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Recess Appointments and the Balance of Powers

By: jefflandry (Diary)  |  February 4th, 2013 at 05:57 PM  | 

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Over the course of our Republic, presidents have often tested the limits of their constitutional power. Without the checks provided for in the Constitution our executive branch would easily have digested the other two long ago. But as long as the legislative and judicial branches invoke their constitutional responsibility, executive overreach is contained. When they fail to act, the balance of power is shifted and liberty is the price we pay.

So it should come as no surprise when the president began to nominate extremists like Van Jones and Craig Becker, he intended to test the limits of his power. Aided by Senator Harry Reid, he would by pass the Senate’s confirmation process by waiting for Congress to recess, thus allowing him to invoke his recess appointment power. Reid would acquiesce, protecting vulnerable Democrat senators from having to vote on controversial nominees.

However, the president and Senator Reid neglected to consult one document – the U.S. Constitution which reads in Article 1, Section 5: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days…”

Recognizing that the Senate cannot recess unless the House recesses I begin circulating a letter asking other Members of Congress to join me in urging Speaker Boehner to have the House remain in session, preventing the president from making recess appointments. Within two weeks, over 75 other members of Congress joined this effort.

Many senior congressmen of both parties ridiculed the idea, noting that it would require a congressman to stay in Washington even during holidays to hold pro-forma sessions, possibly interfering with campaign events back home. While not enthusiastic about the idea, the Speaker agreed, conditioning that it would be my responsibility, and those who joined this cause, to run those sessions that he was not obligated to perform.

Throughout the rest of the year – during the 4th of July, Labor Day, Thanksgiving and Christmas holidays – we were committed to keeping the House in session. Some members of Congress did so at great sacrifice. However, we all remained steadfast in the belief that if President Obama’s nominees were so controversial that they could not survive a Senate confirmation they need not serve.

Greatly irritated by our actions, the president and Senator Reid finally decided just to ignore the Constitution and appoint three controversial nominees to the National Labor Relations Board. Last week a federal appeals court ruled that the president violated the Constitution. The matter is now headed to the Supreme Court.

While liberals brand us obstructionists, denying the president the ability to make controversial recess appointments protects the process and the American people. These recess appointments were made in an effort to appease unions and to prevent Boeing from legitimately expanding its factory in South Carolina and creating American jobs – all at a time when many American companies have moved production to China.

These are the types of street fights that the Republican Party belongs in: preserving the Constitution while protecting American jobs. That’s a winning message!

Jeff Landry served the coastal 3rd District of South Louisiana during the 112th Congress.

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COMMENTS

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  • PaladinLostHour

    Pretty much all you need to know about why Obama is still ascendent is in this sentence:

    “While not enthusiastic about the idea, the Speaker agreed, conditioning that it would be my responsibility, and those who joined this cause, to run those sessions that he was not obligated to perform.”

    The all too familiar mindset of the Boehner leadership: No sense of the strategic. No appetite for streetfights. And the result – the single biggest check we may achieve on an untrammeled progressive Executive is only the result of folks who were brave enough to put their duties as Congressman above ensuring their short term political interests.

    The fact that Boehner still sits his seat, while Landy is back in private life, is a pure disgrace.

  • clowngirl

    Expecting enthusiasm for working through holidays strikes me as a bit unreasonable PaladinLostHour.

    What matters most isn’t whether Boehner enjoyed keeping Congress in session or whether it was his idea or Congressman Landy’s ( though Congressman Landy certainly deserves a lot of credit for providing leadership and coming up with such a simple yet effective plan) what matters is that Speaker Boehner and others made sure to keep the House in session so the Constitution wouldn’t be set aside during their watch. For that, all involved much deserve our thanks- whether they enjoyed sacrificing campaigning time and/or time with their families or resented it like the dickens.

    There have been plenty of things to criticize and there is a time for criticism- I submit that this is not it.

  • FrauBudgie

    My understanding is that for the President to make a recess appointment, Congress must in fact be in recess. During the latest recess appointments, Congress was not in recess.

  • The_Gadfly

    While I agree, there is a legitimate counter. The Constitution was also never intended to keep nominees in limbo via the Senate filibuster and hold process, which is an infringement on Executive power. Before the continuous Congressional session, there WOULD be a recess during which such holds could be circumvented. What we need is a reasonable means by which the Senate is REQUIRED to vote on a nominee within a reasonable time frame. I think you could even get by with a requirement that within a certain time frame debate on the nominee needed to start, so long as the process is continuous and leads to a vote. Which with the current Senate 2 track system is pretty much impossible.

