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Getbig Main Boards => Politics and Political Issues Board => Topic started by: Soul Crusher on January 04, 2012, 01:03:16 PM
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Unprecedented “Recess” Appointment Contradicts Obama Justice Department
http://www.speaker.gov/blog/?postid=273766
President Obama today made an unprecedented “recess” appointment even though the Senate is not in recess – “a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” according to Senate Republican Leader Mitch McConnell (R-KY).
It turns out that the action not only contradicts long-standing practice, but also the view of the administration itself. In 2010, Deputy Solicitor General Neal Katyal explained to the Supreme Court the Obama administration’s view that recess appointments are only permissible when Congress is in recess for more than three days. Here’s the exchange with Chief Justice John Roberts:
CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't work why?
MR. KATYAL: The -- the recess appointment power can work in -- in a recess. I think our office has opined the recess has to be longer than 3 days. And -- and so, it is potentially available to avert the future crisis that -- that could -- that could take place with respect to the board. If there are no other questions –
CHIEF JUSTICE ROBERTS: Thank you, counsel.
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Cordray's Recess Appointment Sure Doesn't Look Constitutional To Me (Written by a Cordray supporter)
The New Republic ^ | January 4, 2012 | Timothy Noah
I'm no lawyer, but:
As someone who strongly supported a recess appointment for Richard Cordray to run the Consumer Financial Protection Bureau, I'm confused as to why President Obama chose to act today. Had he appointed Cordray yesterday, during a brief period when the Senate was technically in recess, the action would have been supported by precedent. Apparently, though, that appointment would have lasted only through 2012. By appointing Cordray today, Obama can keep him at CFPB through 2013.
The trouble is that the Senate isn't in recess. For complicated reasons the Republicans have the ability to prevent the Senate from going into recess, and they have done so in order to maximize the difficulty of Obama making recess appointments. The White House maintains that keeping the Senate in pro forma session is a stupid gimmick, which is certainly true. It further maintains that because it is a stupid gimmick, that gives the president the right to act as though the Senate were in recess. That's the part I have trouble following.
Two high-ranking Justice department officials from the (George W.) Bush administration support the position Obama has taken on the grounds that the executive branch has always maintained a "common-sense view" that the Senate is not in session when nobody's there and it isn't doing anything. But they don't cite any court decisions to back this view up. Instead they rely on a 1905 report (cited on page 8 of this Congressional Research Service report) by the Senate judiciary committee that defines a Senate recess as
the period of the time when the Senate is not sitting in regular or extraordinary session as a branch of the Congress or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments....
The trouble with this definition is that it would define as a Senate recess just about every weekend of the year.
Maybe there's a stronger legal foundation to the president's decision that I don't know about. But based on what I've seen so far, I'm having trouble understanding how the recess appointment of Cordray can possibly withstand a legal challenge. And I'm really having trouble understanding why Obama didn't take advantage of his constitutional window yesterday, when the Senate was inarguably in recess.
Something else I'm having trouble understanding is why, if Obama was going to cast caution to the wind, he didn't appoint Elizabeth Warren to head CFPB last year. Perhaps he decided she'd be of more use to him as a strong Senate candidate in Massachusetts. Cordray is a good choice, but Warren was a better one.
My fear is that, having beat the Republicans on the payroll tax issue, Obama is now looking for another fight. But--again, based on my limited knowledge thus far--this fight looks like an unnecessary one. I hope Obama hasn't traded his previous vice of timidity for a new vice of recklessness.
Update: 3:25: Brian Beutler of Talking Points Memo, who's done an excellent job reporting on all this, cites a newer CRS report issued in December. But I'm at a loss to find any legal justification for Obama's action in this report either. Nor am I reassured by this issue brief by Ian Millhiser of Think Progress. Millhiser makes a strong case that the level of Senate obstruction at present is unprecedented. But he makes no case at all for why the president should get to decide when the Senate is in recess and when it isn't.
I'm beginning to think that if there were a more solid justification for Obama's action someone would have made it by now.
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Obama knows exactly what he is doing. he is creating a crisis and choas so he can set up another fight with the congress to divert from his disastrous record of failure and collapse.
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Court fight over recess appointments 'almost certain,' Chamber says
By Peter Schroeder - 01/04/12 04:39 PM ET
The recess appointments President Obama announced Wednesday are “almost certain” to be challenged in court, according to a top official with the nation’s largest business lobby.
The U.S. Chamber of Commerce has not decided whether it will file a legal challenge to the appointments, according to David Hirschmann, who heads the Chamber’s Center for Capital Markets Competitiveness. But he said he’s confident that Obama’s precedent-shattering move will land the administration in court.
"We've made no decisions ourselves," Hirschmann told The Hill. "What we do know is ... it's almost certain ultimately a court will decide if what the president did is legal or not."
Obama infuriated Republicans Wednesday by announcing the recess appointment of Richard Cordray to be the first director of the Consumer Financial Protection Bureau (CFPB). Senate Republicans had blocked Cordray's nomination for months, so the president bypassed them with a recess appointment during the holiday break.
He followed that up later in the day with recess appointments for three members of the National Labor Relations Board (NLRB), heading off another likely GOP filibuster.
The recess appointments broke with legal precedent, as they while the Senate is holding regular pro forma sessions. Republicans insist the Senate has not been in recess thanks to the seconds-long sessions held every few days, but White House attorneys determined the procedural move is a gimmick that can be ignored by the president.
House Speaker John Boehner (R-Ohio) blasted the move as an "unprecedented power grab" and said he expects "the courts will find the appointment to be illegitimate."
The gambit puts the bureau in "uncertain legal territory," according to Senate Minority Leader Mitch McConnell (R-Ky.).
CFPB backers were eager to get Cordray in place in large part because the CFPB, created by the Dodd-Frank financial reform law, cannot fully realize its powers without a director in place.
However, one question a judge could need to answer is whether Cordray will actually be able to assume those powers since he has been recess-appointed. The text of the Dodd-Frank law states that those powers will not take effect until the CFPB director "is confirmed by the Senate."
Hirschmann said questions like that are the type of thing a court will need to consider.
"Clearly, there's new ground here," he said.
And while the Chamber is "not eager to litigate," he blasted the president for a move he said is primarily motivated by politics.
“It looks like the goal here is more the headlines and the confrontation and the politicization of this new agency rather than a substantive outcome," he said.
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Obama again creating conflict and chaos.
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Dictator Obama does what he wants. The left must think a Republican will never be president again. Between this and the nuclear option Reid ran with a few weeks ago, they're in for a world of hurt when the tables eventually turn on them. Can't wait to see the tears flowing then. ::)
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Dictator Obama does what he wants. The left must think a Republican will never be president again. Between this and the nuclear option Reid ran with a few weeks ago, they're in for a world of hurt when the tables eventually turn on them. Can't wait to see the tears flowing then. ::)
The democrats are the biggest hypocrites on the planet. No budget, no house bills brought up for a vote, blame everyone else, etc.
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Obama recess appointment power is murky (It's not "murky", it's Unconstitutional)
Politico ^ | 1/4/2012 | By MANU RAJU and SCOTT WONG
Posted on January 4, 2012 9:12:12 PM EST by tobyhill
What happens when the president makes a recess appointment when the Senate is not technically on recess?
Nobody knows.
But President Barack Obama’s decision to jam the Senate and install three labor nominees and a consumer watchdog without a confirmation vote raises unsettled legal questions that could have a long-lasting impact past his presidency.
“This is not a nice, clear-cut area at all,” said Robert Dove, a former Senate parliamentarian, when asked about the implications of the president’s move.
Legal experts said Wednesday that there was no precedent for such recess appointments and that it would likely be put to the test in the courts by industry groups seeking to challenge regulations issued by the new Consumer Financial Protection Bureau, whose new head, Richard Cordray, received an appointment even though the chamber was technically in session every few days.
(Excerpt) Read more at politico.com ...
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Cue the left to come in with - but, but...other Presidents have done it...
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Cue the left to come in with - but, but...other Presidents have done it...
