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by Daniel Gardner
The Constitution authorizes presidents to fill vacancies in the executive branch without advice and consent of the Senate when the Senate is not in session. That was a non-brainer during the first hundred years or so of our federal government when Congress met for only a few months each year.
When Congress became a "full-time" entity in the 20th Century, conflict over recess appointments began. You may find this hard to believe, but sometimes presidents fill vacancies with highly ideological people who might not be confirmed by a Senate controlled by the other party. It's true.
Sometime after the turn of the last century the Senate began blocking presidential appointments using filibusters when a majority would have otherwise approved the appointments. The easy way around a filibuster was to wait until the Senate recessed and then make a "recess appointment."
Things in DC rumbled along with business-as-usual until Democrats recaptured the House and Senate in 2006. Harry Reid (D-NV) took immediate control of the Senate in January 2007 and blocked all of President Bush's recess appointments by keeping the Senate perpetually in pro forma session.
Under the Constitution, the House can refuse to allow the Senate to recess, and one senator can keep the Senate in pro forma session by walking to the floor of the Senate once every three days and making a statement. Yeah, it's a gimmick. But, that was what Nancy Pelosi (D-CA) and Harry Reid conspired to do to stop President Bush's recess appointments.
Fast forward to 2012, an election year in which President Obama has declared he will run against Congress. First order of business was to make four recess appointments.
But, the Senate has been perpetually in pro forma session throughout the Christmas break! Oops! Shouldn't that prevent the President from making recess appointments? Isn't that what Pelosi, Reid, and then Senator Obama argued way back in 2007? Yes, all three agreed President Bush could not legally make recess appointments while the Senate was in pro forma session.
What's changed since then? President Obama has announced he's going to go around Congress and do what he believes the nation needs. He knows best. If the Congress won't or can't get its business done, then he'll do it by himself even if it violates the balance of powers enumerated in the Constitution.
Please remember, George W. Bush refused to challenge the Senate's right to stay in pro forma session. Also remember that Harry Reid "invented" the tactic of perpetual pro forma sessions to squash President Bush's Constitutional authority to make recess appointments.
What does Senator Reid have to say about President Obama's making recess appointments while the Senate is still technically in session? Reid has encouraged Mr. Obama to make the appointments!
President Obama is not only trashing the Constitution…at least technically; he's also trashing his own argument regarding recess appointments. He's duplicitous. He has double standards: one set for him, and another set for everybody else.
This is Mr. Obama's first shot in his 2012 campaign for president. Look for him and his administration to sidestep the Congress…and the Constitution…as he makes his case to the American people that he can run the government and the nation by himself from the White House.
Mr. Obama has certainly fulfilled his promise of fundamentally transforming America.
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