ChrisWeigant.com

Recess!

[ Posted Thursday, January 5th, 2012 – 19:54 PST ]

When we were all kids, "recess" was one of the happiest words in the English language, because it meant escaping the schoolroom for a while, and (on nice days) getting outside and running around and playing with our friends. The bell would ring, and we would all cry "Recess!" and run outside.

Would we have been just as happy if the word was not used, and we were still allowed to go outside and play? Yes, we would have. If the teacher stood up and announced in stentorian tones "We will all now adjourn to the playground" would we have been equally as joyful? Once again, yes.

Not to belittle the constitutional spat currently taking place in Washington, but I thought it best to put it into some sort of perspective. The reality of having fun on the swingsets and monkey bars far outweighed whatever it was called.

Getting away from the halls of the elementary school, and back to the halls of power in the Capitol, we are left with an argument over what the words "recess" and "adjourn" actually mean. Stripped of all the partisan bias, this is what the constitutional disagreement boils down to.

Let's review the relevant text. Here are the excerpts from the text of the Constitution which refer to this issue:

Article I, Section 5

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Article II, Section 2

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

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.

Article II, Section 3

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The problem is, that's all it says. It does not define "adjourn" or "recess" at all. Leaving both terms open to interpretation. Congress adjourns at the end of every day it is in session. It adjourns over weekends. Article I says that neither house can adjourn for more than three days without the consent of the other. But it doesn't say a word about what a recess is. The word "recess" only appears twice in the entire text of the Constitution, and one of them is irrelevant (twice-over -- because it refers to the recess of state legislatures, and because the clause has been changed by amendment). The only time a recess of the U.S. Congress is addressed is in Article II, Section 2 (quoted above).

Which, of course is why we have both lawyers and politicians -- to argue over such hairsplitting. What it all boils down to is President Obama reclaiming power (not "grabbing" it) that Congress has been usurping for the past few years. But we'll get to that in a minute.

A few weeks back, I encouraged Obama to use the power granted to him in Article II, Section 3, and just declare Congress adjourned ("he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper"). This, however didn't happen, which is a shame because it would have given rise to an enormous grammatical battle over one of those commas (the one after "Adjournment") which would have allowed me to quote my second-most-favorite grammatical joke -- the one about the panda.

[Brief Humorous Interlude: Haven't heard it? A panda walks into a restaurant. He orders all kinds of food, and immensely enjoys consuming his meal. Because of such an extraordinary event, the proprietor of the restaurant personally delivers the bill to the panda's table. The panda whips out a pistol, shoots the man dead, gets up, and heads for the exit. Horrified, one of the waiters stops him and screams, "What did you do that for?!?" The panda replies, "I'm a panda. Look it up." The panda then exits the restaurant. The grief-stricken waiter consults a dictionary, where he finds the entry: "Panda: A large black-and-white bear-like mammal. Eats shoots and leaves." Heh. Commas can be important, can't they?]

Where was I? Oh, right, whose power is being grabbed.

As far as I know (I have, admittedly, not fully researched this), while recess appointments have been made previously, Obama just did so in a novel way. However, he did so because it was a novel situation. And, to be fair, Democrats started this game of hardball.

Back when George W. Bush was president, Democrats gained control of Congress. For the final two years of his term, the Democrats refused to let Bush make any more recess appointments by the parliamentary tactic of holding pro forma sessions of Congress over what had traditionally been vacations (or recess periods). Every three days, a member of each house from close to D.C. (Maryland or Virginia, for the most part) would gavel a session in, and then swiftly gavel it adjourned. Usually, this was done to an absolutely empty chamber. The whole process took a minute or two. But because legally Congress was de facto in session, Bush (as far as congressional Democrats were concerned) was powerless to make recess appointments. Bush chose not to push the issue.

But here's the key -- even though Bush seemed to agree with them, it didn't mean the Democrats were right in their legal interpretation of the situation. What they were doing, in essence, was usurping a legitimate executive power from Bush -- the power spelled out in Article II, Section 2 (above).

Fast forward to today. The positions are reversed, and Republicans in Congress are now using this gimmick to keep a Democratic president from making recess appointments. But Obama, in essence, said "I don't agree with your reading of the situation, and therefore I am duty-bound to exercise the constitutional power of my office."

Of course, this is an overly-generous reading of the situation through Democratic eyes. Republicans, to put it mildly, don't see things the same way at all.

But that's where we enter the Twilight Zone of constitutional power struggles. Newt Gingrich, a few weeks back, said some extraordinary things about federal judges, but his main point was kind of lost in the fray -- that these constitutional "crises" happen a lot more frequently in American history than most people realize. There are no hard-and-fast rules between the three co-equal branches. The power struggles drift one way and another over time, but few of them ever get completely solved to everyone's satisfaction. Examples abound, from Marbury v. Madison to Andy Jackson ignoring what the Supreme Court ruled on his "Indian removal" policy, to Lincoln, to F.D.R., and to George W. Bush ignoring subpoenas to have Executive Branch officials testify before Congress.

