Careful Barack, That Tree Might Start Getting Thirsty.

I, Barack Hussein Obama, do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

- President Barack Hussein Obama, 20 January 2009

The President of the United States is the only elected official, who swears to the "best of [his or her] ability, preserve, protect and defend the Constitution of the United States."  The Vice-President, Senators and Congressmen merely swear to "support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same."  Supreme Court Justices and other Federal court judges swear to "administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [justice/judge] under the Constitution and laws of the United States." It is, therefore, instructive of the Founding Fathers belief that the President was to be held to a higher standard than all other office holders and, as the sole Executive of the Federal government with wide-ranging powers, be singly constrained by the Constitution and be made to expressly swear to preserve, protect and defend it.  Unfortunately, President Obama has broken his oath and can not be trusted to preserve, protect and defend the document that enshrines the bedrock principles of this Republic.

Article One, section Five of the Constitution -- the Adjournments Clause -- states:

  "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."

On 4 January 2011, President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, installed Richard Cordray as the head of the vast new Consumer Financial Protection Bureau and 3 new members to the National Labour Relations Board.   He claimed that he had the power to do this via "recess" appointments.  This presents a problem for President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it.  The Senate is NOT actually in recess. The Constitution says the Senate cannot recess for more than 3 days without the House's permission. The House has not granted permission.   As a result, both houses have been holding pro forma sessions out of constitutional necessity.

The House did NOT pass a Concurrent Resolution with the Senate to recess Congress precisely to block the president from making recess appointments, just as the Democratic Congress did in November 2007 and for the rest of George W Bush’s presidency. In both cases, members of the Senate appeared every three days to gavel the Senate into “pro forma” session. In fact, only the day before President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, acted, the Senate conducted a pro forma session, convening the second session of the 112th Congress. Moreover, no less than his most recent appointee to the Supreme Court, Elena Kagan, writing as his solicitor general on 23 March 2010 to the clerk of the Supreme Court, averred that:

“...the Senate may act to foreclose [recess appointments] by declining to recess for more than two or three days at a time over a lengthy period.”  

When you review the history of the Adjournments Clause, you will learn that the intent of the Founding Fathers was  for the President to be able to make appointments when Congress was out-of-town and not in a position to return quickly to advise and consent to his nominations. Further, recesses lasted up to 9 months at a time.  That was in the day when there were no automobiles, trains, or air travel. They chose 3 days because it was the length of time that it took a quorum to return to Washington. Not one of the Founding Fathers believed that a recess was one day or an hour.

You might think that it isn't "fair" that a minority in Congress or a Congress in the hands of a party opposite that of the President of the United States should be able to stymy the "efforts of the benevolent leader to save the middle class," but that's exactly what the Constitution was written with in mind.

Under Article II, Section 2, Clause 2 of the Constitution, the President has the power to fill vacancies  -- Vacancies Clause -- that may happen during Senate recesses. That power has been interpreted by scores of attorneys general and their designees in the Department of Justice Office of Legal Counsel for over 100 years to require an official, legal Senate recess of at least 10–25 days of duration. (There are a few outlier opinions, never sanctioned by the courts, that suggest a recess of six to seven days might be enough—but never less than that.)

Since the position has never been filled, it is not technically "vacant" and, in fact, Frankendudd clearly states that the Secretary of the Treasury will "perform the functions of the CFPB Director" until the person nominated for the latter position is CONFIRMED BY THE SENATE.  Thus, the "vacancy " clause is irrelevant.  Some disagree with me on this particular issue, and that's fine.  Nevertheless, the Vacancy Clause is still irrelevant with regard to both Cordray and the NLRB nominees since none became vacant during a recess as is required under Article II, Section 2, Clause 2.

 "If you love wealth more than liberty, the tranquility of servitude better than the animating contest of freedom, depart from us in peace. We ask not your counsel nor your arms. Crouch down and lick the hand that feeds you. May your chains rest lightly upon you and may posterity forget that you were our countrymen."
 

