Kagan in 2010: Pro-forma Senate sessions enough to block recess appointments

posted at 3:40 pm on January 12, 2012 by Ed Morrissey

Republicans outraged over the recess appointments of Richard Cordray and three NLRB commissioners argue that the pro forma Senate sessions every three days means that the Senate has not recessed at all.  The Congressional Research Service notes that no President in the 20 years prior to Barack Obama’s actions in the past two weeks has attempted a recess appointment unless Congress has been out of session more than nine days.  Today, to no one’s great shock, Obama’s own Department of Justice says that these arguments aren’t good enough to stop the President from the exercise of his constitutional power:

President Barack Obama’s decision last week to snub Congress and make a series of recess appointments while the Senate claimed it was technically in session had the legal blessing of the Justice Department, according to a formal legal opinion released Thursday.

“We conclude that while Congress can prevent the president from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess,” the head of Justice’s Office of Legal Counsel, Virginia Seitz, wrote in a 23-page opinion. …

The general thrust of Seitz’s opinion is that the Senate’s pro forma sessions are no obstacle to a recess appointment because the Senate is not truly open for business during sessions that may last only minutes and can involve only a single senator.

“The text of the Constitution and precedent and practice thereunder support the conclusion that the convening of periodic pro forma sessions in which no business is to be conducted does not have the legal effect of interrupting an intrasession recess otherwise long enough to qualify as a ‘Recess of the Senate’ under the Recess Appointments Clause,” she wrote.

Ironically, as Josh Gerstein points out at Politico, Seitz has her position thanks to the obstruction of Senate Republicans to Obama’s first choice for the OLC position, Dawn Johnsen.  However, the date of the opinion is also interesting.  Seitz wrote this on January 6th, two days after Obama made his recess appointments.  This looks very much like someone trying to fluff out an opinion to make the boss look good, rather than independent legal analysis — perhaps yet another example of the politicization of the DoJ we have seen under Obama and Attorney General Eric Holder.

So did the DoJ have a position on this question prior to six days ago?  Actually, they did, Gerstein reports, and it was written by no less a legal authority than the newest member of the Supreme Court — nominated by Obama himself:

Another awkward fact acknowledged in Seitz’s opinion is that less than two years ago the Justice Department sent the Supreme Court a letter-style brief noting 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.”

Seitz insisted that the letter, from then-Solicitor General Elena Kagan, didn’t directly address the situation Obama faced earlier this month.

There’s yet another awkward fact, which is that the House apparently did not agree to a full recess, which would be required for the Senate to go into a formal recess.  That constitutional requirement might make the legal defense of these appointments more difficult, assuming that any court would be anxious to get in the middle of this food fight between the executive and legislative branches.  Other Presidents have used (or abused, depending on one’s point of view at the moment) the ambiguous nature of the term “recess” to their advantage, but precedent may not equal a victory if this goes to court — and if the Supreme Court takes this up, Kagan will have no choice but to recuse herself from the case.

Will it go that far?  It might.  Those who want to fight the CFPB and the NLRB will challenge a regulation from either at their first possible convenience, and they will undoubtedly argue that the regulation is illegitimate resulting from an illegal appointment.  I suspect that the federal courts would prefer to kick the legitimacy of regulation resulting from these appointments back to Congress, but they may be stuck with having to decide whether to accept the definition of a recess from Obama’s DoJ circa 2010 or Obama’s DoJ circa 2012.  If they do, the contradictory stances won’t help the President’s case.


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Bet she’s changed her mind now she’s elected for life.

HopeHeFails on January 12, 2012 at 3:40 PM

you say obstruction, I say that this is a form of advise and consent. The consent being denied. Suck it, libs.

joeindc44 on January 12, 2012 at 3:43 PM

This is the only single reason I’d consider voting for Mitt, despite my utter dislike of the guy and his policies.

