems, interventionism! Nice to hear a voice here I can agree with.

  44. @rafflaw: Actually both the House and Senate are dominated by minority vetos. In the House, they use committees, where bills die because a handful of House members can prevent a bill from moving forward. In both houses, the majority leader can exercise control over procedure that is an effective veto; not letting a bill come to the floor, returning it to committee, etc. They make their own rules.

    If you think Mike is right, then you are wrong too. Just as Turley stipulates he supports Cordray, he concludes that the appointment is unconstitutional. The issue is not whether I like Obama, the issue is what is constitutional.

    Unlike you guys, I do not base my interpretation of the rules and the English language based on what outcome I prefer, or who I like, or whether a Democrat or Republican will benefit. Rules are independent of partisanship or emotions. I oppose rule-breaking for the sake of expediency because it inevitably leads to the current situation: No rules at all, zero restraint on government, and a President that can violate every one of your civil rights with impunity, including having you assassinated without due process, on his declaration alone.

    The Senate can, in a bill, and constitutionally, allow the President the authority to appoint anybody he wants unilaterally and without consent. It is in the same Constitutional clause! They know that, they know the rules backwards and forwards. So they could have passed that provision along with the bill creating the Bureau, and they already knew full well the Republican strategy of obstructing everything. But they did not, which means they willingly and purposefully subjected the appointment to the minority-veto power of the filibuster.

  45. Tony C: “One of the President’s titles is Chief Executive, which means he is in charge of all the civil servants. Which means, the President is free to run the Bureau himself. Which also means, he can appoint a civil servant “manager” of the Bureau that answers to him and runs the Bureau in the absence of a chief or Director, until such time as a chief or Directory can be confirmed by the Senate.”

    Article II, relevant language:
    “[The President] 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.”

    Tony C, I don’t see how your suggestion would work, in all practical terms it’s an appointment of someone to lead an agency. I’d like it to work on ocassion but I don’t see it happening and then I remember how Bush’s use of the recess appointment did in truth tick me off totally LOL, Bolton? Srsly?

  46. Tony C.,
    Prof. Turley is the expert here, but I do disagree with him on occasion. The minority, no matter who is in the minority, should not be allowed to control the nation’s business. That is the crux of our problem here. The Republicans have abused the filibuster and hold rules. They also publicly expressed that their only goal is to stop everything Obama. That is why his use of the recess appointments is necessary.

  47. Requiring a super-majority vote on a motion of cloture (i.e., end debate) was designed to permit the airing of minority and dissenting views. It protected the minority.

    But a prerequisite of a vote on cloture was that an actual debate was occurring. That doesn’t happen any more. A supra-majority vote for cloture in the absence of a debate turns the filibuster into a weapon of the minority.

  48. @lottakatz: Do you think that if the FBI director died of a stroke, that the FBI would be forced to stop operating until another FBI director could be confirmed?

    Do you think that if the chairman of the Joint Chiefs of Staff were to die suddenly of a stroke, that our entire military would be suddenly forced to stop business until another could be confirmed?

    Neither hypothetical would hold. The deputy director of the FBI would take over, and he is NOT confirmed by the Senate. And yes, as the deputy without a chief, he would run the organization, and report to Obama, who would actually be running the organization. Obama, as the Chief Executive, could unilaterally hire and appoint a deputy director to run the Consumer Protection Bureau, until such time as a CP Bureau Chief could be confirmed.

    Just because an organization does not have a chief does not mean it cannot operate at all, which is what the Republicans were hoping to do by not confirming anybody. But the CPB was formed by law, and has duties to perform under the law, just like the FBI or Joint Chiefs of Staff, and as Chief Executive it is Obama’s legal responsibility to see that job got done. If he cannot appoint a director, he must act as the director, but like all directors, he can delegate as much or as little as he wishes to his subordinates.

    The solution was simple and could have been engaged without shredding or violating the Constitution. If in fact he HAD hired a deputy to run it, it would have made the filibuster moot.

    Mind, that strategy would not work for a Supreme Court Justice, you cannot just hire somebody to do that job. But the President CAN hire a civil servant without confirmation, even a deputy director.

  49. @Oro: But a prerequisite of a vote on cloture was that an actual debate was occurring.

    A debate was occurring, whether to proceed with a confirmation hearing or not. The minority did not want that voted upon, so they used the power given to them by the Senate to prevent that vote, and thus the confirmation hearing, because the real debate was whether a Consumer Protection Bureau was needed or not.

    I do not understand you guys. The rules are so simple they are blinding and yet you are blind to logic. The Senate makes its own rules, if they abuse them, they can periodically change them by simple majority vote, but they never do. These are the rules they want. Both Democrats and Republicans. They are not flummoxed or corralled into anything they do not want to do, they want minority rule.

    BOTH parties want to serve their corporate masters and be free to blame the other party. The Majority wants to be able to blame the minority for not passing legislation, or not confirming, or somehow failing their constituents. That is how this game is played: Screw your constituents and blame the other side and simultaneously inform your constituents that if only you had more money, you could fight this good fight better.