- Samuel Adams

According to  the David B Rivkin, Jr. and Lee A Casey in their op-ed in the Wall Street Journal on 6 January 2012, the "traditional test, as articulated in a 1989 published opinion by the Justice Department's own constitutional experts in the Office of Legal Counsel, is whether the adjournment of the Senate is of 'such duration that the Senate could not receive communications from the President or participate as a body in making appointments.'" Today's Senate, which is controlled by the president's own party, is fully capable of performing both functions in accordance with its rules. Indeed, the Senate is so much in session that on Dec. 23—three days after beginning its pro forma session—it passed President Obama's current highest legislative priority: a two-month payroll tax holiday, which the president promptly signed."

As Professor Richard Epstein opines, “it is for the Senate and not for the President to determine whether the Senate is in session."  And second, as Professor John Yoo noted yesterday, “it is up to the Senate to decide when it is in session or not.” Consistent with the separation of powers, “the President cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa.”

"To me, the threat to eliminate the filibuster on judicial nominations was just one more example of the Republicans changing the rules in the middle of the game."

- Barack Obama, The Audacity of Hope, 2006

The Daily Caller asked 51 Senate Democrats if the Senate was in session on 3 January 2011 the day that President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, made the "recess" appointments and only one, Senator Tom Carper of Delaware, supported the President's position that the Senate was, in fact, in recess and, therefore, the President was constitutionally permitted to make recess appointments.  Only one.

In an attempting to justify the president’s violation of the Constitution and 90 years of legal precedent, spokesman Dan Pfeiffer claimed that the president can exercise recess appointment powers because the Senate’s pro forma sessions -- conducted since mid-December -- are merely “a gimmick” during which “no Senate business is conducted and instead one of two Senators simply gavel in and out of session in a matter of seconds.”

Mr Pfeiffer, are you now saying that the payroll tax extension, food stamps, unemployment insurance, and the Medicare Doc Fix are all "gimmicks"?  I thought that they were "critical" to the "most vulnerable" and the middle class?

Let's look at the Congressional Record to see some of the "gimmicks":

The Congressional Record for 23 December 2011 shows that Senate Majority Leader Harry Reid specifically asked for unanimous consent for H.R. 3765 so “that if the House passes and sends to the Senate a bill which is identical to the text extension of the reduced payroll tax, unemployment insurance, TANF, and the Medicare payment fix, the bill be considered read three times and passed.”

In that pro forma session, Reid received unanimous consent and the two-month extension of the payroll tax break that had caused such a political commotion in Washington was considered read and passed in the Senate after the House acted. That’s not a “gimmick.” That’s conducting business.  That's legislating.

That same CR for the 12.23.11 pro forma session records a series of other business actions taken by the Senate.  The President pro tempore signed several enrolled bills.  Other senators were designated as members of a conference committee to negotiate with the House over disagreements to H.R. 3630.   The minority leader even made appointments  to the United States-China Economic and Security Review Commission, pursuant to 22 U.S.C. § 7002.

Contrary to White House assertions, the Senate unquestionably conducted actual business during at least one of its supposedly pro forma sessions.  This simple fact makes the actions of President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, even more indefencible.

In December, the Congressional Research Service said decades of congressional practise and DOJ opinions have backed the position that the Senate should be out of session for more than three days before the president can make a recess appointment.  When President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, was in the Senate, Democrats held Bush to the three day minimum.  In fact, it WAS the Democrats that created the "pro forma" rule with the then-Dean of the Senate, Robert Byrd, giving it his blessing.

The transcript from the New Process Steel v. National Labor Relations Board oral arguments before the Supreme Court show then-acting Solicitor General Neal Katyal referencing the three-day minimum during in which no recess appointment can be made and citing a Department of Justice brief issued in 1993 by Attorney General Janet Reno based on more than 100 years of precedent, rules, and tradition:

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't work why?

    OBAMA'S SOLICITOR GENERAL MR. KATYAL: The -- the recess appointment power can work in -- in a recess. I think our office has opined the recess has to be longer than 3 days. And -- and so, it is potentially available to avert the future crisis that -- that could -- that could take place with respect to the board. If there are no other questions –

    CHIEF JUSTICE ROBERTS: Thank you, counsel.

