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Originally Posted by spence
Also regarding the recent recess appointments.
The situation appears to be that Republicans were blocking the appointment on ideological grounds, where they opposed the laws the appointment was intended to oversee. Without the appointment that area of government would cease to function.
However you, or whatever opinion you read think the situation "appears" to be--and that opinion and those laws and that agency are formed partially if not wholly on"ideological" grounds--the appointment is supposed to be debated in the Senate for its advice and consent. So long as Congress is not in recess, a recess appointment cannot be made. These appointments were not made in time for the debate, a move that Obama made to circumvent that Constitutionally mandated debate. He wanted to wait for a recess to block that debate. Who is blocking who is a matter of politically slanted opinion.
If anything it looks like Republicans were intentionally impeding the President's Constitutional authority to execute existing US law.
No, he does not have constitutional authority to make a recess appointment if Congress is not in recess. And yes, Repubs were intentionally impeding him from avoiding the Constitutional advice and consent of the Senate. He, or you, or the Dems, may not like the process (which they have used to their advantage), But one of the Constitutional purposes of the Senate is to slow down legislation, to debate and deliberate, to oppose what it should oppose. And much "existing" US" law, especially that law that has been created by these administrative regulatory agencies does not have support in the Constitution. They have been unconstitutionally given powers that were granted to Congress, and Congress was not given the authority to delegate powers of legislation to unelected agencies. The power of legislation Constitutionally rests on those representatives that the people elect. These agencies have been given that power to legislate (and therefor tax) without representation--a grievance at the very heart and soul of the American Revolution.
Perhaps the real question here is if a pro forma recess is really a recess? I don't think the Constitution is really clear here. It doesn't seem to pass the smell test regardless of who's doing it.
-spence
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The recess power has been "interpreted" for over 100 years by attornees general and those they designate in the DOJ office of legal counsel that an official, legal senate recess is of at least 10-25 days duration. In a 2010 SCOTUS hearing on an NLRB issue, Obama's deputy solicitor general Neal Katyn said "The--the recess appointment power can work--IN A RECESS. I think our office has opined the recess has to be longer than 3 days." And yes, Harry Reid blocked Bush's recess appointmens in his last two years with pro forma recess. It only takes one Senator to block the move to recess for any reason. It appears that this move to overide Congress is another small chink in the Constitutional separation of powers--another transfer of power to the almighty executive.
BTW, have you noticed that the original discussion on this from yesterday has disappeard? Or is it just on my computer? Do the rest of you have yesterdays posts?