Letter to the Editor

Obama 'recess' appointment violate Constitution

Thursday, January 12, 2012

Dear Editor,

Article II, Sec. 2, Clause 2 of the United States Constitution, regarding powers of the President:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Further, Article II, Sec. 2, Clause 3 reads:

The President shall have Power 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.

This constitutional language is unambiguous; and yet President Obama ignored its requirements, so to avail the levers of federal power to more of his socialist "change" agents. Obama chose to unilaterally overrule the Supreme Law of the land, which REQUIRES the advice and consent of the Senate when making appointments of "Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States ... " In fact, the Senate was not in recess, and so Obama's unlawful fiat is yet one more dictatorial act in his appalling record of usurpations. This action was not the altruism of a sympathetic president, but rather the machination of a malevolent dictator, who is hell bent on transforming this representative constitutional republic into a third-world socialist basket case. Obama has again successfully defied the U.S. Constitution -- and we stand silent and watch!

We have an increasingly arrogant and lawless president imposing his will upon America. Barack Obama's actions endanger all Americans, regardless of party affiliation, because the Constitution is the ONLY procedural protection we possess against government -- and failing its provisions, we must then resort to force of arms. If the Supreme Law of the land no longer holds, then not one of us is secure in our liberties -- and we will pay a terrible price for our collective apathy. Tyranny begins with a whisper, but always ends with a roar. Silence is CONSENT! Our choice is brutally simple: We shall have the Law, or we shall have anarchy.

Please visit, call, or mail a handwritten letter to your U.S. Senators and Representatives. Request they take concrete action against these unlawful appointments: defund the agencies involved; prohibit these illegally appointed bureaucrats from receiving compensation. Moreover, demand the initiation of impeachment proceedings against President Obama. His continued and willful undermining of the U.S. Constitution must stop now, or America is finished as a free nation.

Bruce C.A. Desautels

Stratton, Nebraska

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  • On August 1, 2005, Bush made a recess appointment of John Bolton, to serve as U.S. representative to the United Nations.[7] Bolton had also been the subject of a Senate filibuster. The filibuster concerned documents that the White House refused to release, which Democrats suggested may contain proof of Bolton's abusive treatment and coercion of staff members or of his improper use of National Security Agency communications intercepts regarding U.S. citizens. Having failed to win Senate confirmation, he resigned his office in December 2006 concurrently with the adjournment of the 109th Congress.[8]

    -- Posted by mickhaney on Thu, Jan 12, 2012, at 1:32 PM
  • The Justice Department has ruled in favor of President Obama. Following is a link to the legal opinion.


    -- Posted by Geezer on Thu, Jan 12, 2012, at 2:14 PM
  • If I remember my Poli-Sci, Opinion has never been a 'ruling,' only the advice of counsel. That word usually carries weight in making decisions, but always needs Judgment of the Court, to stand as voiced.

    This should be interesting to see just how much Congressional power, Congress is going to allow, before challenging the Administration, and adhering to the Constitution, as written, not as deciphered, with prejudice.

    -- Posted by Navyblue on Thu, Jan 12, 2012, at 3:49 PM
  • Mick,

    The Senate was not in recess when President Obama made this appointment so I guess I really don't understand your post?? Please clarify!

    -- Posted by remington81 on Thu, Jan 12, 2012, at 4:36 PM
  • Navyblue

    The opinion is based on the Constitution. Please read it.

    -- Posted by Geezer on Thu, Jan 12, 2012, at 6:06 PM
  • Geezer- the opinion rendered was based on someone's interpretation of the constitution.Now as soon as they post their constitutional law degree,CV, and other qualifications along with the case law that sets precedent in this matter I will take their interpretation seriously. Until that time it's just one more persons opinion and carries no more weight than that.I have read the constitution- several times- along with the Federalist and anti-Federalist papers but I do not expect my opinion to carry any more weight than any other persons

    -- Posted by davis_x_machina on Fri, Jan 13, 2012, at 8:29 AM
  • davis_x_machina

    I don't argue that it is an opinion. What I argue is that it is the opinion of the Justice Department who serves as legal council to the President of the United States. This is the way our government functions, until it is taken to court or Congress creates additional legislation to address this issue the President has fulfilled his constitutional obligations.

    This is not only the opinion of the current Justice Department, this is also the opinion of past Justice Department opinions on this issue.

    The opinion carries the examples of case law, if you would read the opinion you would recognize that.

    -- Posted by Geezer on Fri, Jan 13, 2012, at 10:34 AM
  • Has he been found guilty of any wrong doing? Please post links to your facts.

    -- Posted by Geezer on Fri, Jan 13, 2012, at 12:20 PM
  • Remember geezer, grandma doesn't look at the whole picture, she just looks at the fragments that fit her arguement.

