Fund Your Utopia Without Me.™

07 January 2012

Chicago On The Potomac

President Obama's appointments of Richard Cordray as head of the new Consumer Financial Protection Bureau, and of three new members of the National Labor Relations Board, are all unconstitutional.

Each of these jobs requires Senate confirmation. The president's ability to fill them without that confirmation, using his constitutional power to "fill up vacancies that may happen during the recess of the Senate," depends upon there actually being a recess. Both the House of Representatives and the Senate are open for business. The new appointees can pocket their government paychecks, but all their official acts will be void as a matter of law and will likely be struck down by the courts in legal challenges that are certain to come.

The Constitution's Framers assumed that Congress would convene only part of each year, and that there would be long stretches during which the Senate would be unavailable to play its critical "advice and consent" role in the appointment of federal officials. Their solution was to allow the president to make temporary, "recess" appointments permitting the individuals chosen to serve for up to two years, until the end of Congress's next session. This, it was thought, would give the Senate time to act upon actual nominees for the offices once it reconvened without leaving these—perhaps critical—posts vacant for many months.

Presidents have used this authority with alacrity, especially in recent times, as a means of putting a favored nominee on the job even in the face of significant Senate opposition. Historically, the president's lawyers have advised that this is a constitutionally permissible exercise of his recess-appointment power, so long as the Senate is actually in recess.

The Constitution does not define a "recess," but in view of the original purpose of the recess-appointment power, a senatorial absence of more than a few days has been considered a necessary prerequisite. This is particularly the case because the Constitution also provides (in Article 1, section 5, clause 4) that neither house of Congress can "adjourn for more than three days" without the other's consent—thus ensuring that the flow of legislative work cannot be unilaterally interrupted. The Senate can hardly be in recess in the absence of such an agreement—and there is none now.

In more recent years, and especially during President George W. Bush's administration, the Senate has attempted to limit recess appointments even further by remaining "in session" on a pro forma basis. Whether such sessions are inherently sufficient to defeat a presidential recess appointment is debatable. However, in circumstances where the Senate is not merely in session as a theoretical matter, but is actually conducting business—albeit on the basis of agreements that measures can and will be adopted by "unanimous consent" without an actual vote—there can be no question that it is not in recess.

That is the situation today. 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.

Mr. Obama is claiming an open-ended authority to determine that the Senate is in recess, despite that body's own judgment and the factual realities. That is an astonishing and, so far as we can tell, unprecedented power grab.

It is not up to the president to decide whether the Senate is organized properly or working hard enough. However much the supposedly power-hungry President George W. Bush may have resented the Senate's practice of staying "in session" to defeat his recess-appointment power, he nevertheless respected the Senate's judgment on the point.

The president has done his new appointees and the public no favors. Both the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau are regulatory agencies with profound real-world impact. Those individuals and businesses subject to regulations and rulings adopted during the tenure of Mr. Obama's recess appointees can challenge the legality of those measures in the courts, and they will very likely succeed.

Only two years ago in New Process Steel v. NLRB, the Supreme Court undercut hundreds of NLRB decisions by ruling that the board had not lawfully organized itself after the terms of two recess appointee members expired, leaving it without a quorum. Similar issues will arise when both the new financial bureau and the NLRB begin to act with members whose appointments are constitutionally insupportable.

The fact that the president has apparently triggered the constitutional crisis without really expecting to produce any lasting policy impact, and for no better reason than to bolster his claim of running against a "do-nothing" Congress (the key part of his re-election campaign), makes his behavior all the more reprehensible.

Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department during the Reagan and George H.W. Bush administrations. Mr. Rivkin is also a senior adviser to the Foundation for Defense of Democracies.


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Is the Cordray Recess Appointment Constitutional?


Chicago On The Potomac


Is the Cordray Recess Appointment Constitutional?

By Jonathan Turley, Progressive, Constitutional Law Professor, George Mason University School of Law

The recess appointment of Richard Cordray has produced what appears to be the intended political response. The White House wanted to highlight the GOP blocking not just the head of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board. Over the last few days I have been called by various media outfits for a supporting view of the recess appointment of Cordray. However, I do not support the appointments and believe they raise serious constitutional problems.

First let me begin by saying that the blocking of Cordray is wrong and itself raises questions over the dysfunctional effect of the filibuster power. Moreover, the Senate has continued to use its own abusive unchecked powers like blues-slipping, which I have long criticized with recess appointments.

The Cordray controversy, however, combines the controversial use of filibustering with the controversial practice of recess appointments — a perfect storm of dysfunctional actions by both parties. I was highly critical of recess appointments during the Bush administration. These appointments, particularly of judges, circumvents the constitutional process and represents an unchecked power with limited textual support in the constitution. This case in particular is a clear effort to deny the Senate its authority to share the power of appointment of high-ranking officials. It has nothing to do with the merits. I like Cordray, but circumventing the Constitution is no solution to a political stalemate.

