Fausta's Blog

American and Latin American Politics, Society, and Culture

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Recess appointments while Congress is not in recess

Yesterday John Hinderaker noted,

President Obama took his war against Congress to a new level, announcing four “recess appointments” when the Senate was not, in fact, in recess. The appointees included Richard Cordray to head the new Consumer Financial Protection Bureau and three new members of the National Labor Relations Board.
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The Senate was in pro forma session yesterday, so there is no recess and Obama’s appointments are invalid by any historical or legal–according to his own Department of Justice–standard.

Roger Pilon explains (h/t Instapundit, emphasis added),

All of Obama’s appointments yesterday are illegal under the Constitution. And, in addition, as too little noted by the media, his appointment of Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) is legally futile. Under the plain language of the Dodd-Frank Act that created the CFPB, Cordray will have no authority whatsoever.

Yesterday, Professors John Yoo and Richard Epstein, writing separately, made it crystal clear that the president, under Article II, section 2, may make temporary recess appointments, but only when the Senate is in recess. Add in Article I, section 5, and it’s plain that the Senate is presently not in recess, just as it wasn’t under Senate Democrats when George W. Bush wanted to make recess appointments. The difference here is that Bush respected those constitutional provisions while Obama — never a constitutional law professor but only a part-time instructor – ignores them as politically inconvenient. Attempts by Obama’s apologists to say the Senate is not in session are pure sophistry and, in the case of Harry Reid, rank hypocrisy, as this morning’s Wall Street Journal brings out.

But clear beyond the slightest doubt is the language of the statute (itself unconstitutional on any number of grounds not relevant here). As my colleague Mark Calabria wrote yesterday, “authorities under the Act remain with the Treasury Secretary until the Director is ‘confirmed by the Senate.’”  A recess appointment, even if it were constitutional, is not a Senate confirmation. There is simply no wiggle room in that language that gives Cordray any authority, as litigation will soon make plain.

So what is this? It’s politics — Chicago politics, plain and simple.

Jonathan Chait thinks The Grand Strategy Behind Obama’s Recess Appointment is to trap Mitt Romney. Richard Fernandez has something to say about that,

If Obama is risking a constitutional crisis and going through all this trouble to trap Mitt Romney because he fears a “return to the Bush era” then his thought processes are truly irrelevant to events taking place all around him. It is events themselves which are destroying the ideology and goals of Hope and Change. It is shredding the last vestiges of his Middle Eastern policy. It is making a mockery of his Green Energy platform. It is repudiating his perfection of the New Deal. It is doing all of these in the strongest possible way and Mitt Romney has nothing to do with it.

I go for the simpler explanation: The reason Obama does this is because he thinks he can get away with it.

UPDATE,
Smitty has an Open Letter To Senators Warner & Webb, and points out that the Cordray appointment opens the door to large scale mortgage re-financing.

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TIME: Don’t know much about history

When it comes to the Constitution of the United States, TIME Mag’s cover article by Richard Stengel flunked, big time:
Aaron Worthing took Stengel’s article and beat it with a big stick by finding Thirteen Clear Factual Errors in Richard Stengel’s Essay on the Constitution (And I Am Looking for Your Help) (Update: My Letter to the Editor)

So this time, we are going to focus solely on the factual errors.  There are thirteen of them and like the lawyer that I am, I will start off with his most egregious error and end with the least egregious.  Here are the thirteen errors, in short:

  1. The Constitution does not limit the Federal Government.
  2. The Constitution is not law.
  3. The Citizenship Clause of the Fourteenth Amendment emancipated the slaves.
  4. The Citizenship Clause of the Fourteenth Amendment granted the right to vote to African Americans.
  5. The original Constitution declared that black people were to be counted as three-fifths of a person.
  6. That the original, unamended Constitution prohibited women from voting.
  7. Inter arma enim silent leges translates as “in time of war, the Constitution is silent.”
  8. The War Powers Act allows the president to unilaterally wage war for sixty days.
  9. We have only declared war five times.
  10. Alexander Hamilton wanted a king for America.
  11. Social Security is a debt within the meaning of Section Four of the Fourteenth Amendment.
  12. Naturalization depends on your birth.
  13. The Obamacare mandate is a tax.

Read it all, it’s worth it.

Update,
Link corrected, with my apologies.

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Rielle sleaze in today’s roundup

John Edwards is back in the news, with this article on GQ, Hello, America, My Name Is Rielle Hunter. Skip the article and read Ace’s Daily Beast Confirms Edwards Sex Tape Is Real and Was Made During Edwards’ Campaign For Presidency. Sleaze.