While Republicans will likely be portraying Obama's move as some sort of unthinkable power grab, in fact these sorts of things happen on a regular basis. Until the Supreme Court rules on it (and sometimes, not even then), nobody has the final answer as to what is acceptable and what is not.

Republicans do have a fair point about how Democrats are "having their cake and eating it too," since they used the tactic against Bush and now Obama is ignoring the same tactic. But that's neither here nor there. Short of impeaching him, there's nothing Congress can do except perhaps seek a court ruling in their favor (a long process).

The only thing that's indisputable is that by his action, Obama has burned this particular bridge for Democrats for the future. When the positions are reversed again (as they almost certainly will be at some point), a Republican president is going to follow Obama's precedent, and ignore Democratic parliamentary shenanigans. Which is probably how it should be, when considering what the original intent of the Constitution's framers truly was. The power of recess appointments is, itself, a check on the power of the Senate to delay a presidents' nominees. That's how it always has been used, and now it will return to its traditional way of working.

The entire thing boils down to a question which has no clear answer: what does "adjourn" and "recess" actually mean in the Constitution? There are legal precedents to consider, but there is no clear definition of either one of these terms within the text itself, so it is impossible to tell how any court would rule on the question.

 

[Program Note: This subject proved a lot more complex that I had initially thought, so this post should be seen as only half of the argument. I tried to keep, here, mostly to the constitutional half of the argument, and will be dealing with the more political aspects of the situation in a future column (perhaps tomorrow, perhaps Monday). My apologies for the unfinished nature, but I was constrained today by dealing with the auto fixit place, and will also be so constrained tomorrow. Call this article a starting point for the discussion, rather than a fully-developed stance.]

[Grammatical Joke Note: I know you're probably wondering, so here goes. My all-time favorite grammatical joke involves a yokel from the wilds of Texas who gains admission to Harvard University. He arrives as a freshman, and is walking around seeing the marvels of the campus. He stops an upperclassman and asks in a friendly manner, "Excuse me, where's the library at?" He is met with a look of horror, and the response (in your best mental snooty New England accent): "Here at Hah-vahd, we do not end our sentences with a preposition." The Texan's smile doesn't budge an inch, and he cheerfully asks: "Oh, I'm sorry. Where's the library at, Asshole?"]

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

52 Comments on “Recess!”

  1. [1] 
    Chris Weigant wrote:

    Hadn't read this one when I wrote this. Here are two Bush-era Justice Dept. officials (one a Deputy Assitant Attorney General), arguing that Obama should do exactly what he just did. Note that: they're arguing this in 2010, that Obama should do this, not Bush.

    Also, I forgot to mention Obama's got bipartisan support in the Senate, as Scott Brown came out in favor of his move.

    More discussion fodder...

    -CW

  2. [2] 
    nypoet22 wrote:

    since you mentioned the topic, there's actually a huge problem stemming from the NCLB/RTTT/test-based accountability regime of bush and obama. nationwide, schools are phasing out recess in favor of more classroom time and test-taking. school districts, who of course have zero understanding of child development, think that taking away children's play time in favor of more classwork will somehow help make them better students. in fact, the opposite tends to be true. without the time to run around, blow off steam and socialize, kids are becoming more fidgety and un-focused in class. i'm witnessing the results of this first-hand.

    http://library.adoption.com/articles/no-recess-policies-being-implemented-in-u.s.-school-districts.html

  3. [3] 
    Michale wrote:

    "Panda: A large black-and-white bear-like mammal. Eats shoots and leaves." Heh. Commas can be important, can't they?]

    Now THAT was funny!! :D

    The only thing that's indisputable is that by his action, Obama has burned this particular bridge for Democrats for the future. When the positions are reversed again (as they almost certainly will be at some point), a Republican president is going to follow Obama's precedent, and ignore Democratic parliamentary shenanigans.

    And THAT has been my point all along. Well, one of my points.

    When we have a GOP President (as we will eventually) he or she will most assuredly follow this precedent established by Democrats.. (More on "precedence" later)..

    And ya'all won't be able to say squat about it because ya'all accepted it when a Democrat did it..

    There are legal precedents to consider,

    And THERE is the crux of my other point..

    The Obama Administration established the precedent, not once but TWICE... Two different Obama officials stated, in official testimony, that if Congress is "in session" every three days, they are not in recess...

    So Obama is going against his own words...

    AGAIN.....

    "Oh, I'm sorry. Where's the library at, Asshole?"

    And THAT was funny as hell too!!! :D

    Also, I forgot to mention Obama's got bipartisan support in the Senate, as Scott Brown came out in favor of his move.

    Speaking of precedence, you've just established one here. :D If just one single and solitary member of opposing Party joins the other party, the move can be labeled "bi partisan". :D

    Michale tucks this little tidbit of info away for future use. :D

    One question CW...

    What's your thoughts on Title X Section 1066 of the Dodd-Frank legislation?