Recess appointments do have support in the Constitution. Article II, Section 2 of the U.S. Constitution states:
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.
The power, however, is ill-defined and there has long been a debate over its scope. When this clause was first put into effect, it was common for recesses to last six or even nine months at a time. That made such appointments a practice necessity. In modern times, it has been used openly to circumvent opposition in Congress — something that was not the intention of the Framers in my view. Bush uses the power to appoint John Bolton — circumventing well-reasoned objections to his appointment to the United Nations. However, Democrats have to stop citing the Republicans as precedent when they vehemently objected to the same practices. If it was wrong then, it is wrong now. Indeed, the brief length of this “recess” makes this a particularly wrong-headed move.

The long practice of judicial appointments is particularly obnoxious in my view. In 2000, Bill Clinton gave Roger L. Gregory a recess appointment to the Fourth Circuit. (He was later renominated Gregory and secured confirmation). In 2004, Bush recess appointed Charles W. Pickering to the U.S. Court of Appeals for the Fifth Circuit and William H. Pryor to the Eleventh Circuit Court of Appeals. I have long argued that the Senate should adopt a rule that it would vote against the later confirmation of any judge given such a recess appointment on principle. Citizens are entitled to the guarantee of a federal judge confirmed by the Senate and given life tenure.

The dangers of such appointments is made evident by George Washington’s appointment of South Carolina judge John Rutledge as Chief Justice of the United States during a congressional recess in 1795. I have previously written about Rutledge — a man who was demonstrably deranged, later rejected by the Senate, and attempted suicide.

The Justice’s Office of Legal Counsel in 1989 indicated that presidents cannot make recess appointments during Senate breaks of less than three days — a long-standing guiding principle. For that reason, Congress decided not to break for more than three days this year — a decision clearly within the power of members. In this case, the House refused to consent to the Senate adjourning for more than three days, which is its perogative under the Constitution. Neither house can adjourn without the consent of the other under Article I, Section 5.

Once again, I believe Democrats are blinded by the immediate political controversy and not considering the long-term implications of such appointments. Previously, some of these same members (including Senate Majority Leader Harry Reid (D-Nev.)) used precisely this power to block recess appointments by President Bush.

While this pro forma session may seem like dirty pool, it is clearly constitutional. Moreover, it was not entirely pro forma since three days after into the session, Congress passed the President’s demand for a two-month payroll tax holiday.

Once again, I am generally opposed to modern recess appointments designed to circumvent political opposition in Congress. However, this is different. If this is a valid recess for such appointments, a president could circumvent the process with the slightest interruption of sessions. Is that the precedent Democrats want to establish. President Obama has already surpassed Richard Nixon in the development of an imperial presidency of unchecked executive powers.

The Framers laid out a detailed process for the appointment and confirmation of officials as a shared power of both the legislative and executive branches. It has rarely been a smooth relationship — shared power often produce tensions whether between siblings in a family or sister branches in a tripartite government. The framers understood and expected such tensions. They used the rivaling interests of the branches to serve as checks and balances. The Administration does not like the fact that the Senate is withholding its consent. However, that is like complaining about the weather. You can rage at the rain or find shelter in our system through compromise.

There is a good chance that a federal court would again avoid such a constitutional challenge by saying that it is a matter for the political branches to work out. Courts have increasingly avoided their responsibility to answer such questions by deferring to the political process when this practice undermines the political process established by the Framers. What is clear is that the President has a recess appointment power and the question is whether there is truly an implied period after which this power may be constitutionally used. That is a difficult question given the ambiguity of the text. However, it is not a close question in terms of the dysfunctional role played by this practice, in my view. It is not something that should be applauded merely because it puts the opposing party in a tough position or fits with a campaign theme.

It seems that this is a good fight to have politically for the White House and certainly it highlights a wedge issue with the GOP. However, it is not good for the Constitution or, in the long run, the country.

Related Reading:


Final Curtain: Obama Signs Indefinite Detention of Citizens Into Law As Final Act of 2011

Obama Skirts the Democratic Process



Is the Cordray Recess Appointment Constitutional?


Chicago On The Potomac

The New Authoritarianism

“I refuse to take ‘No’ for an answer,” said President Obama this week as he claimed new powers for himself in making recess appointments while Congress wasn’t legally in recess. The chief executive’s power grab in naming appointees to the Consumer Financial Protection Bureau and the National Labor Relations Board has been depicted by administration supporters as one forced upon a reluctant Obama by Republican intransigence. But this isn’t the first example of the president’s increasing tendency to govern with executive-branch powers. He has already explained that “where Congress is not willing to act, we’re going to go ahead and do it ourselves.” On a variety of issues, from immigration to the environment to labor law, that’s just what he’s been doing—and he may try it even more boldly should he win reelection.

This “go it alone” philosophy reflects an authoritarian trend emerging on the political left since the conservative triumph in the 2010 elections.

The president and his coterie could have responded to the 2010 elections by conceding the widespread public hostility to excessive government spending and regulation. That’s what the more clued-in Clintonites did after their 1994 midterm defeats. But unlike Clinton, who came from the party’s moderate wing and hailed from the rural South, the highly urban progressive rump that is Obama’s true base of support has little appreciation for suburban or rural Democrats. In fact, some liberals even celebrated the 2010 demise of the Blue Dog and Plains States Democrats, concluding that the purged party could embrace a purer version of the liberal agenda. So instead of appealing to the middle, the White House has pressed ahead with Keynesian spending and a progressive regulatory agenda.