As a result, the Cordray and NLRB recess appointments are clearly unconstitutional.

Furthermore, Dodd-Frank, hereinafter referred to as Frankendudd, SPECIFICALLY REQUIRES that the Director of the CFPB be CONFIRMED by the Senate. 

Section 1066 provides that the Secretary of the Treasury is authorised to perform the functions of the CFPB under the subtitle transferring authority to the CFPB from the other agencies “until the Director of the Bureau is CONFIRMED BY THE SENATE in accordance with Section 1011.”

Section 1011 provides: “The Director shall be appointed by the President, by and with the advice and consent of the Senate.”

 "In our constitutional system, presidents don't get to 'refuse to take no for an answer.'"

The illegality of the appointment will call into question all of the agency's actions.  Defence counsel will have a field day in the future.  If Cordray & Co. go after a payday loan outfit, for example, the company can get the action dismissed because Cordray is not the lawful head of the agency.

The reason that Republicans in the Senate have held up the Cordray hearings is because they want to get the White House to agree to some changes that would give Congress oversight over the Consumer Financial Protection Bureau.  As it stands, the bureau can begin regulating every aspect of our financial lives without any congressional oversight and is not answerable in any way to voters.  The CFPB would have unaccountable and virtually unlimited power to regulate an enormous variety of non-bank financial transactions, ranging from how consumers can pay bills over the phone to what kind of paperwork developers must give to prospective homebuyers.  Further, far from being a protection wall between consumers and the banks, the CFPB is within the Federal Reserve, which is the playground of Ben Bernanke and the Big Banks.

Richard Cordray is not some milquetoast appointment either.  He is another radical, who believes that the Commerce Clause trumps everything else in the Constitution.  He has argued that the courts, and he seems to agree, have held that any legislation, which has even "incidental effects on the economy," is a "valid exercise of congressional authority" because of the commerce clause." He is, of course, wrong on his assertion, which isn't unusual for anyone associated with this administration.  The Court in United States v. Lopez, 514 U.S. 549 (1995), identified the three broad categories of activity that Congress could regulate under the Commerce Clause:

• the channels of interstate commerce,

• the instrumentalities of interstate commerce, or persons or things in interstate commerce,and

• activities that substantially affect or substantially relate to interstate commerce.

Using these three categories, the Court struck down the Gun-Free School Zones Act of 1990 holding that possession of a gun near school is not an economic activity that has a substantial effect on interstate commerce. A law prohibiting guns near schools is a criminal statute that does not relate to commerce or any sort of economic activity.  Lopez was not the only case in which the Court overturned Federal laws that were either economic INactivity in fact or unsubstantial in nature.  In United States v. Morrison, 529 U.S. 598 (2000), the Court overturned the Violence Against Women Act of 1994, 42 U.S.C. § 13981, and ruled it was unconstitutional as exceeding congressional power under the Commerce Clause and under section 5 of the Fourteenth Amendment to the Constitution.  In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 holding that they abridged "the freedom to engage in a substantial amount of lawful speech."

"History, in general, only informs us what bad government is."
 

- Thomas Jefferson

Pursuant to Cordray's argument, your critique of a restaurant online might hurt its business; thus, your First Amendment rights can be regulated by government via the Commerce Clause.  Your guns could scare off people from coming into your neighbourhood, which could impact the economy; therefore, your Second Amendment rights can be regulated.

Republicans never obstructed the two Democrats President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, installed on the NLRB. They couldn’t have even if they wanted to; President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, only named them as nominees on December 15, less than three weeks before he made the move. The nominees never even filed the normal paperwork with the Senate Health, Education, Labor, & Pensions (HELP) Committee. They didn’t undergo background checks. They didn’t submit questionnaires. They didn’t meet with a single Senate Republican.

As Minority Leader Mitch McConnell said, “Because the President waited to nominate Sharon Block and Richard Griffin until just two days before the Senate was scheduled to adjourn last month, neither has undergone a single confirmation hearing or a single day of debate by the representatives of the American people. Congress has a constitutional duty to examine presidential nominees, a responsibility that serves as a check on executive power. But what the President did today sets a terrible precedent that could allow any future President to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress.”