    Both sides do that. But the rules are simple, Turley did not have to write 12 pages of testimony, he was done in three. The recess appointment is for when vacancies happen during the recess, NOT when vacancies happen to exist during the recess. Otherwise the Senate must consent. Obama broke the law and spirit of the Constitution, and he did not have to do that.

    Saying the process is broken is not a reason to take the law into your own hands, by saying that you are endorsing vigilantism. The process is broken for stopping gangs, and drug dealers, and assaults. Should we all buy guns and go make our own law?

    Being President does not give a man special privilege to break the law or violate the Constitution, no matter what Bush, Cheney, or Obama may say.

  50. Tony, a debate on the merits — and you know what I meant and you’re just playing semantics. And everyone else knows it, too. “Mr. Smith Goes to Washington.” Ring any bells? The fact of the matter is that the Senate has turned a protection of minority interests in a democracy into a weapon the minority wields against the interests of the democracy.

    Why? Because the salons have been bought and paid for and it’s in the interest of all the little Lord Fauntleroys serving Citizens United and not the United States . That part you got right; otherwise, you’re just fiddling while the Republic burns. Just fiddling.

  51. “So how do we get back to fair play?”

    By stopping it now. If we don’t then what can democrats say when the power is used by the other side. And yes you can say, “but they already did it,” well, then be the bigger man. Somebody has to do the right thing first.

    “In a Madisonian system, it is often as important how you do something as what you do. The Cordray appointment is the wrong means to a worthy purpose.”

    – Jonathan Turley

  52. There is validity to the argument that the Senate is failing in its duty by not giving proper consideration to presidential appointments. However, you do not correct one wrong by counteracting it with another wrong. You correct a wrong by correcting the wrong.

    In this case, correcting one wrong by counteracting it with another wrong, is a step towards the elimination of one branch of government and the transformation of the executive branch into a dictatorship.

  53. Tony C, Of course bureaucracies go on. Their continued function is built into the organizational structure and assignment of duties.

    Government offices have a job description or something like it for each position. Most Deputy position JD’s I have seen state as boilerplate that the duties include as a primary or critical function that the Deputy (Director, Chief etc.) will perform the duties of the Director until a new Director is appointed (in cases of retirement, death etc.) or the authority to act (fully or in a specific limited manner.) delegated by the Director (so s/he can go on vacation etc.) is rescinded. This is standard language. The chain of command is never left to chance or allowed to remain ambiguous.

    To bring in an ‘outsider’ in at the President’s call as the acting Director would be seen as a pretext to skirt the advise and consent language of Article 2, IMO. He may be able to get away with it but there would be no secret to what he was doing and I think it would be challenged in court by the Senate. He might not win.

  54. 1) Saying someone else did it first is the worst argument in the history of the universe. The only thing it does is maintain a status quo whereby Democrats and Republicans alike can do anything they want without any regards to law because someone else circumvented the laws before them. On what day and in what year can we finally say that law has to be applied regardless of what happened before? After this term? I’d say that’s fair but I’m willing to bet both Democrats and Republicans will wait to agree to that until after the election results.

    2) Any argument that it is OK because it “needs to be done” or it is “for our benefit” and the Congress is “stonewalling” is just as absurd. The road to hell is paved with good intentions and justice is meant to be blind for a reason. Dispassionate application of the law is the only way to ensure a just and fair society. Otherwise, all politicians will interpret the law so as to “get good things done”.

    3) Arguments that this is a small violation of the Constitution and that there are bigger fish to fry is the type of mindset that has allowed our liberties to ebb away slowly over time. The same people say that small budget cuts are useless because there are much larger expenditures. In 20 years, the large expenditures will be the small ones and the large consitutional transgressions will be small compared to other violations of our rights.

    3) Last I checked Wall Street funded both parties. Say what you want about them but they are quite familiar with the concept of hedging their bets.

    4) Don’t agree with some of JT’s politics but damn if he isn’t consistent as hell with his interpretation of law and I can certainly get behind that. And he likes dogs which is also good.

  55. I wonder since Obama is requiring all of us to purchase health insurance if he will also require Illegal Immigrants to be turned in when they go to the hospital so that they do not get FREE Healthcare. What a tragedy, Americans have to pay and illegals get it for free.

  56. @Jim: That is only a tragedy if you think a few pennies in your pocket is more important than saving a person’s life.

  57. The Constitution is Graeco-Masonic anti-Catholic that is why it allows contraceptions and abortions. It was not until the Ellis Island offspring put forth the New Deal that we began to be freed of its oppression. If we bilingually translate it into Spanish, we will further make it better. The Ohio public schools were originally run by the Catholic Church. We must join with the anti-Federalists to return to private ordering of things. We don’t need the Constitution, it is Judaic Deuteronomy Law, not natural law like Roman, the law of the Second Charlemagne, Napoleon, which should rule the earth, starting with our great Fourth Empire of the EU at Brussels. Prussia is Great because Prussians are really Lithuanians, so it is just that Merkel should be the Fourth Charlemagne to rule the world together with China and Islam. Is must blessings Brzezinski for Sineurabia Code uniting Roma, Mecca and Pekino against arrogant, aggressive Greeks, Jews and Hindus.

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