By Scott Cumbie

The discussions this week over the constitutionality of the presidential “recess” appointments have revolved around whether the Senate was in recess or not.  In actuality, the “recess” issue is irrelevant to the question of constitutionality.  For the purposes of this discussion, let us take the President’s position and assume that the Senate was in recess.  Then, let us look at the text of the Constitution to determine if the President’s actions were lawful.

Article 2 Section 2 Paragraph 2 says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, … which shall be established by Law.”  Since the departments in question were established by law, the Constitution very clearly states that the President nominates and the Senate approves.  The arguments revolve around the next paragraph.

“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.”

There are 2 very important items stated in this paragraph:

First, when can a President fill a vacancy?  Answer: when the vacancy occurs during the recess of the Senate.  The vacancies for all four of the positions that were filled by the President existedbefore the recess.  None of these vacancies happened or occurred during the recess.  A clear reading of the text tells us that these appointments were unlawful.

Secondly, any recess appointment expires at the end of the next session of the Senate.  Once the Senate assembles after a recess appointment is made, if the Senate takes no action then the appointment expires immediately upon the next recess.  In the current case, the Senate could have opened after this latest recess and immediately gone into recess again which would have caused these four appointments to expire.  The Senate would not have had to even discuss the recess appointments.

Why would the framers of the Constitution allow a President to make recess appointments and why only if the vacancy occurs during a recess of the Senate?  Why, also, would they want these recess appointments to expire in the manner stated above?

At the time the Constitution was written, the framers were only expecting Congress to be in the capital for part of the year.  In fact, they were more concerned that Congress would not meet often enough, so in Article 1, Section 4 they state that “The Congress shall assemble at least once in every Year.”  The framers were expecting that there would be long periods of time when the Congress would not be in the capital and would not be available to approve a nomination for a vacancy.  These recess appointment were intended to allow the President to be able to conduct the business of the government until the Senate could return to the capital and take action on the nomination / appointment.

If a vacancy occurred while Congress was in session, and the President did not nominate and the Senate did not approve the nomination before a recess, then the President was not given the power to make a recess appointment.  By the Senate not acting on a nomination before the recess, the Senate effectively states its will by not giving consent.  In this case, the President cannot act until the Senate reconvenes.

This is exactly the same reason that the Constitution states that a recess appointment will expire at the end of the next session.  If the Senate comes out of recess and decides not to provide consent on a recess appointment before their next recess, then they have stated their will by not giving consent.  The Constitution does not allow a President to act independently of Congress or to circumvent the will of Congress.

Joseph Story, who was appointed to the Supreme Court 200 years ago by President James Madison, wrote a series of commentaries on the Constitution.  In discussing recess appointments, Story states that “The propriety of this grant is so obvious, that it can require no elucidation. There was but one of two courses to be adopted; either, that the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have had an opportunity to act on the subject. The former course would have been at once burthensome to the senate, and expensive to the public. The latter combines convenience, promptitude of action, and general security.”

In other words, the reason for recess appointments was obvious and required no explanation.  This grant allows the President “temporary appointments” in order to conduct the business of the government until “the senate should have had an opportunity to act.”

Story continues by stating that “The appointments so made, by the very language of the constitution, expire at the next session of the senate; and the commissions given by him have the same duration.”  Again, if the Senate does not act on the appointment, then the appointment expires at the next recess.  Clearly, if the Senate does not give consent, the President does not have Power to appoint.

Concerning the requirement that a vacancy occurs during a recess, Story states, “The language of the clause is, that the president shall have power to fill up vacancies, that may happen during the recess of the senate…  By “vacancies” they understood to be meant vacancies occurring from death, resignation, promotion, or removal. The word ‘happen’ had relation to some casualty, not provided for by law. If the senate are in session, when offices are created by law, which have not as yet been filled, and nominations are not then made to them by the president, he cannot appoint to such offices during the recess of the senate, because the vacancy does not happen during the recess of the senate.”

This last sentence discusses the exact situation we have with the President’s recent appointment of Richard Cordray to the Consumer Financial Protection Bureau (CFPB).  The other 3 appointments were for vacancies in existing offices that occurred before this latest recess (and not during this recess).