    "SEC. 1066. INTERIM AUTHORITY OF THE SECRETARY.
    (a) IN GENERAL.—The Secretary is authorized to perform the functions of the Bureau under this subtitle until the Director of the Bureau is confirmed by the Senate in accordance with section

    http://www.gpo.gov/fdsys/pkg/PLAW-111publ203/pdf/PLAW-111publ203.pdf

    That seems to preclude Cordray having ANY power until such time as he is confirmed by the Senate.

    That basically the SecTreas is in charge of the CFPB until such time as Cordray is approved by the Senate.

    And, since Democrats have totally done away with the "established precedence" argument.......

    Well that's not an argument that can be used anymore.

    Michale

  4. [4] 
    Michale wrote:

    I am also constrained to point out that the Senate is controlled by Democrats..

    If these "Pro Forma" sessions are not to ya'alls liking, why on earth would ya'all blame Republicans???

    Someone will correct me if I am wrong (I am sure :D) but doesn't the Senate Majority Leader sign off on all sessions of Congress??

    If so, why is all this the Republicans fault??

    It's also interesting to note that it was a DEMOCRAT (Wyden-OR) who established this "Pro Forma" sessions with the consent of President Obama, as Obama wanted to sign the latest legislation.

    So, no matter how you slice it, these Pro Forma sessions were established by Democrats, because Democrats control the Senate..

    And yet.. SOMEHOW, this is all the Republicans fault...

    Like I said before, no matter what, everything is the Republicans fault. Democrats are as pure as the driven snow.. :^/

    Michale

  5. [5] 
    DerFarm wrote:

    Bottom line is that Senate decided to usurp power. President decided to get it back.

    What's the problem? Whose ox got gored.

  6. [6] 
    DerFarm wrote:

    Chris,
    You're being specious again: "... Obama has burned this particular bridge for Democrats for the future."

    This thing is going to go to the courts, probably end up with the Supremes and they will (hopefully) rule on the constitutionality of this type of appointment, this type of recess, and maybe the bit about the President forcing official recess when less than a quorum is physically within 100 miles of the capital building.

    That is what this is all about. 4 appointments? With 90 Federal judgeships open and who knows how many federal PAS appointments out of the 1100 potential positions? He makes 4 recess appointments?

    And this is supposed to be a flagrant abuse of power???? Anyone can dislike Obama for any number of reasons. His being stupid shouldn't be one of them.

    In my opinion, he is forcing this constitutional "crisis" to get it resolved.

    Everyone says that the process is broken, but no one is willing to even attempt to fix it. This will resolve at least one part of it, and it will be clear henceforth whether something like this will work in the future.

  7. [7] 
    Michale wrote:

    DF,

    A very well-reasoned argument..

    One you would NEVER make if it was a GOP president and his/her non "flagrant abuse of power"..

    That's the point CW is trying to make..

    If Democrats throw established precedent out the window in order to further their own partisan agenda, then they will have absolutely NO moral or ethical standing to complain when a future GOP president does the same thing...

    It's like all the whining and complaining that Democrats and Republicans do about the filibuster...

    They both bitch and moan about it when it's used against them. But neither Party wants to remove the option because they know THEY will use it when they are the minority..

    It's partisan politics to further a partisan agenda..

    Pure and simple...

    Michale

  8. [8] 
    DerFarm wrote:

    I sure wish we could have an edit button. I'd like to change "specious" to "preciously naive" in [6]

  9. [9] 
    Michale wrote:

    I sure wish we could have an edit button. I'd like to change "specious" to "preciously naive" in [6]

    "Dangerously irresponsible!??? Oh com'on Arthur!! That sounds almost pleasant!! She's a fucking lunatic!!"
    -General Ira Potter, THE FINAL OPTION

    :D

    Michale

  10. [10] 
    Michale wrote:

    "preciously naive"

    Don't you mean "precociously"??? :D

    Michale

  11. [11] 
    nypoet22 wrote:

    sometimes in the midst of the conflict between parties, we forget that there's also a conflict between branches going on. the senate under clinton caused unprecedented delays, to which he responded by making 130 recess appointments. bush escalated this even further, making 170, which the senate responded to by the pro-forma sessions. i imagine there was something during bush 41's term to precipitate the conflict under clinton as well.

    obama is adding another chapter to the conflict, but party doesn't seem to matter much, except to those of us who are on the outside.

  12. [12] 
    Michale wrote:

    Joshua,

    obama is adding another chapter to the conflict, but party doesn't seem to matter much, except to those of us who are on the outside.

    While you are perfectly correct when you say that this is more of a BRANCH OF GOVERNMENT conflict rather than a PARTY conflict, it's obvious that (in the here and now) Dem Party Leaders are aiding and abetting...

    It simply boggles the mind that the Majority Leader could allow these "gimmicks" to flourish, yet then two-facedly turn around and applaud when the President flagrantly ignores established precedent.

    I am not sure if the previous examples you mentioned (Clinton & Bush) also included aiding and abetting from the Party Leaders...

