By Publius Huldah.
Much misinformation about The Constitution is put out by those who seek to circumvent its clear provisions. In Peter Schroeder’s recent article in The Hill, he reports that David Arkush, director of Public Citizen’s Congress Watch division, makes two arguments which Arkush claims permit the President to make a “recess” appointment of someone (Richard Cordray) whose nomination has already been blocked by the Senate.
Arkush reportedly claims that Art. 2, Sec.3, U.S. Constitution, allows the President to force the House and Senate to adjourn; and then, pursuant to Art. II, Sec. 2, last clause, he would be permitted to make a “recess” appointment of his rejected nominee. 1
Arkush’s next claim is this: The 20th Amendment states that Congress shall assemble at least once a year, with each session beginning on Jan. 3. Arkush says that in order to be able to start a session on Jan 3; Congress would have to have stopped a previous session – and between the stopping of the old and the starting of the new, the President may slip in there and make a “recess” appointment of his rejected nominee!
So! Let us see how easy it is to look things up in Our Constitution. You do not have to settle for the rubbish spewed by others and uncritically reported by journalists. You can find out for yourself what Our Constitution really says.
Look It Up In Our Constitution!
FIRST: What does Our Constitution say about presidential “appointments”? Article II, Sec. 2, cl. 2, says:
…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…[emphasis added]
Do you see? The constitutional scheme is that the President nominates – the Senate confirms or rejects the President’s nomination. This is the “check” which Our Constitution imposes on the President’s nominations. The purpose is to protect us from the loons, incompetents, or toadies whom various presidents have, from time to time, nominated.
NOW let us see what Our Constitution says about recess appointments. Article II, Sec. 2, last clause, says:
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. [emphasis added]
Do you see? The Vacancy must have happened at a time when the Senate was already in Recess!
So! The President may not properly circumvent the Senate’s constitutionally granted power to reject his nominations by means of cheap gimmicks such as forcing the Congress to adjourn, or by waiting until Congress is in recess, to “recess appoint” someone whom the Senate has already refused to approve!
Check It Out In The Federalist Papers!
The Federalist Papers are authoritative on the genuine meaning of Our Constitution, 2 so you always want to see what they say about any clause in Our Constitution. Here is an online edition of The Federalist Papers with a searchable text. If you type in “recess”, you will get hits for The Federalist Papers which use that term.
Throughout Federalist No. 76, Alexander Hamilton explains the reasons for the constitutional provision requiring nominations by the President to be submitted to the Senate for their approval or disapproval. In the last 3 paras, Hamilton points out that the Constitution “requires” the cooperation of the Senate in appointments in order to “check” the President and “to prevent the appointment of unfit characters”; and that “the necessity of its [the Senate’s] co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate [the President].”
Now, let us see what The Federalist Papers say about “recess” appointments. In Federalist No. 67 (next to last para) Hamilton is very clear that Article II, Sec. 2, last clause, means what it says:
…The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”… [caps are Hamilton’s]
Do you see? Article II, Sec. 2, last clause, means exactly what it says. Before this clause even kicks in, the vacancy must have happened while the Senate was in “recess”.
So! The Constitution requires the President to submit his nominations to the Senate for their approval. A President who disbands Congress so that he can circumvent the constitutional provisions which grant to the Senate the power to reject the President’s nominations, is a usurper & a tyrant who should be promptly impeached and removed from office. 3
If the Senate rejects any nomination, the President may not circumvent that rejection by unconstitutional gimmicks such as those proposed by Arkush.
If people wish to show how clever, creative, or original they are, then they should write a novel. When applying Our Constitution, we must display only Obedience.
Now you know how to look things up in Our Constitution and check it out in The Federalist Papers. Political consultants, journalists, TV pundits, talk show hosts, candidates for office, people in Congress, in the Executive Branch, and sitting on Federal Benches don’t know how to do this. So you must do it and spread the Word if we are to restore our Constitutional Republic. PH
1 Article II, Sec. 3 authorizes the President to adjourn Congress only when there is a “Disagreement” between the Houses “with Respect to the Time of Adjournment”. He is not permitted to adjourn Congress so that he may then circumvent the constitutional provisions which grant to the Senate the Power to reject the President’s nominees!