Conservatives can’t allow any more lunatics like Kagan to get onto the Court. Why the hell they didn’t filibuster her *** is beyond me.

Aizen on January 12, 2012 at 3:45 PM

So Kagan might be a racist, depending on whether she decides to uphold her earlier stance or not.

Bishop on January 12, 2012 at 3:45 PM

Another awkward fact acknowledged in Seitz’s opinion is that less than two years ago the Justice Department sent the Supreme Court a letter-style brief noting 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.”
Seitz insisted that the letter, from then-Solicitor General Elena Kagan, didn’t directly address the situation Obama faced earlier this month

It’s not the same situation because we say it’s not…

Pqlyur1 on January 12, 2012 at 3:45 PM

Here’s the actual 23 page memo. As rockmom noted in the headline thread this morning, it admits right at the beginning that there was no legal precedent for this:

http://www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf

Del Dolemonte on January 12, 2012 at 3:45 PM

So did the DoJ have a position on this question prior to six days ago? Actually, they did, Gerstein reports, and it was written by no less a legal authority than the newest member of the Supreme Court — nominated by Obama himself:

Heh. Very nice.

a capella on January 12, 2012 at 3:47 PM

I wodner if this has ever happened before – a legal justification memo written after the President has acted? WTF?

rockmom on January 12, 2012 at 3:47 PM

Democrats agree, whatever Democrats are doing at THIS moment is the only legal way.

GardenGnome on January 12, 2012 at 3:48 PM

Here’s the actual 23 page memo. As rockmom noted in the headline thread this morning, it admits right at the beginning that there was no legal precedent for this:

http://www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf

Del Dolemonte on January 12, 2012 at 3:45 PM

But you have to think like a liberal lawyer does. Finding new “interpretations” of the Constitution with no precedent is what they live for. This one has enough of a whiff of common sense to it to be believable. But it still does not speak to the separation of powers and clear Supreme Court rulings that Congress decides its own rules.

rockmom on January 12, 2012 at 3:50 PM

“All the President’s Trolls”

Hening on January 12, 2012 at 3:51 PM

Not to mention the fact that the DOJ has thrown Harry Reid under the bus, opining that his pro forma sessions in 2007 were a joke and Bush should have ignored them. I wish Republicans were smart enough to beat Reid senseless with this.

rockmom on January 12, 2012 at 3:53 PM

The current batch of RINO republicans have no spine to challenge obama on anything. boehner only cries and wrings his hands. mcconnell just runs his mouth and winks!

I think we are doomed as a nation under obama and the republicans.

vietvet68 on January 12, 2012 at 3:55 PM

None of this matters because the Republicans will do nothing to oppose these appointments, just like they will not oppose Obama on this: http://www.zerohedge.com/news/obama-sends-request-congress-12-trillion-debt-ceiling-increase

And, as it increasingly appears, just like they will do nothing about F&F once they’re done milking it for extra points in the polls.

Doomberg on January 12, 2012 at 3:56 PM

So did the DoJ have a position on this question prior to six days ago? Actually, they did, Gerstein reports, and it was written by no less a legal authority than the newest member of the Supreme Court — nominated by Obama himself

Yet, our Republican “Representatives” will do NOTHING – as usual – and meanwhile, here’s ANOTHER $1.2 TRILLION down the rabbit hole.

It may make a LOT of sense to look into getting dual citizenship for our children.

KMC1 on January 12, 2012 at 3:56 PM

Obama’s best bet for victory here is if the courts don’t take this up at all. The administration just lost 9-0 on the religious freedom/empoloyment case, I doubt they’d win this one, even with the liberal justices.

zmdavid on January 12, 2012 at 3:58 PM

When you have a Benevolent Dictator, one who loves the Dictatorship of the Proletariat – it must be realized that the Benevolent One has all of the authority that he needs in order to complete the work of the people. A worker’s paradise cannot be realized when there are “obstructionists” … “wreckers” [Historical Note: both of these terms were frequently used in the Soviet Union - for anybody who got in the way of the Utopian machine].

