Sunday, January 8, 2012

Unconstitutional Recess Appointments

Although the Senate purposely did not adjourn for more than three days over the holidays, which means that the Senate was not in recess according to the Constitution’s Appointments Clause, President Obama nevertheless made several recess appointments. On January 5 the President announced the selection of Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB), a new government agency created by the Dodd-Frank Act, as well as three new members to the National Labor Relations Board. The Department of Justice has issued an opinion upholding the President’s action, stating that because Senators were not physically present to consider the appointments, the Senate was not actually in session, despite the fact that there was legitimate business conducted during “pro-forma” sessions. Former Reagan Attorney General Ed Meese and Todd Gaziano, both of The Heritage Foundation, urge Congress to respond, saying, “If Congress does not resist, the injury is not just to its branch but ultimately to the people.”  They call the President’s act a “tyrannical usurpation of power,” and urge the Senate to filibuster all presidential nominations.

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