Much of the administration’s approach has to do with a change in the nature of liberal politics. Today’s progressives cannot be viewed primarily as pragmatic Truman- or Clinton-style majoritarians. Rather, they resemble the medieval clerical class. Their goal is governmental control over everything from what sort of climate science is permissible to how we choose to live our lives. Many of today’s progressives can be as dogmatic in their beliefs as the most strident evangelical minister or mullah. Like Al Gore declaring the debate over climate change closed, despite the Climategate e-mails and widespread skepticism, the clerisy takes its beliefs as based on absolute truth. Critics lie beyond the pale.

The problem for the clerisy lies in political reality. The country’s largely suburban and increasingly Southern electorate does not see big government as its friend or wise liberal mandarins as the source of its salvation. This sets up a potential political crisis between those who know what’s good and a presumptively ignorant majority. Obama is burdened, says Joe Klein of Time, by governing a “nation of dodos” that is “too dumb to thrive,” as the title of his story puts it, without the guidance of our president. But if the people are too deluded to cooperate, elements in the progressive tradition have a solution: European-style governance by a largely unelected bureaucratic class.

The tension between self-government and “good” government has existed since the origins of modern liberalism. Thinkers such as Herbert Croly and Randolph Bourne staked a claim to a priestly wisdom far greater than that possessed by the ordinary mortal. As Croly explained, “any increase in centralized power and responsibility . . . is injurious to certain aspects of traditional American democracy. But the fault in that case lies with the democratic tradition” and the fact that “the average American individual is morally and intellectually inadequate to a serious and consistent conception of his responsibilities as a democrat.”

During the first two years of the Obama administration, the progressives persuaded themselves that favorable demographics and the consequences of the George W. Bush years would assure the consent of the electorate. They drew parallels with how growing urbanization and Herbert Hoover’s legacy worked for FDR in the 1930s. But FDR enhanced his majority in his first midterm election in 1934; the current progressive agenda, by contrast, was roundly thrashed in 2010. Obama may compare himself to Roosevelt and even to Lincoln, but the electorate does not appear to share this assessment.

After the 2010 thrashing, progressives seemed uninterested in moderating their agenda. Left-wing standard bearers Katrina vanden Heuvel of The Nation and Robert Borosage of the Institute for Policy Studies went so far as to argue that Obama should bypass Congress whenever necessary and govern using his executive authority over the government’s regulatory agencies. This autocratic agenda of enhanced executive authority has strong support with people close to White House, such as John Podesta of the Center for American Progress, a left-liberal think tank. “The U.S. Constitution and the laws of our nation grant the president significant authority to make and implement policy,” Podesta has written. “These authorities can be used to ensure positive progress on many of the key issues facing the country.”

Podesta has proposed what amounts to a national, more ideological variant of what in Obama’s home state is known as “The Chicago Way.” Under that system, John Kass of the Chicago Tribune explains, “citizens, even Republicans, are expected to take what big government gives them. If the political boss suggests that you purchase some expensive wrought-iron fence to decorate your corporate headquarters, and the guy selling insurance to the wrought-iron boys is the boss’ little brother, you write the check.” But the American clerisy isn’t merely a bunch of corrupt politicians and bureaucratic lifers, and the United States isn’t one-party Chicago. The clerisy are more like an ideological vanguard, one based largely in academe and the media as well as part of the high-tech community.

Their authoritarian progressivism—at odds with the democratic, pluralistic traditions within liberalism—tends to evoke science, however contested, to justify its authority. The progressives themselves are, in Daniel Bell’s telling phrase, “the priests of the machine.” 

Their views are fairly uniform and can be seen in “progressive legal theory,” which displaces the seeming plain meaning of the Constitution with constructions derived from the perceived needs of a changing political environment. Belief in affirmative action, environmental justice, health-care reform, and redistribution from the middle class to the poor all find foundation there. More important still is a radical environmental agenda fervently committed to the idea that climate change has a human origin—a kind of secular notion of original sin. But these ideas are not widely shared by most people. The clerisy may see in Obama “reason incarnate,” as George Packer of The New Yorker put it, but the majority of the population remains more concerned about long-term unemployment and a struggling economy than about rising sea levels or the need to maintain racial quotas.

Despite the president’s clear political weaknesses—his job-approval ratings remain below 50 percent—he retains a reasonable shot at reelection. In the coming months, he will likely avoid pushing too hard on such things as overregulating business, particularly on the environmental front, which would undermine the nascent recovery and stir too much opposition from corporate donors. American voters may also be less than enthusiastic about the Republican alternatives topping the ticket. And one should never underestimate the power of even a less-than-popular president. Obama can count on a strong chorus of support from the media and many of the top high-tech firms, which have enjoyed lavish subsidies and government loans for “green” projects.

If Obama does win, 2013 could possibly bring something approaching a constitutional crisis. With the House and perhaps the Senate in Republican hands, Obama’s clerisy may be tempted to use the full range of executive power. The logic for running the country from the executive has been laid out already. Republican control of just the House, argues Chicago congressman Jesse Jackson, Jr., has made America ungovernable. Obama, he said during the fight over the debt limit, needed to bypass the Constitution because, as in 1861, the South (in this case, the Southern Republicans) was “in a state of rebellion” against lawful authority. Beverley Perdue, the Democratic governor of North Carolina, concurred: she wanted to have elections suspended for a stretch. (Perdue’s office later insisted this was a joke, but most jokes aren’t told deadpan or punctuated with “I really hope someone can agree with me on that.” Also: Nobody laughed.)