2 See the Minutes of March 4, 1825 of the Board of Visitors of the University of Virginia (Thomas Jefferson & James Madison were present) where they voted to make The Federalist Papers one of the texts books for the Law School. They said:
…on the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independance, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning…. (page 83) [emphasis added]
3 On impeaching the President for usurpations of power – i.e., acting outside the few enumerated powers granted to the President by Our Constitution – see Federalist No. 66 (2nd para) & Federalist No. 77 (last para). PH
Posted Dec. 17, 2011
Postscript added Jan. 28, 2013:
I just skimmed “Noel Canning v. NLRB” (D. C. Cir. 2013) http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf
HENCEFORTH: When I heap scorn on federal judges for not knowing Our Constitution and The Federalist Papers, I will exempt from criticism Judges Sentelle (Chief Judge), Henderson, and Griffith.
I never thought I would see the day when federal judges know and apply The Federalist Papers to Our Constitution, and actually follow The Constitution!
Well done, Your Honors! PH
December 17, 2011 Posted by Publius Huldah | Advice and Consent, Article II, Sec. 2, Article II, Sec. 3, Checks and Balances, Enumerated powers of the president, President's enumerated powers, President's powers, Recess Appointments | 28 Comments
Lawyer, philosopher & logician. Strict constructionist of the U.S. Constitution. Passionate about The Federalist Papers (Alexander Hamilton, James Madison & John Jay), restoring constitutional government, The Bible, the writings of Ayn Rand, & the following:
There is no such thing as Jew & Greek, slave & freeman, male & female, black person & white person; for we are all one person in Christ Jesus.
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WARNING AGAINST A CON-CON a/k/a “constitutional convention” or “Article V convention” or “Convention of the States”: Do not be deceived by the people who are calling for these. Go here and read the warning of James Madison and others. Be sure to read “Twenty Questions About a Constitutional Convention”: http://www.eagleforum.org/topics/concon/
See also this valuable article by Phyllis Schlafly which addresses Mark Levin’s untrue claims about a “convention called by the States to propose amendments”.
In these two articles, investigative journalist Kelleigh Nelson exposes the nefarious forces – on the phony “Right” – involved in the push for an Article V convention. Folks, the leadership at “Tea Party Patriots” is not on your side. Nelson also reveals names of other phonies on the “right”. http://www.newswithviews.com/Nelson/kelleigh136.htm
Dr. Edwin Vieira has reminded us that the “necessary & proper” clause (Art. I, Sec. 8, last clause) vests in Congress the power to make all laws necessary & proper to execute its delegated powers. Since Article V delegates to CONGRESS the power to call the convention, Congress would be within its constitutional authority to organize the Convention anyway it wants, and to appoint whomsoever it wishes as delegates. http://www.newswithviews.com/Vieira/edwin262.htm
John A. Eidsmoe, a law professor who actually knows what he talking about, wrote a fascinating paper on all aspects of Article V: http://publiushuldah.files.wordpress.com/2014/01/a-new-constitutional-convention-by-john-a-eidsmoe.pdf Put this paper in your permanent files!
Do not be deceived by the “scholarly research” of former law professor, Rob Natelson. Natelson trumpets the fanciful theory that alleged “customs” practiced in our “Founding Era” provide binding principles which govern conventions called under Article V of our existing Constitution! But since we have never had an Article V convention, THERE IS NO PRECEDENT. Here is JWK’s excellent expose’ of Natelson’s preposterous theory: http://www.freerepublic.com/focus/bloggers/3062146/posts
Believe no one. You must check everything out for yourself. Our future hangs on your being able to tell the difference between Good and Evil. And on your caring about the difference.
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The Acceptance Con by Selwyn Duke explains (brilliantly) how moral relativism has destroyed our Country. Libertarianism carries within itself the seeds of Destruction. Oh, my Friends, take heed!
