The Truth About Obama's Recess Appointment Power

Congressional Republicans did not wait long to whine that President Obama’s wholly legal decision to recess appoint Richard Cordray is unconstitutional. According to a blog post written by Speaker John Boehner’s staff, the Cordray appointment is unconstitutional because Obama defied an imaginary time-limit on his recess power and failed to respect the Senate’s decision to pretend that it’s actually doing something:

President Obama today made an unprecedented “recess” appointment even though the Senate is not in recess – “a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” according to Senate Republican Leader Mitch McConnell (R-KY).

It turns out that the action not only contradicts long-standing practice, but also the view of the administration itself. In 2010, Deputy Solicitor General Neal Katyal explained to the Supreme Court the Obama administration’s view that recess appointments are only permissible when Congress is in recess for more than three days.

First of all, Boehner needs to learn to count. For constitutional purposes, the Senate has been in recess since December 23. Although a single senator has opened a pretend session that lasts about half a minute — what is known as a “pro forma” session — every three days since then, these pro forma sessions have no impact whatsoever on the president’s recess appointment’s power. As Steven Bradbury and John Elwood, two key constitutional advisors during the Bush Administration, explained in 2010:

Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not “in session for the appointment of officers.” . . . [A 1905 Senate report] cautioned that a “recess” means “something actual, not something fictitious.” The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question “is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.”

The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president’s nominations. That means the Senate remains in “recess” for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions.

Moreover, even if the Senate could stave off a recess by convening in the Neighborhood of Make Believe, it is simply not true that three days must pass before the president’s recess power kicks in. Though it’s true that Katyal once said that “I think our office has opined the recess has to be longer than 3 days,” an off-the-cuff comment by the Deputy Solicitor General does not have the power to change what the Constitution actually says. As the highest court to consider issue explained, “[t]he Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.”

And in case you are wondering:

Total recess appointments by President:
Obama (29),
George W. Bush (171),
Clinton (140),
George H.W. Bush (77),
Reagan (240)

And in case you are wondering:

Total recess appointments by President:
Obama (29),
George W. Bush (171),
Clinton (140),
George H.W. Bush (77),
Reagan (240) Originally Posted by BigLouie

All you need to know is right here in this post. You reading this Whirly-Gig? We forgot to impeach Bush 1 and 2, and Ronald. What's the statute of limitations on impeachment for Shrub?

Congress wasn't in recess so he acted illegally and against his sworn oath to uphold the Constitution !

Obama's own legal advisors wouldn't sign off on the appointments as being legal and constitutional!

Congress wasn't in recess so he acted illegally and against his sworn oath to uphold the Constitution !

Obama's own legal advisors wouldn't sign off on the appointments as being legal and constitutional! Originally Posted by Whirlaway

Wrong. They advised him it would work. Only someone who posts the bullshit you do would think he would ignore their advise and just do what he wanted to do.
Anyone else who says he would sucks satan's cock.

Just ask the coward I.B. what satan's prefered method is. He will show you.

This is not about "constitutional" purposes, this is about "legal" purposes. The constitionality of anything is to be decided by the Supreme Court, not you, not Boehner, and not Reid. The precedent has been three days and this was upheld, by practice, by Reid and Obama when they served in the Senate.
It may be a technicality but it is the same technicality that requires someone no longer be questioned if they request a lawyer. There is no format for this request but once a reasonable person understands what the suspect wants then questioning must stop. A technicallity?

Congressional Republicans did not wait long to whine that President Obama’s wholly legal decision to recess appoint Richard Cordray is unconstitutional. According to a blog post written by Speaker John Boehner’s staff, the Cordray appointment is unconstitutional because Obama defied an imaginary time-limit on his recess power and failed to respect the Senate’s decision to pretend that it’s actually doing something:

President Obama today made an unprecedented “recess” appointment even though the Senate is not in recess – “a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” according to Senate Republican Leader Mitch McConnell (R-KY).

It turns out that the action not only contradicts long-standing practice, but also the view of the administration itself. In 2010, Deputy Solicitor General Neal Katyal explained to the Supreme Court the Obama administration’s view that recess appointments are only permissible when Congress is in recess for more than three days.