The Left’s growing support for a soft authoritarianism is reminiscent of the 1930s, when many on both right and left looked favorably at either Stalin’s Soviet experiment or its fascist and National Socialist rivals. Tom Friedman of the New York Times recently praised Chinese-style authoritarianism for advancing the green agenda. The “reasonably enlightened group” running China, he asserted, was superior to our messy democracy in such things as subsidizing green industry. Steven Rattner, the investment banker and former Obama car czar, dismisses the problems posed by China’s economic and environmental foibles and declares himself “staunchly optimistic” about the future of that country’s Communist Party dictatorship. And it’s not just the gentry liberals identifying China as their model: labor leader Andy Stern, formerly the president of the Service Employees International Union and a close ally of the White House, celebrates Chinese authoritarianism and says that our capitalistic pluralism is headed for “the trash heap of history.” The Chinese, Stern argues, get things done.

A victorious Obama administration could embrace a soft version of the Chinese model. The mechanisms of control already exist. The bureaucratic apparatus, the array of policy czars and regulatory enforcers commissioned by the executive branch, has grown dramatically under Obama. Their ability to control and prosecute people for violations relating to issues like labor and the environment—once largely the province of states and localities—can be further enhanced. In the post-election environment, the president, using agencies like the EPA, could successfully strangle whole industries—notably the burgeoning oil and natural gas sector—and drag whole regions into recession. The newly announced EPA rules on extremely small levels of mercury and other toxins, for example, will sharply raise electricity rates in much of the country, particularly in the industrial heartland; greenhouse-gas policy, including, perhaps, an administratively imposed “cap and trade,” would greatly impact entrepreneurs and new investors forced to purchase credits from existing polluters. On a host of social issues, the new progressive regime could employ the Justice Department to impose national rulings well out of sync with local sentiments. Expansions of affirmative action, gay rights, and abortion rights could become mandated from Washington even in areas, such as the South, where such views are anathema.

This future can already been seen in fiscally challenged California. The state should be leading a recovery, not lagging behind the rest of the country. But in a place where Obama-style progressives rule without effective opposition, the clerisy has already enacted a score of regulatory mandates that are chasing businesses, particularly in manufacturing, out of the state. It has also passed land-use policies designed to enforce density, in effect eliminating the dream of single-family homes for all but the very rich in much of the state.

A nightmare scenario would be a constitutional crisis pitting a relentless executive power against a disgruntled, alienated opposition lacking strong, intelligent leadership. Over time, the new authoritarians would elicit even more opposition from the “dodos” who make up the majority of Americans residing in the great landmass outside the coastal strips and Chicago. The legacy of the Obama years—once so breathlessly associated with hope and reconciliation—may instead be growing pessimism and polarization.

Fred Siegel, a contributing editor of City Journal, is scholar in residence at St. Francis College in Brooklyn. Joel Kotkin is a contributing editor of City Journal and the Distinguished Presidential Fellow in Urban Futures at Chapman University.

Related Reading:


Final Curtain: Obama Signs Indefinite Detention of Citizens Into Law As Final Act of 2011

Obama Skirts the Democratic Process



Is the Cordray Recess Appointment Constitutional?


Chicago On The Potomac 


Obama Skirts the Democratic Process

By Andrew McCarthy

President Obama has fulfilled a second Tom Friedman fantasy — the first being that he is, in fact, President Obama. “I have fantasized . . . that, what if we could just be China for a day,” the New York Times star columnist gushed for his ponderous fellow travelers on Meet the Press. “I mean where we could actually, you know, authorize the right solutions.”

It was May 2010, not long after Obama and a Congress dominated by Democrats had rammed through Obamacare, the most sweeping government usurpation of private industry and individual liberty in American history. Soon they’d be adding Dodd-Frank’s paralyzing intrusion into the financial sector. Yet, despite the shock and awe of hope and change, here was the Progressive Poobah, grousing that “my democracy” was failing “to work with the same authority, focus and stick-to-itiveness” as a totalitarian Communist dictatorship. After all, unburdened by our remnants of free-market competition, by the gridlock and sausage-making of two-party politics, the Chicoms produce trade and budget surpluses, state-of-the-art airports, and enviro-friendly high-speed rail. All we can manage, “on everything from the economy to environment,” Friedman complained, are “suboptimal solutions” — apparently not to be confused with the optimal Chinese menu of forced abortions, religious repression, secret police, kangaroo courts, and air you could cut with a chopstick.

Friedman is surely smiling today. So, we can assume, are other leftists, such as Peter Orszag, Obama’s former budget-overrun director, and Bev Perdue, the governor of North Carolina. Right after the midterm shellacking that swept Republicans into control of the House — a roadblock that has stymied some, but by no means all, of Obama’s transformational agenda — they said aloud what other Democrats were thinking: America’s problem is too much democracy. This week, the president solved that problem, shoving another page of the suboptimal Constitution through his made-in-China shredder.

