Is the Senate in recess? The Constitution says no.


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Is the Senate in recess? The Constitution says no.

Article One, section Five of the Constitution states: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.”

The House has refused to adjourn. The Congress is therefore in session. This kind of gamesmanship has been done many times in the past, but never until now has a President made believe he could simply ignore the plain words of the Constitution.

I know my liberal readers like to make excuses for Democrats when they ignore the law, but the law remains the law. Just because you happen to like what Obama is doing is a bad reason to let this pass. Just remember that if we ignore the law when you’ve got your guy in office, the other side will then have a free pass to ignore the law when they are in office. Sooner or later, we will all pay for that evil.

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8 comments

  • LINO

    You are right.

    Only recognize that both sides engage in the “excuse making”.

    Let it go to the court.

  • The right response from congress is stern censure and let the courts handle it.

  • Jim

    Here is the relevant passage from the Constitution:
    “The President shall have the power to fill up all vacancies that may happen during the Recess of the SENATE, by granting Commissions which shall expire at the end of their next session.” Article 2,2, clause 3.

    And yes, the current Republican House did not consent to a Senate recess, clearly because they wanted to circumvent the power of a Democrat President’s recess appointments. So now as it moves forward, any courts that hear this case will be faced with determining exactly what the Constitution says about Congressional recesses, time for recess, and Presidential power in regard to appointments, and of course whether or not this current Congress attempted to keep this President from exercising his constitutional authority.

    Its not the first time. As I stated before, President Bush was facing a similar challenge with his appointment of William Pryor to the 11th Circuit Court. Ted Kennedy challenged it (because Democrats, the minority party at the time, wanted to use the gimmick of intra-session to block it), and this is what the 11th Circuit Court said in Evans vs. Stephens:

    “The Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today.”

    And it ruled in favor of the Bush administration, and clearly the Obama administration will cite this ruling as it proceeds. The Supreme Court elected not to review the case. Teddy Roosevelt in 1903 made 160 recess appointments in a recess that lasted less than a day.

    And one other interesting ‘constitutional issue’ will also have to be addressed. Nullification.
    No matter what you may think of Dodd-Frank, it was duly passed by Congress in 2010, and sets up the Consumer Financial Protection Bureau. This Bureau cannot function fully without a Director in place. The minority Republican Senators are blocking any nomination to that post by not allowing it to come up for a vote (filibuster) until changes are made in a law that has already been passed.

    This is all American democracy at work, with two competing sides having different interpretations of the what the Constitution allows. To suggest otherwise is ridiculous. We will see. If the courts rule in your favor, all recess appointments (enjoyed by both parties throughout our history), will in effect come to an end, because each minority party will do the same. It’s OK with me, how about you?

  • LINO

    These “ten second” legislative sessions designed to skirt the rules–in which nothing legislative gets attempted or done—are offensive and should be done away with. To treat them as valid is a joke. The fact that the democrats invented this particular pathway doesn’t make it any more valid or contemptible.

    The Zimmerman treatise is correct: If one side uses it, it becomes valid for the other side. Its legitimacy (or illegitimacy) is the same in either case.

    I see neither party as exempt from criticism here. The minority in the Senate is blocking a legitimate agency from being installed, in effect. That is their privilege and the electorate can evaluate that. The difference is that it’s much easier to attack the President, singularly, than the Senate Minority as a group. You can’t not vote for 46 people. You just get to pick one or two.

    This is democrazy at work. You may not agree with Obama, but I can hardly condemn him for using a mechanism that has been
    clearly shown to be acceptable to both sides. The amusing thing is that his base —that feels he has been too wishy washy with Republicans in the past—loves what he is doing with this—and his opponents hate it.

    If the interpretation of the constitution becomes the issue,we won’t use this arena of discussion to reach a true conclusion. We have nine people in robes to do that. (It is nine, isn’t it?). I would actually enjoy seeing this played out at that level. Let’s see them put lines in this blur.

    It’s all politics.

  • Jim

    I agree with you LINO. I hope it goes to the Supreme Court and a decision is made one way or the other, and both sides will have to abide.
    My prediction? It does not get challenged. If it does, I think lower courts will agree with the decision in Evans vs. Stephens and side with Presidential right to recess appointments, regardless of sham sessions or time limits. I actually think if the Supreme Court heard it they too would agree…otherwise recess appointments would disappear. And the constitutional provision that allows for them would be nullified.
    But who knows. Have a great day.

  • LINO

    Question:

    If one is a “Liberal reader”, does that means that one reads a lot?

  • LINO

    or more correctly worded:

    If one is a “Liberal reader”, does that mean that one reads a lot?

  • taka

    Bush administration did the same thing. It was challenged in court, but upheld. The Supreme Court decided to not hear the case, hence the ruling stands. Nuff said.

    http://www.outsidethebeltway.com/are-obamas-recess-appointments-unconstitutional-probably-not/

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