First of all, Boehner needs to learn to count. For constitutional purposes, the Senate has been in recess since December 23. Although a single senator has opened a pretend session that lasts about half a minute — what is known as a “pro forma” session — every three days since then, these pro forma sessions have no impact whatsoever on the president’s recess appointment’s power. As Steven Bradbury and John Elwood, two key constitutional advisors during the Bush Administration, explained in 2010:

Historically, the recess appointments clause has been given a practical interpretation. As Alexander Hamilton wrote in Federalist No. 67, the clause enables the president to keep the government fully staffed when the Senate is not “in session for the appointment of officers.” . . . [A 1905 Senate report] cautioned that a “recess” means “something actual, not something fictitious.” The executive branch has long taken the same common-sense view. In 1921, citing opinions of his predecessors dating back to the Monroe administration, Attorney General Harry M. Daugherty argued that the question “is whether in a practical sense the Senate is in session so that its advice and consent can be obtained. To give the word ‘recess’ a technical and not a practical construction, is to disregard substance for form.”

The Senate, of course, does not meet as a body during a pro forma session. By the terms of the recess order, no business can be conducted, and the Senate is not capable of acting on the president’s nominations. That means the Senate remains in “recess” for purposes of the recess appointment power, despite the empty formalities of the individual senators who wield the gavel in pro forma sessions.

Moreover, even if the Senate could stave off a recess by convening in the Neighborhood of Make Believe, it is simply not true that three days must pass before the president’s recess power kicks in. Though it’s true that Katyal once said that “I think our office has opined the recess has to be longer than 3 days,” an off-the-cuff comment by the Deputy Solicitor General does not have the power to change what the Constitution actually says. As the highest court to consider issue explained, “[t]he Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” Originally Posted by BigLouie

don't confuse them with facts,they have already made up their minds.

This is not about "constitutional" purposes, this is about "legal" purposes. The constitionality of anything is to be decided by the Supreme Court, not you, not Boehner, and not Reid. The precedent has been three days and this was upheld, by practice, by Reid and Obama when they served in the Senate.
It may be a technicality but it is the same technicality that requires someone no longer be questioned if they request a lawyer. There is no format for this request but once a reasonable person understands what the suspect wants then questioning must stop. A technicallity? Originally Posted by JD Barleycorn

Or you.
Looks like there may be a new precedent. Guess we just have to wait to see what happens.

Wrong. They advised him it would work. Only someone who posts the bullshit you do would think he would ignore their advise and just do what he wanted to do.
Anyone else who says he would sucks satan's cock. Originally Posted by Munchmasterman

When your dick Obama was in the Senate, he supported and participated in “pro forma” sessions to prevent inter-session appointments by Bush. Obama's recent violation of the same rules he once enforced once again shows him for the Janus-faced prick he is, and it further erodes and undermines Constitutional government.

Furthermore, two of these so-called “recess” appointments will begin their tenure at the National Labor Relations Board without having undergone background checks REQUIRED of all nominees to the board.

Cordray's appointment will be challenged, eventually. Subsequently, every action and decision made by Cordray will be subject to judicial review because of the impropriety of Obama's actions - so the appointment itself is a Pyrrhic victory at best.

These recent appointments exactly reflect the trickery and perversion of rules and regulations that allowed him, et al, to shove that abortion Obamacare through Congress. Obama is a hypocritical lying sack of shit and you, Munchkin, are nothing more than his petty, Kool-Aid drinking minion.

Just ask the coward I.B. what satan's prefered method is. He will show you. Originally Posted by Munchmasterman

You are a simpleton Munchkin: a true, moronic simpleton.

From the Constitution of The United States of America, Article I, Section 5: "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting."

This prohibits either house of Congress from going into recess without the explicit consent of the other house.

The Senate was therefore not in recess at the time Obama did whatever he claimed he did, since the House had not consented to any such recess.

More to the point: There's a reason why the Senate is required to vet Presidential appointments, and there's a reason why the Senate is rigged to require a supermajority (used to be 2/3, now 61 Senators) to proceed on anything. The Senate is supposed to go slowly. These things are IMPORTANT.

Imagine the fun that either party could have if that pesky Senate confirmation process could be thrown in the trash, and the President just do whatever he wanted to do. That's PRECISELY what Obama and the Democratic Party are trying to accomplish with this, and it isn't at all clear that the Democrats understand it.