More sleaze, at the New Republic, The New Republic illustrates a serious piece about the Tea Party movement with a gross photograph that’s meant to evoke the pejorative “teabagger.” And then TNR removed the photo…

Speaking of sleaze, Unconstitutional Procedure Being Used to Pass Unconstitutional ObamaCare

Here is how the trick would work: In the House, the Rules Committee sets up the parameters for debate on legislation. House leaders are considering a complicated rule that would be structured so that a vote on the rule setting down the structure for the ObamaCare debate would allow the Senate’s version of health care reform to pass without a vote. First, there would be a vote on a rule. If the rule is passed by the House, then the House would vote on a health care budget reconciliation measure that is an amendment to the Senate passed ObamaCare bill. If that reconciliation measure passes, then reconciliation goes to the Senate and the ObamaCare legislation is deemed passed without a direct vote. The plan for the legislation is unclear. House leadership will either structure the rule to either immediately present ObamaCare to the President for his signature or they will hold the bill and deliver it only if the Senate passes a health care reconciliation measure. Either way, the Constitution and the American people are the losers.

Understand that this procedure is drafted in a way so your average American can’t understand it. The simple way to understand the situation is that the House is trying to pass a bill without a vote.

The Constitution states that the House and Senate are supposed to pass identical versions of a bill before the President can sign it into law. One of the reasons for this tricky procedure is to provide cover for moderate Democrats who don’t want to vote for the Senate-passed ObamaCare bill because it includes the federal funding of abortion.

Michael McConnell expands, The House Health-Care Vote and the Constitution
No bill can become law unless the exact same text is approved by a majority of both houses of Congress.

The rub is that, according to the Senate parliamentarian, reconciliation is permitted only for bills that amend existing law, not for amendments to bills that have yet to be enacted. This means that, for the Senate to be able to avoid a filibuster, House Democrats first have to vote for the identical bill that passed the Senate last Christmas Eve. That means voting aye on the special deals, aye on abortion coverage, and aye on high taxes on expensive health-insurance plans. Challengers are salivating at the prospect of running against incumbents who vote for these provisions.

Enter the Slaughter solution. It may be clever, but it is not constitutional. To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.

More on the sleazy move and Slaughter House Rules
How Democrats may ‘deem’ ObamaCare into law, without voting.

The bottom line is, as Thomas Sowell puts it,

Fraud has been at the heart of this medical care takeover plan from day one. The succession of wholly arbitrary deadlines for rushing this massive legislation through, before anyone has time to read it all, serves no other purpose than to keep its specifics from being scrutinized– or even recognized– before it becomes a fait accompli and “the law of the land.”

If you can’t make it to Washington tomorrow, via Instapundit.

Meanwhile – elsewhere in the world – is there a Bronca in Venezuela?

Is there Another billboard mystery in Minnesota? Sure looks like it,

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Is a Pay Czar constitutional?

Those of us who are asking whether a “czar”, who is not under Congressional oversight, is allowed under the Constitution to set wages in private industry have an answer by Michael McConnell:
The Pay Czar Is Unconstitutional
Kenneth Feinberg hasn’t been confirmed by the U.S. Senate.

So who is Kenneth Feinberg, and where did he get the power to set pay for executives at private firms?

As part of the hastily enacted and seldom-read legislation establishing the Troubled Asset Relief Program (TARP), Congress authorized the Secretary of the Treasury to “require each TARP recipient to meet appropriate standards for executive compensation.” To carry out this task, last June the Treasury promulgated an emergency “Interim Final Rule,” waiving ordinary requirements for a public comment period.

As part of this emergency rule, Treasury Secretary Timothy Geithner created the office of “Special Master” for compensation, delegated his TARP authority to set compensation standards to this officer, and appointed Mr. Feinberg (a lawyer and mediator) to this position, without obtaining Senate confirmation.

Therein lies the problem. The Appointments clause of the Constitution, Article II, section 2, provides that all “Officers of the United States” must be appointed by the president “by and with the Advice and Consent of the Senate.” This means subject to confirmation, except that “the Congress may by Law vest the Appointment” of “inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

There is no doubt that Mr. Feinberg is an “officer” of the United States. The Supreme Court has defined this term (Buckley v. Valeo, 1976) as “any appointee exercising significant authority pursuant to the laws of the United States.” Mr. Feinberg signed last week’s orders setting pay levels for executives at Bank of America, AIG, Chrysler Financial, Citigroup, GMAC, General Motors and Chrysler. They have the force of law and are surely an exercise of “significant authority” pursuant to an Act of Congress. He is not a mere “employee,” acting at the direction of a superior. That means his office is subject to the requirements of the Appointments Clause.

While somewhat more disputable, Mr. Feinberg’s is probably an “inferior” officer, defined as one subject to supervision and removal by a member of the cabinet. Although he has substantial discretion and independence, Mr. Feinberg reports to the secretary of the Treasury, who can fire him any time for any reason. This means that Congress could, if it wished, vest the appointment of the pay czar in the secretary, without any need for Senate confirmation.

But Congress has not done so. On the contrary, it vested the authority to implement TARP’s compensation provision in the secretary of the Treasury. The secretary may sub-delegate that power to someone else—but that someone must be an “officer” properly appointed “by and with the advice and consent of the Senate.”

Which, of course, he hasn’t. Otherwise he wouldn’t be a “czar”.

McConnell stresses,

Congress and Congress alone has power to dispense with the safeguard of the confirmation process.

Maybe it’s time one of those executives sues.

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