Closeting the Constitution

President ignores America's ruling document whenever it suits him

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What if you had Hank Aaron’s 715th home run ball in your attic? The Rosetta Stone in your basement? The Hope Diamond in your closet? The Dead Sea Scrolls stuffed into your desk?

The short answer is, you wouldn’t; you’d have them tucked away in a much safer place. Entrustment of history’s most important treasures and artifacts is an awesome responsibility that most of us would understand is a sacred charge.

So why do we allow America’s chief treasure, the U.S. Constitution, to be treated this way?

Most of us realize the old girl has been abused, battered and neglected for decades – that the federal government has become a Kraken unleashed, the Constitution its only restraint. Congress endlessly presses its nose under our tents, waving the “general welfare” clause as its ticket inside. In health-care reform alone, the commerce clause has been used to regard our sitting on our couches – and failing to purchase health insurance – as “commerce” that Washington has dominion over.

If such is true, what doesn’t it have sovereignty over?

President Obama seems intent on outdoing all others in abuse to the Constitution. He often talks of the inconvenience of our governmental system and his wish to just do as he pleases. Almost as often, he just does it.

“We can’t wait for Congress to do its job. So where they won’t act, I will,” he told a sadly gullible audience of students recently.

With Congress balking in its necessarily deliberative way, the Obama administration has taken it upon itself to reform the federal No Child Left Behind law. The administration will arbitrarily offer waivers from the law’s mandates to states that do as the administration wants – thus attempting to shape education policy in all 50 states.

But this president has taken his arrogant unilateralism to a dangerous new level with his decision to make “recess” appointments when the Senate is actually not in recess – perhaps his most blatant usurpation of power yet.

For safety and efficiency’s sake, a president is allowed to make appointments to the government while the Senate is in recess. It is a practice long used and sometimes abused. But Mr. Obama is making an art of abusing it.

To foil President George W. Bush, the Democratic Senate created a system in which senators can go home, as if on recess, while leaving the Senate technically in a “pro forma” session. Mr. Bush never challenged that system or violated it with an illegal recess appointment.
Mr. Obama just has – unilaterally naming one official to head the Consumer Financial Protection Bureau and sneaking in three other members of the National Labor Relations Board.

Even his own head of the Justice Department’s Office of Legal Counsel, while rubber stamping the appointments, cautioned that the legal arguments against them are “substantial.”

Frighteningly, many Americans support Mr. Obama’s daydreams of dictatorship: He was greeted with applause and chants of “Yes you can!” when he suggested to a La Raza audience that he’d like to just bypass Congress. “Believe me, the idea of doing things on my own is very tempting,” he said to great laughter.

Democrats should be as nonplussed as Republicans; if Obama’s extra-constitutional activities stand unchallenged, Democrats may someday face a Republican president wielding the same unconstitutional power.

There’s no reason Mr. Obama couldn’t have waited until Congress was back in full session – except that his appointments are often left-wing extremists who wouldn’t be confirmed. And except for the fact that he has an increasing desire to govern by fiat. The Constitution merely gets in the way.

“He’s gone beyond what any president has done and really shredded the constitution in practice with regard to recess appointments,” said one Republican senator, who promised a legal fight.

The fight shouldn’t be contained to the lawyers. It’s our Constitution, and it shouldn’t be treated this way.

But it is becoming little more than an artifact.

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southernguy08
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southernguy08 01/15/12 - 07:41 am
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Oh AC, don't you know? He's a
Unpublished

Oh AC, don't you know? He's a Dem, therefore nothing he does is bad! Get with the program, man! All bad things are the fault of GW and the Republicans! Have I got to explain everything to you?

effete elitist liberal
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effete elitist liberal 01/15/12 - 08:14 am
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While ACES never has let

While ACES never has let facts get in the way of a good political smear, readers may wish to consider this: According to the Congressional Research Service, “President William J. Clinton made 139 recess appointments, 95 to full-time positions. President George W. Bush made 171 recess appointments, of which 99 were to full-time positions. As of December 8, 2011, President Barack Obama had made 28 recess appointments, all to full-time positions.” Before Clinton, George H.W. Bush made 77 recess appointments, and Ronald Reagan made 240.
Ronald Reagan averaged more recess appointments in a year (30) than Barack Obama has made during his entire presidency." So who is the undisputed "recess appointment king"? Yup, your beloved Ronnie!

