The video below shows Jay Sekulow, ACLJ Chief Counsel, telling Fox News that the ACLJ (American Center for Law and Justice) will be filing a lawsuit against the Obama administration for the unconstitutional appointment of Richard Cordray as the Director of the new Consumer Protection Bureau and three other appointments appointments, Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn, to the National Labor Relations Board, at a time when the Senate was still in a pro-forma session.
On their website the ACLJ had previously explained the basis of the lawsuit to be filed, citing a violation of the Constitution by Barack Obama.
There’s one significant problem with that argument, and it is that this is far from a technicality, and in fact is abundantly simple and spelled out very clearly in the Constitution. Anyone who takes just a minute or two to read the relevant portions should come away with the same conclusion. Allow me to explain (and if you’d like your own copy of the Constitution to follow along with, you can get a free copy here in our critical resource Foundations of Freedom).
Article 2, Section 2 of the Constitution reads: “He [the President] shall have Power, by and with the Advice and Consent of the Senate, [to] appoint…all other Officers of the United States.” Further, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate .…”
So, clearly, the President has sound constitutional authority to make recess appointments. And Presidents from both parties have done so. It is a clear grant of power to the President under the Constitution.
However, Article 1, Section 5 of the Constitution provides that “Each House may determine the Rules of its Proceedings.” This includes the right to determine when to recess. Decades of legal precedent and accepted practice -- by both political parties -- is that consent from both chambers of Congress is required for any recess to take place, and absent such consent, each chamber must continue to meet. That is precisely what has been occurring over the last few weeks. No recess resolution has been agreed to; both the House and the Senate have been gaveling in for just a few moments of a Pro Forma session every few days, effectively blocking President Obama’s ability to make recess appointments.
The second video below is from Heritage on Obama's abuse of power and the constitutional violation by Obama in his "recess" appointments.
In addition to the strong Constitutional argument against the President’s actions, there are several signs that the President’s interpretation of recess appointments has not always been the same. As Andrew Grossman points out that several weeks ago, President Obama signed a two-month extension of the payroll tax cut which had been passed by the Senate in a pro forma session. As Grossman explains if the Senate was actually on recess, it couldn’t have passed the bill and the President couldn’t have signed it.
And as the Washington Examiner noted, President Obama’s own deputy solicitor general admitted recess appointments can’t be made with the Senate in session during oral arguments before the Supreme Court last year.
It would seem the President is trying to have it both ways. Check out our newest video which highlights these are other points to explain why the President’s decision was unconstitutional.
Furthermore, the ACLJ and Heritage are not the only organizations talking about the constitutionality issue and/or discussing taking legal action against Obama.
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."
More:
According to a 1993 brief from the Clinton Justice Department, Congress must remain adjourned for at least three days before the adjournment constitutes a “recess” for the purposes the recess appointment power.
The origin of this three day period is Article I, Section 5 of the Constitution, which states: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.”
In other words, the president can only recess appoint when the Senate has adjourned for more than three days, and the Senate cannot adjourn for more than three days without the consent of the House.
Speaker John Boehner has properly withheld that consent to prevent Obama from installing radical appointees into key positions.
There is recent precedent for this action and for its legitimacy.In fact, then-Obama Solicitor General Elena Kagan wrote to the Supreme Court on April 26, 2010:“Although a President may fill such vacancies through the use of his recess appointment power … the Senate may act to foreclose this option by declining to recess for more than two or three days at a time over a lengthy period. For example, the Senate did not recess intrasession for more than three days at a time for over a year beginning in late 2007.”
Yet another arbitrary power grab by Obama that will inevitably be decided by the courts.
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