Originally Posted by spence
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.
What is there to challenge. It is up to Congress to decide if it is in recess. Giving the power to the president to decide when Congress is in recess is overstepping separation of powers. The SCOTUS has no say, Constitutionally, about when Congress is in recess. It is solely a Congressional responsibility and prerogative. The dispute should be decided in Congress, not by the POTUS or the SCOTUS.
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.
Again, that you may not like it, it is a legitimate part of the legislative process. And the burden of protecting consumers should not be a concern of the Federal Gvt. I understand that current view of the Commerce Clause means that the government can do whatever it wants. That it has gotten that far is such an obvious travesty of judicial "interpretation" and government overreach that it shouldn't even have to be discussed. And if there were some some way that the Federal Gvt. were supposed to protect consumers, the proper way would be through law passed by Congress with debate and vote by Congress, not by a creation of some permanent watchdog agency which can dictate law by fiat. It would be perfectly OK to appoint research agencies to advise the Congress, but not so much to give those agencies regulatory power.
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.
Congress is using existing law and procedure.
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?
Agencies are a product of Congressional legislation, but laws that these agencies propagate are not. Laws passed by Congress are supposed to be debated and voted on by Congress which will be held responsible by the people. Laws are not supposed to be imposed on the people by unelected officials who are not accountable to the people. Of course, Congress would not challenge the creation of such agencies since it can direct them to do things for which Congress will not be held responsible. It's a way both parties can "do things" without being blamed. Not only is current jurisprudence of the opinion that Congress can do whatever it wishes due to "interpretations" of various clauses such as Commerce or Welfare, the judges, for the most part, understand that since it is the prerogative of Congress to legislate, it can legislate as it wishes. The judges merely decide on whether cases are in breach of those laws. We have as a result of judicial "interpretation" a growing central gvt. that regulates through administrative agencies. It is a more convenient way to amass regulations while avoiding responsibility. Beyond the hundres that already exist, you can expect to see more of such agencies expanding the administrative State, as opposed to the representative government, and this was predicted by many, including De Tocqueville, to result in a form of a so-called "soft despotism" which is not opposed by the people since it is ostensibly for their benefit.
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.
It is absolutely the right of the Senate not to consent. Why must it?
Both sides have used this and perhaps it's time to get some clarification.
-spence
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