“Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days.
“The president and anyone else may object that the Senate is conducting ‘pro forma’ sessions, but that does not render them constitutionally meaningless, as some have argued. In fact, the Senate did pass a bill during a supposedly ‘pro forma’ session on Dec. 23, a matter the White House took notice of since the president signed the bill into law. The president cannot pick and choose when he deems a Senate session to be ‘real.’
“It does not matter one whit that most members of Congress are out of town and allow business to be conducted by their agents under unanimous consent procedures, because ending a session of Congress requires the passage of a formal resolution, which never occurred and could not have occurred without the consent of the House…
“President Obama’s flagrant violation of the Constitution not only will damage relations with Congress for years to come but will ultimately weaken the office of the presidency.”
“A prudent President would have sought the advice of the Attorney General on whether the so-called recess appointments were within the President’s constitutional power. But, when asked in a White House Press Briefing on January 5, 2012, whether the Department of Justice had provided a legal opinion to the President in advance of the recess appointments, the President’s press secretary would not say. Even if the White House is going to take the position that it will not release the contents of a legal opinion rendered by the Department of Justice on the ground that the contents are legally privileged from disclosure, it is odd that the White House would refuse to confirm or deny whether such a Department of Justice legal opinion even exists.
“It is reasonable that people are asking the White House whether a Department of Justice legal opinion was issued before the President made the purported recess appointments. The question of the existence or not of such a legal memo has a bearing on the judgment of the President. If such a Department of Justice memo exists, then at least the country knows that the President demonstrated at least some measure of prudence and thought in testing the outer limits of the Constitution by seeking in advance legal advice from the country’s chief legal officer.”
“Two of those given recess appointments — Sharon Block and Richard Griffin — were only nominated to the NLRB on December 15, just before the Senate went into its ‘pro forma’ session during which no business was to be conducted. Yet even had the Senate been conducting business over the holidays, neither Block nor Griffin could have been confirmed. As the Heritage blog reports, the Senate’s Health, Education, and Labor Committee had yet to receive the relevant paperwork and background materials on these two nominees — materials that are typically required, in addition to a background check, for Senate consideration. (The third nominee to receive a recess appointment to the NLRB was Republican Terry Flynn who had been nominated last January.)
“It is certainly possible — perhaps even likely — that Senate Republicans would have opposed confirmation of Block or Griffin, but we’ll never know. The two were given recess appointments before they could be considered, let alone opposed. In this regard, the Griffin and Block appointments were something of a preemptive strike.”
“Only one Senate Democrat, out of 51 asked, told The Daily Caller that President Barack Obama was correct when he claimed the Senate was in recess Jan. 3. That’s the day Obama announced that he had exercised his executive authority to fill four top posts during a Senate recess…
“Democratic Sen. Tom Carper of Delaware said be believed the Senate was in a recess when Obama made the controversial appointments, according to a statement from his office…
“Massachusetts Republican Sen. Scott Brown also endorsed Obama’s decision. He’s in a tight race with liberal heroine Elizabeth Warren.”
“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 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.”
“David Plouffe, one of Mr. Obama’s senior political advisers, has argued in meetings at the White House that Republicans will overreach in their efforts to oppose the president’s initiatives. And administration officials believe that is what House conservatives did in the case of the payroll tax cut, with the Tea Party wing of House Republicans initially balking at a compromise deal that Senate Republicans had signed on to and sparking a backlash in the public. The refusal of Senate Republicans to allow many of Mr. Obama’s nominees to be confirmed, White House officials believe, could also end up hurting the Republicans, if it feeds the notion that they are standing in the way of the business of government.
“‘It is a matter of fact that the contenders for the Republican nomination have all endorsed and adopted the position espoused by the House Republicans’ in the recess appointment battle, a senior administration official said on Thursday. And that, administration officials have concluded, puts Mr. Obama at an advantage as he seeks to establish a narrative this year of him as the defender of middle-class Americans and the Republicans in Congress of the rich.
“So in the next few weeks, there will be more executive initiatives that will portray the president as refusing to wait on a hostile Congress to take action to help Americans, officials say.
“And there could be more recess appointments, if not in the coming days, then next month, when Congress is expected to recess over the Washington’s Birthday Day holiday.”
“President Obama’s executive power-grab this week — making four ‘recess’ appointments when the Senate isn’t in recess — is a mark not of his strength, but of his relative weakness. He is asserting an authority he does not possess through the Constitution because he has precious little personal authority left to assert.
“He had it and he lost it, and he can’t figure out how to get it back — so he’s just going to take it…
“Maybe it’s the best hand Obama has to play, but it’s not a very good hand. For one thing, the voters who have turned on him don’t think he has exercised too little power, but rather too much — so bragging about doing things without congressional sanction may not play well.
“Second, no matter how resolute he sounds, the fact that he has to act in a somewhat rogue manner is an expression of a profound loss of presidential authority — and one that he can’t successfully blame on Congress.”
“Two days after defying Republicans and appointing Richard Cordray to head the Consumer Financial Protection Bureau, President Obama visited the new agency to take a little time to gloat.
“Making a victory lap of sorts at the independent agency, Obama cracked a joke, telling employees that he came by to help their new director move in…
“Obama was welcomed by an extremely supportive crowd of bureau employees who loudly cheered his arrival and were especially boisterous when Cordray introduced himself as the official director of the agency. A lottery was held Thursday night to dole out seats to employees who wanted to attend the event.”