I don't really give a flying **** about recess appointments. It's all political horse**** - be it the actual nomination or the stupidly annoying congressional review.
Sure - and as in this case, Congress would have the ability to challenge the President's authority, and the public would be able to judge whether it was an acceptable or unacceptable thing to do. Something tells me Congress and the public would both react very differently under your scenario than here.
well sure, we're talking about a supreme court justice. even so, while it may be politically expedient to ignore the law now, it's a dangerous precedent, and one that could easily backfire on democrats not too far down the road.
Agreed. But at the end of the day, governing is the goal of government. If the Republicans refuse to actually participate in the process of governing, the Democrats have no choice but to find ways around the system. Republicans made a decision in the interests of their party. The Dems made a decision in the interests of the people.
Where do the Republicans go with it from here? Is this just a talking point for them, grounds for impeachment, or do they actually have a mechanism by which they can try to exert their will?
If they want, Congress can essentially sue the President to stop the appointment. The legal argument is probably reasonable - no one has any clue what would happen there - but it would be a PR nightmare to sue the President for trying to staff a popular agency with a nominee that was offered 9 months ago and whom both Senate Republicans and Democrats agree is qualified, but couldn't get a vote because Republicans wanted to play politics. The better case would be the NLRB people, because that agency is not nearly as popular and those nominees weren't languishing with no vote.
There are bad facts for them there as well - In that instance, they're expressly trying not to have a quorum after an SCT decision earlier this year, and would be trying to block the Republican member appointment. The whole thing runs into separation of powers concerns and is probably why the "political question' doctrine exists.
fair question. it is grounds for impeachment (IMO) or at least a legal challenge. whether they choose either route is another matter. one thing is for certain, if this maneuver stands, (it's a cliche because it's true) consequences will never be the same. woo makes some sense: -- Richard Cordray & the Use and Abuse of Executive Power By John Yoo January 5, 2012 10:59 A.M. Comments4 Some think me a zealous advocate of executive power, and often I am when it comes to national security issues. But I think President Obama has exceeded his powers by making a recess appointment for Richard Cordray (whom I respect and have no problems with as a nominee) to head the new Consumer Financial Protection Bureau. Any private party can challenge this nomination by refusing to obey any regulation issued by the agency as the act of an unconstitutional officer. As a result, this may be the first time that Richard and I get to represent someone in court together! Here we go into the fun world of federal-personnel law (which is what lawyers in the Justice Department spend a fair amount of time on). The president’s power over what are known as “recess appointments” stems from Article II of the Constitution, which grants him the authority “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The Constitution does not define what a “recess” is — the Senate adjourns for short periods of time, and the question becomes when an “adjournment” becomes long enough to turn into a “recess.” In the past, attorneys general and presidents have thought that an adjournment would have to be longer than at least ten days to become a “recess.” But President Obama is making a far more sweeping claim. Here, as I understand it, the Senate is not officially in adjournment (they have held “pro forma” meetings, where little to no business occurs, to prevent Obama from making exactly such appointments). So there is no question whether the adjournment has become a constitutional “recess.” Rather, Obama is claiming the right to decide whether a session of Congress is in fact a “real” one based, I suppose, on whether he sees any business going on. This, in my view, is not up to the president, but the Senate. It is up to the Senate to decide when it is in session or not, and whether it feels like conducting any real business or just having senators sitting around on the floor reading the papers. The president cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa. Is the president going to have the authority to decide if the Supreme Court has deliberated too little on a case? Does Congress have the right to decide whether the president has really thought hard enough about granting a pardon? Under Obama’s approach, he could make a recess appointment anytime he is watching C-SPAN and feels that the senators are not working as hard as he did in the Senate (a fairly low bar). Even with my broad view of executive power, I’ve always thought that each branch has control over its own functions and has the right — if not the duty — to exclude the others as best it can from its own decisions. The Senate can make sure that its rights are respected by refusing to provide any support or legislation to the agency, conducting tough oversight hearings, and enacting repealing legislation at every opportunity. It can also use non-formal means such as hearings, appointments, and funding of related agencies to impose a high cost for Obama’s act. Most importantly, private parties outside government can refuse to obey any regulation issued by the new agency. They will be able to defend themselves in court by claiming that the head of the agency is an unconstitutional officer, and they will have the grounds for a good test case. They can call Richard first, me second, for advice! — John Yoo is a professor of law at the Boalt Hall School of Law at the University of California at Berkeley. This post first appeared on Ricochet.
I think Yoo has a good point, but unfortunately it cuts both ways. Only congress should have the right to say whether or not they are in session. For the president to assume a recess violates the spirit of the Constitution. But, likewise, it's the president's right to make appointments; congress only has the right to approve them. So it is just as much a vioalation of the spirit to use parliamentary tricks to block him. Should I really reproach the president for sinking to congress' level and employing the same dirty tricks they do? The rule of law gets pretty murky at the top when no one thinks anyone else gets to tell them what the rules mean. All that's left is who has leverage. It's not a comfortable place to see one's government sink to.
depends on which branch of government we're discussing. in congress, each senator or representative should represent the interests of their individual constituencies. the executive however, is president of the entire country, not just those who voted for him. the problem in my view is Obama continues to think of himself as a President with the obligations of a senator.
Playing dirty can work both ways. House Republicans need to cut funding by 100% to the Consumer Financial Protection Bureau, including all management personnel. Afterall, the House holds the power of the purse.
I don't think you understand how the "power of the purse" works. Unfortunately for them, they need the Senate and the President to support it too.