In sum, Obama dissolved the separation of powers, the framers’ ingenious bulwark against any government branch’s seizure of supreme power — and thus the Constitution’s bulwark against tyranny. The president claims the power to appoint federal officers without the Senate’s constitutionally mandated advice and consent. He does so by claiming unilateral powers to dictate when the Senate is in session, a power the Constitution assigns to Congress, and to decree that an ongoing session is actually a recess. This sheer ukase, he says, triggers the part of the Constitution we’re keeping because he likes it — viz., the executive power to fill vacancies without any vetting by the people’s representatives.

Mind you, a president is the only government official constitutionally required to swear that he will “preserve, protect and defend” that Constitution. We are talking here not just about Obama’s characteristically breathtaking arrogance. These are profound violations of his oath and of our fundamental law. But rest assured he will get away with them. For that, Republicans can thank themselves and their surrender to statism.

Obama is hot to move forward on two fronts. The first is the Consumer Financial Protection Bureau. The CFPB is the monstrous Dodd-Frank’s crown jewel. Congress unconstitutionally delegated to it virtually unreviewable power to “dictate credit allocation in the U.S. economy,” as C. Boyden Gray put it. Not just bank lending — the law invests dictatorial power in a single CFPB director over thousands of American businesses. The CFPB is not just part of Obama’s design to splay the government’s tentacles throughout the private economy; it is also key to his reelection narrative: Leviathan, no longer shyly creeping but heroically swashbuckling through predatory capitalists to rescue the noble “99 percent.”

By law, however, the CFPB cannot operate until its director has been confirmed. Before the midterms, Senate Republicans lacked the votes necessary to stop the CFPB from being enacted, but they now have the numbers needed to block confirmations — or, in this instance, to extract concessions in exchange for confirmations. In our constitutional republic, this is what is known as politics. That is not a dirty word. Indeed, it is the very horse-trading that leftists and their media cheerleaders indignantly demand to be afforded even when they don’t have the numbers to force their opposition’s hand.

 So Republicans have declined to confirm Obama’s nominee, Richard Cordray (Ohio’s former attorney general, beloved of the trial lawyers). But being Republicans, they are not, of course, demanding repeal of this despotic CFPB coup — just as they have no real desire to slash any of the bulging administrative behemoth. Yes, they talk about slashing it, but what they actually want is to control it. So their bold pitch is to make the CFPB marginally more accountable and, as night follows day, bigger: to subject it to Congress’s appropriations process (as if that will give the public a real say in how it operates); to have bank regulators check its likely excesses (playing into Obama’s narrative about protecting Wall Street at the expense of Main Street); and to expand its leadership to several board members rather than a single unelected technocrat (because creating more patronage slots has been so effective in reining in the EPA and the rest of the bureaucratic maze).

Because the GOP establishment is statist lite, they play into the president’s hands. Removing the Dodd-Frank deadweight from a crippled economy, killing an authoritarian bureaucracy in the cradle — that is the kind of campaign that would have stoked passion, highlighting a very different vision of a country breaking free of its regulatory chains. But no one is going to get whipped up over a few technical tweaks on the one-way road to bigger Big Government. Obama has a simple story to tell: “Obstructionist Republicans are trying to stop me from saving you.” By comparison, Republican story — “We’re all for statist cures, just with a Washington-style nip here and tuck there” — makes your eyes glaze over.

The president thus saw his opening to ride roughshod over the Constitution’s requirements that the Senate give its assent before top appointees wield power, and that this approval can be dispensed with only when the Senate is in a recess. Far from shaping the battlefield for a fight over first principles, Republicans have fallen all over themselves to praise Cordray’s qualifications. They’ve made certain everyone knows they have no problem with the concept of a CFPB. Congress, moreover, has been in a de facto adjournment for weeks. To be sure, the gimmick by which the session has been kept technically alive — a senator opening the record for a few seconds every couple of days but not doing any real business — is not only constitutionally viable (indeed, Obama’s own Justice Department endorsed it before the Supreme Court a year ago). The ruse was actually designed by Democrats and endorsed by then-senator Barack Obama for the specific purpose of barring recess appointments — by a Republican president.

Our community-organizer-in-chief understands the uses of lawlessness (known in the biz as “direct action”). Republicans have implicitly endorsed his CFPB and his nominee. With that, and with the media spinning the story his way, Obama is not a law-breaker but the courageous crusader for the little guy; Republicans are not liberty’s vanguard but the petty obstructers of progress.

The president’s second front is, as ever, Big Labor. He also used his supposed recess power to appoint three members to the National Labor Relations Board. This will ensure that the NLRB will not lack for the necessary quorum to do the bidding of union bosses who, in turn, keep the campaign cash and direct-action services churning for the Democratic party. Obama was even more audacious on the NLRB appointees than on Cordray: He submitted two of the three names to the Senate on December 15, right on the eve of the recess that wasn’t a recess. There is not even a fig leaf of GOP obstructionism to complain about — the Senate was given no realistic opportunity to do background checks or hold committee hearings, much less hold an informed confirmation vote.

Again, however, Republicans have not even attempted to sound the alarm for folding up the NLRB, even after its unelected bureaucrats outrageously presumed to begin telling private businesses, like Boeing, where they would and would not be permitted to operate. The GOP is not making the overarching case for getting Americans out from under the statist thumb; they are saying they would apply the same thumb more benignly — by slow-walking enough confirmations, they figure the 2012 election will mean vacancies filled by Republican-preferred bureaucrats.