    Obama's claim is that the Senate wasn't really doing any work anyways. Even though that claim is demonstrably false...

    Now consider that precedent..

    Obama took it upon himself to determine that the Senate wasn't really accomplishing anything, so it's in "recess"...

    What's to stop a future President from claiming, "Well, the Senate isn't accomplishing anything anyways, so let's call it a "recess" so I can by-pass the Senate and do whatever I want to do.."

    This is a dangerous precedent of un-curtailed Executive power that could take us down a very slippery slope...

    Michale

  13. [13] 
    jbl_inAZ wrote:

    Excuse me for quoting John Stewart, but I think this is a good question: "How is filling a position that Congress created an arrogant, lawless abuse of presidential power?"

  14. [14] 
    Michale wrote:

    "How is filling a position that Congress created an arrogant, lawless abuse of presidential power?"

    Let me answer your question with a question...

    "How is getting intelligence from terrorists to prevent future terrorists attack a bad thing??"

    Answer to BOTH questions:

    It's not the act that's the problem. It's how the President goes about it that is the problem..

    Michale

  15. [15] 
    Michale wrote:

    It's not the act that's the problem. It's how the President goes about it that is the problem..

    A point I am positive that everyone will make clear once we have a GOP President that does the same thing as Obama did..

    :D

    Michale

  16. [16] 
    akadjian wrote:

    How is filling a position that Congress created an arrogant, lawless abuse of presidential power?

    Perhaps what is needed is something similar to the language in the 6th amendment:

    "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ..."

    The part that gets me is that it seems like there should be a "speedy" component to this confirmation thing.

    Vote it up or down. If you're going to disagree, disagree. Not use a technicality to hold things up indefinitely. In this case, Republicans are making the case that they would never have voted anyone in - so it's not the candidates they object to, but the organization, or the law itself.

    That is not "speedy". It's exactly the opposite. Permanently stuck. Permanently dysfunctional.

    And I'd agree with this regardless of who was in the White House.

    -David

    Btw- Does anyone know what happened to the Bush appointees? Did they eventually get confirmed?

  17. [17] 
    Michale wrote:

    In 2005, the phrase was heard most often from Republicans in the United States, who occupied 55 seats in the United States Senate, and thus lacked the 60 votes required to overcome a filibuster maneuver by the Democratic Senators. Because of this, a united Democratic bloc was able to filibuster any objectionable bill, Presidential appointment, or other matter before the Senate, and prevent passage. If the Republicans were able to bring any particular matter to an "up or down vote", they would be able to approve that measure if voting as a bloc.
    http://en.wikipedia.org/wiki/Up_or_down_vote

    Up and Down votes WOULD be nice....

    Democrats demand them when they are the majority..

    Republicans demand them when THEY are the majority..

    Nothing but partisan politics...

    Ho Hum.....

    New Supernatural is on tonight!! Kewl!!

    Michale

  18. [18] 
    Michale wrote:

    David,

    I understand completely where you are coming from. I really do.

    You want me to be outraged because of all the obstructionism from Republicans..

    I simply cannot muster up the desired outrage because of the FACT that Democrats did the exact same things when THEY were the minority...

    On the other hand, I want YOU to be outraged over the actions of President Obama..

    The difference is, Obama actions have never been done before by Republicans....

    No Republican President has EVER ignored the War Powers act...

    No Republican President has EVER made recess appointments when Congress was NOT in recess...

    These are outrage-worthy events...

    How do I know these are outrage-worthy events??

    Because I know that every single Weigantian WOULD be outraged if a Republican President had done these things. In spades...

    Michale

  19. [19] 
    akadjian wrote:

    Michale,

    You say both parties are the same. Then, you say we should be outraged at Democrats.

    I'm not sure which one you're going with here.

    I do think we could come to some type of consensus over a speedy vote in the Senate.

    But asking me to get outraged at Obama for doing something because Congress refuses to uphold a law they voted for?

    It's hard for me to get outraged over that. It's 4 appointments.

    -David

  20. [20] 
    DerFarm wrote:

    David,

    I don't know how Bush's appointees fared. I think for the most part they got approved, but certainly some did not. I don't know how many did not. It is difficult to find out because many were withdrawn and replaced by others. Its been a mess since the '90s and I think the rules need to be changed.

    It used to be that to filibuster you had to actually speak for hours and hours and hours and hours and ... Now, all you have to do is threaten. The cloture vote was to determine if you speakers were going to get cut off. Now the cloture is to determine if there is going to be a vote.

    I'm not opposed to the filibuster, per se. But I think the option would not be used half as often if you made the sob's actually speak. If you made the speakers responsible for their actions ...

  21. [21] 
    Michale wrote:

    You say both parties are the same. Then, you say we should be outraged at Democrats.

    Yes, both Parties at the same. Both Parties are obstructionist and look for ways to screw over the other Party at the expense of the country..

    But asking me to get outraged at Obama for doing something because Congress refuses to uphold a law they voted for?

    It's hard for me to get outraged over that. It's 4 appointments.

    Yea, and Bush only tortured 2 terrorists...

    It's not the number...

    It's how they went about it...

    If Obama can't do what he wants to thru the law and established precedence, then maybe he should consider that it's something he should not be doing..

    Basically, you are saying that, in this case, The Ends Justifies The Means.

    The Ends being that this CFPB agency MUST have a Director...

    The Means being totally ignoring established precedent that the Obama Administration itself help establish...

    I don't have to tell you how dangerous that sort of mind-set can be...

    We have the War Powers Act...

    We have Recess Appointments...

    Where do you draw a line in the sand???

    When do you say, "This far! No farther!!"??

    It's a reasonable question...

    Michale

  22. [22] 
    Michale wrote:

    I am also constrained to point out that these are called "RECESS Appointments"...

    They are NOT called "WELL, THE SENATE ISN'T REALLY ACCOMPLISHING ANYTHING ANYWAYS SO I'LL JUST DECLARE THEM IN RECESS AND DO WHAT I WANT Appointments".

    Further, it's clear from the Congressional Record, that the Senate was accomplishing quite a bit in these Pro Forma sessions...

    So, legally, morally and ethically, Obama doesn't have a leg to stand on..

    Michale

  23. [23] 
    Chris Weigant wrote:

    DerFarm [6] -

    The way I heard it, if Obama appoints fed. judges and prosecutors, and then the SCOTUS decides against him, it would throw into jeopardy all the cases they have worked on since. There isn't the same magnitude of problem with the labor board or the CFPB. Don't know how valid this argument is, but there it is.

    Haven't seen the rightie media, so I'm not sure -- how much are the GOPers howling about this? Or is it being lost in the NH primary fray?

    This whole thing seems like "inside baseball" -- the type of thing us wonks (right and left) enjoy the heck out of arguing over a beer, but that the average Joe who doesn't pay much attention to politics is not even aware of. [Pause for someone to respond back to me: "...not even aware of, Asshole!" Heh. Heh heh. I crack myself up, sometimes...]

    But then, like I said, I haven't been scanning the media to see what's being said all that much.

    -CW

  24. [24] 
    Chris Weigant wrote:

    You know what? I think I made a mistake. I said:

    "But because legally Congress was de facto in session..."

    Upon reflection, I think that should read:

    "But because legally Congress was de jure in session..."

    I've been borderline flu-ish for the past two days, and my mind is a bit foggy. As you can probably tell from the disjointed nature of this column in the first place. But anyway, just wanted to say that...

    [Because I made up the word "flu-ish," here's a quote for you Michale, see if you can guess where this is from:
    "Blueish? You don't look blueish."
    Heh.]

    -CW

  25. [25] 
    Michale wrote:

    [Pause for someone to respond back to me: "...not even aware of, Asshole!" Heh. Heh heh. I crack myself up, sometimes...]

    Now THAT's funny!! :D

    "Blueish? You don't look blueish."

    For some reason, I am thinking THE YELLOW SUBMARINE... :D

    Michale.....

  26. [26] 
    Michale wrote:

    The way I heard it, if Obama appoints fed. judges and prosecutors, and then the SCOTUS decides against him, it would throw into jeopardy all the cases they have worked on since. There isn't the same magnitude of problem with the labor board or the CFPB. Don't know how valid this argument is, but there it is.

    Seems to me that, if we are talking the Labor Board, and Obama is successfully sued over it, any decision that the board makes (which is likely to be Pro Union across the ahem... board) will all be rendered null and void...

    Obama better hope he ain't sued, because, as I stated above, he doesn't have a legal leg to stand on...

    It's not the Executive Branch's place to state whether or not the Legislative Branch is accomplishing anything..

    Michale

  27. [27] 
    Michale wrote:

    Well, I am certainly glad that Democrats aren't interested in "spiking the football".... :^/

    http://thehill.com/homenews/administration/202773-obama-takes-victory-lap

    Michale

  28. [28] 
    Michale wrote:

    Wonder how Obama's going to justify this recent action...

    "The Senate was not in session. They were simply 'Kineticly Un-Engaged'.."
    -President Obama

    Michale

  29. [29] 
    akadjian wrote:

    It's a reasonable question.

    Sure. But the outrage doesn't seem to equal the act.

    Are we walking into a several trillion dollar war based on falsified evidence?

    Are we spending $700 billion dollars to bail out banks?

    Are we authorizing illegal wiretapping of Americans?

    No.

    You do make a good point though that sometimes it's easier for Democrats to get away with things which are civil liberty affronts - like Obama's recent continuation of illegal detentions in the defense authorization bill. This does outrage me as it makes it possible for the government to detain anyone indefinitely by simply labeling them a terrorist.

    There's many things that do outrage me about Democrats. This isn't one of them. It appears more that the checks and balances are broken.

    I think CW does get it right though when he says Obama should have first declared the Senate to be in recess.