From the Constitution of The United States of America, Article I, Section 5: "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting."

This prohibits either house of Congress from going into recess without the explicit consent of the other house.

The Senate was therefore not in recess at the time Obama did whatever he claimed he did, since the House had not consented to any such recess.

More to the point: There's a reason why the Senate is required to vet Presidential appointments, and there's a reason why the Senate is rigged to require a supermajority (used to be 2/3, now 61 Senators) to proceed on anything. The Senate is supposed to go slowly. These things are IMPORTANT.

Imagine the fun that either party could have if that pesky Senate confirmation process could be thrown in the trash, and the President just do whatever he wanted to do. That's PRECISELY what Obama and the Democratic Party are trying to accomplish with this, and it isn't at all clear that the Democrats understand it. Originally Posted by Sidewinder

Look get all the facts correct.

The Court needs to rule on two things.

One can Congress act as if they are in session when in fact they are not. (If you do not know wtf I am talking about, you should not be participating in this thread any further until you actually do)

They can the President actually appoint people if in fact they are in recess.

I think Obama made the correct call to get this issue into the Courts. If not a President could never get any nominees confirmed unless it had a super majority.

This has been going on for the last 20 years and needs to be resolved. This BS of one Senator acting as if the Senate is in session is total BS.

There is nothing for the Supreme Court to decide upon. It is clearly written about what constitutes a recess and what doesn't. Change the US Constitution. The Senate was not in recess and you can scream all you want but that is the case.

I have to ask if you support the idea of a president with no constitutional restrictions which is where we are heading. Remember, there will be a GOP president with the same power that you will give Obama. Can you live with that? If you can't then you are being hypocritical to think that only one side can do it and the other can't. So tell me, do you believe in a democratic dictator or do you believe in the constitutional republic that was given to us by the founders?

Before you say that dictators are not elected, Hitler was, and the original term of dictator goes back to ancient Greece. Dictators were elected for a five year term. They had absolute power and then they were usually expelled from the country following their term. So dictator is an appropriate, correct term for where we are heading. An elected official with nearly absolute power without any legislative or judicial restrictions.

AND THE DOJ WOULDN'T SIGN OFF ON OBAMA'S ACTIONS BEING RECESS APPOINTMENTS !!!

Congress wasn't in recess, Obama's actions were clearly unconstitutinal and against his pledge of office to uphold the Constitution.

Obama frequently breaks his campgain promises; now we have him breaking his Oath of Office.

There is nothing for the Supreme Court to decide upon. It is clearly written about what constitutes a recess and what doesn't. Change the US Constitution. The Senate was not in recess and you can scream all you want but that is the case. I was not screaming, liar.

I have to ask if you support the idea of a president with no constitutional restrictions which is where we are heading.What an idiotic question.... Remember, there will be a GOP president with the same power that you will give Obama. Good, maybe the Senate will start doing their job no matter the party of the President. This needed to come to a head in the courts. Can you live with that? Yes , until Congress starts do their job. If you can't then you are being hypocritical I can , so I not to think that only one side can do it and the other can't. So tell me, do you believe in a democratic dictator or do you believe in the constitutional republic that was given to us by the founders? I believe in realpolitiks. If we get put in the place that Germany was put in, we will do the exact same thing. We already did, Iraq was an early test. They stated taking oil payments in Euro's and we took them out. That is how the world works. Nothing you or I say about right or wrong will change human nature. That is why you are so naïve and juvenile in these type discussions.

Before you say that dictators are not elected, Hitler was, and the original term of dictator goes back to ancient Greece. Dictators were elected for a five year term. They had absolute power and then they were usually expelled from the country following their term. So dictator is an appropriate, correct term for where we are heading. An elected official with nearly absolute power without any legislative or judicial restrictions. And you idiots next arguement is to transfer that power to a State
Governor. Originally Posted by JD Barleycorn

Thanks for the 8th grade refresher btw

Congress wasn't in recess so he acted illegally and against his sworn oath to uphold the Constitution !

Obama's own legal advisors wouldn't sign off on the appointments as being legal and constitutional! Originally Posted by Whirlaway

Congress hasn't been working since Christmas.they only work about a month out of the year,anyway.