The rightists are obstructionists/wreckers – they must be dealt with differently, as the environment changes. What was then is then, unless it can be used, now. What is now, will change … as change warrants.

You must trust Obamuh – you must not use the statements of the past in order to obstruct or wreck the ride to Utopia.

OhEssYouCowboys on January 12, 2012 at 3:58 PM

Really, you really think she’d recuse herself if it came to that?

Ukiah on January 12, 2012 at 3:59 PM

Will it go that far?

Depends on the specific legal challenge. SCOTUS will not get involved in this dispute between the two branches in my opinion. But the law that created Cordray’s position may be enough to get him unappointed since the law requires Senate approval before anyone holding that position can write any regulations.

NotCoach on January 12, 2012 at 3:59 PM

Really, you really think she’d recuse herself if it came to that?

Ukiah on January 12, 2012 at 3:59 PM

Yes.

NotCoach on January 12, 2012 at 4:00 PM

no President in the 20 years prior to Barack Obama’s actions in the past two weeks has attempted a recess appointment unless Congress has been out of session more than nine days.

That’s because NO one before Obama has been a Constitutional Law Professor from Harvard.

burrata on January 12, 2012 at 4:01 PM

That’s because NO one before Obama has been a Constitutional Law Professor Teacher’s Assistant from Harvard.

burrata on January 12, 2012 at 4:01 PM

FIFY

NotCoach on January 12, 2012 at 4:02 PM

Here’s the actual 23 page memo. As rockmom noted in the headline thread this morning, it admits right at the beginning that there was no legal precedent for this:

http://www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf

Del Dolemonte on January 12, 2012 at 3:45 PM

Thanks for the link DD!

Oh!…and thanks for the damper ED!
Look to the left…see Katie Pavlich!
To get into here…gotta get past Elena Kagan!
Next time you want to turn me back into an anotomically correct Ken Doll…just dump icewater on me!

KOOLAID2 on January 12, 2012 at 4:03 PM

burrata on January 12, 2012 at 4:01 PM

Here is Con Law in a nutshell. The Constitution says what the politics of the majority say it says.

There you have it – 4 credit hours in law school – just like that.

OhEssYouCowboys on January 12, 2012 at 4:03 PM

“Kagan in 2010: Pro-forma Senate sessions enough to block recess appointments”

Unless the appointments are being made by a Democrat, then it is Okey-Dokey.

Opposite Day on January 12, 2012 at 4:04 PM

Ironically, as Josh Gerstein points out at Politico, Seitz has her position thanks to the obstruction of Senate Republicans to Obama’s first choice for the OLC position, Dawn Johnsen.

It doesn’t matter which butt is in the chair, this fix was in from the start.

jnelchef on January 12, 2012 at 4:05 PM

A new “1776″ is needed now.

rjulio on January 12, 2012 at 4:05 PM

But the Republicans obstructed Cordray and it was on a Tuesday and his last name ends with a “y” and that’s never been done before.

Pettifoggery. Supporters of these types of acts can always find a new fact that changes the situation from Bush or a predecessor or from precedent.

Legal types get paid lots of money to come up with them.

SteveMG on January 12, 2012 at 4:08 PM

Fight fight fight

You just know that the next gop president who does this will get the 24/7 outrage treatment

No squishness allowed

cmsinaz on January 12, 2012 at 4:09 PM

The next GOP president should just make all of his appointments in the middle of the night using this as precedent.

John Deaux on January 12, 2012 at 4:10 PM

“When the President does it, that means it is not illegal.” Richard M. Nixon, TV interview with David Frost, May 20, 1977

http://www.youtube.com/watch?v=ejvyDn1TPr8

iurockhead on January 12, 2012 at 4:11 PM

+100 gardengnome

Spot bloody on

cmsinaz on January 12, 2012 at 4:11 PM

http://www.justice.gov/olc/2012/pro-forma-sessions-opinion.pdf

Holder has transformed the Department of Justice into political hacks.