Rhetor
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Rhetor 01/15/12 - 08:35 am
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Just to help you good people

Just to help you good people out, ACES, please note the following from Article 2, Section 2 of our treasured Constitution:
"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."
Perhaps there are complicated legal arguments to make; I'm not a lawyer and I don't know. But to say that Obama is shredding the Constitution? Nonsense.
I respectfully suggest to the ACES and to your readers that the official text of the Constitution is on the National Archives website. Perhaps all readers should pause for a few minutes to read it before complaining about the people who are enforcing it.

Riverman1
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Riverman1 01/15/12 - 08:46 am
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“He’s gone beyond what any

“He’s gone beyond what any president has done and really shredded the constitution in practice with regard to recess appointments,” said one Republican senator, who promised a legal fight.

There's a reason Constitution is always capitalized. It's our LAW. First they ignore it, next they want all copies destroyed and the people reeducated. Remember the intellectuals go to the Gulag first, next those who don't want to work hard. I believe most of us here, conservative and liberal, are in one category or another.

bjphysics
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bjphysics 01/15/12 - 08:49 am
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“Were the Recess Appointments

“Were the Recess Appointments Constitutional? The Case for Yes”

“Legally, the issue is very simple. If the Senate was not in session on Tuesday, then Obama had authority to make the appointments. That’s the whole point of the recess appointment power – to allow the president to fill positions and staff the executive branch when the Senate cannot perform its “advise and consent” function. But if the Senate was in session, then Obama didn’t have authority to make the recess appointments.

But figuring out whether the Senate was in session turns out to be not very simple.

Senate Republicans say that it was in session – very much by design. Aware that Obama might use his recess appointment power, Republicans copied a strategy Senate Democrats developed at the end of the Bush era: They forced the majority party to accept an arrangement under which the Senate was in “pro forma session” at least once every four days. Nothing happened during these pro forma sessions: They lasted just a few moments each. But the effect was to prevent a formal, official recess. (By tradition and past interpretations, a recess doesn’t become official until it’s lasted more than three days.)

The White House and its allies say these sessions were not real sessions, at least in the constitutional sense, because the Senate was not prepared to do any governing while they were quickly gaveling in and gaveling out. They note that the motion (by Oregon Senator Ron Wyden) to have these pro forma sessions said explicitly that there would be “no business conducted.” If, for example, the White House had sent nominations to the Senate during these periods, administration officials and their supporters say, it would not have acted upon it. Here is how one senior administration official put it to me:

‘Our view is that they can't have their cake and eat it too. They can't say, on the one hand, we are not in recess for the purposes of the recess appointments clause and, on the other hand, we are in recess for every other purpose. ... And if the Senate doesn't want the President to make recess appointments, as he is entitled to do, the Senate can prevent that by staying in session and being available to provide advice and consent on his nominees.’"

http://www.tnr.com/blog/jonathan-cohn/99279/obama-cordray-nlrb-recess-ap...

effete elitist liberal
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effete elitist liberal 01/15/12 - 08:54 am
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"next they want all copies

"next they want all copies destroyed and the people reeducated..." Say what? Perhaps, Riverman 1, you will enlighten the rest of us.

