02.01.2012 in Politics by NetRight Daily 1

MEMO: Obama ‘Recess’ appointments Unwarranted, Unnecessary and Unconstitutional

RE: On January 4, President Obama purported to appoint three individuals to be members of the National Labor Relations Board (NLRB) (two of whom were only nominated two weeks before and had not even completed the necessary questionnaire required by Senate) and one person to head the Consumer Financial Protection Bureau (CFPB). All of these positions require confirmation by the U.S. Senate.

ISSUE-IN-BRIEF: The Constitution allows the President to make “recess Appointments—bypassing the Senate under only one circumstance: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate.” But the Senate did not adjourn its session and still had officers to receive nominations from the President. Again, the Constitution is very clear on this point: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” In December the House did not consent to the Senate taking a recess.

There are three objections to what are basically illegal appointments by President Obama:

1. The Senate was not in “recess” as required by the Constitution and therefore the President lacked the authority to make “recess” appointments. The President cannot require Congress to act on his priorities—the Constitution established the principle of separation of powers as an important check and balance on the federal government.

2. This contempt for the Constitution by the President demonstrates a pattern of disregard for the Constitutional responsibility that accompanies the oath of office. Earlier in his administration the President decided he would not defend the Defense of Marriage Act—even though it was passed by bi-partisan majorities and signed by President Clinton in 1996. The endless use of appointing “Czars” to direct cabinet departments and thusly also circumventing the Senate confirmation process has been questioned by members of both political parties.

3. If President Obama would disregard the Constitution’s “advise and consent” clause as he sees fit prior to an election—imagine what he would do if he happened to be re-elected and would not face the voters again. By making these illegal “recess” appointments the President is saying he can appointment any person, at any time, to any position he chooses without the advice & consent of the Senate.
The President’s ends do not justify the means. Legal challenges as well as Congressional Review of these illegal “recess” appointments are proceeding in the courts and on Capitol Hill and should continue.


For Additional Information on the President Obama’s unconstitutional recess appointments please click on the links below
:

http://www.nrtw.org/en/print/4064

http://www.eagleforum.org/column/2012/jan12/12-01-25.html

http://campaign2012.washingtonexaminer.com/article/barone-obamas-1-man-rule-thumbs-nose-founders/313961

http://www.judicialwatch.org/press-room/weekly-updates/a-constitutional-crisis/

http://blog.heritage.org/2012/01/12/whitewash-on-illegal-appointments-wont-work/

http://www.ibtimes.com/articles/282490/20120116/obama-recess-appointments-first-legal-challenge-health.htm

http://online.wsj.com/article/main_street.html

http://washingtonexaminer.com/opinion/columnists/2012/01/manhattan-moment-expressly-illegal-appointment-violates-obamas-oath/20813

http://www.prnewswire.com/news-releases/cdw-presidents-nlrb-recess-appointments-unconstitutional-137315993.html

http://washingtonexaminer.com/opinion/op-eds/2012/01/obamas-nlrb-guy-was-corrupt-unions-lawyer/2086391

http://www.newsmax.com/US/obama-recess-appointments-martin/2012/01/09/id/423534

http://netrightdaily.com/2012/01/former-senator-ted-kennedy-opposed-recess-appointments

http://www.grassley.senate.gov/judiciary/upload/Recess-Appointments-01-06-12-SJC-members-letter-on-OJC-input-on-recess-appointments-signed-letter.pdf

http://www.northeastteaparty.org/tea-party-web/grassley-not-buying-doj%E2%80%99s-non-recess-appointment-apologia

http://dailycaller.com/2012/01/06/dem-nlrb-recess-appointments-rushed-dont-appear-on-white-house-nominee-list

http://online.wsj.com/article/SB10001424052970203471004577142540864703780.html?mod=googlenews_wsj

http://www.oyez.org/cases/2000-2009/2009/2009_08_1457

http://pjmedia.com/tatler/2012/01/05/the-white-house-is-wrong-the-senate-conducted-business-during-its-recess

http://www.franchise.org/Franchise-News-Detail.aspx?id=55701

http://www.politico.com/blogs/under-the-radar/2012/01/white-house-wont-say-if-justice-department-blessed-109639.html

http://www.washingtonpost.com/opinions/obamas-recess-appointments-are-unconstitutional/2012/01/05/gIQAnWRfdP_story.html