First, the Civil Rights Division refuses to prosecute the New Black Panther with a stick in his hand attempting to intimidate voters in Philadelphia.

Now, the Office of Legal Counsel ignores its own precedent regarding recess appointments.

slp on January 12, 2012 at 4:11 PM

This whole appointment was a just test. Pick someone who could on a good day get in with senate approval and then do it by iffy means to set a new precedent. Then next time as you know there will be, put in someone like Van Jones but someone who is not known to anyone other than the commies they hang around with.

If Cordray and the others do get removed by a court or the senate in some way the test was just a fail and then a law or amendment vs. an agreement on when a recess appointment is used will be in order. As it is now it is nothing but an agreement and use of pro forma process.

The precedent has now been set that the whole senate approval is now never needed for anyone. Even more if the 45th is not changing the curtains in less than 380 days.

tjexcite on January 12, 2012 at 4:14 PM

And some idiot from Texas wants a part time Congress.

meci on January 12, 2012 at 4:14 PM

I’m not sure Kagan said what you think she said. She did say that the Senate can limit recesses to 3 days to block the recess appointment power. But no one (at least not at the OLC) is arguing otherwise; if the Senate actually comes to work every three days, that will probably block the recess appointment power.

But the administration is arguing that this particular recess is really a 20+ day recess — not a 3 day recess. The issue may not be directly implicated by what Kagan said. Given the text, only Kagan would know for sure whether she was arguing that pro forma sessions break up longer recesses.

In any case, the OLC opinion specifically cites Bush-era OLC memos that directly answer the question in the affirmative (and say that the pro forma sessions don’t block the recess appointment power). So I don’t think it is accurate that the DOJ’s position on this issue was reversed — if anything, the DOJ’s position on this issue has probably been constant since before Obama became President.

jd3181 on January 12, 2012 at 4:14 PM

Tar – check!

Feathers – check!

Pitchforks – check!

Mob mentality – check!

madmonkphotog on January 12, 2012 at 4:15 PM

bookmark this for the next time you are tempted to rip the GOP nominee

SlimyBill on January 12, 2012 at 4:16 PM

Barky does what he wants. That’s what Kenyans do …

How do you like it white guys.

tarpon on January 12, 2012 at 4:18 PM

In any case, the OLC opinion specifically cites Bush-era OLC memos that directly answer the question in the affirmative (and say that the pro forma sessions don’t block the recess appointment power). So I don’t think it is accurate that the DOJ’s position on this issue was reversed — if anything, the DOJ’s position on this issue has probably been constant since before Obama became President.

jd3181 on January 12, 2012 at 4:14 PM

Problem is Bush never made an appointment during a pro forma session. Every president prior to Obama called the War Powers Resolution unconstitutional as well, yet they complied with it because it is always better to pay lip service to Congress then to incur their wrath. Obama doesn’t care about actual law or precedent or how our government works. He only cares about getting his own way.

NotCoach on January 12, 2012 at 4:20 PM

Kagan is an utter mess, intellectually. And while I can’t speak to whatever her ethics may be, I sure don’t have a good impression about her or them, based upon Kagan’s own statements made public — and Heaven only knows, along with her peer intrigue players, what lies beneath public access.

Everyone keep in mind that she also testified before the Senate Judiciary Committee not so long ago that she thinks the U.S. should include “international law” in it’s judicial decisions and that our dear Constitution is changeable per cultural demands. These also happen to be Sotomayor’s perspectives.

Why these two were confirmed, I will never know, but it was one of the most disturbed decisions by the Senate as they have ever made.

Lourdes on January 12, 2012 at 4:22 PM

What is so difficult here?

It is very simple. If an UNdemocrat is in the WH, you can appoint but if it is someone else you cannot.