LOL. One day back from vacation and Obama is back to business as usual. A ;D
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Guest Post: President Obama, Demopublican
Submitted by Tyler Durden on 01/04/2012 - 14:51
Afghanistan ETC Federal Reserve Ford Gerald Ford Guest Post Iraq None President Obama Reality
There is literally no difference between Obama and a moderate Republican when it comes to the truly important policies governing the nation's insolvent finances, its predatory financial sector, its corrupt and fraudulent sickcare system or its sprawling Empire. Obama's policies have all aided and abetted existing Status Quo cartels and fiefdoms. He has changed absolutely nothing of import except further eroding civil liberties. President Obama can be charitably characterized as an ineffectual Demopublican. From those demanding more, then he can be accurately described as a well-meaning puppet of Wall Street and the rest of the Status Quo cartels and fiefdoms.
Via zerohedge.
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Scott Brown Supports Obama Cordray Appointment
Sen. Scott Brown (R-MA) is officially on board with President Obama’s recess appointment of Richard Cordray to the Consumer Financial Protection Bureau, sending reporters the following statement:
I support President Obama’s appointment today of Richard Cordray to head the CFPB. I believe he is the right person to lead the agency and help protect consumers from fraud and scams. While I would have strongly preferred that it go through the normal confirmation process, unfortunately the system is completely broken. If we’re going to make progress as a nation, both parties in Washington need to work together to end the procedural gridlock and hyper-partisanship.
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What a joke. Brown is getting trounced by that commie wenctch Warren and is pamdering.
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http://www.bloomberg.com/news/2012-01-05/obama-chooses-politics-over-principle-in-naming-consumer-bureau-head-view.html
Fuck Obama and every ghetto thg Marxist voting for him.
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It's funny, really. The GOP wanted a committee to run this bureau instead of delegating all the power to one man. Funny how Obama and the left seemed to have a massive problem with that. These people just love their authoritarianism and hypocrisy.
When the GOP eventually gets in a position to do this I hope they return the favor 10-fold just so that we can see the tears flowing from 240 and the left.
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Is (Communist Dictator) Obama's appointment of Cordray illegal?
cbs ^ | 1/5/2012 | By Constantine von Hoffman
Yesterday President Obama named Richard Cordray director of the Consumer Financial Protection Bureau (CPFB) with what is called a "recess appointment" -- one made while Congress is in recess. He did this because Republican senators had blocked confirmation of Cordray, also a Republican and former attorney general of Ohio. They do not object to Cordray but to how the CPFB is organized. Its financing, for example, comes from the Federal Reserve, which means Congress can't exert pressure on the agency by controlling its budget.
While this type of recess appointment is a common action for presidents, this one is fuelling a lot of argument because the Senate was technically still in session. The GOP senators, fearing Mr. Obama would do this, had been holding pro-forma sessions (pretend sessions where the Senate is called into session but no work is done). Senate Democrats used the same tactic during President Bush's administration.
These "sessions" are held every third day because traditionally Congress has had to be out of session for at least that period of time before a president can make a recess appointment. Cordray's is the first such appointment during a Senate break of fewer than three days since 1949.
(Excerpt) Read more at cbsnews.com ...
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These are NORMAL as a result of party holding out.
Bush had 171 of these appointments. Clinton had something like 120.
This is Obama's 32nd such appointment.
it's a normal part of the process... the opposing party puts it off as long as possible to jam up the other side's agenda. Bush force appointed his guys when Pelosi and friends refused to vote on it. Nothing wrong with it when he did it.
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These are NORMAL as a result of party holding out.
Bush had 171 of these appointments. Clinton had something like 120.
This is Obama's 32nd such appointment.
it's a normal part of the process... the opposing party puts it off as long as possible to jam up the other side's agenda. Bush force appointed his guys when Pelosi and friends refused to vote on it. Nothing wrong with it when he did it.
These "sessions" are held every third day because traditionally Congress has had to be out of session for at least that period of time before a president can make a recess appointment. Cordray's is the first such appointment during a Senate break of fewer than three days since 1949.
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These "sessions" are held every third day because traditionally Congress has had to be out of session for at least that period of time before a president can make a recess appointment. Cordray's is the first such appointment during a Senate break of fewer than three days since 1949.
so youre NOT pissed he appointed someone without congressional approval...
youre just mad at the SPEED he did it? he could have waited 48 more hours and you'd be cool with it? sheesh.
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I heard these folks were only recently nominated, so they didn't even go through the Congressional vetting process?
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These are NORMAL as a result of party holding out.
Bush had 171 of these appointments. Clinton had something like 120.
This is Obama's 32nd such appointment.
it's a normal part of the process... the opposing party puts it off as long as possible to jam up the other side's agenda. Bush force appointed his guys when Pelosi and friends refused to vote on it. Nothing wrong with it when he did it.
Do you ever fucking read anything before you open that suckhole of yours? Bush chose not to do this. And as has been well documented, that c*nt of a senator Reid himself said that Bush couldn't do it as long as he kept the pro-forma sessions going. So, like the good little "prog" douche bag that you are, the world for you began on Obama's inauguration.
There's nothing "normal" about it. No other president has done this. Hope this helps.
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Do you ever fucking read anything before you open that suckhole of yours? Bush chose not to do this. And as has been well documented, that c*nt of a senator Reid himself said that Bush couldn't do it as long as he kept the pro-forma sessions going. So, like the good little "prog" douche bag that you are, the world for you began on Obama's inauguration.
There's nothing "normal" about it. No other president has done this. Hope this helps.
Yep, cant let little things like "rules" or the " deeply flawed constitution" to dictate his actions, Obama does what he wants, when he wants, and fuck everyone that doesnt agree with him, weather they be the citizens that elected him, his advisors, or the politicians elected to be his checks and balances.
Its pretty bad when the man blatantly violates precedents and then flat out says he's not going to abide by anything that he decides he doesnt agree with, or that will stop him from what he feels is best for us.
Not to mention the fact that he always knows whats best, and that if anyone disagrees theyre either trying to gridlock him or theyre trying to destroy the middle class (but hes fighting to save it, lol). Epic.
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ah, I didn't know they could open the senate for 30 seconds every other day (daily show just showed precisely how it worked) in order to keep obama from hiring a guy to run the consumer protection bureau... sitting empty since 2010.
makes perfect sense now.
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Obama’s recess appointments are unconstitutional (Impeach the Communist Slimeball)
WASHINGTON POST ^ | 1/5/2012 | Edwin Meese III and Todd Gaziano
Posted on January 5, 2012 11:03:23 PM EST by tobyhill
President Obama’s attempt to unilaterally appoint three people to seats on the National Labor Relations Board and Richard Cordray to head the new Consumer Financial Protection Bureau (after the Senate blocked action on his nomination) is more than an unconstitutional attempt to circumvent the Senate’s advise-and-consent role. It is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.
Yes, some prior recess appointments have been politically unpopular, and a few have even raised legal questions. But never before has a president purported to make a “recess” appointment when the Senate is demonstrably not in recess. That is a constitutional abuse of a high order.
As a former U.S. attorney general and a former Office of Legal Counsel lawyer who provided advice to presidents on recess appointment issues, we have defended and will continue to defend the lawful use of the recess appointment power. Although originally conceived by the Framers for a time when communicating with and summoning senators back to the Capitol might take weeks, it is still valid in a modern age — but only as long as the Senate is in recess. Not only was the Senate not in recess when these purported appointments were made, it constitutionally could not have been.
(Excerpt) Read more at washingtonpost.com ...
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‘The Man Is a Dictator’: Beck Blasts Obama’s Move to Circumvent Congress
The Blaze ^ | January 5, 2012 | Madeleine Morgenstern
Posted on January 6, 2012 12:25:01 AM EST by Mozilla
Glenn Beck on Thursday blasted President Barack Obama’s use of executive authority to make a recess appointment, calling him a dictator who views the American people as children.