Riverman1
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Riverman1 01/15/12 - 09:00 am
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EEL, your glasses will be

EEL, your glasses will be taken away and you will sit on dirt floors while they reeducate you in a camp outside Ludowici. I'm flexible, I'll start wearing my Che shirt early. They'll make me a guard and I'll be drinking beer everynight outside at the beerjoint with the guys from the union where the Obama pictures adorn even the restroom walls.

effete elitist liberal
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effete elitist liberal 01/15/12 - 09:44 am
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OK, RV1, I get it--you're not

OK, RV1, I get it--you're not serious about what you said, just having some fun. Hear me? I'm laughing...no, really....

effete elitist liberal
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effete elitist liberal 01/15/12 - 09:51 am
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Thanks, bjphysics: the point

Thanks, bjphysics: the point is that both Democrats and Republicans have tried to use what is a transparently silly technical maneuver--claiming the Senate is "in session" when it clearly is not--in order to prevent a president from creating recess appointments. It's more of the same petty politics that most Americans have become disgusted with, irrespective of which party engages in it.

Bruno
780
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Bruno 01/15/12 - 10:02 am
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Article 2 Section II "The

Article 2 Section II "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."
It could be argued that since the vacancy didn't happen during the recess they are invalid.

Riverman1
90530
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Riverman1 01/15/12 - 10:04 am
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EEL, just don't try laughing

EEL, just don't try laughing on talk radio or in print comments. That violates the General Welfare Clause. LOL's will be be SOL.

effete elitist liberal
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effete elitist liberal 01/15/12 - 10:13 am
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The proof that so called

The proof that so called "pro-forma" sessions are a total sham? During pro-forma sessions, only a handful of senators are actually present in Washington--most all of them are back home--and not infrequently a pro-forma session is presided over by a single senator. Since no business can be transacted, some pro-forma sessions last as little as 30 seconds. It's all a big sham, whether engaged in by Republicans or Democrats, and is simply an effort to stop a president of the other party from creating otherwise legal recess appointments. What President Obama has done is simply to point up the obvious--the pro-forma session emperor has no clothes! So ACES' big constitutional crisis is built almost entirely on a defense of the pro-forma session trick.

bjphysics
36
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bjphysics 01/15/12 - 10:14 am
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EEL, My post above is to

EEL, My post above is to remind people and the ACES that the constitutionality of the recent recess appointments is in legitimate dispute, not to say it is or is not constitutional; the courts will decide.

http://www.nrtw.org/en/press/2012/01/worker-advocate-challenges-nlrb-app...

Riverman1
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Riverman1 01/15/12 - 10:37 am
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Do away with Congressional

Do away with Congressional appointments and then the Nov election can be put on hold due to the General Welfare Clause. Doesn't that clause sound like something they used to pick up people in black sedans late at night?

Riverman1
90530
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Riverman1 01/15/12 - 10:42 am
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I believe the lowest federal

I believe the lowest federal bureuacrat could walk up to someone, slap the person in the face and shout the person is violating the General Welfare Clause it is used for so many things. It's like a drunk, rapist from some Arab country screaming diplomatic immunity. I mean, get real.

effete elitist liberal
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effete elitist liberal 01/15/12 - 10:51 am
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bjphysics: I guess you

bjphysics: I guess you believe the National Right to Work organization, whom you cite, is a fair and objective source of information about Obama's appointments. It patently is not. NRTW is a lobbying group whose agenda
is to destroy labor unions. Citing a NRTW posting as evidence that Obama's appointments are legally questionable is a joke.

harley_52
25116
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harley_52 01/15/12 - 11:35 am
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Didn't the President recently

Didn't the President recently accept the pro forma House sessions' approval of his "tax cut extensions?"

Aren't the democrats the inventors of this weaselly method of preventing Recess appointments that they now seek to ignore?

Does the Constitution say "Vacancies that may happen during the Recess of the Senate" or does it say "Vacancies that existed before the Recess of the Senate that the Senate was sitting on?"

harley_52
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harley_52 01/15/12 - 11:21 am
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EEL said "Citing a NRTW

EEL said "Citing a NRTW posting as evidence that Obama's appointments are legally questionable is a joke."

So...just because THEY said it it cannot be true?