That is to say, the GOP has already surrendered on the greater constitutional transgression: the transfer of power from the people to the administrative state. To take another example, remember the Independent Payment Advisory Board? Like CFPB birthed by Dodd-Frank, the IPAB is an unaccountable, authoritarian panel created by Obamacare. It will ration health care through price controls. As Stanley Kurtz recounted in National Review, when the democracy-dissing Orszag was still working for Obama, he crowed that the IPAB is “the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve.” That is supposed to cheer us, since Congress has lower ratings than Keith Olbermann. But Orszag was wrong: Congress is not the sovereign; you are. It’s your control over your life that your representatives are yielding to cadres of “expert” technocrats at the IPAB, the CFPB, the NLRB, and the rest of the faceless bureaucracy that bends inevitably to the statists who create and sustain them — a bureaucracy that coerces our besieged private sector to shift trillions of dollars from the production of value to compliance costs.

Republicans have accommodated themselves to that gross distortion of constitutional governance. Realizing this, President Obama calculates that the GOP will have little difficulty swallowing this latest, lesser indignity: He no longer deigns to consult them on the staffing of a sprawling, suffocating bureaucracy over whose control they’ve already abdicated. He has taken their measure. He knows that, after a few days of huffing, puffing, and reading the editorial pages, they’ll shrug their shoulders and move on — mumbling some drivel about how they only control one-half of one-third of the government (that would be the one-half of one-third without whose approval the beast could not be funded).

GOP frontrunner Mitt Romney’s biggest applause line is his promise to reverse Obamacare by executive proclamation: He’d unilaterally issue “waivers,” purportedly relieving states from compliance with congressional statutes — just as Obama has assumed the power to decide which businesses have to comply. That this is implausible — that it does nothing to repeal the law or stem the legally mandated flow of funds to Obamacare’s gigantic bureaucratic infrastructure — is a point for another day. For now, the point is that Congress is increasingly irrelevant; the Constitution for a self-determining people is increasingly irrelevant. Neither party seems to have much of a problem with that. All that matters is who gets to wield executive power and staff the administrative state. We’re becoming Tom Friedman’s fantasy — and we’re apt to find it suboptimal. 

— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.


So Much For The Left's Much-Vaunted "Empathy"



Lest you doubt that we're headed for the most vicious election year in memory, consider the determined effort, within 10 minutes of his triumph in Iowa, to weirdify Rick Santorum. Discussing the surging senator on Fox News, Alan Colmes mused on some of the "crazy things" he's said and done.

Santorum has certainly said and done many crazy things, as have most members of America's political class, but the "crazy thing" Colmes chose to focus on was Santorum's "taking his two-hour-old baby when it died right after childbirth home," whereupon he "played with it." My National Review colleague Rich Lowry rightly slapped down Alan on air, and Colmes subsequently apologized, though not before Mrs. Santorum had been reduced to tears by his remarks. Undeterred, Eugene Robinson, the Pulitzer Prize-winning Washington Post columnist, doubled down on stupid and insisted that Deadbabygate demonstrated how Santorum is "not a little weird, he's really weird."

Article Tab: Republican presidential candidate, former Pennsylvania Sen. Rick Santorum, surrounded by his children, embraces his wife, Karen, as he enters his victory party Tuesday, Jan. 3, 2012, in Johnston, Iowa.
Republican presidential candidate, former Pennsylvania Sen. Rick Santorum, surrounded by his children, embraces his wife, Karen, as he enters his victory party Tuesday, 3 January 2012, in Johnston, Iowa.

The short life of Gabriel Santorum would seem a curious priority for political discourse at a time when the Brokest Nation in History is hurtling toward its rendezvous with destiny. But needs must, and victory by any means necessary. In 2008, the Left gleefully mocked Sarah Palin's live baby. It was only a matter of time before they moved on to a dead one.
Not many of us will ever know what it's like to have a child who lives only a few hours. That alone should occasion a certain modesty about presuming to know what are "weird" and unweird reactions to such an event.

In 1996, the Santorums were told during the pregnancy that their baby had a fatal birth defect and would not survive more than a few hours outside the womb. So Gabriel was born, his parents bundled him, and held him, and baptized him. And two hours later he died. They decided to take his body back to the home he would never know. Weirdly enough, this crazy weird behavior is in line with the advice of the American Pregnancy Association, which says that "it is important for your family members to spend time with the baby" and "help them come to terms with their loss."

Would I do it? Dunno. Hope I never have to find out. Many years ago, a friend of mine discovered in the final hours of labor that her child was dead but that she would still have to deliver him. I went round to visit her shortly after, not relishing the prospect but feeling that it was one of those things one was bound to do. I ditched the baby gift I'd bought a few days earlier but kept the flowers and chocolate. My friend had photographs of the dead newborn. What do you say? Oh, he's got your face?

I was a callow pup in my early twenties, with no paternal instincts and no great empathetic capacity. But I understood that I was in the presence of someone who had undergone a profound and harrowing experience, one which it would be insanely arrogant for those of us not so ill-starred to judge.

There but for the grace of God go I, as we used to say.