Actually, the rule is even simpeler: only an UNdemocrat can appoint whenever and anyone else will be blocked

huntingmoose on January 12, 2012 at 4:23 PM

Kagan is Larry Summers’ striking at the heart of the United States of America.

Lourdes on January 12, 2012 at 4:23 PM

Obama doesn’t care about actual law or precedent or how our government works. He only cares about getting his own way.

NotCoach on January 12, 2012 at 4:20 PM

this

cmsinaz on January 12, 2012 at 4:23 PM

Ironically, as Josh Gerstein points out at Politico, Seitz has her position thanks to the obstruction of Senate Republicans to Obama’s first choice for the OLC position, Dawn Johnsen. However, the date of the opinion is also interesting. Seitz wrote this on January 6th, two days after Obama made his recess appointments. This looks very much like someone trying to fluff out an opinion to make the boss look good, rather than independent legal analysis — perhaps yet another example of the politicization of the DoJ we have seen under Obama and Attorney General Eric Holder.

Has ANY Democrat ever stopped to consider that Obama makes Harvard Law look very, very bad? Helllooo?

Holder, well, he’s looked bad for quite a while now, as he also makes the U.S. look as bad as he possibly can at every opportunity.

Lourdes on January 12, 2012 at 4:25 PM

Obama doesn’t care about actual law or precedent or how our government works. He only cares about getting his own way.

NotCoach on January 12, 2012 at 4:20 PM

this

cmsinaz on January 12, 2012 at 4:23 PM

That, and, DITTO.

Lourdes on January 12, 2012 at 4:26 PM

Could very well be that Obama needed to avoid the obligatory, required background checks of those he wanted/wants on the NLRB, and, thus, did what he’s done by way of trying to manipulate the requirements of their nominations process.

Obama nominees were done on such a short clock that there was no time provided to the Senate to conduct background checks. Thus, it looks quite likely that what Obama did was done as it was to avoid a closer look at who he’s put in place there, or is attempting to.

Lourdes on January 12, 2012 at 4:28 PM

A constitutional crisis is considered a food fight? Really?

ButterflyDragon on January 12, 2012 at 4:29 PM

Obama doesn’t care about actual law or precedent or how our government works. He only cares about getting his own way.

NotCoach on January 12, 2012 at 4:20 PM

this

cmsinaz on January 12, 2012 at 4:23 PM

That, and, DITTO.

Lourdes on January 12, 2012 at 4:26 PM

And the other!

NotCoach on January 12, 2012 at 4:30 PM

I wodner if this has ever happened before – a legal justification memo written after the President has acted? WTF?

rockmom on January 12, 2012 at 3:47 PM

Sorta’ like the old birth certificate…

Lourdes on January 12, 2012 at 4:34 PM

Several years back, I believe at the beginning of 2008, the NLRB was down to two members and continued to decide cases. One company found by the two-member Board to have violated the National Labor Relations Act appealed to the DC Circuit, which found that the NLRB could not act legally with just two members. The Seventh Circuit disagreed in a separate case and so the issue went to the Supreme Court. The Supreme Court agreed with the DC Circuit and vacated all of the decisions by the two-member Board. (At the time of the decision, the Board had four members IIRC, which then proceeded to issue the same decisions as the two-member Board.)

Now, if a party – employer, union or individual – loses a case before the Board, it can appeal to the appropriate circuit court of appeals (employers will go to the conservative DC Circuit) and claim the Board’s decision is null and void because it was not composed of sufficient members. That is the “cleanest” way to get to the Supremes and the one in which the Court would find it most difficult to dismiss the issue as a political question since it would be affecting private parties directly.

Dan Tanna on January 12, 2012 at 4:36 PM

Heh… so how did that one get past the memory hole?

CPT. Charles on January 12, 2012 at 4:37 PM

NotCoach: Problem is Bush never made an appointment during a pro forma session.