Riverman1
90530
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Riverman1 01/15/12 - 11:32 am
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Pretty soon we will wake-up

Pretty soon we will wake-up every morning and find out what the executive branch has done the night before. Maybe Congress should pay one of their members to be the night watchman at the Capitol. Let him walk around with the gavel in his back pocket. If THEY try something, he can start banging that thing and sceaming "Out of order!"

harley_52
25116
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harley_52 01/15/12 - 11:39 am
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I'm pretty sure these "recess

I'm pretty sure these "recess appointments" are being challenged in court. IF I understand the issue correctly (and I may not) I don't see any legal or even customary basis for the appointments Obama just made. Yes, the Justice Department concluded they were okay, but that seems like Bonnie giving her approval to what Clyde just did.

effete elitist liberal
3173
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effete elitist liberal 01/15/12 - 12:15 pm
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harley_52 (1:21) Of course

harley_52 (1:21) Of course not. More like "given the obvious bias of the NRTW, what they say about the constitutionality of Obama's pro-forma session appointments should not necessarily be taken as objective and neutral." Granted it is difficult to find objective assessments of highly politically charged subjects, but there are many sources arguably far more objective than NRTW.

Riverman1
90530
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Riverman1 01/15/12 - 12:20 pm
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Obama might decide to have

Obama might decide to have the Nov Presidential election while we are sleeping.

OJP
7493
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OJP 01/15/12 - 12:44 pm
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I tend to agree that these

I tend to agree that these pro-forma sessions don't rise to the constitutional level of "in session".

The SCOTUS will likely get a crack at this, and will probably rule in favor of substance over form.

OJP

effete elitist liberal
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effete elitist liberal 01/15/12 - 01:02 pm
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OJP: Here's hoping. I also

OJP: Here's hoping. I also find it somewhat refreshing that in challenging pro-forma sessions for the sham they are, Obama is rebuking his own party, as the practice of using the procedural device was first used and bused by Democrats in the Senate to stop Bush's recess appointments.

harley_52
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harley_52 01/15/12 - 01:03 pm
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OJP said "The SCOTUS will

OJP said "The SCOTUS will likely get a crack at this, and will probably rule in favor of substance over form."

I would agree, but wonder if the prior use of them by democrats won't provide sufficient precedent (or custom/practice, not sure) to consider them now valid.

effete elitist liberal
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effete elitist liberal 01/15/12 - 01:59 pm
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harley_52: I hardly think

harley_52: I hardly think the second use of a ploy makes constitutional what a first would have been the opposite. Do you really think even this SCOTUS believes two wrongs make a right?

harley_52
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harley_52 01/15/12 - 02:07 pm
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EEL said "I hardly think the

EEL said "I hardly think the second use of a ploy makes constitutional what a first would have been the opposite. Do you really think even this SCOTUS believes two wrongs make a right?"

I don't know. It's why I said "I wonder if...."

Isn't there some rule in law that says if something has been ongoing and accepted it has the effect of being correct? Maybe it's just a real estate issue.

Anyway, that's why I asked. I admit I'm not a legal scholar and try not to act like I know something I don't.

effete elitist liberal
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effete elitist liberal 01/15/12 - 02:10 pm
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harley_52: you mean

harley_52: you mean something like slavery? I'm trying to work with you
here, bro.

harley_52
25116
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harley_52 01/15/12 - 02:18 pm
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EEL, where did "slavery" come

EEL, where did "slavery" come from? I thought we were discussing "recess appointments" and the use of pro-forma Congress sessions to twart them. The democrats invented the process, used it to their advantage, and then refused to accept the practice by the Republicans.

I'm asking whether that prior behavior might influence the SCOTUS finding.

effete elitist liberal
3173
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effete elitist liberal 01/15/12 - 02:54 pm
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harley_52: well, you

harley_52: well, you speculated about "some rule in law that says if something has been ongoing and accepted it has the effect of being correct?" I just wondered if you might have been thinking about slavery, as before the 14th Amendment it was something that had been ongoing in South and accepted there. I thought it might help you to remember that despite this, the SCOTUS in 1868 found slavery unconstitutional.
So in real estate, maybe; in government, not so much....

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