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“The sacred rights of mankind are not to be rummaged for among old parchments or musty records. they are written, as with a sunbeam, in the whole volume of human nature, by the hand of the divinity itself, and can never be erased or obscured by mortal power.”
Alexander Hamilton, “The Farmer Refuted”, February 5, 1775.
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“As democracy is perfected, the office of the President represents, more and more closely, the inner soul of the people. On some great and glorious day, the plain folks of the land will reach their heart’s desire at last, and the White House will be occupied by a downright fool and a complete narcissistic moron.”
H.L. Mencken, The Baltimore Evening Sun, July 26, 1920.
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“If the America People do not rise up and defend their Constitution and the intentions and beliefs under which it was adopted, who is left to do so but the very people who it was designed to control and regulate?” Johnwk
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“Any man who thinks he can be happy and prosperous by letting the Government take care of him, better take a closer look at the American Indian.” Attributed to Henry Ford.
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I saw a movie where only the military and the police had guns: Schindler’s List.
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“In religion and politics people’s beliefs and convictions are in almost every case gotten at second-hand, and without examination, from authorities who have not themselves examined the questions at issue but have taken them at second-hand from other non-examiners, whose opinions about them were not worth a brass farthing.” Autobiography of Mark Twain
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PERMISSION to re-post: You may re-post my papers on your own sites, provided you do not change the text, retain all the hyperlinks, and have a link back to my website. However, since I periodically revise my papers, the better practice is to post a para or so and have a “continue reading here” which links to my site. That way, your readers will have the most recently revised edition.
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Where do Rights come from? God? The Constitution? The supreme Court? Or the “government”? I’ll show you. It is important that you understand. (videos in two parts totaling 22 minutes)
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To the Department of Homeland Security:
I am delighted to learn of your intense & increasing interest in learning the original intent of Our Constitution! Please feel free to browse around to your hearts’ content.
Also, if any of you have questions as to the original intent of any provision or provisions of Our Constitution, please feel free to post your questions.
To learn Our Constitution, you will need to get a copy of The Federalist Papers; and for word definitions, Webster’s 1828 Dictionary of the American Language. You can find The Federalist Papers on line; and here is an online copy of Webster’s 1828 Dictionary: http://webstersdictionary1828.com/
As I trust you know, word meaning are like the clouds: meanings change as time passes. So, naturally, we want to focus on the meanings enjoyed by Words during the Era of our Founding.
OK! Here is your homework assignment: Get a hard copy of The Declaration of Independence and our Constitution. Read them cover to cover. Using different colored pencils, highlight (1) the powers of Congress, (2) the powers of the Executive Branch, and (3) the powers of the judicial branch.
With a 4th color, highlight all references to God in both Documents!
Please pay particular attention to what the Declaration says about the SOURCE of our Rights. Mark that with a 5th color.
Surprising, isn’t it?
Oh! You can get pocket copies from the Cato Institute, the Heritage Foundation, etc. I think Heritage sells them in bulk – really cheap – so you can buy lots and distribute them to your co-workers, family and friends.
Again, do not be shy about posting your questions! I am just a little old lady, and do not bite.
Kindest regards, Publius Huldah.
Publius Huldah explains when Nullification of unconstitutional acts of the Legislative, Executive, or Judicial Branches of the federal government is required by Article VI, clause 3, U.S. Constitution.
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- Mark Levin’s “Liberty” Amendments: Legalizing Tyranny
- Article V Convention: How “Individuals of Insidious Views” Are Stealing Our Constitution
- Balanced Budget Amendments (BBA) Gut Our Constitution And Don’t Reduce Spending
- Balancing the Budget? Or Adding A National Sales Tax To The Income Tax?
- Propaganda And The Conspiracy against Our Constitution
- The “Convention of States” Scam, the War over the Constitution, and how the States Sold the Reserved Powers to the Feds.
- Mark Levin Refuted: Keep the Feds in Check with Nullification, not Amendments!
- Restore The Constitution We Have By Learning What It Means!
- Impeachment: All you need to know (and you do need to know it).
- Parental Rights: God-given and Unalienable? Or Government-granted and Revocable?