What About That Pesky Constitution Confuses Obama?

King Barack Hussein* made a few appointments by declaring that the Senate was effectively in recess so he had the authority to do so. His mouthpieces claim that the White House Legal Council has reviewed the issue and said it was OK for King Hussein to make the appointments. Interestingly, the Department of Justice is the agency that normally reviews items of Constitutionality. I imagine that Hussein figured that his Council could say it was OK and then after the fact he could persuade his buddy Holder to write a favorable opinion.

The rule of law. Hussein said the Senate was effectively in recess for weeks so he could make the appointment because the Constitution says so. If Hussein wants to be technical, let us do so. My well worn pocket Constitution, Article II, Section 2, last paragraph reads:

The President shall have the 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. [emphasis mine]

So let us assume, for a moment, that Hussein is correct about the Senate being in recess. Technically, the vacancies DID NOT HAPPEN during the alleged recess. The Constitution is clear in that the President may fill a vacancy that occurs while the Senate is in recess. These vacancies have been present for quite some time and DID NOT occur during the recess Hussein claims exists.

Therefore, he had no authority to begin with regarding making the appointments. This will likely go to court and it would be great if a ruling came down expressing exactly what the Constitution states and thereby prevent Congress and presidents from playing games regarding appointments. If the vacancy did not occur during a recess the president cannot fill it, period.

Let us suppose that a court does not rule this way (and some past rulings might run counter to it). Referring to my trusty Constitution, I see this under Article I, Section 5, Paragraph 2:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.

The US Senate has a website that spells out what a pro forma session is and how it relates to the last paragraph of Section 5. That section reads:

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.

And the Senate site explains it this way:

This section was included to prevent either chamber from blocking legislation through its refusal to meet. Each chamber takes very seriously its independence of the other body. To avoid having to ask the other chamber for permission to adjourn, the Senate and House simply conduct pro forma (as a matter of form) sessions to meet the three-day constitutional requirement. No business is conducted at these sessions, which generally last for less than one minute.

Additionally, the Senate explains that pro forma sessions occur, last a few minutes, and no business is conducted:

Pro Forma Session: A pro forma session is a brief meeting (sometimes lasting only seconds) in which no business is conducted. It is held usually to satisfy the constitutional obligation that neither chamber can adjourn for more than three days without the consent of the other.

There is no doubt that pro forma sessions are part of business and are recognized as such. It is also evident that they are held so that one chamber does not have to ask the other to adjourn which means they have NOT adjourned. The methods for recess in the Senate are as follows:

In the Senate, the Chair has no inherent authority to declare recesses. Recesses are accomplished only (1) by the full body giving unanimous consent to hold recesses “subject to the call of the Chair,” or (2) by adopting a motion to recess, offered by any Senator from the floor. Wiki Answers

The best I can figure from reading the Congressional Record for the month of December (you have to search with the month parameters), the Senate did not motion for a recess and has been adjourning every three days. I also note that some of the Senators who held the sessions were Democrats. It is possible the Senate adjourned three days at a time because the House was still in session debating the tax cut extension and the Senate did not want to ask permission to adjourn (under the Constitution) so it held pro forma sessions and most Senators left town. Since they never adjourned a quorum to motion for a recess they have been in pro forma sessions every three days. It is interesting to note that the Senate did this because it was unlikely the House would have granted permission to adjourn. It wanted to remain and hash out the tax cut bill. The Senate passed its version and did not want to stay so it used pro forma sessions to avoid having to ask. The leadership of the Senate (Democrats mind you) is responsible for the Senate not being in recess. Don’t expect to see this on the liberal media. They have to blame it all on Republicans.

There is not doubt that these kinds of sessions are the practice of the House and Senate as part of their procedures (procedures they are Constitutionally authorized to enact) so I cannot see how King Hussein is able to do a recess appointment. He does not get to decide if they are in recess or not, they do.

So it looks like Hussein has bombed on several issues of the Constitution. Wasn’t he allegedly a Constitutional law professor?

Of course I am no lawyer and this will have to be settled in the courts. No matter how it all turns out things are going to get uglier than they already are, if that is even possible.

I believe, as do many who have looked at this, that King Hussein has overstepped his authority and has usurped the Constitution.

NPR has an interesting article about it

*If he is going to act like a dictator I will address him as one.

Cave canem!
Never surrender, never submit.
Big Dog


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