Blog Archives

Obama Sets New Precedent: Making Recess Appointments with the Senate in Session

When the founding fathers structured our constitution, historians agree their fear was that Congress could become too powerful, and shut the legislative and executive branches out of the governing system, essentially becoming the government. This fear stemmed from the amount of power given to Congress in the constitution, which was done in order to prevent one man from becoming a ruler or monarch. Presidential power has been a centuries long experiment, revolving around how much a president can and should be able to do alone. When Abraham Lincoln suspended the writ of habeas corpus many thought that outside the president’s abilities; likewise, many thought the president had no right to issue an emancipation proclamation. Since then many controversial executive orders have been issued; from the great depression “new deal” era, to President Bush after 9/11, presidential power has always been a fluid concept. So the unprecedented move by President Obama in bypassing the Senate to appoint a head of the new Consumer Financial Protection Bureau no doubt struck controversy. The constitution clearly states that a president must have all department heads approved by the Senate unless the Senate is in recess. Yesterday President Obama appointed Richard Cordray as the head of the CFPB as well as three members to the National Labor Relations Board (NLRB) even though the Senate was not technically in recess. At first glance this seems clearly unconstitutional; however, the Obama team is arguing it is not, and their case is complicated. The Senate never officially recessed, meaning that President Obama has no constitutional grounds with which to appoint bureaucrats; however, the Senate has not been in on Capitol Hill as a body in weeks. In order to avoid these recess appointments the senators have been holding “pro-forma” sessions, where one of the closest republican senators comes in to the Senate chambers, bangs the gavel to signal the start of a session, then bangs it again to end the session. Thus the Senate is still technically in session, though in reality they are on a recess. Read the rest of this entry

%d bloggers like this: