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Happy New Year, 2012, in Post-Constitutional America?

Update from the NY Post: 

"But what he did yesterday was no shot across the bow; it was, rather, a direct hit — with the Constitution taking the brunt of the blow.

Moreover, as the Cato Institute’s Mark Calabria notes, the Dodd-Frank bill, which calls for the creation of the CFPB, explicitly requires that its director be “confirmed by the Senate.”

That means that Obama’s nonrecess “recess” appointment may well violate the law, in addition to coming as part of a blatantly unconstitutional overreach."

Previous Post:

Rep. Scott Garrett (R-NJ), Chairman of the Congressional Constitution Caucus, Wednesday, January 4 2012:

“President Obama is abdicating his oath and duty to preserve, protect and defend the Constitution of the United States by making an unconstitutional recess appointment of Richard Cordray to head the newly created CFPB. If it weren’t for his track record of trampling the Constitution to suit his political needs, I would say this announcement came as a surprise. Unfortunately, this is what we have come to expect from a president who brought Chicago-style politics to 1600 Pennsylvania Avenue.

“Due to the unique characteristics of the CFPB, which would be funded through the Federal Reserve, insulated from congressional oversight, and negatively impact almost every facet of American business, Senate approval of the CFPB director is the last and only check Congress has over this unaccountable agency. This recess appointment is nothing more than an attempt to circumvent and undercut the advice and consent clause of the U.S. Constitution.”

Barrack Obama's response: "I refuse to take no for an answer." [even if it's the Constitution saying "NO!"]

Comments

Sat, 01/07/2012 - 10:11am — DaveL

Constitutional Crisis? According to media, no; but it is!

>I don't believe public opinion is more favorably inclined to the administration than it was when FDR tried to pack the Supreme[s]

If the packing was considered the greatest constitutional crisis since the Civil War, BHO is now trying to compete with his latest shenanigans - and by sheer chutzpah as well. Consider that by his own party's Harry Reid, the Senate is NOT in recess. The Senate cannot adjourn for more than 3 days without the house speaker's consent as well. Consider that, at least in the CFPB case, the Dodd-Frank bill specifically calls out for Senate Advice and Consent, ostensibily because it's a one-man board, and thus not reasonable to allow for a recess appointment to begin with. Consider that his own Justice department (I think typically they see it as the "Just Us" department) advised against this move.

On another angle to this whole recess apointment issue, I'd like to present the constitutional verbiage behind it:

"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate..."

How should we interpret the word "during" in that sentence? One way, as it has been applied at least lately, as soon as recess begins, the sluice gate opens for any and all built-up vacancies that the Senate apparantly has trouble with, and allow the president to bypass the ostensibly negative Senate feedback and appoint all his favorites. Consider another way, perhaps what the founders actually intended, that if the vacancy occurs during the recess, then and ONLY then, does the president have the power to appoint (and the next verbiage states that the term is limited in time in these cases).

 

Sat, 01/07/2012 - 1:37am — AlbertW

recess appointments

Current punditry seems to agree that parties to whom the appointees issue orders have standing to challenge those orders and that is how the appointments' legality will reach the courts.

We can reasonably assume that the administration forsees constitutional challenge to the appointments. What is the political calculation? Although my memory doesn't go back quite that far, I don't believe public opinion is more favorably inclined to the administration than it was when FDR tried to pack the Supreme Court, a net loss for FDR (http://www.enterstageright.com/archive/articles/0799fdrcourt.htm).

President BHO will gain some points with his base who have called for greater political agression. I don't see this move as gaining him any swing votes - unless: 1) the appointments stand, and 2) the appointments allow him to buy off a substantial voting block (e.g. underwater mortgages).

I am greatly disappointed by Sen. Brown's support for the recess appointments. He lost any further campaign contributions from me after his vote for Dodd-Frank, and with his support of these appontments I would consider supporting a primary challenger.

T. Beals aka AlbertusW.

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