There is something telling about what Peter Wehner at Commentary rightly called the "casual cruelty" of Eugene Robinson. The Left endlessly trumpets its "empathy." President Obama, for example, has said that what he looks for in his judges is "the depth and breadth of one's empathy." As he told his pro-abortion pals at Planned Parenthood, "we need somebody who's got the heart – the empathy – to recognize what it's like to be a young teenage mom." Empathy, empathy, empathy: You barely heard the word outside clinical circles until the liberals decided it was one of those accessories no self-proclaimed caring progressive should be without.

Indeed, flaunting their empathy is what got Eugene Robinson and many others their Pulitzers – Robinson describes his newspaper column as "a license to feel." Yet he's entirely incapable of imagining how it must feel for a parent to experience within the same day both new life and death – or even to understand that the inability to imagine being in that situation ought to prompt a little circumspection.

The Left's much-vaunted powers of empathy routinely fail when confronted by those who do not agree with them politically. Rick Santorum's conservatism is not particularly to my taste (alas, for us genuine right-wing crazies, it's that kind of year), and I can well see why fair-minded people would have differences with him on a host of issues from spending to homosexuality. But you could have said the same thing four years ago about Sarah Palin – and instead the Left, especially the so-called feminist Left, found it easier to mock her gleefully for the soi-disant retard kid and her fecundity in general. The usual rap against the Right is that they're hypocrites – they vote for the Defense of Marriage Act, and next thing you know they're playing footsie across the stall divider with an undercover cop at the airport men's room. But Rick Santorum lives his values, and that seems to bother the Left even more.

Never mind the dead kid, he has six living kids. How crazy freaky weird is that?

This crazy freaky weird: all those self-evidently ludicrous risible surplus members of the Santorum litter are going to be paying the Social Security and Medicare of all you normal well-adjusted Boomer yuppies who had one designer kid at 39. So, if it helps make it easier to "empathize," look on them as sacrificial virgins to hurl into the bottomless pit of Big Government debt.

Two weeks ago I wrote in this space: "A nation, a society, a community is a compact between past, present and future." Whatever my disagreements with Santorum on his "compassionate conservatism," he gets that. He understands that our fiscal bankruptcy is a symptom rather than the cause.

The real wickedness of Big Government is that it debauches not merely a nation's finances but, ultimately, its human capital – or, as he puts it, you cannot have a strong economy without strong families.

Santorum's respect for all life, including even the smallest bleakest meanest two-hour life, speaks well for him, especially in comparison with his fellow Pennsylvanian, the accused mass murderer Kermit Gosnell, an industrial-scale abortionist at a Philadelphia charnel house who plunged scissors into the spinal cords of healthy delivered babies. Few of Gosnell's employees seemed to find anything "weird" about that: Indeed, they helped him out by tossing their remains in jars and bags piled up in freezers and cupboards. Much less crazy than taking 'em home and holding a funeral, right?

Albeit less dramatically than "Doctor" Gosnell, much of the developed world has ruptured the compact between past, present and future. A spendthrift life of self-gratification is one thing. A spendthrift life paid for by burdening insufficient numbers of children and grandchildren with crippling debt they can never pay off is utterly contemptible. And to too many of America's politico-media establishment it's not in the least bit "weird."


06 January 2012

Why Anti-Semitism Is Moving Toward The Mainstream

By Allan DershowitzFor the first time since the end of World War II, classic anti-Semitic tropes – “the Jews” control the world and are to blame for everything that goes wrong, including the financial crisis; “The Jews killed Christian children in order to use the blood to bake matza; the Holocaust never happened – are becoming acceptable and legitimate subjects for academic and political discussion.

To understand why these absurd and reprehensible views, once reserved for the racist fringes of academia and politics, are moving closer to the mainstream, consider the attitudes of two men, one an academic, the other a politician, toward those who express or endorse such bigotry. The academic is Prof. Brian Leiter. The politician is Ron Paul.

You’ve probably never heard of Leiter. He’s a relatively obscure professor of jurisprudence, who is trying to elevate his profile by publishing a gossipy blog about law school professors. He is a colleague of John Mearsheimer, a prominent and world famous professor at the University of Chicago.

Several months ago Mearsheimer enthusiastically endorsed a book, really a pamphlet, that included all the classic anti-Semitic tropes.

It was titled The Wandering Who and written by Gilad Atzmon, a British version of Louisiana’s David Duke, who plays the saxophone and has no academic connections. Atzmon writes that we must take “very seriously” the claim that “the Jewish people are trying to control the world.”

He calls the recent credit crunch “the Zio punch.” He says “the Holocaust narrative” doesn’t make “historical sense” and expresses doubt that Auschwitz was a death camp. He invites students to accept the “accusations of Jews making matza out of young goyim’s blood.”

Books and pamphlets of this sort are written every day by obscure anti-Semites and published by disreputable presses that specialize in this kind of garbage.

No one ever takes notice, except for neo-Nazis around the world who welcome any additions to the literature of hate. What is remarkable about the publication of this hateful piece of anti-Semitic trash, is that it was enthusiastically endorsed by two prominent American professors, John Mearsheimer and Richard Falk, who urged readers, including students, to read, “reflect upon” and “discuss widely” the themes of Atzmon’s book.