    -- Posted by carlsonl on Fri, Jan 13, 2012, at 12:43 PM
  • I guess you and I read the word slightly differently, Geezer. As I read the word: "The President shall have power 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."

    I use parenthesis to mark the area of concern, in that these 'vacancies' did not occur during a 'recess.' A comma following the word 'Senate' would accentuate the flow of thought a tad better, I suppose. The word, 'that' is a conjunctive qualifying word, I do believe, used to set parameters on the thought being expressed.

    Of course, that is only as I see it, but how I do. The only time the President is allowed to fill a position during recess, is if the vacancy occurs in said recess, IMHO.

    -- Posted by Navyblue on Fri, Jan 13, 2012, at 12:47 PM
  • Navyblue

    Indeed, in construing the phrase "happen during the Recess" in the Recess Appointments Clause to mean "happen to exist" rather than originate in the recess, Attorney General Wirt identified two possibilities: one was "most accordant with the letter of the constitution; the second, most accordant with its reason and spirit." Executive Authority to Fill Vacancies, 1 Op. Att'y Gen. at 632. He chose the "construction of the constitution which is compatible with its spirit, reason, and purpose." Id. at 633. The courts have subsequently endorsed the construction adopted by Wirt. See, e.g., Evans, 387 F.3d at 1226-27; United States v. Woodley, 751 F.2d 1008, 1012-13 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704, 710-14 (2d Cir. 1962); In re Farrow, 3 F. 112, 115-16 (N.D. Ga. 1880). But see Schenck v. Peay, 21 F. Cas. 672, 674-75 (E.D. Ark. 1869)

    -- Posted by Geezer on Fri, Jan 13, 2012, at 1:50 PM
  • *

    "The President shall have Power 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."

    Straight forward language, which only the disingenuous and intellectually dishonest could so obscure with nebulous doubletalk.

    The Senate was NOT in Recess. President Obama willfully violated the letter -- and the "spirit" -- of the law. Period.

    Citing legal "advice" from Eric -- let's give guns to Mexican drug cartels, and blame the inevitable mayhem on innocent American gun-owners, so we can gut the Second Amendment -- Holder, aspires to the heights of liberal twaddle.

    Maybe we should next consult with North Korea's communists on the meaning of liberty? That would be just as rational a political exercise.

    Quit with the attempts to make cow dung smell like roses.

    If Obama sincerely desired "advice" ...

    Then he should have followed the path REQUIRED by the U.S. Constitution.

    He should have sought the "advice and consent" of the U.S. Senate ...

    He shoulda, coulda, woulda -- but didn't!

    No. Emperor Obama once again played his now familiar "Screw the Constitution." That tune is really growing old. But there are just enough die-hard lefties still around to keep the **** thing on the American pop charts.

    Now, the Emperor demands we all play this cow patty contest, in which he "hopes" flinging legalese BS against a barn wall may prove something to stick.

    Keep feeding this crocodile -- perhaps he will eat you last.

    -- Posted by Bruce Desautels on Sat, Jan 14, 2012, at 12:40 AM
  • Bruce

    You seem to be in denial of nearly 200 years of legal precedence involving the interpretation of what constitutes a recess and the appointments made during a recess. You can continue to insult individuals or groups to satisfy your personal disappointment, but that will not change the significance of precedence or case history.

    The convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a "Recess of the Senate" under the Recess Appointments Clause. In this context, the President therefore has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.

    -- Posted by Geezer on Sat, Jan 14, 2012, at 4:41 AM
  • Bruce,

    They were in recess. Holding pro forma meetings twice a week starting on the Jan 3rd does not mean they were in session.

    -- Posted by bberry on Sat, Jan 14, 2012, at 7:04 AM
  • Thanks, Geezer. I didn't know, what I call 'twisting of meaning,' dated back into the 1800's. I still believe I learned English properly, and they do err, but that is not worthy of debate, since the courts seem to run everything by 'loophole theology.' Hmm, now there is a subject for discussion. Ha, Theology, not loopholes. ha, again.

    -- Posted by Navyblue on Sat, Jan 14, 2012, at 9:33 AM
  • *

    Geezer and bberry -- You are both wrong.


    The power to make a recess appointment was conceived for a time when communicating with and summoning senators back to the Capitol might take weeks -- That is not an issue in the modern era of jet travel and instant communications.

    However, in this case, not only was the Senate not in recess when these appointments were made ... IT CONSTITUTIONALLY COULD NOT BE IN RECESS!

    (See Article I, Section 5 of the Constitution.)


    In direct contradiction to Geezer's assertion -- Edwin Meese, who served as U.S. attorney general under President Ronald Reagan, had this to say about the matter:

    "... Not only was the Senate not in recess when these purported appointments were made, it constitutionally could not have been.

    Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days.

