[spence]

Originally Posted by detbuch

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.

And the Obama Admin is simply challenging the idea that Congress is really not in recess. It was wrong when the Dems did it to Bush and it's wrong when the GOP does it to Obama.

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.

My understanding is that the GOP has refused to hear nominees for about six months. They're trying to hold the legislation hostage unless Obama makes significant concessions in the Government ability to protect consumers.

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 considerate, to oppose what it should oppose.

Congress isn't trying to "slow down" new legislation. The objective of the GOP is to use procedural trickery to change existing law they don't like.

There's a big difference.

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.

But aren't these agencies a product of Congressional legislation? And if not Constitutional, shouldn't the proper course of action be to challenge the legislation before the Judiciary?

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.

Everything I've read on the history of the issue points to the recess appointment power to be available when the Senate can not be readily assembled to consent. I'm not sure though, in modern times, what the difference is if the Senate simply doesn't want to consent.

Both sides have used this and perhaps it's time to get some clarification.

-spence