Based on the clear text of the Constitution and the intent of the framers, the four recent recess appointments by the President are clearly unlawful.  When the President stated that, “I’ve got an obligation to act on behalf of the American people, and I’m not going to stand by while a minority in the Senate puts party ideology ahead of the people that we were elected to serve,” it is clear that his intent is to circumvent the Constitutional requirement that he obtain the advice and consent of the Senate.  This is acting outside the power granted to him in the Constitution.

republished with permission of the author

We have four more tickets to give away!

You must have a ticket to enter the community college where this event is being held. The event is on Saturday, September 17 · 10:00am - 4:00pm; at Wilkes Community College – Walker Center (1328 S. Collegiate Drive) (View Facebook event page)

Same rules/directions apply:

Leave a comment here on the website, one entry each day between now and Tuesday at noon. Tuesday at noon, we will pick a random number based on the number of entries and one lucky commenter will receive four tickets to rally (estimated value of $20).

Extra Entries:

If you “like” us on Facebook, leave an additional comment letting us know.

If you give us a shout out on Twitter @NCTEAParty, comment again, letting us know!

That’s three comments per day, through Tuesday (’til noon) for a grand total of twelve entries. (If you say in one comment, you have done two or more things, instead of commenting separately, you’ll take away your extra chances- comment separately!)

Special questions to make it lively for your first comment:
Saturday: How often do you attend any political themed meetings?
Sunday: Have you signed to receive updates from NC TEA Party? (click here if you haven’t!)
Monday: What county do you live in?
Tuesday: Who is your most favored politician? (Can be local, state, or national level!)

Ready, Set, GO!!

You must have a ticket to enter the community college where this event is being held. The event is on Saturday, September 17 · 10:00am - 4:00pm; at Wilkes Community College – Walker Center (1328 S. Collegiate Drive) (View Facebook event page)

Giveaway:

Leave a comment here on the website, one entry each day between now and Friday at noon. Friday at noon, we will pick a random number based on the number of entries and one lucky commenter will receive four tickets to rally (estimated value of $20).

Extra Entries:

If you “like” us on Facebook, leave an additional comment letting us know.

If you give us a shout out on Twitter @NCTEAParty, comment again, letting us know!

That’s three comments per day, through Friday (’til noon) for a grand total of nine entries. (If you say in one comment, you have done two or more things, instead of commenting separately, you’ll take away your extra chances- comment separately!)

Special questions to make it lively for your first comment:
Wednesday: How did you first get involved with the tea party movement?
Thursday: Were you involved in any kind of activism (aside from voting) before you got involved with the tea party?
Friday: Who is your pick right now for the Presidential nomination?

Ready, Set, GO!!!

Judge  Roger Vinson, a Senior United States District Judge for the Northern District of Florida, has determined that ―The Patient Protection and Affordable Care Act‖ (―the Act‖) is unconstitutional.1  Judge Vinson begins his opinion by reiterating the importance of the federalist system.  In framing the question before the  court, Vinson emphasized that this question is not necessarily about the health care system, but about the  federalist system and the ―very important issues regarding the Constitutional role of the Federal government.‖2Supporting this thesis, Vinson quotes Federalist 51 and the 10th Amendment, articulating the Framers intent of a limited federal government.3Vinson states:  ―Rather than being the mere historic relic of a bygone era, the principle behind a central government with limited power has ‗never been more relevant than in this day, when accretion, if not actual accession, of power to the federal government seems not only unavoidable, but even expedient.‘‖4  After motions to dismiss, two issues remained:   (1) whether the individual mandate violates the Commerce Clause (Count I) and (2)  ―[whether] [t]he expansion of Medicaid violates the Spending Clause and principles of federalism protected under the 9th and 10th Amendments‖ (Count IV).5

(read the entire memo)

DUNN, NC – Today Federal Judge Roger Vinson ruled that one of the major provisions of Obamacare — the individual mandate that requires all Americans to purchase health insurance – invalid.   Judge Vinson wrote, “because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.”

Congresswoman Ellmers’ reacted to the news saying, “This is what those of us in favor of repealing Obamacare have been saying all along — the law is flawed to the extent that it is not salvageable.   That is why I voted for repeal. We need to start over from scratch with real health care reforms that make sure patients, families and their doctors are in charge of their health care decisions, not politicians and bureaucrats in Washington.”