Presidents often don’t make recess appointments that they could legally make (for political reasons). The key here is that his lawyers told him he could. He was very unpopular at the time, which is probably a large part of the reason he didn’t use that power.

jd3181 on January 12, 2012 at 4:41 PM

NotCoach: Problem is Bush never made an appointment during a pro forma session.

Presidents often don’t make recess appointments that they could legally make (for political reasons). The key here is that his lawyers told him he could. He was very unpopular at the time, which is probably a large part of the reason he didn’t use that power.

jd3181 on January 12, 2012 at 4:41 PM

Maybe Bush, unlike Obama, is a decent man. And he can reason easily that certain acts are unacceptable.

Lourdes on January 12, 2012 at 4:48 PM

Kagan in 2010: Pro-forma Senate sessions enough to block recess appointments

Musta been convenient for her then as flipping her position will be for her now.

stukinIL4now on January 12, 2012 at 4:48 PM

jd3181 on January 12, 2012 at 4:14 PM

crr6….is that you?

Del Dolemonte on January 12, 2012 at 5:07 PM

Maybe Bush, unlike Obama, is a decent man. And he can reason easily that certain acts are unacceptable.

Lourdes on January 12, 2012 at 4:48 PM

Are you talking about the time Bush personally overruled his OLC in 2005, after Ashcroft refused to be railroaded at the hospital into overruling his own OLC and acting attorney general? Where the executive branch was maintaining a searchable database of millions of American-to-American communications without a warrant, in direct contravention of the FISA statue that expressly forbade doing so?

Where the President decided that his “commander in chief” powers allowed him to ignore the statute? Where the President only reversed his previous order one day later because the top five levels of the Justice Department and the director of the FBI were going to resign that day?

That time?

jd3181 on January 12, 2012 at 5:12 PM

Payback will be hell

J_Crater on January 12, 2012 at 5:19 PM

Does anyone really think these appointments will be rescinded?

BKeyser on January 12, 2012 at 5:21 PM

because the top five levels of the Justice Department and the director of the FBI were going to resign that day?

That time?

jd3181 on January 12, 2012 at 5:12 PM

The “top five levels” of the Justice Department would be hundreds of people, if not thousands.

strictnein on January 12, 2012 at 5:26 PM

The “top five levels” of the Justice Department would be hundreds of people, if not thousands.

strictnein on January 12, 2012 at 5:26 PM

My source for that was this.

Granted, they use the word “layers” and not “levels.” Maybe there is a distinction there. In any case, it is pretty clear from many sources that deputy AG Comey was going to resign (and drafted such a letter), that the AG’s chief of staff asked Comey to wait a few days for Ashcroft to leave the hospital so that Ashcroft could resign with Comey, that OLC head Goldsmith was going to resign (and also drafted such a letter), that much of the staff of all three (and potentially others) said that they were going to resign if their bosses resigned, that the head of the Justice Department criminal decision told Comey that he would resign if Comey did, and that FBI director Mueller told Bush directly that he was going to resign.

The only thing that stopped Bush, and forced him to reverse his previous day’s order (that the executive’s “commander-in-chief” power allowed him to ignore the law and any court that said otherwise, and re-established the program), was these threatened resignations. They would have eclipsed Nixon’s Saturday Night Massacre by orders of magnitude.

jd3181 on January 12, 2012 at 6:04 PM

Yeah, but she meant only when Republicans are in the White House, just like Obama meant it when he was in the Senate and like Obama was against deficits until he got into the White House. The hypocrisy is breathtaking.

cajunpatriot on January 12, 2012 at 6:13 PM

My source for that was this.

jd3181 on January 12, 2012 at 6:04 PM

So this creative 3+ year old article from a newspaper that endorsed O’bama was used by the White House as the legal basis for last week’s unprecedented “ruling”?

Thanks for clearing that up!