http://sz0071.wc.mail.comcast.net/zimbra/mail?app=mail#36

http://workplacechoice.org/2012/01/09/obama-recess-appointments-the-worst-kind-of-politics/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+Workplacechoiceorg+%28WorkPlaceChoice.org%29

http://workplacechoice.org/2012/01/06/obama%E2%80%99s-nlrb-%E2%80%98recess%E2%80%99-appointees-circumvent-background-checks/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+Workplacechoiceorg+%28WorkPlaceChoice.org%29

http://blog.heritage.org/2012/01/06/obamas-nlrb-recess-appointments-circumvent-background-checks

http://www.humanevents.com/article.php?id=48593

http://rsc.jordan.house.gov/News/DocumentSingle.aspx?DocumentID=273759

http://hatch.senate.gov/public/index.cfm/2012/1/hatch-on-president-circumventing-senate-on-national-labor-relations-board
FOR MORE INFORMATION ON CONSTITUTIONAL CONSERVATISM VISIT: WWW.THEMOUNTVERNONSTATEMENT.COM
Edwin Meese III, former Attorney General
William Wilson, President, Americans for Limited Government
Gary Bauer, President, American Values
Thomas Fitton, President, Judicial Watch
Tony Perkins, President, Family Research Council
Colin Hanna, President, Let Freedom Ring
Duane Parde, President, National Taxpayers Union
Kay R. Daly, President, Coalition for a Fair Judiciary
Brent Bozell. President, ForAmerica
Phillip Jauregui, President, Judicial Action Group
Grover Norquist, President, Americans for Tax Reform
Phyllis Schlafly, President, Eagle Forum
David Williams, President, Taxpayers Protection Alliance
C. Preston Noel, President, Tradition, Family, Property
Elaine Donnelly, President, Center for Military Readiness
Mario H. Lopez, President, Hispanic Leadership Fund
Lewis Uhler, President, National Tax Limitation Committee
Andrea Lafferty, President, Traditional Values Coalition
Dr. Herb London, President Emeritus, Hudson Institute
Richard Viguerie, Chairman, ConservativeHQ.com
Mathew D. Staver, Chairman, Liberty Council Action
J. Kenneth Blackwell, Chairman, Coalition for a Conservative Majority
James Martin, Chairman, 60 Plus Association
Rev. Lou Sheldon, Chairman, Traditional Values Coalition
Susan Carleson, Chairman & CEO, American Civil Rights Union
T. Kenneth Cribb, former Counselor to the U.S. Attorney General
Tom Winter, Editor-in-Chief, Human Events
Alfred Regnery, Publisher, American Spectator
Bob McEwen, former Member of Congress, Ohio
Bill Pascoe, Executive Vice President, Citizens for the Republic
Gary Marx, Executive Director, Faith & Freedom Coalition
Mandi D. Campbell, Legal Director, Liberty Center for Law & Policy
Chris Littleton, Co-Founder, Ohio Liberty Council

This article has One comment
  • Anonymous 01.02.2012 4:12 PM

    Not only are these “recess appointments” illegal on the grounds that they were made while the Senate was NOT in recess, IF ANY OF YOU WOULD ACTUALLY READ THE CONSTITUTION, the ONLY recess appointments which are Constitutional are those made to REPLACE someone who died in the job or otherwise was made unavailable to fill his / her job.  The Constitution says “vacancies that may HAPPEN DURING of the recess of the Senate”.  It does NOT say recesses that exist prior to the recess of the Senate. 

    The clause is intended to fill vacancies in a position which occur when Senate concurrence cannot be obtained because they are not in session.  THE ENTIRE USE OF RECESS APPOINTMENTS TO PUT SOMEONE IN OFFICE BEHIND THE SENATE”S BACK IS UNCONSTITUTIONAL.  It’s been done before, but that does not make it legal nor right, let alone Constitutional.  If a man commits murder and is not called to task for it, can he then use that as justification for a second murder?  You didn’t punish me before, therefore you can’t punish me for killing a second time, or a third time.  This type of illegal behavior puts the lie to the concept that we are a nation of laws.

    “Our Government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself.”– Supreme Court Justice Louis D. Brandeis.

    You would be wise to take heed.

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