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Monday, January 09, 2012

Are Obama's Recess Appointments Unconstitutional?

Are presidential recess appointments unconstitutional? The simple answer is no. President Obama's recess appointments are not unconstitutional. The question is, was Congress in recess? The answer to that question is also no. The Senate was in pro-forma session.

On Wednesday, he appointed Richard Cordray director of the Consumer Financial Protection Bureau, and named three more people to posts on the National Labor Relations Board. Obama gave these jobs out as "recess appointments", which is a provision in the Constitution that allows a President to name new heads of agencies without seeking Congressional approval when the Congress is in recess.

Here's the problem: Congress is not in recess. He's flat-out violating the Constitution. Legal scholars and major news outlets have already criticized Obama for this brazen disregard for our country's foundational law.

President Obama knew the Senate was in pro-forma session. He supported such an exercise when he was in the Senate himself and wanted to block President George W. Bush's agenda. That was then and this is now. Running for re-election, Obama has elevated himself into King Obama. The Congress be damned.

The 60-vote threshold may not seem fair. But in his 2006 book, "The Audacity of Hope," Obama wrote, "To me, the threat to eliminate the filibuster on judicial nominations was just one more example of the Republicans changing the rules in the middle of the game." He was angry with Republicans for thinking about flouting precedent.

Obama, however, didn't seem to mind when Democrats changed the rules during George W. Bush's presidency. On Nov. 16, 2007, Senate Majority Leader Harry Reid announced that the Senate would hold pro forma sessions -- that could involve little more than gavel rattling -- during the Thanksgiving holiday "to prevent recess appointments."

According to the Congressional Research Service, "the Senate pro forma session practice appears to have achieved its stated intent: President Bush made no recess appointments between the initial pro forma sessions in November 2007 and the end of his presidency." Upon Obama's election, recesses resumed, but in 2010, the Senate resurrected pro forma sessions.

And now Reid agrees with Obama aides who say that his pro forma sessions are a gimmick. He's supporting the president's attempt to undermine Senate power.

During the Bush administration a favorite criticism was that Bush used his powers in the executive branch too much. That he was zealous in his actions. Now, however, there seems to be little notice of Barack Obama asserting himself and whining that he can't get anything done because those mean Republicans are blocking his agenda.

News flash to Barack Obama: blocking his agenda is the job of the Republican party. Just like Newt Gingrich worked to block the agenda of Bill Clinton and Nancy Pelosi worked to block the agenda of George W. Bush, Speaker Boehner and Minority Leader McConnell are working to stop the agenda of Barack Obama.

Senator Cornyn weighed in on the power grab by President Obama:

Senator John Cornyn is unhappy that President Obama has appointed Richard Cordray to lead the Consumer Financial Protection Bureau. It’s a recess appointment, done without senate approval.

He also pointed out that when Obama was a senator, Obama called a similar recess appointee “damaged goods.”

In addition, Cornyn said Obama is unwilling to work with Congress to adopt common-sense improvements in accountability and transparency that would protect small businesses from regulations and red tape.

And from the Wall Street Journal:

Eager to pick a fight with Congress as part of his re-election campaign, Mr. Obama did the Constitutional equivalent of sticking a thumb in its eye and hitting below the belt. He installed Richard Cordray as the first chief of the Consumer Financial Protection Bureau and named three new members to the National Labor Relations Board. He did so even though the Senate was in pro forma session after the new Congress convened this week.

Barack Obama knows he cannot run on his own record in office. He has no real bragging rights to much success of any issue. The only path to re-election he finds workable now is to fight Congress as the man who is looking out for the middle class, for the little guy in America. It's ridiculous, sure, but Congress traditionally has low approval ratings from voters and this year is no exception to that. Compared to Congressional approval polling, President Obama is higher rated and he has gone that route.

This is pure politics and makes for an even more cynical eye on the Obama administration.

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