“Obama Uses Executive Authority to Make Recess Appointment – While Senate is Still in Session”*
This is what nobody’s pointing out – an inconvenient truth if ever there was one: Even if, as Obama claims, the Senate was not in session, he would still have been wrong to make these 4 recess appointments: 3 for the NLRB and 1 (Richard Cordray) to head the Consumer Financial Protection Bureau.
Obama claims to be making recess appointments but nobody is pointing out that these can only be made in the case of “vacancies that may happen during the recess of the Senate.” According to the Constitution:
Article II, Section 2: “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 their next session.”
None of these vacancies “happened” (that is, “occurred”) during “the recess of the Senate;” they “happened” when the Senate was, by universal agreement, in session. All four appointments had been pending in the Senate (Cordray’s, since July 2011), only to be held up by the GOP. If any of these positions had become vacant during a senatorial recess, only then would Obama have been within his rights to make a recess appointment.
The only way Cordray’s confirmation had failed was due to (you guessed it) a filibuster. Why do we allow the Senate to cling to this highly unconstitutional device? Rule by supermajority is the surest way to get nothing done.
My view of recess appointments, in general
Back in 2008, I had run for the office of US President under the terms of a 47-point contract. I was the first presidential candidate in this country’s history to offer such a revolutionary document. This is point #34 from that contract:
“I will not make any recess appointments. Also, I will ask for lists of recommendations to ambassadorships from the ten leading universities in the U.S. with programs in international studies. I will submit names to the Senate from those lists.”
[NOTE: Think about it. If I had been elected instead of Barack Obama, we would have all been spared the ignominy of an Imperial President trying to thwart the will of the elected representatives of the people.]
Detractors will object to my point #34 by claiming: “What if Congress isn’t in session and it would be imperative that a position be filled immediately?” For one thing, I can’t imagine such an imperative arising. But if a particular position should be filled quickly, I would simply use my power under Section 3 of Article II: “…[the President] may, on extraordinary occasions, convene both Houses…” Then I would invoke the usual process for filling such a vacancy.
Even though recess appointments are allowable under the Constitution, I find them repugnant to the notion that Congress should be regarded as the supreme of our three branches of government. For that reason, under a Searle presidency, there wouldn’t be any recess appointments.
I base my Congress first philosophy on at least three grounds:
· Congress outranks the President simply because it can impeach him for any reason whatsoever (or none, should it so choose) and the courts would be powerless to interfere.
· Though there is a provision to enable the removal of any sitting president (again, by means of impeachment), there is no counterpart in terms of the president being able to dissolve the Congress. Some countries grant that power to their chief executives; we don’t.
· The President should be regarded as beholden to the Congress since he must report to that body according to Section 7 of Article I of the Constitution: “Every bill…shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated…” In other words, the President can’t just say “no” to a bill, he’s got to say why he objects.
More on the idea of Electoral Contracting
This is from the Preamble to my 2008 contract, posted on-line September 19, 2008:
QUOTE:
The Electoral Contract of Steven Searle
Candidate for US President in 2008
Preamble: I, Steven Searle, am the only candidate running for the office of US president in 2008 who is offering a binding contract in exchange for your vote. The following 47 points comprise this contract, which is now presented to you in its final form….
I will not be shy about claiming this to be an historic document, on a par with the Magna Carta and the U.S. Declaration of Independence. I hope my creation will serve as a model for future candidates (for national and local offices) who wish to follow my lead by offering themselves as alternatives to the Democratic and Republican parties which are ruining this country.
:UNQUOTE.
Suppose a candidate for the US Senate would want to offer such a contract. He might want to include a provision like this:
“If elected, I will vote to end any and all attempts to filibuster any business before the Senate.”
The Senate as an institution will never willingly get rid of this anti-democratic device. However, individual senators might hasten its demise by “contracting it out,” as it were. As soon as individual senatorial office-seekers oppose the filibuster in their contracts, perhaps that might generate the public outcry needed to finally terminate this practice.
There is another provision I’d like to see in (again) a Senate candidate’s contract:
“If elected, I understand that my constituents are sending me to Washington DC to be a senator who is to be the equal of any other, regardless of seniority. Toward that end, my constituents are instructing me to be a member of the Senate but not a member of any of its committees.”
I’m very keen on reigning in the power of the Imperial Presidency by redesigning Congress, as indicated in my essay, “The Long Arm of the Law,” posted on April 12, 2011. After clicking the following link, scroll to the part that’s yellowed –
How a Congress without committees would work:
Enforcement Mechanism: Such a contract would be easy to enforce against a sitting President – he could simply be impeached for non-compliance. Even though Congressmen can’t be impeached, they can give their contracts teeth by (in effect) posting a compliance bond. For instance, Senator So-and-So’s contract could identify in advance a panel of 12 volunteers to monitor his compliance. If, for instance, 8 out of 12 would determine him to be in violation of his contract (for instance, by voting against cloture, thereby enabling a filibuster to continue), So-and-So would be given the option of either resigning his office or forfeiting a bond held in trust by that panel, which would consist of (for instance) 12 faculty members of a leading law school.
What I wrote in the preceding paragraph are only my suggestions. I’m sure if an office-seeker really wanted to commit to an Electoral Contract, he would come up with his own contractual provisions and enforcement mechanisms. I have no doubt that such Electoral Contracts will find their way into our campaigns. Perhaps they’ll be offered by candidates who are desperate enough to try anything. In that spirit, I had sent several of the current GOP presidential candidates a suggestion that they, too, submit their own contracts to the voters. Michelle Bachmann was one whose campaign I’d contacted. Either she didn’t believe she was desperate enough or the whole concept of contracting didn’t fit into her strategy.
One of these days, though, my approach will sound viable enough to attract a mainstream candidate’s attention. One desperate enough. Newt Gingrich comes to mind, for I had contacted his campaign as well several months ago. We’ll see.
Steven Searle for US President in 2012
Founder of The Independent Contractors’ Party
“I wonder if Ron Paul would have made such ‘recess’ appointments if he happened to be president right now.”
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