Congress has five options to respond to this power grab by the executive branch of the federal government:

1.  Filibuster all nominations and deny unanimous consent to the waiver of any rule with regard to nominations, as Senator Robert C Byrd did in 1985 over a lesser recess appointment issue, until these four unconstitutional appointments are rescinded.

2.  Condition passage of all must-pass legislation on the rescission of these unconstitutional appointments.  

3. Conduct vigorous oversight to demand the production of witnesses and documents supporting the president’s legal theory justifying this unprecedented power grab.

4.  Make major cuts in funding of the NLRB and the Department of the Treasury where the CFPB was placed by its authorizing statute. 

5. Pursue legal remedies to get those unconstitutionally appointed officials out of office.

As for Attorney General Ed Meese and a former Office of Legal Counsel lawyer, Todd Gaziano, point out in their editorial in the Washington Post, "if Congress does not resist, the injury is not just to its branch but ultimately to the people.” Separation of powers exists to protect liberty and to protect the rights of democratically elected senators to participate in the nominations process. This is a “tyrannical usurpation of power” by President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, and Congress must act quickly to restore an appropriate balance between the executive and legislative branches of the federal government.

"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."

 - Attorney General Ed Meese and a former Office of Legal Counsel lawyer, Todd Gaziano

Added to all of this is the fact that it was the Democrats -- with then-Senator Obama as one of the principal architects -- that came up with the idea of using pro forma sessions to thwart the ability of President George W Bush to make recess appointments.  According to the Congressional Research Service, "the Senate pro forma session practice appears to have achieved its stated intent: President Bush made no recess appointments between the initial pro forma sessions in November 2007 and the end of his presidency."  When Obama was elected pro forma sessions stopped, but after the 2010 elections, they resumed.

THEN-SEN. BARACK OBAMA (D-IL): Recess appointments ‘the wrong thing to do.’ “‘It’s the wrong thing to do. John Bolton is the wrong person for the job,’ said Sen. Barack Obama, D-Ill., a member of Foreign Relations Committee.” (“Officials: White House To Bypass Congress For Bolton Nomination,” The Associated Press, 7/30/05)

OBAMA: A recess appointee is ‘damaged goods… we will have less credibility.’ “To some degree, he’s damaged goods… somebody who couldn’t get through a nomination in the Senate. And I think that that means that we will have less credibility…” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05)

SEN. HARRY REID (D-NV): ‘An end run around the Senate and the Constitution.’ “I will keep the Senate in pro forma session to block the President from doing an end run around the Senate and the Constitution with his controversial nominations.” (Sen. Reid, Congressional Record, S.15980, 12/19/07)

REID: ‘They are mischievous.’ “Also, understand this: We have had a difficult problem with the President now for some time. We don’t let him have recess appointments because they are mischievous, and unless we have an agreement before the recess, there will be no recess. We will meet every third day pro forma, as we have done during the last series of breaks.” (Sen. Reid, Congressional Record, S.7558, 7/28/08)

REID: Recess appointments an ‘abuse of power.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)

REID: A recess appointee will have ‘a cloud hanging over his head.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)

SEN. DICK DURBIN (D-IL): ‘Troubling.’ “When you have an appointment that is this critical and this sensitive, and the president basically says he’s going to ignore the will of the senate and push someone through, it really is troubling.” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05)

DURBIN: ‘Could easily be unconstitutional.’ “I agree with Senator Kennedy that Mr. Pryor’s recess appointment, which occurred during a brief recess of Congress, could easily be unconstitutional. It was certainly confrontational. Recess appointments lack the permanence and independence contemplated by the Framers of the Constitution.” (Sen. Durbin, Congressional Record, S.6253, 6/9/05)

SEN. JOHN KERRY (D-MA): Recess appointments an ‘abuse [of] the power of the presidency.’ “‘It’s sad but not surprising that this White House would abuse the power of the presidency to reward a donor over the objections of the Senate,’ Kerry said in a statement …” (“Recess Appointments Granted to ‘Swift Boat’ Donor, 2 Other Nominees,” The Washington Post, 4/5/07)

SEN. FRANK LAUTENBERG (D-NJ): “…bends the rules and circumvents the will of Congress.” (“President Sends Bolton to U.N.; Bypasses Senate,” The New York Times, 8/2/05)

SEN. MAX BAUCUS (D-MT): “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered…” (“Dem Baucus Joins GOP In Blasting Obama CMS Recess Appointment,” The Hill, 7/7/10)

“I refuse to take ‘No’ for an answer. I’ve said before that I will continue to look for every opportunity to work with Congress to move this country forward. But when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them.”