    The president and anyone else may object that the Senate is conducting "pro forma" sessions, but that does not render them constitutionally meaningless, as some have argued. In fact, the Senate did pass a bill during a supposedly "pro forma" session on Dec. 23, a matter the White House took notice of since the president signed the bill into law. The president cannot pick and choose when he deems a Senate session to be "real."

    It does not matter one whit that most members of Congress are out of town and allow business to be conducted by their agents under unanimous consent procedures, because ending a session of Congress requires the passage of a formal resolution, which never occurred and could not have occurred without the consent of the House. ..."


    Here we get to the crux of Obama's usurpation ...

    "President Obama's attempt to unilaterally appoint three people to seats on the National Labor Relations Board and Richard Cordray to head the new Consumer Financial Protection Bureau (after the Senate blocked action on his nomination) is more than an unconstitutional attempt to circumvent the Senate's advise-and-consent role. It is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.


    A "Recess" Appointment Leaves Unanswered Questions

    (5.) While much of the press attention focused on the President's announcement of Cordray, little attention was paid to the NLRB nominees. There is some debate in the Capitol over whether Cordray's announcement was in fact cover for the NLRB appointments. Unlike Cordray, the NLRB nominees were only sent to the Senate on December 15 - leaving the Senate no time to hold a hearing or consider the nominations prior to leaving for the holidays. However, the NLRB would not have had a quorum to approve new regulations and the President's action gave it the necessary authority - at least until the first legal challenge.



    "... Never before has a president made a "recess" appointment when the Senate is demonstrably not in recess. That is a constitutional abuse of a high order.

    When Senate Majority Leader Harry Reid (D-Nev.) kept the chamber in pro forma sessions at the end of the George W. Bush administration, he declared that was sufficient to prevent Bush's use of the recess appointment power. Reid was right, whether or not his tactics were justified."



    " ... The Senate committee handling the nominations of Democrats Sharon Block and Richard Griffin to the NLRB never received the required paperwork from the two nominees. The president submitted the nominations to the Senate on December 15, a day before it entered pro forma session, with most Senators returning to their home states.

    The paperwork includes information required for a background check, "which addresses whether taxes are paid and if the nominee is facing any pending civil or criminal investigations," according to a committee release. "This also ensures that there are no conflicts-of-interest before being confirmed for the position."

    [Neither had proper background checks because they never turned in the paperwork to the Senate committee (HELP) that handles nominations!]

    Committee spokesman Joe Brenckle said members had not taken positions on the nominees, [because] they had not undergone even the most basic vetting procedures. ...

    In fact, HELP committee rules specify that action cannot be taken on a nominee until five days after the paperwork is filed. So even if members had wanted to move Block and Griffin forward, they would have been unable to do so by the committee's own written procedures."


    -- Posted by Bruce Desautels on Sat, Jan 14, 2012, at 3:29 PM
  • Bruce,

    I am still correct.

    They were in an intrasession recess. They were holding pro forma sessions every tuesday and friday with no business to be conducted to avoid needing approval of the house.

    Article I, Section 5 is a provision that if they want a longer recess or break, they must have approval from the house.

    It doesn't define the term recess.

    The constitution also does not mandate a minimum amount of days for the senate to be in recess for the president making a recess appointment.

    Have a good one Bruce.

    -- Posted by bberry on Sat, Jan 14, 2012, at 6:08 PM
  • Bruce

    I have found what I think is the latest (2004) court proceedings that discuss in length recess appointments. This is with the 11th Circuit Court of Appeals.

    It also includes reference to historical precedence and additional case support.

    There is one dissenting opinion along your line of thought so I thought you might be interested in reading it.


    -- Posted by Geezer on Sun, Jan 15, 2012, at 1:31 PM
  • Perhaps all individuals should consider the double edge sword of truth in that they themselves live in an undiscovered glass house. What should a society do when we are faced with an "outsider" one who moves into our community with a shadow of a past. When we, in our society are subjected to the implausible theories of an overzealous individual Bruce, should we not consider the underlying rational for that basis? One may wish to speak to the theories of prostitution or gay fathers in Worcester on a back road by a church no less, in a dark....dark house, or more appropriately pornographic addictions that have no end or children that are not our own. Is it not ironic that life is a chaotic and cyclical event in that the truth will face you. The truth is in itself a coherent and distinctive echo that surreptitiously awaits you and your peers as you attempt and flounder at disguise of your inner self. Attempts to dispel it only assist in showing the root of the evil within you. Unless that is, you run and burrow like a hideaway 2000 miles away from Worcester in an attempt to conceal your identity. The deplorable aspect of this transgression is that you yourself know what you are and what you have done in this world. May god have mercy on your soul. To quote you at your best:

    "He shoulda, coulda, woulda -- but didn't!"

    -- Posted by WorcesterMAN on Mon, Feb 13, 2012, at 1:11 AM
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