Del Dolemonte on January 12, 2012 at 6:19 PM

So this creative 3+ year old article from a newspaper that endorsed O’bama was used by the White House as the legal basis for last week’s unprecedented “ruling”?

Thanks for clearing that up!

There are tons of other sources that say the exact same thing. In fact, much of this is based off of sworn testimony to Congress. If you are disputing that scores of justice department officials were going to resign (or at least thought they themselves were going to resign if the decision was not changed), you are the first person I have heard to do so.

But I don’t see where I stated that this incident was the “legal basis” for the recess appointment, or had anything to do with the recess appointment. It didn’t. I was only responding to someone that claimed “Maybe Bush, unlike Obama, is a decent man. And he can reason easily that certain acts are unacceptable.”

jd3181 on January 12, 2012 at 6:42 PM

I am rather enjoying the schadenfreude of these events.

Our Idiot President comes into office with exactly one supposed qualification – a Harvard JD and part-time job as a lecturer on constitutional law at University of Chicago.

We all knew he was a know-nothing, affirmative-action twit who wouldn’t know the constitution if it was written on the inside of his eyelids, but that was the schtick. He appoints a couple of clownish gender-victim twits to the SCOTUS, and we all laughed again — another reminder that he was a fraud, and another arrow in our “laugh-at-this-clown-President-of-ours” quiver.

But this…this is priceless. One of the dorks he appointed actually wrote an opinion declaring that he cannot legally do what he just did, and he tries to cover it up by getting another one of his party hacks to forge a contrary opinion.

Obama has completely destroyed the only argument which even vaguely supported him running for President. What a corrupt ninny.

Jaibones on January 12, 2012 at 8:17 PM

He was very unpopular at the time, which is probably a large part of the reason he didn’t use that power.

jd3181 on January 12, 2012 at 4:41 PM

Your “probably” statement asserts facts not in evidence, and I object on hearsay grounds. Also goes to state of mind, which is unknown.

Difficultas_Est_Imperium on January 12, 2012 at 11:15 PM

ALL of Obama’s appointments have been illegal, because he is a usurper.

BPinNC on January 12, 2012 at 11:42 PM

Virginia Seitz came from, wait for it….Sidley Austin. If you don’t know about that law firm, then you don’t understand Obama’s circles. Check Stephen-Diamond.com starting in 2008 for the best info, much better than any GOP or conservative source I’ve been able to find.

CYA in full effect dawg. Republican establishment doesn’t want to ever rock the boat cause they like control. That sound you hear are the brooms they got, now they’re looking for a big enough rug.

John Kettlewell on January 13, 2012 at 1:08 AM

It’s worth noting that one reason Andrew Johnson was impeached was because he made an appointment while the Senate was in session.

JohnJ on January 13, 2012 at 1:25 AM

It’s worth noting that one reason Andrew Johnson was impeached was because he made an appointment while the Senate was in session.

JohnJ on January 13, 2012 at 1:25 AM

Er, no. He suspended his secretary of war and appointed a replacement during a Senate recess. He was impeached because the Tenure of Office act forced Johnson to reinstate a suspended official if the Senate disapproved of that official’s firing. In that case, the Senate disapproved by a large majority, and Johnson ignored the statute. That was what he was impeached for.

jd3181 on January 13, 2012 at 1:46 AM

I was only responding to someone that claimed “Maybe Bush, unlike Obama, is a decent man. And he can reason easily that certain acts are unacceptable.”

jd3181 on January 12, 2012 at 6:42 PM

You’re trying to turn internal disagreements into a statement that Bush is not a decent man.

Hogwash

tom on January 13, 2012 at 12:27 PM

Televised news stories last week mentioned that the DoJ under Clinton also held that the “3 day rule” was in effect when determining whether the Senate was in recess. Oddly, it was during such a 3 day period that Obama had some bills passed. So was the Senate only session when it did Obama’s bidding? Obama wants it both ways.

in_awe on January 13, 2012 at 2:27 PM