Never before has any such book received the imprimatur of such established academics. I was not shocked by these endorsements, because I knew that both of these academics had previously crossed red lines, separating legitimate criticism of Israel from subtle anti-Semitism.

Mearsheimer has accused American Jews of dual loyalty, and Falk has repeatedly compared Israel to Nazi Germany. Both were so enthusiastic about Atzmon’s anti-Zionism – he has written that Israel is “worse” than the Nazis – that they were prepared to give him a pass on his classic blood libel anti-Semitism and Holocaust denial. No great surprise there.

What was surprising – indeed shocking – was the fact that Mearsheimer’s relatively apolitical colleague, Brian Leiter, rushed to Mearsheimer’s defense. Without bothering to read Atzmon’s book, Leiter pronounced that Atzmon’s “positions [do not mark him] as an anti-Semite [but rather as] cosmopolitan.”

Leiter also certified that Atzmon “does not deny the Holocaust or the gas chambers.”

Had Leiter read the book, he could not have made either statement.

Atzmon himself credits “a man who... was an anti-Semite” for “many of [his] insights” and calls himself a “self-hating Jew” who has contempt for “the Jew in me.”

If that’s not an admission of anti-Semitism, rather than “cosmopolitanism,” I don’t know what is. As far as the Holocaust is concerned, Atzmon asserts that it is not “an historical narrative.”

And as for the gas chambers, he doubts that the “Nazis ran a death factory in Auschwitz- Birkanau.”

Leiter went so far as to condemn those who dared to criticize Mearsheimer for endorsing Atzmon’s book, calling their criticism “hysterical” and not “advance[ing] honest intellectual discourse.” And he defended Mearsheimer’s endorsement as “straight forward.”

The Brian Leiters of the world are an important part of the reason why anti-Semitic tropes are creeping back to legitimacy in academia.

His knee-jerk defense of an admitted Jew-hater – who, according to Leiter is not a despicable anti-Semite but an acceptable “cosmopolitan” – contributes to the legitimization of anti-Semitism.

The same can be said of Ron Paul, whom everyone has heard of.

Paul has, according to The New York Times, refused to “disavow” the “support” of “white supremacists, survivalists and anti-Zionists who have rallied behind his candidacy.”

(These “anti-Zionists” believe that “Zionists” – Jews – control the world, were responsible for the 1995 bombing of the Oklahoma City federal building, and caused the economic downturn, because “most of the leaders involved in the federal and international banking system are Jews.”) He allowed his “Ron Paul survival report” to espouse David Duke-type racism and anti-Semitism for years during the 1990s, claiming he was unaware that they were being promoted under his name.

Edward H. Crane, the founder of the libertarian CATO Institute, has said, “I wish Ron would condemn those fringe things that float around” his campaign, but he refuses to reject the support of these anti-Semites who form a significant part of his base. The New York Times has criticized Paul for his failure to “convincingly repudiate racist remarks that were published under his name for years – or the enthusiastic support he is getting from racist groups,” including those that espouse “anti-Semitism and far-Right paranoia.”

Even now, Paul continues to accept contributions from Holocaust-deniers, from those who blame the Jews for everything and from other bigots, thus lending some degree of legitimacy to their hateful views.

When Nazi anti-Semitism began to achieve mainstream legitimacy in Germany and Austria in the 1930s, it was not because Hitler, Goebbels and Goering were espousing it. Their repulsive views had been known for years. It was because non-Nazis – especially prominent academics, politicians and artists – were refusing to condemn anti-Semitism and those who espoused it.

It has been said that “all that is necessary for the triumph of evil is that good men do nothing.” Leiter and Paul may or may not be good men, but they are guilty of more than merely doing nothing. They are, by their actions, helping to legitimate the oldest of bigotries. Shame on them!

Real Jobless Rate Is 11.4% With Realistic Labor Force Participation Rate

Tyler Durden's picture

One does not need to be a rocket scientist to grasp the fudging the BLS has been doing every month for years now in order to bring the unemployment rate lower: the BLS constantly lowers the labor force participation rate as more and more people "drop out" of the labor force for one reason or another. 

While there is some floating speculation that this is due to early retirement, this is completely counterfactual when one also considers the overall rise in the general civilian non institutional population. In order to back out this fudge we are redoing an analysis we did first back in August 2010, which shows what the real unemployment rate would be using a realistic labor force participation rate. To get that we used the average rate since 1980, or ever since the great moderation began. As it happens, this long-term average is 65.8% (chart 1). We then apply this participation rate to the civilian noninstitutional population to get what an "implied" labor force number is, and additionally calculate the implied unemployed using this more realistic labor force. We then show the difference between the reported and implied unemployed (chart 2). Finally, we calculate the jobless rate using this new implied data. 

 It won't surprise anyone that as of December, the real implied unemployment rate was 11.4% (final chart) - basically where it has been ever since 2009 - and at 2.9% delta to reported, represents the widest divergence to reported data since the early 1980s. And because we know this will be the next question, extending this lunacy, America will officially have no unemployed, when the Labor Force Participation rate hits 58.5%, which should be just before the presidential election.

Labor Force Participation since 1980:


Reported and Implied number of Unemployed:


Difference between Reported and implied unemployment rate: 


05 January 2012

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:


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

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

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

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

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


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.