On Wednesday, Obama announced he was appointing Richard Cordray the country’s chief consumer watchdog, making a recess appointment while the Senate was technically in session. The same day, he named three members to fill vacancies on the National Labor Relations Board. Explaining his decision before a crowd in Cleveland, Ohio, Obama said he has “an obligation to act on behalf of the American people” when Congress refuses and hurts the economy as a result.
[snip]
epublicans had stalled Cordray’s nomination, arguing the new agency — tasked with overseeing mortgage companies, payday lenders, and other financial companies — is too powerful and unaccountable.
“The arrogance of this man and the way he rewrites all of American history — all of American history — is astounding,” Beck said on his radio program. “Americans, hear what your president is saying: I’ll work within the system. But if they won’t move, then…I will dictate where we’re going.”
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Bush and Clinton have made twice as many more recess appointments than Obama in a 4 year period....big whoop... ::)
President's got to preside when shit isn't getting done
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Bush and Clinton have made twice as many more recess appointments than Obama in a 4 year period....big whoop... ::)
President's got to preside when shit isn't getting done
These "sessions" are held every third day because traditionally Congress has had to be out of session for at least that period of time before a president can make a recess appointment. Cordray's is the first such appointment during a Senate break of fewer than three days since 1949.
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This power grab’s a sign of weakness
By JOHN PODHORETZ
Last Updated: 4:19 AM, January 6, 2012
President Obama’s executive power-grab this week — making four “recess” appointments when the Senate isn’t in recess — is a mark not of his strength, but of his relative weakness. He is asserting an authority he does not possess through the Constitution because he has precious little personal authority left to assert.
He had it and he lost it, and he can’t figure out how to get it back — so he’s just going to take it.
“When Congress refuses to act, and as a result hurts our economy and puts people at risk, I have an obligation as president to do what I can without them,” Obama said Wednesday as he trumpeted his installation of Richard Cordray as head of his new consumer-activism bureau.
This is rhetoric designed to thrill liberals and Democrats, who (like all partisans and ideologues) love what they take to be the “good fight,” and don’t particularly care how it’s waged. That’s true even if they spent eight years screaming about supposed unconstitutional actions on the part of the Bush administration, every one of which had a far firmer foundation in constitutional law than Obama’s unprecedented action this week.
They also love it because they think it represents an awakening by Obama to the nature of the obstructionist efforts against him (and a winning re-election strategy) when he says he’ll do “what I can” to combat Washington’s brokenness.
This supposedly a) acknowledges the public sentiment against the city whose most powerful resident he is, b) alleges he’s not the reason for the problems and c) places the blame on the recalcitrant Congress.
Maybe it’s the best hand Obama has to play, but it’s not a very good hand. For one thing, the voters who have turned on him don’t think he has exercised too little power, but rather too much — so bragging about doing things without congressional sanction may not play well.
Second, no matter how resolute he sounds, the fact that he has to act in a somewhat rogue manner is an expression of a profound loss of presidential authority — and one that he can’t successfully blame on Congress.
Obama lost his ability to push his agenda through Congress when he received what he himself called a “shellacking” in the November 2010 elections. That shellacking was primarily the result of massive policy overreach when he had a Democratic Congress in his pocket.
He spent 2009 and 2010 getting what he wanted: a trillion dollar stimulus. Auto-industry nationalization. And, of course, his health-care law. It was a wildly successful first 18 months — and it led directly to the bruising defeat he suffered as soon as the American people could render their judgment on those actions.
The independent voters who’d put him over the top in 2008 were horrified by the results. Exit polls showed a 24 percent swing among them, from 8 percentage points in favor of Obama and the Democrats in 2008 to 16 points against in 2010.
What may have been even more painful for Obama’s vanity was his discovery in 2011 that his rhetorical gifts had lost their oomph. He gave speech after speech on topics dear to his heart — and found, each time, that the talk was either ineffectual or actually convinced more people to oppose him.
His failure to move the needle on public opinion for his second round of stimulus last fall — remember “pass this bill now” and “we can’t wait,” after which the bill didn’t pass because evidently we could wait? — indicated he could no longer use the presidency’s “bully pulpit” to his advantage.
He doesn’t frighten Republicans in Congress, and he doesn’t seem able to convince the American people of much.
And yet, even in these circumstances, he has managed to get his way in a limited sense. Misguided Republicans didn’t get their way in their efforts against raising the debt ceiling in August, even after GOP toughness succeeded in preventing a tax hike. And the strange decision by the same Republicans to take a stand against extending the payroll-tax holiday in December met a similar fate last month.
In those cases, Obama’s position was the more rational, the more moderate, and it carried the day. Making recess appointments when the Senate isn’t in recess is neither rational nor moderate. It’s a raw misuse of executive power by a president whose love of government is his most vulnerable spot with the electorate.
And it will come back to haunt him.
jpodhoretz@gmail.com
Read more: http://www.nypost.com/p/news/opinion/opedcolumnists/this_power_grab_sign_of_weakness_B95SE4zOZsyjuJxn63PSEO#ixzz1ignLrVjO
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These "sessions" are held every third day because traditionally Congress has had to be out of session for at least that period of time before a president can make a recess appointment. Cordray's is the first such appointment during a Senate break of fewer than three days since 1949.
they only hold them every 3 days, for 30 seconds, for one reason, right? To prevent apointees?
In this case, this agency was created by congress in 2010. both parties wanted it.
It's 2 years later, and they still don't have a leader for this consumer protection bureau.
if it was me, i don't think I'd have to wait 2 years to bitchslap congress and put someone in the job. consumers have gone long enough without this protection, right?
i didnt know there was such volatile politics associated with consumer protection. And I would hope that Bush would do the same thing, if shitbad dems were keeping consumers unprotected for 2 years with these silly 30-second meeings every 72 hours just to hold up this appointment.
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they only hold them every 3 days, for 30 seconds, for one reason, right? To prevent apointees?
In this case, this agency was created by congress in 2010. both parties wanted it.
It's 2 years later, and they still don't have a leader for this consumer protection bureau.
if it was me, i don't think I'd have to wait 2 years to bitchslap congress and put someone in the job. consumers have gone long enough without this protection, right?
i didnt know there was such volatile politics associated with consumer protection. And I would hope that Bush would do the same thing, if shitbad dems were keeping consumers unprotected for 2 years with these silly 30-second meeings every 72 hours just to hold up this appointment.
Stop fucking lying! Both parties did not want this agency!
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Surprise, douchebag is back, who spent years crying about the constitutionality of Bush's actions now makes excuses for Obama. What a pathetic c*nt. I would bet Ron Paul would never pull a stunt like this. But don't worry, the Obama dicksucker claims to support him.
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Surprise, douchebag is back, who spent years crying about the constitutionality of Bush's actions now makes excuses for Obama. What a pathetic c*nt. I would bet Ron Paul would never pull a stunt like this. But don't worry, the Obama dicksucker claims to support him.
Because Bush did and it was wrong and caused chaos - now its ok that obama does it to even though those same people screamed when bush did.
Obamabots have diseased minds.
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http://www.theblaze.com/stories/the-man-is-a-dictator-beck-blasts-obamas-move-to-circumvent-congress
240 - listen to this clip. and you support this crap?
WTF is wrong with you!
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Obama's reckless recess ploy
The Wall Street Journal ^ | 01/06/2012 | David B. Rivkin, Jr. and Lee A. Casey
Mr. Obama is claiming an open-ended authority to determine that the Senate is in recess, despite that body's own judgment and the factual realities. That is an astonishing and, so far as we can tell, unprecedented power grab.
It is not up to the president to decide whether the Senate is organized properly or working hard enough. However much the supposedly power-hungry President George W. Bush may have resented the Senate's practice of staying "in session" to defeat his recess-appointment power, he nevertheless respected the Senate's judgment on the point.
The president has done his new appointees and the public no favors. Both the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau are regulatory agencies with profound real-world impact. Those individuals and businesses subject to regulations and rulings adopted during the tenure of Mr. Obama's recess appointees can challenge the legality of those measures in the courts, and they will very likely succeed.
(Excerpt) Read more at online.wsj.com ...