    -David

  30. [30] 
    Michale wrote:

    You do make a good point though that sometimes it's easier for Democrats to get away with things which are civil liberty affronts - like Obama's recent continuation of illegal detentions in the defense authorization bill. This does outrage me as it makes it possible for the government to detain anyone indefinitely by simply labeling them a terrorist.

    There's many things that do outrage me about Democrats. This isn't one of them. It appears more that the checks and balances are broken.

    Fair enough...

    I am glad to see that you are outraged by some actions of the Democrats in general and Obama specifically..

    How ironic that the actions that outrage you are the ones that I applaud.. :D

    I think CW does get it right though when he says Obama should have first declared the Senate to be in recess.

    I agree.. While it would have been unusual and cause the Right to howl (what doesn't these days?? :D), it had the benefit of not violating a precedent that the Obama Administration itself had established..

    Michale

  31. [31] 
    akadjian wrote:

    This whole thing seems like "inside baseball"

    Heheh. I'd agree. I have trouble seeing average folks getting worked up over it.

    But if there's one thing conservatives do well, it's communicating with their base (and whipping them into a frenzy over what would normally go unnoticed). Ok, sorry. Cheap shot. I'll admit I'm both jealous and disgusted by their message machine :).

    Is it time for a beer yet?
    -David

  32. [32] 
    akadjian wrote:

    How ironic that the actions that outrage you are the ones that I applaud.. :D

    LOL. I do at least enjoy our honesty here at CW.com.

    There's likely many more. Obama failing to reinstitute Glass-Steagall? Watered down financial reform? Though I might be wrong, we might agree more than I think here.

  33. [33] 
    Chris Weigant wrote:

    Michale -

    For some reason, I am thinking THE YELLOW SUBMARINE... :D

    Ding! Ding! Ding! We have a winner...

    "Let us mix, Max. I've never admitted it before, but my cousin is the bluebird of happiness."
    -Chief Blue Meanie

    Heh.

    -CW

  34. [34] 
    Michale wrote:

    I think CW does get it right though when he says Obama should have first declared the Senate to be in recess.

    But the goal wasn't to be able to force these nominations..

    The goal was to stick it to Republicans in a manner that would make the base all giddy...

    Apparently, it worked.. :D

    Michale

  35. [35] 
    Michale wrote:

    For some reason, I am thinking THE YELLOW SUBMARINE... :D

    Ding! Ding! Ding! We have a winner...

    Holy crap, REALLY!!!????

    I swear I did not GOOGLE it.. I just read it and the first thing that occurred to me were the Blue Meanies!!

    Damn, I'm good!!!!! :D

    Michale

  36. [36] 
    Michale wrote:

    Interesting to note..

    Obama only submitted the NLRB names TWO DAYS before Congress adjourned...

    Apparently, Obama had absolutely NO INTENTION of having the Senate actually consider these nominees..

    I wonder why that is....

    Michale

  37. [37] 
    nypoet22 wrote:

    I simply cannot muster up the desired outrage because of the FACT that Democrats did the exact same things when THEY were the minority...

    On the other hand, I want YOU to be outraged over the actions of President Obama..

    michale,

    i acknowledge that the president chose a needlessly contentious method of breaking tradition, but it followed naturally from the prior course of events. further, it was not an altogether unreasonable course of action. the reason the pro-forma sessions were instituted in the first place was to stop excessive recess appointments. excessive recess appointments were made in response to excessive delays. excessive delays were a response to controversial nominees, and so forth.

    so yes, president obama broke a rule that senator obama supported. i agree, that's somewhat hypocritical. however, i am not outraged because the context was not the same. what I would like you to acknowledge is the difference between the numbers 171 and 29. the latter is obama's number of recess appointments, and is extremely low. the former is bush's, and is extremely high.

    by analogy, let's say you put a pie out on the table and tell your kid that he shouldn't have any. even if he agrees with your decision in principle, starve him long enough and he'll feel justified in taking a slice, if not the whole thing. that's not the same as telling him he can't have any because he just pigged out on all his halloween candy. it's the same pie he's eating and the same rule he's breaking, but the context is different.

    in the case of these few recess appointments, nobody got tortured and nobody got hurt. somebody was hired to protect consumers from fraud, what a bleedin' tragedy! as someone said in comments on the last post, the ends don't always justify the means, but some ends justify some means. these rules are relative, not absolute - it's a matter of number and scope.

    ~joshua

  38. [38] 
    nypoet22 wrote:

    by the way, i agree with david on the illegal detentions. i also agree that it was quite improper not to get congressional authorization for the intervention in libya within the appropriate amount of time. i don't get at all why the president wouldn't do that when he was supposed to. and don't even get me started on the NCLB and "race to the top"

    this? marginally justified, and at worst, small potatoes.

    ~joshua

  39. [39] 
    DerFarm wrote:

    Joshua,

    Do you really think that what Obama did was more contentious than try to declare the Senate in Recess and THEN make the appointments? Doesn't make sense to me.