  • commonsenseobserver

    Maybe he could just be referring to the increasing vitriol and divisiveness, appearing on both sides but mainly driven by the liberal media.

  • northfloridawriter

    Congressman Landry’s comments are quite telling. The Republican establishment was unwilling to “sacrifice” for the good of their country. Only a limited number of patriotic Representatives were willing to give for their country.
    I find it even more interesting that John Boehner had no interest. Here’s a man who caves routinely to big, liberal interests and has the nerve to tell me and my fellow Americans that we must sacrifice. I want to know when Boehner will sacrifice anything. The man is a joke and needs to be treated like the old Gong Show: give him the hook. He and most of the party “leaders”.
    Congressman Landry, thank you for your efforts. We need a boatload with your passion and conservatism. God bless.

  • mikwcas

    the guys pastor was talking about it and i made no comment in comparisons, just thankful for our constitution which, when interpreted properly says to president such and such, no you can’t just do that there is this or that part of the binding law that prevents that action. that is all i meant and did not mean to offend or be “hyperbolic”.

  • rbdwiggins

    I agree. The Executive Calendar should be separate in total from the Senate Rules governing the Legislative Calendar. The Executive Calendar should not be subject to the filibuster, because the filibuster is an abrogation of the Senate’s constitutional responsibility of advise and consent, and it infringes upon the Executive’s right to nominate and expect a timely up or down vote on said nominations.

  • flyovermark

    The Constitution charges the Senate to make and operate by it’s own rules. As a Senate rule, the filibuster and hold process enjoys Constitutional protection. One could say that by keeping a nominee in “limbo” with a Senate filibuster, the Senate has refused to give consent. Oh well, too bad. If the Senate filibuster is a bad rule, the Senate must change it; the executive may not change it by fiat.
    The founders expressly intended that the Senate should “infringe” on executive power to make “appointments”, by requiring the Senate give it’s advice and consent to the president’s “nominations” of federal officials. There is no evidence that the founders intended for the vacancy clause to be used as a loophole for the executive to “circumvent” the Senate, but there is a lot of evidence that they did not.

  • rbdwiggins

    According to the DC Circuit opinion re: Canning v. NLRB, there is ony one legitimate recess, i.e.,”the Recess”, as per the specific language of the US Constitution.

    From page 30 of the opinion:
    “In short, we hold that “the Recess” is limited to intersession recesses.”

    From page 43 of the opinion:
    “Even if the “End” of the session were “during the Recess,” meaning that the January 3, 2012, vacancy arose during some imaginary recess, we hold that the appointment to that seat is invalid because the President must make the recess appointment during the same intersession recess when the vacancy for that office arose.” (emphasis mine)

    As long as prior appointments remain unchallenged, no remedy is sought.

    .

  • rbdwiggins

    We’re on the same page. The Court went beyond what was necessary to find in favor of the petitioner, and chose instead the strictest interpretation possible, stepping on toes in the process. I’ve been wrong before, but I don’t see how, considering the thorough decimation of the Board’s argument, the scholarly nature of the opinion and the strict constitutional interpretation of the language, that it does not find considerable favor with at least four of the Justices, including Chief Justice Roberts, and Justice Scalia in particular. I’m holding out hope that Justice Kenndy will resist all attempts by the remaining four Justices to temper the expansive scope and nature of the DC Circuit’s opinion.

  • flyovermark

    Agreed. Yet, as I see it, the only place the Court went beyond what was necessary to find in favor of the petitioner was in answering the second Constitutional question posed: the meaning of “happen”. The answer to the first Constitutional question posed – the meaning of “the Recess” – was incidental to, and yet entwined with, what was necessary to find in favor of the petitioner. We may not agree entirely, rbd, but we are certainly on the same page. I would be delighted if your analysis of what various members of the Court might do are borne out.

  • The_Gadfly

    The constitution is silent on a lot of things because the one thing which seems to have been inconceivable to the Founders is that we would continue to elect idiots to Congress.

  • The_Gadfly

    But the vacancy clause is itself proof that the Founders intended for the office not to be vacant, and the conduct of the Senate until the time of the Civil War was pretty consistently an up or down vote after a reasonable period of discussion. My possibly failing recollection is that the first time a nominee for an appointment was filibustered it was because a Senator was not satisfied with the extent of answers received under questioning. During the filibuster it was revealed that the nominee had in fact tried to dissemble before the Senate and his nomination was subsequently withdrawn by the President. I regard this use of the filibuster as valid within a Constitutional framework of checks and balances. The use of the filibuster for blatant partisanship is not valid within a Constitutional framework. In the gaming community we referred to it as “Rules Lawyering”, and the only thing worse you could accuse someone of was outright cheating.