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Obama takes victory lap
By Amie Parnes - 01/06/12 12:45 PM ET
Two days after defying Republicans and appointing Richard Cordray to head the Consumer Financial Protection Bureau, President Obama visited the new agency to take a little time to gloat.
Making a victory lap of sorts at the independent agency, Obama cracked a joke, telling employees that he came by to help their new director move in.
More seriously, a seemingly content Obama called the man he tapped a “great director who is tailor-made to lead this agency.”
With Cordray at the helm, after months of delay, the agency will help Americans better digest mortgages, student loans and credit card fees before they become entangled in debt, Obama said before a packed room of more than 100 CFPB employees.
“Now that Richard is your director, you can finally exercise your responsibilities under the law,” Obama said. “We can help give people the clear and transparent information they need” to make the right financial decisions, he said.
Obama was welcomed by an extremely supportive crowd of bureau employees who loudly cheered his arrival and were especially boisterous when Cordray introduced himself as the official director of the agency. A lottery was held Thursday night to dole out seats to employees who wanted to attend the event.
The trip to the agency came just two days after Obama made the surprise decision to appoint Cordray to the agency while Congress was on recess.
Republicans have been running pro forma sessions to prevent such an appointment, and they expressed outrage Wednesday over Obama's decision.
The president, who has made it clear he plans to run against Congress as he maps out a path to reelection, showed Friday that he is interested in keeping the story alive with a visit that seemed to poke at Republicans.
Since returning from Hawaii on Tuesday, an aggressive Obama — whom some in his own party had labeled as lacking a backbone — has entered his reelection year looking to capitalize on a bruised Republican caucus on Capitol Hill. At the same time, he has attempted to steal some thunder from Republicans.
When he announced Cordray’s appointment in Ohio on Wednesday, Obama made it clear that he would not wait for Congress to act on issues he deems pressing.
“When Congress refuses to act, and as a result hurts our economy and puts our people at risk, then I have an obligation as president to do what I can without them,” he said.
“I’ve got an obligation to act on behalf of the American people. And I’m not going to stand by while a minority in the Senate puts party ideology ahead of the people we were elected to serve. Not with so much at stake, not at this make-or-break moment for the middle class.”
Obama spoke just a few hours after the release of a positive jobs report that showed the economy added 200,000 jobs in December. The unemployment rate dropped to 8.5 pecent.
Discussing the jobs numbers, Obama said the economy is “starting to rebound.”
“We have made real progress,” he said. "We’re not going to let up.”
Still, the president acknowledged, “There are a lot of people who are still hurting out there. Obviously we have a lot more work to do.”
Source:
http://thehill.com/homenews/administration/202773-obama-takes-victory-lap
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http://washingtonexaminer.com/opinion/editorials/2012/01/obama-thumbs-nose-constitution-recess-appointments/2065421
Obama thumbs nose at Constitution on 'recess appointments'
By: Examiner Editorial | 01/05/12 8:05 PM
Manuel Balce Ceneta/AP File
President Obama just appointed Richard Cordray to direct the Consumer Financial Protection Bureau, bypassing Senate confirmation even though the Senate is in session.President Obama is not one to let the Constitution get in the way of a "recess appointment." He just named Richard Cordray to direct the Consumer Financial Protection Bureau, and he has announced three similar recess appointments to the National Labor Relations Board. But Obama is making these appointments at a time when the Senate is actually in session, according to the Constitution and under all definitions accepted by authorities for the last century. If the Senate is in session, the Constitution requires the Senate's advice and consent to these appointments.
This attempt to circumvent the legislative branch is a violation of Obama's oath of office to uphold and defend the Constitution. Instead he is thumbing his nose at it and daring Congress, or anybody else, to stop him. It's the same sort of fundamental disrespect for the rule of law that is routinely practiced by tinhorn dictators like Hugo Chavez.
If Democrats care about preserving the Constitution, the danger of executive usurpation, and protecting the separation of powers among co-equal branches, they must stand up now and tell Obama to back off. If they stand meekly by and let him get by with it, Democrats will surely rue the day when they lose the White House, and this new, illegal power is wielded against them by a Republican president as willing as Obama to ignore the Constitution.
A president's recess appointment power exists under Article II, Section Two of our Constitution, and it requires the Senate to be in recess at least three days before the power is exercised. Nowhere does it say the president gets to decide when the Senate is in recess; only Congress can do that. It has never been understood any other way.
To justify this power grab, Obama contends that the Senate has actually been in recess for weeks because the Senate's brief pro forma sessions every three days are a sham since no official business is conducted. Obama might as well argue that his appointments are legal because the moon is made of green cheese. Article I, Section Five of the Constitution states, in part, that "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ..." The House has not consented to a Senate recess. Thus, the Senate's pro forma sessions are strictly constitutional, the Senate is legally in session, and Obama must seek its advice and consent on these appointments. Otherwise, they are null and void and will be thrown out by a federal court. Obama is counting on that not happening before November's election.
It makes zero difference where you stand on political parties, the CFPB, financial reform policy, the NLRB, the imperial presidency or congressional obstructionism. If Obama doesn't like getting the Senate's advice and consent to his nominees, he should take his case to the American people and ask them to amend the Constitution. What he can't do is make up his own rules to suit his re-election campaign strategy. Only Senate Democrats can credibly tell Obama to back away from this constitutional crisis. The nation is watching to see if they will.
Read more at the Washington Examiner:
http://washingtonexaminer.com/opinion/editorials/2012/01/obama-thumbs-nose-constitution-recess-appointments/2065421#ixzz1ihwytV56
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Obama's 'abuse of power' threatens to shut down Senate
http://www.humanevents.com ^ | 01/06/2012 | by Audrey Hudson
Key Republican Senators are bracing for legislative battles and Constitutional challenges to President Barack Obama’s unprecedented end-run around Congress to install several controversial political appointees.
Obama announced the decision Wednesday to make the so-called recess appointments -- even though the Senate is not in recess -- putting Richard Cordray in charge of a contentious new consumer protection agency and also naming three appointments to the National Labor Relations Board (NLRB) – Sharon Block, Richard Griffin and Terence F. Flynn.
“Business as we know it in the Senate is over for this administration in terms of accomplishing anything legislatively or finding any cooperation from this side of the aisle,” said Sen. John Barrasso (R. –Wyo.). “He has poisoned the well.”
“Apparently, advise and consent called for in the Constitution doesn’t apply to this Chicago-style politician. He’s more interested in rewarding his friends than living under the law Americans need to abide by,” Barrasso said.
The Constitution allows the president to make recess appointments, but the controversy in this case is whether or not the Senate is in recess.
“I believe it’s an abuse of power. Now he is saying he’s above the law -- the law doesn’t apply to him,” Barrasso said.
Republicans have kept the Congress in a pro forma session, gaveling in for a few minutes of official business every three days. It’s a tactic that was used by Democrats during the Bush administration to block recess appointments. Additionally, Obama’s own Justice Department argued before the Supreme Court in 2010 that Congress is not in recess unless it’s absent for more than three days.
Republicans say they are frustrated because Obama did not nominate the NLRB picks until last month -- just two days before the Christmas holiday -- allowing no time for the Senate to hold hearings.
Meanwhile, Senate Democrats have stalled the confirmation of the lone Republican nominee for the labor board, Brian Hayes, since July 2009.
Another contentious factor in Obama’s maneuver, the Consumer Financial Protection Bureau created by the Dodd-Frank Act, requires that the new director be confirmed by the Senate, so Cordray’s appointment puts the agency’s legal authority in limbo.
“I don’t think he has the full authority to run this agency,” said J.W. Verrett, an assistant professor of law at George Mason University and a senior scholar at the Mercatus Center.
“The president’s decision is a purely political one, and not about consumer protection,” Verrett said. “In fact, he’s sacrificed consumer protection. He’s more interested in being tough on Congress than being tough on predatory lenders.”
Sen. Mike Lee (R. –Utah), a member of the Senate Judiciary Committee, said these actions were not ordinary recess appointments but “egregious and inexcusable” acts of a president who thinks he’s above the law.
