President George W. Bush made 171 recess appointments, and as of December 8, 2011, President Barack Obama had made 28 recess appointments.
I hope this display of factual information does not dampen your day.
But that clause is unconstitutional. First of all, the “advise and consent” of the Senate is standard and giving the President to make the appointments himself has to be specifically authorized.
[QUOTE=Article II, Section 2, Clause 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.
[/QUOTE]
So why did Congress feel it necessary to add the clause into the law?
[QUOTE=Article II, Section 2, Clause 3]
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.
[/QUOTE]
There is no “unless by law …” or and other restriction. Clearly this is a commission under II,2,2 and the Constitution allows the President without restriction to appoint a recess commision.
It was created by the broader Dodd-Frank financial regulation law. There’s not much history, since the agency has been unable to operate as intended, because it doesn’t have a leaders (that’s my understanding, anyway). I think it’s intended to protect consumers from overreaching financial companies.
Dodd-Frank was passed in 2010. The vote was somewhat bi-partisan in the senate, with Republicans Scott Brown, Susan Collins, and Olympia Snowe voting for it, and Russ Feingold apparently voted against it (?). I don’t know about the House.
There is no dispute that he can (and did) appoint the director without Senate’s confirmation. Yet that director can have no powers, by law, unless confirmed by the Senate.
So did all of George W. Bush’s 171 recess appointments have no powers, by law?
No. The law says that the agency gets its power when a director is confirmed by the Senate in accordance with section 1011. Section 1011 uses the Constitutional language, saying “the Director shall be appointed by the President, by and with the advice and consent of the Senate.” So I don’t think that argument is going to hold up.
You have a stronger argument that the appointment shouldn’t have been allowed because the Senate wasn’t in recess, although that’s not a slam dunk. But your specific theory isn’t going to fly.
He has a glimmer of a point in that Dodd-Frank specifically (and unorthodox-ly) says “confirmed by the Senate” rather than the standard language is (see, for example, the Department of Homeland Security (title 6 I.1 S112) which says “There is a Secretary of Homeland Security, appointed by the President, by and with the advice and consent of the Senate.”).
My guess is that the former’s language is sufficiently non-standard that a court, should it rule, will simply strike the specific “confirmation” language as unconstitutionally limiting a power of the Executive specifically granted in the Constitution (that is, the ability to make recess appointments). Anything else would end up starting a partisan arms race with regard to similar provisions combined with the use of the filibuster to prevent confirmation votes from even happening.
It doesn’t say “Confirmed by the Senate”. It says “Confirmed by the Senate in accordance with Section 1011.”
Thanks Zeriel - informative post.
The appropriate law did not have a specific clause that would have denied them powers if they were not confirmed by the Senate.
Hence why it’s described as a glimmer, instead of a full-blown point. =P
Actually, I’m pretty sure that language can be construed to apply to only one sub-section anyway, if I remember correctly–it’s been a week since I actually looked at the text of the bill.
Sure. It’s the “if a tail is a leg” question. No, a tail is not a leg. And recess appointment is not “confirmed by the Senate”.
The law has no limitation on the President’s ability to make recess appointments.
Do you get a quarter anytime “confirmed by the Senate” is posted on the Internet or something?
I won’t claim to be any sort of Constitutional scholar, but you’ve been presented with argument after argument that this appointment is perfectly within the law and the Constitution and your only comeback is to bleat – “IT SAYS CONFIRMED BY THE SENATE!!11!!”
How about we just assign a code to your argument, let’s say XJ27. That way, you can save typing muscles and the next time you post you can just type out ‘XJ27’ and we’ll all know what you’re going on about.
It is within the law and the Constitution. But the director appointed, by law, is not allowed to exercise his powers until he is confirmed by the Senate.
Yes, Terr. You’ve said that approximately fifteen million times in this thread alone.
Being that you’re not the Supreme Court, your opinion on the interpretation of how that particular law’s wording and the Constitution interact vis-a-vis recess appointments is not precisely authoritative. Perhaps you could contribute some relevant prior jurisprudence or, failing that, SOMETHING other than parroting the precise wording of that section of the bill?
And every time someone comes along with the irrelevant “argument” of “But the Constitution allows the President to recess-appoint people”.
I haven’t seen any prior jurisprudence - that clause seems to be new. But the ability of the President to recess-appoint people has nothing to do with it.
And the wording is pretty clear. How one can interpret “confirmed by Congress” to mean “not confirmed by Congress” is a mystery.
:roll eyes: And it’s shit like your characterization of the Reps’ position, and this last post of yours, that make non Kool Aid drinkers roll their eyes in tired disbelief. And how my response to you led you to “obstructionist” is puzzling, indeed.
Not in the least, as I was not complaining about recess appointments. They are part of the process. I was lamenting the fact that Obama didn’t wait for them to be in recess. He, the Usurper and Chief, deemed them to be in recess.
I pray that this clarification of factual information doesn’t dampen your day. And instead, you will be grateful for the ignorance slayed and wear a smile for all.
It’s not at all a mystery. In the case of the vast majority of appointed positions, the phrasing they use means exactly the same legal concept. This case has an odd bit of specificity which may or may not actually be legally meaningful, and may or may not apply to one subsection of the law–in the absence of clarification, it’s just as valid to assume it means “the standard confirmation process, i.e., including recess appointments in the face of obstructionism”.
The fact that some Republicans (including every Republican Senator) continue to be weepy, obstructionist dumbshits at a rate of over double the weepy half-assed obstructionism the Dems tried to pull on Bush is the real story here, and always has been.