- President Barack Obama, 5 January 2012

Well, guess what, Barack, you aren't a king nor a dictator.  Presidents have been getting told "No" throughout the history of this country.   You don't get to decide when the Constitution is relevant and when it must be thrown aside to "move this country forward."  Some of us look to the Constitution precisely to prevent you from moving the country "forward" in the backwards direction that you would like to take it with your Luddite and Leveller obsession.

  
Obamabots, I hope that you like the precedent. Imagine a future Mr President Generic Republican nominating Mark Levin for the Supreme Court and, two weeks later while Congress is off for the weekend, appointing him to the Court using the recess appointment clause in the Constitution, which would be completely unconstitutional.

 

Number of "recess" appointments made by Washington to Carter when the Senate WAS NOT IN RECESS:

ZERO

Number # of "recess" appointments made by Reagan when the Senate WAS NOT IN RECESS:
ZERO

Number of "recess" appointments made by Bush I when the Senate WAS NOT IN RECESS:
ZERO

Number of "recess" appointments made by Clinton when the Senate WAS NOT IN RECESS:
ZERO

Number of "recess" appointments made by Bush II when the Senate WAS NOT IN RECESS:
ZERO
Number of "recess" appointments made by Obama when the Senate WAS NOT IN RECESS:
FOUR AND COUNTING

I don't want to hear any whining from you assholes then. You have no regard for the Constitution. "The ends justify the means" is your entire life.  

You people are PATHETIC.  You screamed bloody murder about the Patriot Act, which I opposed, but you say nothing when President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, starts assassinating American citizens and demands to be able to detain Americans indefinitely without trial.  You screamed bloody murder about the AUMFs, but are as quiet as church mice when President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, starts bombing Libya.  You screamed bloody murder about Bush firing 8 US Attorneys, who serve at the pleasure of the President, but nothing when Bill Clinton fired 93 US Attorneys or an inspector general without properly notifying Congress.  You screamed  bloody murder about deficits and debt, but say NOTHING when President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, is on track to spend more in his first term than Bush did in 8 years.  You called for the heads of Alberto Gonzales and Karl Rove, but say nothing about Eric Holder, who is responsible for the deaths of two Federal agents, several Americans, and hundreds of Mexicans, tolerates perjury by staff attorneys, and is only concerned about the rights of "his people."  You stupid fucks were cheering when you were encouraging President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, to use the Fourteenth Amendment to go around Congress to increase the debt limit even though it expressly leaves that right to CONGRESS ONLY, to-wit:

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The CONGRESS shall have power to enforce, by appropriate legislation, the provisions of this article.

The Constitution protects ALL of US from the government regardless of party.  Its shredding should not be a cause for celebration.  This isn't about Republicans and Democrats.  If anyone thinks this is a fabulous thing because it will help President Obama, he who swore an oath promising to the best of his ability to preserve, protect and defend the Constitution of the United States and broke it, today and/or President Future Republican, s/he who will swear an oath promising to the best of her/his ability to preserve, protect and defend the Constitution of the United States and and break it, then, as a libertarian, I say a pox on both your houses.  

"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." 

-  Thomas Jefferson  

____________________________________________________

A few readers have emailed me to say that Teddy Roosevelt made 160 recess appointments between gavels in 1903.  That's true.  He made the recesses between the end of the 57th Congress and the beginning of the 58th Congress.  The current Congress, the 112th, runs from January 2011 until January 2013. Roosevelt made his recess appointment between different Congresses. Obama hasn’t.  Big difference.