“As a matter of raw political force, can he do it? He just did,” Lee said.
“I think the president wanted to pick a really big fight, and he has surely chosen one,” Lee said. “This is a direct affront to the American people and the constitutional system of government that we have.”
Republicans are hesitant to give away their game plan on how they will respond to Obama’s move, but Lee suggested that Congress could withhold the salaries for the new federal appointees.
Senate Minority Leader Mitch McConnell (R. Ky.) said Obama “upped the ante” and set “a terrible precedent that could allow any future president to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress.”
“This was surely not what the framers had in mind when they required the president to seek the advice and consent of the Senate in making appointments,” McConnell said.
Sen. Orrin Hatch (R. –Utah) said Obama made the appointments to placate his “big labor allies,” but that it might not be enough to save him come Election Day.
“The president put his own political future and the radical views of his far-left base ahead of constitutional government. The president will have to answer to the American people for this power grab," Hatch said.
Vincent Vernuccio, a labor policy lawyer with the Competitive Enterprise Institute, said the NLRB appointees are a gift to Obama’s labor backers, and that Griffin comes to the board directly from a labor union.
“The vacancies on the Board have occurred because Obama has insisted on nominating pro-union ideologues too controversial to pass Senate confirmation,” Vernuccio said.
Richard Trumka, president of the AFL-CIO, congratulated Obama on overcoming what he called “Republican obstructionists.”
“Working families and consumers should not pay the price for political ploys that have repeatedly undercut the enforcement of rules against Wall Street abuses and the rights of working people,” Trumka said.
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Dem NLRB ‘recess’ appointments rushed, don’t appear on White House nominee list
By Matthew Boyle - The Daily Caller 2:33 PM 01/06/2012
The two Democrats that President Barack Obama appointed to the National Labor Relations Board during what he considered a congressional “recess” are not on the White House’s official list of Obama’s appointments and nominations for various positions.
Obama referred his two Democratic nominees, Sharon Block and Richard Griffin, to the Senate on Dec. 15. The Senate adjourned for the year – but did not go into an official recess — on the following day.
WhiteHouse.gov tracks the status of all of Obama’s appointments and nominations. Block and Griffin do not appear on that list — a sign that the administration rushed the recess appointments through too quickly for the Senate to even consider them.
“It’s hard to argue that the Senate was obstructing these Democratic nominees when they don’t even appear on the administration’s own list of nominations and appointments,” U.S. Chamber of Commerce labor policy specialist Glenn Spencer told The Daily Caller.
The Republican member Obama recess-appointed to the NLRB, Terence F. Flynn, does show up on the White House list. His nomination was referred to the Senate months ago.
Wyoming Republican Sen. Mike Enzi’s office has pointed out that Block and Griffin were referred to the Senate so quickly that they didn’t pass basic criminal and civil background checks. A statement from Enzi, the ranking member of the Senate Health, Education, Labor and Pensions Committee, said that the background checks ensure that no criminal investigations are pending against potential nominees, and that they have paid their income taxes. The checks also ensure nominees don’t have conflicts of interest.
When a reporter asked White House press secretary Jay Carney about the scant amount of time between the nominations and the recess appointments, he balked. Instead of addressing the constitutional requirement of allowing the Senate advice and consent on presidential nominations, Carney attacked Congress.
“Any doubt about the Senate’s intention, or the Republicans in the Senate’s intention of allowing any nominee to come forward can be,” Carney said Thursday, ”was demonstrated by the fact that they wouldn’t even allow the Republican nominee to get to a committee vote so — who had been there for almost a year.”
Carney added that though Obama did not give Congress a chance to act, Obama wanted to pre-empt the Senate. Carney said the president was asuming, based on senators’ past statements, that they would stall additional nominations.
“So the President acted because Congress wouldn’t, and it was clear that Congress wouldn’t — and numerous senators have made clear they won’t,” Carney said. “And we have to have that: These independent agencies exist for a reason, and the president believed that it was essential to make sure that that agency could function.”
Block was the deputy assistant secretary for congressional affairs inside Obama’s Department of Labor, and once worked for the late Massachusetts Democratic Sen. Edward Kennedy. Griffin was a lawyer for labor unions including the AFL-CIO and the International Union of Operating Engineers.
Flynn is a Republican lawyer specializing in the National Labor Relations Act, the law the NLRB is tasked with enforcing.
Follow Matthew on Twitter
Read more: http://dailycaller.com/2012/01/06/dem-nlrb-recess-appointments-rushed-dont-appear-on-white-house-nominee-list/#ixzz1ii9GDcLI
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Obama's Tin Ear Returns
By Ross Kaminsky on 1.5.12 @ 2:32PM
http://spectator.org/blog/2012/01/05/obamas-tin-ear-returns
When even a New Republic writer suggests that Barack Obama's Wednesday recess appointments to the Consumer Protection Bureau and the National Labor Relations Board are probably unconstitutional, you know we're in for a good fight… at least if Senate Republicans have the courage to take it on.
The left-leaning Politico also notes that "… President Barack Obama’s decision to jam the Senate and install three labor nominees and a consumer watchdog without a confirmation vote raises unsettled legal questions that could have a long-lasting impact past his presidency."
The Washington Post's Jennifer Rubin has a good summary of initial Republican response to Obama's power-grab.
My view: While Obama is pandering to the far left and union (if you'll pardon my redundancy) parts of his base, his move is politically unwise.
Think about Obamacare: It was not just the content of the law which people hated; it was also the process. From "deem and pass" to "reconciliation" to "pass it so you can learn what's in it" every part of the Democrats' efforts to shove the measure down our throats stunk of heavy-handedness if not outright tyranny.
Obama's recess appointments were an unnecessary reminder by Obama that he is indeed a tyrant. It's one thing to fight "obstructionism." It's another thing entirely to say that he, rather than the Senate, determines whether or not the Senate is in session.
If these appointments are challenged in court and if Obama loses, it would do measurable damage to his election prospects -- not just because of the appointments themselves but because it is such a stark reminder that our president is a man who thinks himself and his vaunted goals so important that the rule of law should yield to his will. Other than among the roughly 20 percent of Americans (university professors, union members, and government employees) who strongly approve of Obama's job performance, this sort of autocratic behavior does not play well to the American sensibility. It is a sensibility that is figuratively and literally foreign to Barack Obama, who spent formative years living in anti-democratic places like Indonesia and Columbia University.
It may be that Obama is feeling his oats after his payroll tax cut "victory" over House Republicans and therefore trying to flex his muscles. But he's picked a stupid fight at a stupid time, with far more to lose than to gain, reminding us of the surprisingly tin-eared Chicago-style politician he spent most of 2009 and 2010 proving himself to be.
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Obama, the constitutional anarchist
http://www.washingtonpost.com/blogs/right-turn/post/obama-the-constitutional-anarchist/2012/01/06/gIQARy3neP_blog.html ^ | 1/6/2012 | Jennifer Rubin
Posted on January 6, 2012 12:33:40 PM EST by tobyhill
President Obama’s recess appointment of three members of the National Labor Relations Board and Richard Cordray to the Consumer Financial Protection Bureau continues to reverberate. The most compelling legal analysis on the subject is offered by conservative legal figures, most aptly today by Todd Gaziano of the Heritage Foundation and former attorney general Ed Meese:
Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days. The president and anyone else may object that the Senate is conducting “pro forma” sessions, but that does not render them constitutionally meaningless, as some have argued. In fact, the Senate did pass a bill during a supposedly “pro forma” session on Dec. 23, a matter the White House took notice of since the president signed the bill into law. The president cannot pick and choose when he deems a Senate session to be “real.
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January 8, 2012
Obama's 2012 Slogan: 'Can't Work With Others'
By Debra Saunders
President Barack Obama is running for re-election with an unusual pitch: He can't work with others.