    This way he maybe gets the courts to rule on what he's done (probably against him) and exactly how he declares Congress in session.

  40. [40] 
    Michale wrote:

    Heheh. I'd agree. I have trouble seeing average folks getting worked up over it.

    But if there's one thing conservatives do well, it's communicating with their base (and whipping them into a frenzy over what would normally go unnoticed). Ok, sorry. Cheap shot. I'll admit I'm both jealous and disgusted by their message machine :).

    Is it time for a beer yet?

    I heard "beer", then what??? :D

    Michale

  41. [41] 
    Michale wrote:

    i acknowledge that the president chose a needlessly contentious method of breaking tradition, but it followed naturally from the prior course of events. further, it was not an altogether unreasonable course of action. the reason the pro-forma sessions were instituted in the first place was to stop excessive recess appointments. excessive recess appointments were made in response to excessive delays. excessive delays were a response to controversial nominees, and so forth.

    Except for one simple fact that was just revealed..

    The NLRB members that Obama appointed were submitted to the Senate just TWO DAYS before the Senate adjourned..

    Obama had NO INTENTION of having the Senate really consider these appointments...

    It's clear that he was looking for something to stick it to the GOP to please his base...

    what I would like you to acknowledge is the difference between the numbers 171 and 29.

    "Now I want you to acknowledge that the Judge Advocate has made you aware of the possible consequences of accusing a Marine officer of a felony without proper evidence."
    -Captain Jack Ross, A FEW GOOD MEN

    :D

    Yes, I agree... The numbers are disparate...

    But this isn't a question of numbers. I don't have a problem with Recess Appointments..

    I DO, however, have a problem with WELL, THE SENATE ISN'T REALLY ACCOMPLISHING ANYTHING ANYWAYS SO I'LL JUST DECLARE THEM IN RECESS AND DO WHAT I WANT Appointments...

    And THAT is what this was...

    in the case of these few recess appointments, nobody got tortured and nobody got hurt. somebody was hired to protect consumers from fraud, what a bleedin' tragedy! as someone said in comments on the last post, the ends don't always justify the means, but some ends justify some means. these rules are relative, not absolute - it's a matter of number and scope.

    OK, so "some" ends justifies "some" means.

    So, who decides what means and what ends??

    Ya'all sure didn't like when Dubya was the "decider" of the means to the ends...

    Has Obama been any better???

    Hardly...

    That's the problem here...

    Michale

  42. [42] 
    nypoet22 wrote:

    Do you really think that what Obama did was more contentious than try to declare the Senate in Recess and THEN make the appointments?

    DF,

    you're right, contentious is the wrong word. perhaps the right term would be constitutionally murky. the right of the president to declare a recess if congress hasn't IS in the constitution. not so much with the right of the president to decide that congress is already in de-facto recess even though they aren't in de-jure recess (thanks for the reminder, CW), and that the former matters more than the latter.

    Obama had NO INTENTION of having the Senate really consider these appointments...

    michale,

    have you been inside the president's brain? there are other feasible explanations. maybe he had initially intended to wait, then changed his mind. maybe he hadn't considered it at all and decided last-minute.

    perhaps this isn't a question of numbers to you, but to me, the numbers are a necessary factor in determining the ethics of the situation. an unprecedented number of nominees blocked, combined with the lowest rate of recess appointments in twenty years, means that this is an extraordinary situation which may justify extraordinary measures.

  43. [43] 
    dsws wrote:

    You know what? I think I made a mistake. I said:

    "But because legally Congress was de facto in session..."

    Upon reflection, I think that should read:

    "But because legally Congress was de jure in session..."

    'Legally de jure' is redundant, but that's an improvement: 'legally de facto' is incoherent.

  44. [44] 
    nypoet22 wrote:

    in fact, this presidential response to senate obstruction has been positively understated. a truly proportional response would have been to publicly declare congress in recess, citing article II section 3, then make exactly 46 recess appointments to match president bush's third year in office. come to think of it, i wouldn't be surprised if that's exactly what the next republican president does.

    ~joshua

  45. [45] 
    Michale wrote:

    Joshua,

    have you been inside the president's brain? there are other feasible explanations. maybe he had initially intended to wait, then changed his mind. maybe he hadn't considered it at all and decided last-minute.

    Considering that it has become painfully obvious that this whole sad and sordid incident was a re-election stunt and had absolutely NOTHING to do with the CFPB or the NLRB, employing Occam's Razor, the only logical conclusion is that Obama had no intention of submitting the NLRB members to the Senate for their consideration.

    Of course, once the next Congressional Session ends, both Cordray and these NLRB members will be out of a job, as there is NO WAY the Senate will confirm these guys. Not after what the President did to the Senate...

    You think the GOP is obstructionist now??? How do you think they are going to react to being Gibb's Slapped upside the head??

    perhaps this isn't a question of numbers to you, but to me, the numbers are a necessary factor in determining the ethics of the situation.

    So, since Bush only tortured 2 scumbags, ethically speaking, he's OK???

