Turley Testimony on the Constitutionality of Recess Appointments

Below is my testimony this morning before the full House Judiciary Committee on the constitutionality of the recent recess appointments by President Obama. I also wrote a column this morning on that same subject.

I will be testifying at 10 a.m. on February 15th. I will then have to run to catch a flight to fly to Texas to speak as part of the Women’s Lecture Series at Brazosport College.

Here is today’s testimony: TestimonyTurley.Recess.House.Final

16 thoughts on “Turley Testimony on the Constitutionality of Recess Appointments

  1. 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 …”

    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.

  2. 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 become 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.

  3. “Professor Turley, I am glad you are on the side of The Constitution. Well put.”

    -I only wrote that after a very cursory look at the testimony to see your position. After a slightly closer inspection, I need to strike “well” and add “excellently.”

    Thank you for standing strong for your principles. It is hard to do so when one is in the minority. Not only do you stand by your principles, but you do so with great clarity and understanding of the law.

    “Frankly, I believe that our system would be far better off under the original meaning of the Clause, which would have avoided many of the controversies of modern times.”

    -Dare I say our system would be far better off under the original meaning of The Constitution?

    “The most obvious place to start (and ideally end) constitutional analysis is with the text of the Constitution.”

    I could not agree more Professor!

    : )

    For all those who dismiss the slippery slope argument on indefinitate detention, assassination of citizens, and other constitutional matters, I give you this:

    “Almost four decades after the adoption of the Constitution, a more liberal interpretation of the Clause was put forward by Attorney General William Wirt – an interpretation that not only failed to mention the view of the first attorney general but dismissed the statements of contemporaries on its meaning.”

    That was the first step towards “The Cordray Appointment” of today.

    “President Obama declared that he would simply not accept the decision to filibuster the nomination, stating, “That’s inexcusable. It’s wrong. And I refuse to take no for an answer.”The President’s choice of words is telling.”


  4. Having read your brief, I cannot argue with your logical analysis, but from a pragmatic standpoint you leave no solution possible for the current dilemma. Moreover, should the recess appointment of Mr. Cordray be ruled unconstitutional, how many other appointees will we revisit.

  5. I cannot counter the expertise of the Professor.What I can do is express my dissatisfaction that all the technicalities and precedents he cites fail to take into account the malicious, deliberate,and destructive sabotaging of he president’ s fulfillment of the responsibilities of the presidency. The effectiveness and efficiency of the government has to be as important as the balance of power.Its not just the CFPB that has been stymied: we have over at least 200 other positions and about 80 federal judgeships that have been prevented from being filled.Moreover, it is clearly stated that the goals of the present GOP are to (1) make Obama a one term president at any cost to the people and governmental functioning ;(2) to reduce the government, as Norqist has phrased it,to the point you can flush it; and (3) 44 senators signed a pledge not to raise taxes period —ie,to satisfy political needs,not to fulfill constitutional obligations. I find it illogical to fail to fully take into account the severity and damaging potential of these circumstances.The preservation of balance of power I feel cannot justify the deliberate paralyzing of the presidency. The sabotaging and crippling of the presidency,I cannot believe,were pictured as something
    to swallow by the founding fathers!Sabotage and governmental crippling of this order were in my opinion certainly not pictured as part of a normal course of the business of government!

    Finally, not being a constitutional scholar,I am more impressed with
    the prelude in the 1905 Report of the Senate Judiciary committee relating to recesses:”It was intended by the framers of he constitution that /recess/ should mean something real,not something imaginary,something
    actual ,not something fictitious.”The pro forma meeting which is tantamount to a 30 second to 5 minute meeting ,opened with a bang of a gavel and closed with a later second bang of a gavel all in the presence of a couple of members of the Senate–with no busines transacted at MOST OF SESSIONS– strikes me as being analogous to a worker who signs in and signs out and in between is off to his own devices.What a way to define a work session and the presence of the body of the Senate!

  6. Wrong-yes. Precipitated by GOP intransigience? Yes. There is an ideological war in D.C. and President Obama has, finally, decided against bringing a knife to a gunfight. Refusing to fight dirty against a dirty fighter is a strategy to feel great about losing. And don’t get me wrong. This is not aabout we win and they don’t. This is about what kind of country some want us to become. If they can win at the poll, then so be it. But abusing Congress over and over while demanding the other side plays clean is bull and I support Obama’s bold moves here.

  7. If you wouldn’t support it if Newt Gingrich did it then you should not support it when Obama does it. Otherwise that is they type of country we will become is where those in power do whatever they want.

  8. Monsieur if Gingrich were pres and he faced republicans like McConnell who has said his objective was/is to obstruct anything to make sure this pres will not get re-elected, including appointments then Gingrich, as much as I know I would abhor the people he chose, would have no choice either, not if he wanted to make an effot to get this country running rather then stagnating per the obstructionists.

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