He only gets along with yes men. "I refuse to take 'no' for an answer," Obama said last Wednesday of his decision to make a "recess" appointment that placed Richard Cordray as head of the new Consumer Financial Protection Bureau. The Constitution, of course, gives the president the power to make appointments during Senate recesses. Technically, however, the Senate was in session. The imperial president bypassed Senate rules and years of precedent because he wouldn't or couldn't cut a deal.
Later Wednesday, the White House announced three more recess appointments for vacant seats on the National Labor Relations Board. Obama explained, "When Congress refuses to act and, as a result, hurts our economy and puts our people at risk, then I have an obligation as president to do what I can without them."
Obama, a former constitutional law professor, just kicked the Constitution's delicate balance of powers by using the executive boot to step on the Senate's power to advise and consent.
I understand the president's frustration with the system. In December, 53 senators voted in Cordray's favor, but under Senate rules, 60 votes are needed to bring his confirmation to an up-or-down floor vote. (Republican senators don't have a problem with Cordray per se. They used his nomination in an attempt to roll back some of the regulatory powers and increase congressional oversight of the new consumer bureau, created in the Dodd-Frank law.)
The 60-vote threshold may not seem fair. But in his 2006 book, "The Audacity of Hope," Obama wrote, "To me, the threat to eliminate the filibuster on judicial nominations was just one more example of the Republicans changing the rules in the middle of the game." He was angry with Republicans for thinking about flouting precedent.
Obama, however, didn't seem to mind when Democrats changed the rules during George W. Bush's presidency. On Nov. 16, 2007, Senate Majority Leader Harry Reid announced that the Senate would hold pro forma sessions -- that could involve little more than gavel rattling -- during the Thanksgiving holiday "to prevent recess appointments."
According to the Congressional Research Service, "the Senate pro forma session practice appears to have achieved its stated intent: President Bush made no recess appointments between the initial pro forma sessions in November 2007 and the end of his presidency." Upon Obama's election, recesses resumed, but in 2010, the Senate resurrected pro forma sessions.
And now Reid agrees with Obama aides who say that his pro forma sessions are a gimmick. He's supporting the president's attempt to undermine Senate power.
In 2010, two former Bush attorneys wrote an opinion piece in which they urged Bush to call the Dems' bluff on "phony" pro forma sessions. Bush did not oblige. He may not have liked the "phony" rules, but he showed respect for the Senate's prerogative.
What would happen if Obama were to win re-election this year but the GOP won the Senate? How would Obama get anything done?
"He's poisoning the well," observed University of California, Berkeley law professor and former Bush administration attorney John Yoo. Worse: "This is going on when his party is in charge."
This is how little Obamaland respects Reid's Senate. White House communications director Dan Pfeiffer wrote on the White House blog Wednesday, "The Senate has effectively been in recess for weeks, and is expected to remain in recess for weeks." Then Pfeiffer attacked the pro forma gimmick.
"It was during one of those pro forma sessions, which they call a gimmick, that we passed the two-month extension for the payroll tax holiday," Don Stewart, spokesman for Senate Minority Leader Mitch McConnell dryly observed. On Dec. 23, the Senate gave Obama what he wanted. As a reward, the administration says the Senate wasn't really doing anything.
Republicans scratch their heads. For years, the chattering classes bemoaned Bush's copious use of executive power. Yet when Obama steps on the Senate, news reports describe Obama's behavior as bold and media-savvy.
The bigger issue, however, concerns Team Obama's apparent decision to win re-election by playing to the liberal base, not the American political middle. While the administration should be working to heal the economy, the administration is busy pointing fingers at bad Republicans.
Tea Party Express co-founder Sal Russo likened the Obama strategy to Bush guru Karl Rove's strategy to win re-election in 2004 by ginning up the base. Russo doesn't see how it could work for the Democrats this year.
To independent voters especially, the president's failure to work with Congress doesn't compute. "Look, you're president," Russo said. "Why can't you just walk over to Congress and talk to these guys?"
To the average Joe, there's only one standard, noted Russo. "You've got to get the job done."
dsaunders@sfchronicle.com
Copyright 2011, Creators Syndicate Inc.
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http://www.canadafreepress.com/index.php/article/43765
Damn. How can anyone possibly defend this.
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Only one Senate Democrat supports Obama’s recess claim (Obama's illegal move backfired on him)
the daily caller ^ | 1/7/2012 | By Neil Munro and Matthew Boyle
Posted on January 9, 2012 6:05:47 AM EST by tobyhill
Only one Senate Democrat, out of 51 asked, told The Daily Caller that President Barack Obama was correct when he claimed the Senate was in recess Jan. 3. That’s the day Obama announced that he had exercised his executive authority to fill four top posts during a Senate recess.
Their GOP counterparts slammed Obama for claiming the power to decide when the Senate is in recess.
Democratic Sen. Tom Carper of Delaware said he believed the Senate was in a recess when Obama made the controversial appointments, according to a statement from his office.
(Excerpt) Read more at dailycaller.com ...
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GOP: Could Obama make a recess appointment overnight or on weekend? (strongly worded letter to DOJ)
The Hill ^ | 1/06/12 | Pete Kasperowicz
GOP: Could Obama make a recess appointment overnight or on weekend?
By Pete Kasperowicz - 01/06/12 03:01 PM ET
Sen. Chuck Grassley (R-Iowa) is asking the Obama administration whether recess appointments overnight and on the weekend are possible after the president's decision this week to appoint four federal officials despite pro forma sessions by Congress.
In a letter to Attorney General Eric Holder, Grassley and seven other Republican senators on Friday pressed the Obama administration for more details about its decision to make the controversial recess appointments.
Grassley's letter said the White House broke with 90 years of precedent on Wednesday when it appointed Richard Cordray to the head the Consumer Financial Protection Board (CFPB) and three others to the National Labor Relations Board.
It also asks questions about what the change might mean in the near future, such as whether the president can make recess appointments during the weekend or in the evening after the Senate adjourns.
"The Justice Department and the White House owe it to the American people to provide a clear understanding of the process that transpired and the rationale it used to circumvent the checks and balances promised by the Constitution," Grassley, the chairman of the Senate Judiciary Committee, said in a statement announcing the letter. "Overturning 90 years of historical precedent is a major shift in policy that should not be done in a legal opinion made behind closed doors, hidden from public scrutiny."
The letter outlined the history of that precedent, which started with a 1921 opinion from the attorney general that Senate adjournment for two days is not a recess, and that an adjournment of five or 10 days might also be enough. The letter notes that this opinion was reaffirmed in 1960, 1992 and 2001, and that the Department of Justice also argued before the Supreme Court in 2010 that "the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than three days."
"Taken together, these authorities by the department clearly indicate the view that a congressional recess must be longer than three days — and perhaps at least as long as 10 — in order for a recess appointment to be constitutional," the letter states.
The letter then asks eight questions about how Justice got around this prior position. For example, it asked whether the original 1921 opinion was withdrawn to make way for the new opinion and whether other opinions were withdrawn.
It also asks whether Justice was asked to render a formal opinion, whether that opinion will be made public, and whether Justice believes this week's decision was constitutional.
Aside from Grassley, the letter is signed by Sens. Tom Coburn (R-Okla.), John Cornyn (R-Texas), Lindsey Graham (R-S.C.), Orrin Hatch (R-Utah), Jon Kyl (R-Ariz.), Mike Lee (R-Utah) and Jeff Sessions (R-Ala.).
House Financial Services Committee Chairman Spencer Bachus (R-Ala.) also wrote to Holder Friday, asking many of the same questions.
Specifically, Bachus asked whether Justice provided any input to the decision and asked that written documents on the matter be made public. He also asked for the department's view on whether the Senate was in recess when Cordray was appointed, and whether this opinion was shared with the White House before the decision was made.
Bachus asked whether the CFPB position Cordray has filled was technically a "vacancy" that could be filled with a recess appointment, given that the position was newly created.
The White House has not released a technical explanation for its decision. However, White House officials explained this week that they based the appointments on a legal opinion that Congress is in recess despite Congress meeting in pro forma sessions because no work is expected until late January.
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OPINION
http://online.wsj.com/article/SB10001424052970204257504577150661990141658.html?mod=WSJ_Opinion_LEADTop
JANUARY 10, 2012.
