Games and Gimmicks in the Senate
By LAURENCE H. TRIBE
NYT
Cambridge, Mass.
ON Wednesday President Obama, using his power to make recess appointments, named Richard Cordray as the first director of the Consumer Financial Protection Bureau. A few hours later, he used the same power to appoint three new members to the National Labor Relations Board, acting to overcome unprecedented Senate encroachment on his duty to appoint executive officials. The president’s right to do so is clearly stated in the Constitution: the recess appointments clause empowers him 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.”
However, since the twilight years of the George W. Bush administration, the Senate has tried to nullify this power by holding “pro forma” sessions every three days, during what no one doubts would otherwise be an extended recess. In these sham sessions, manifestly serving only to circumvent the recess appointment safety valve, a lone senator gavels the Senate to order, usually for just a few minutes; senators even agree beforehand that no business will be conducted.
It is this transparently obstructionist tactic to which President Obama said “enough,” striking a badly needed blow for checks and balances with strong support both from the text and the original purpose of the recess appointment clause.
Its aims, as Alexander Hamilton wrote in Federalist No. 67, included facilitating appointments “necessary for the public service to fill without delay.” Although the main concern in 1789 involved difficulties of travel that kept a recessed Senate from acting swiftly, the broad imperative retains modern relevance, even when the Senate engineers its own unavailability.
(More here.)
NYT
Cambridge, Mass.
ON Wednesday President Obama, using his power to make recess appointments, named Richard Cordray as the first director of the Consumer Financial Protection Bureau. A few hours later, he used the same power to appoint three new members to the National Labor Relations Board, acting to overcome unprecedented Senate encroachment on his duty to appoint executive officials. The president’s right to do so is clearly stated in the Constitution: the recess appointments clause empowers him 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.”
However, since the twilight years of the George W. Bush administration, the Senate has tried to nullify this power by holding “pro forma” sessions every three days, during what no one doubts would otherwise be an extended recess. In these sham sessions, manifestly serving only to circumvent the recess appointment safety valve, a lone senator gavels the Senate to order, usually for just a few minutes; senators even agree beforehand that no business will be conducted.
It is this transparently obstructionist tactic to which President Obama said “enough,” striking a badly needed blow for checks and balances with strong support both from the text and the original purpose of the recess appointment clause.
Its aims, as Alexander Hamilton wrote in Federalist No. 67, included facilitating appointments “necessary for the public service to fill without delay.” Although the main concern in 1789 involved difficulties of travel that kept a recessed Senate from acting swiftly, the broad imperative retains modern relevance, even when the Senate engineers its own unavailability.
(More here.)
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