    If something is wrong, it's wrong whether it's done 1 time or a hundred times...

    Let's face it..

    The ONLY reason Democrats are so pissed about the GOP being obstructionist is that the GOP does it so much better than the Democrats...

    If Democrats were any good at being obstructionist, you can bet their numbers would be as high as the GOP's...

    Michale

  46. [46] 
    nypoet22 wrote:

    So, since Bush only tortured 2 scumbags, ethically speaking, he's OK???

    If something is wrong, it's wrong whether it's done 1 time or a hundred times...

    is it actually the case that only two suspects were waterboarded? and that they were fully confirmed to be terrorists (not just suspects) prior to that method being used? and that all other methods of interrogation were fully exhausted without success? yes, the number makes a difference. the context makes a difference. the rationale makes a difference. if, like bush in 2003, obama had recess-appointed 46 nominees instead of 4, that would definitely change my opinion on the move.

    read more about the context of the appointments here:

    http://www.washingtonpost.com/blogs/ezra-klein/post/why-is-obama-making-four-recess-appointments-rather-than-200/2011/08/25/gIQAuv67cP_blog.html

    you're also misusing occam's razor. occam means that competing hypotheses may be judged based on which makes the fewest new assumptions. the postulate that the decision to recess-appoint labor board nominees was pre-meditated does not require any fewer assumptions than the postulate that the decision was not pre-meditated. i'm not saying your assumption is incorrect, but there isn't much logic in your logic.

  47. [47] 
    Michale wrote:

    read more about the context of the appointments here

    As has been well established, this incident had NOTHING to do with the appointments...

    This was about Obama Gibb's Slappin' the GOP upside the head..

    the postulate that the decision to recess-appoint labor board nominees was pre-meditated does not require any fewer assumptions than the postulate that the decision was not pre-meditated.

    How does the fact that Obama submitted the names only 2 days before the Senate adjourned fit into your theory??

    That's a fact, not an assumption..

    Michale

  48. [48] 
    nypoet22 wrote:

    As has been well established, this incident had NOTHING to do with the appointments...

    This was about Obama Gibb's Slappin' the GOP upside the head..

    well established by whom? just because i don't respond to every argument (and you make quite a few), doesn't necessarily mean i agree (nor that i disagree, for that matter). did you read the article? without someone to fill those jobs, the agencies couldn't function. and who says that there needs to be only one reason? at this point, anything that makes the bureaucracy a bit less dysfunctional will make the president look better next november. i would say smacking a few senators upside the head was just a pleasant bonus.

  49. [49] 
    akadjian wrote:

    But this isn't a question of numbers. I don't have a problem with Recess Appointments.

    What I believe Joshua and others are saying is a belief in what checks and balances mean.

    If you compare the two situations ...

    171 and 29.

    1) Bush. 171 recess appointments. Seems to be using recess appointments to circumvent Congress.

    2) Obama. 29 recess appointments. Has whenever possible tried to work with Congress. 1st instance I can ever remember of Congress saying they won't confirm anyone. Isn't this in violation of a law they passed? How can you simply say you're not going to confirm anyone?

    Checks and balances have the purpose of bringing the different powers of government together to work towards a compromise.

    This is what I believe in and it seems others here believe in.

    Republicans in Congress have said they have no intention of working together. Their idea of working together is "you give us 100%, we give you nothing". Or we take our ball and go home. This has been their theme ever since 2010.

    This is obstructionism. It is abuse of checks and balances.

    There's a big difference.
    -David

  50. [50] 
    Michale wrote:

    well established by whom

    Read the latest FTPs?? :D

    Good enough for me...

    without someone to fill those jobs, the agencies couldn't function.

    And considering that the agencies are over stacked with Union Lackeys, the fact that they couldn't function is probably the best news this country has had in a while.. :D

    Michale

  51. [51] 
    nypoet22 wrote:

    How does the fact that Obama submitted the names only 2 days before the Senate adjourned fit into your theory??

    That's a fact, not an assumption...

    it's a fact that the obama administration has been very slow in vetting and selecting nominees. the most likely explanation for last minute nomination, consistent with this pattern and not requiring any assumptions, is that one of the three board members' tenure was about to expire (also a fact, and there are supposed to be five) and the clock ran out.

    And considering that the agencies are over stacked with Union Lackeys...

    huh? sounds like you'd disapprove of the nominations regardless of who they were or how they were made. well, off to watch football.

    ~joshua

  52. [52] 
    elcymoo wrote:

    http://www.washingtonpost.com/wp-dyn/content/article/2010/10/14/AR2010101405441_pf.html

    Excerpt:

    In return for agreeing to confirm 54 of President Obama's nominees before the election break, Minority Leader Mitch McConnell (R-Ky.) reportedly got Majority Leader Harry Reid (D-Nev.) to keep the Senate in pro forma sessions so the president could not make a recess appointment of any other nominees, including Jack Lew, the president's pick for director of the Office of Management and Budget.

    snip>

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