Democrats and Executive Overreach
It's a mistake to excuse Obama's disregard for the Constitution. Precedents set now will be exploited by the next administration..
By MICHAEL MCCONNELL
One reason so many Americans entrusted Barack Obama with the presidency was his pledge to correct the prior administration's tendency to push unilateral executive power beyond constitutional and customary limits.
Yet last week's recess appointments of Richard Cordray as the first chief of the Consumer Financial Protection Bureau and three new members to the President's National Labor Relations Board—taken together with other aggressive and probably unconstitutional executive actions—suggest that this president lacks a proper respect for constitutional checks and balances.
The Obama administration has offered no considered legal defense for the recess appointments. It even appears that it got no opinion from the Office of Legal Counsel in advance of the action—a sure sign the administration understood it was on shaky legal ground.
It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess. Several years ago—under the leadership of Harry Reid and with the vote of then-Sen. Obama—the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office.
It does not matter, constitutionally, that congressional Republicans have abused their authority by refusing to confirm qualified nominees—just as congressional Democrats did in the previous administration. Governance in a divided system is by nature frustrating. But the president cannot use unconstitutional means to combat political shenanigans. If the filibuster is a problem, the Senate majority has power to eliminate or weaken it, by an amendment to Senate Rule 22. They just need to be aware that the same rules will apply to them if and when they return to minority status and wish to use the filibuster to obstruct Republican appointments and policies.
Enlarge Image
CloseAFP/Getty Images
President Obama alongside Richard Cordray, head of the Consumer Financial Protection Bureau, in Shaker Heights, Ohio, Jan. 4.
.Moreover, in this case, two of the recess appointees to the National Labor Relations Board had just been nominated and sent to the Senate on Dec. 15—two days before the holiday. So it is simply not true that they were victims of Republican obstructionism, even if that mattered.
Some of the administration's supporters have tried to argue that the pro forma sessions are a sham and thus that the Senate has been in recess since Dec. 17. Aside from the fact that these sessions are not, in fact, a sham—the Senate enacted the payroll tax holiday extension, President Obama's leading legislative priority, on Dec. 23 during one of those pro forma sessions—the plain language of the Constitution precludes any such conclusion.
Article I, Section 5, Clause 4 requires the concurrence of the other house to any adjournment of more than three days. The Senate did not request, and the House did not agree to, any such adjournment. This means that the Senate was not in adjournment according to the Constitution (let alone in "recess," which requires a longer break).
Others have argued that the president can make recess appointments during any adjournment, however brief, including the three days between pro forma sessions. That cannot be right, because it would allow the president free rein to avoid senatorial advice and consent, which is a major structural feature of the Constitution. He could, for example, make an appointment overnight, or during a lunch break. In a brief in the Supreme Court in 2004, Harvard law professor Laurence Tribe dismissed as "absurd" any suggestion that a period of "a fortnight, or a weekend, or overnight" is a "recess" for purposes of the Recess Appointments Clause.
This is not the first time this administration has asserted unilateral executive power beyond past presidential practice and the seeming letter of the Constitution. Its slender justification for going to war in Libya without a congressional declaration persuaded almost no one, and its evasion of the reporting requirements of the War Powers Resolution—over the legal objections of Justice Department lawyers—was even more brazen. According to the administration, not only was our involvement in Libya not a "war" for constitutional purposes; it did not even amount to "hostilities" that trigger a reporting requirement and a 60-day deadline for congressional authorization.
Indeed, the Obama administration has admitted to a strategy of governing by executive order when it cannot prevail through proper legislative channels. Rather than work with Congress to get reasonable changes to President Bush's No Child Left Behind education law, it has used an aggressive interpretation of its waiver authority to substitute the president's favored policies for the law passed by Congress. When the president's preferred cap-and-trade legislation to limit carbon emissions failed in Congress, the Environmental Protection Agency announced it would proceed by regulation instead. And when Congress refused to enact "card check" legislation doing away with secret ballots in union elections, the president's National Labor Relations Board announced plans to impose the change by administrative fiat—one of the reasons Senate Republicans have tried to block appointments.
The English philosopher John Locke, who so influenced our Founding Fathers, wrote that a "good prince" is more dangerous than a bad one because the people are less vigilant to protect against the aggrandizement of power when they perceive the ruler as beneficent.
I fear many Democrats are falling into this trap. They like President Obama and his policies, and they are willing to look the other way when it comes to constitutional niceties. The problem is that checks and balances are important, precedents created by one administration will be exploited by the next, and not all princes are good.
Mr. McConnell, a former federal judge, is a professor of law and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution.
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Justice memo argues Obama recess appointments were legal
By Alexander Bolton - 01/12/12 12:32 PM ET
www.thehill.com
The Department of Justice offered a defense Thursday for President Obama’s controversial decision to make several recess appointments while Congress was holding pro forma sessions.
In a memo, Justice argued the pro forma sessions held every third day in the Senate do not constitute a functioning body that can render advice and consent on the president’s nominees. It said the president acted consistently under the law by making the appointments.
“Although the Senate will have held pro forma sessions regularly from January 3 to January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the president from determining that the Senate remains unavailable throughout to ‘receive communications from the president or participate as a body in making appointments,’” Virginia Seitz, assistant attorney general for the Office of Legal Counsel, wrote in the memo dated Jan. 6.
The Office of Legal Counsel concluded the president has authority to make recess appointments during a recess and that Congress can only prevent the president from making such appointments “by remaining continuously in session and available to receive and act on nominations,” not by holding pro forma sessions.
Republicans, who had set up the pro forma sessions to prevent Obama from making the appointments, are expected to challenge them in court.
Obama used his recess-appointment powers to place Richard Cordray as director of the Consumer Financial Protection Bureau. He also named three people to the National Labor Relations Board.
Seitz offered several points in defense of Obama’s actions.
The memo noted that pro forma sessions typically last only a few seconds and require the presence of only one senator.
It cited statements from Republican and Democratic senators, including James Inhofe (R-Okla.), John Thune (R-S.D.) and Patrick Leahy (D-Vt.), indicating the lawmakers themselves did not consider the cursory sessions as true breaks in the Senate recess.
The memo noted that the Senate’s website does not recognize pro forma sessions as breaking up extended recesses into mini-recesses, as Republicans now argue.
It also notes that messages from the president received during recess are not laid before the Senate or entered into the Congressional Record until the full Senate returns to work, even if pro forma sessions have been convened in the interim.
The federal judiciary has shown reluctance to limit the president’s power to make recess appointments.
In 2004, the 11th U.S. Circuit Court of Appeals validated the presidential power and refused to set a minimum length of recess for such appointments to be valid.
“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,” the court ruled in Evans v. Stephens.
On Thursday, Tom Donohue, president and CEO of the U.S. Chamber of Commerce, said the business trade association has not made a decision on challenging the recess appointments in court, a sign the administration might have a strong case.
“We are not going to sue today because one has to see what [Cordray] does and what the three new guys at the National Labor Relations Board do,” Donohue said.
“On this one, we’re working our way through it.”
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First court challenge filed against Obama's recess appointments
The Hill ^ | January 13, 2012 | Kevin Bogardus
The National Right to Work Foundation filed a motion Friday that challenges the legality of President Obama’s recess appointments to the National Labor Relations Board (NLRB).
The motion, filed in the U.S. District Court for the District of Columbia, is a joint action with the Coalition for a Democratic Workplace and the National Federation of Independent Business (NFIB).
It is the first legal action that questions the president’s recent recess appointments, which he made earlier this month over the fierce objections of Republican lawmakers. The president recess-appointed Richard Cordray as director of the Consumer Financial Protection Bureau, along with three members of the NLRB.
In a statement, the Foundation said it consolidated the motion with another lawsuit against the NLRB that is seeking to block a new labor board rule that would require employers to post notices informing workers of their right to form a union.
“President Barack Obama has already shown time and again that he is willing to abuse his executive authority to force more workers into union-dues-paying ranks,” said Mark Mix, President of the National Right to Work Foundation, in a statement. “Now Obama’s executive abuse jeopardizes the constitutional balance our country holds very dear, all in the name of paying back his Big Labor benefactors.”
The National Association of Manufacturers is a party to the lawsuit against the union poster rule but is not a party to the motion challenging the recess appointments.
The Foundation argues that the three NLRB members were recess-appointed when the Senate was not in recess and thus are not members of the board.
The White House has said the Senate’s pro forma sessions — which involve banging the gavel once every three days — do not prevent the president from making recess appointments because the chamber is not truly in recess. A legal memo released this week by the Justice Department’s Office of Legal Counsel agreed with the White House, arguing it is legal for the president to make recess appointments.
Business groups have lobbied heavily against the labor board and the consumer bureau. Republicans have also criticized the agencies over the past year and blasted the recess appointments an abuse of executive power.
A spokeswoman for the NLRB declined to comment.
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Democracy Denied: Barack Obama's Executive Power Grab
Townhall.com ^ | January 15, 2012 | Erik Telford
Posted on January 15, 2012 4:09:06 PM EST by Kaslin
In 2008, Barack Obama was swept into the White House in large part due to public opposition to President Bush’s heavy-handed use of executive power and accusations that he had circumvented Congress - a constant criticism employed by candidate Obama on the stump.
Consider this quote: “We can no longer wait for Congress to do its job. . . . So where Congress won’t act, I will.”
It sounds like the kind of executive arrogance for which Bush was regularly pilloried by the media and his Democratic opponents. Yet these were not words uttered by President Bush; they were spoken by President Obama on October 29th, 2011 during his weekly radio address.
Since taking office two years ago, the Obama administration has engaged in a pattern of executive power abuse that would make even Richard Nixon blush. In fact, the administration has made a deliberate strategic decision that the only way they can advance their radical leftwing agenda is to circumvent the Congress and openly defy the will of the people. As Julie Pace wrote last week in the Associated Press, “Leaving behind a year of bruising legislative battles, President Barack Obama enters his fourth year in office having calculated that he no longer needs Congress to promote his agenda.”
White House deputy press secretary, Josh Earnest, has even gone so far as to state as a matter of public record that the administration now considers the role of Congress to be optional, saying of legislative action: “that’s no longer a requirement.”
This is a very troubling – not to mention blatantly unconstitutional – approach to governing, one that every American must be made aware of in this critical election year that will decide so much about our country’s future.
Phil Kerpen has been a seminal leader in the critical efforts to inform the public about this administration’s egregious actions that threaten the very foundation of our republic. His recently released book “Democracy Denied: How Obama is Ignoring You and Bypassing Congress to Radically Transform America - and How to Stop Him” is a must-read for every citizen who cares about restoring this country to constitutional principles and setting America back on a path to prosperity.
Kerpen provides the most comprehensive chronicle of the extent to which the administration has resorted to executive power abuse after failing to succeed though the proper legislative action in Congress. Cap-and-trade energy regulations, a government takeover of the internet – so called “Net Neutrality,” and a forced unionization measure known as Card Check, were all efforts that failed to pass through Congress, yet the administration has managed to enact almost wholesale through executive agency action.
In 2010, the American electorate delivered a stunning rebuke to the Obama agenda in a historic wave election that shifted control of Congress firmly into Republican hands. Yet, rather than heed this overwhelming public reproach, the administration has – as Kerpen says – attempted to “turn sidestepping Congress into a political virtue,” and redoubled their efforts through such actions as blocking access to domestic energy, abusive implementation of Obamacare, an all-out assault on property rights, and the list goes on and on…
This type of dictatorial action, in defiance of our constitution and every democratic principle upon which this country was founded, must be ended once and for all. Kerpen sets forth a clear path to a solution that will end executive tyranny – regardless of the political party occupying the White House.
The centerpiece of that solution is the REINS Act. The legislation, sponsored by Senator Rand Paul in the Senate and Congressman Geoff Davis in the House, would reassert the role of Congress, requiring all rules, regulations, and mandates that have a significant economic impact to be approved by the legislative branch before they can become effective. The House passed the bill, H.R. 10, a few weeks ago. The Senate should do the same.
Phil Kerpen has sounded the alarm, now it is up to all of us to stand and take action. It begins with reading “Democracy Denied,” and continues with us spreading the word to our friends, families, and fellow citizens and pressing members of Congress and candidates for Congress to commit to standing up to abuses of power from the executive branch, regardless of party.
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January 16, 2012
Obama's Scorn for the Constitution
By Michael Barone
Of course President Obama is not concentrating on campaigning, White House press spokesmen assured us — as the president headed off to Chicago for three fundraisers and a drop-in at his campaign headquarters, two days after a high-roller fundraiser choked off traffic five blocks from the White House, with the assistance of a score of D.C. police cars.
No one, or at least no one who is paying attention, is fooled. It’s standard presidential procedure to say you’re not absorbed in campaigning even as you go out to raise money every other day. Bill Clinton, in my view, spent an undue amount of time fundraising, George W. Bush spent more, and Barack Obama makes them both look like pikers.
So Obama’s scorn for the truth in this regard is only a minor matter. His scorn for the Constitution is something else.
That scorn has been expressed most recently in his “recess” appointments of members of the National Labor Relations Board and the chairmanship of the Consumer Financial Protection Bureau. The quotation marks are appropriate because when he made the appointments the Senate was not in recess as the Constitution requires.
Article II, Section 2 of the Constitution says that presidential appointments must be confirmed by the Senate unless Congress provides otherwise. But anticipating that the government may need officials when the Senate is unavailable, the section further provides that “the President shall have 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 the next session.”
What constitutes a recess? Article I, Section 5 reads, “Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days.”
The House did not consent to the adjournment of the Senate this year, so there is no recess, and hence no constitutional authority to make recess appointments.
The White House has belatedly trotted out an opinion from the Justice Department’s Office of Legal Counsel (headed by a political appointee) saying that the president was justified in considering the Senate in recess, because the sessions it was holding every three days were just pro forma or, in the words of Obama defenders, “gimmicks.”
Factually this is flat wrong. At one of those sessions the Senate passed the payroll-tax-cut extension, an important piece of legislation.
More important, what gives the head of the executive branch the authority to decide whether one house of the legislative branch is conducting serious business? Can the president decide that the quality of Senate debate is so poor on any particular day that he may deem it to be in recess?
The recess appointments Obama made are to important offices. The National Labor Relations Board last year issued a complaint against Boeing for building a $1 billion aircraft plant in South Carolina. The complaint was withdrawn only after the union representing Boeing’s Washington state workers bludgeoned the company into promising more jobs there.
The Consumer Finance Protection Bureau, established by the Dodd-Frank Act, has unusual powers, with a guaranteed revenue stream rather than reliance on congressional appropriations and a director with a fixed term (but can it extend beyond the end of the next session of Congress?) and independence from other regulatory authorities.
On this, Obama defied not only the Constitution, but Dodd-Frank, which explicitly states that the CFPB head can only take legal action after he is confirmed by the Senate. Presumably anyone aggrieved by one of his orders will sue and probably prevail.
So the appointment may turn out to be a futile act. But, hey, it’s good fodder for campaign ads.
That’s substantiated by the explanation for the appointment you can find at my.barackobama.com: “When Congress refuses to act, he will.”
This looks uncomfortably close to the view taken by King Louis XIV. “L’etat, c’est moi,” he is supposed to have said, and you don’t need John Kerry’s or Mitt Romney’s command of French to know that that means one-man rule.
The Framers of the Constitution saw it a different way. When the Senate refuses to confirm a presidential appointee, that person does not take office. When the Senate is not in recess, the president cannot make a recess appointment.
The Framers thought it more important to limit power than for government to act quickly. Barack Obama disagrees.
Republican presidential candidates have been praising the Founding Fathers. Obama has been defying them.
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http://www.politico.com/blogs/under-the-radar/2013/05/second-appeals-court-invalidates-obamas-nlrb-recess-164150.html
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