Publius-Huldah's Blog

Understanding the Constitution

Recess Appointments by the President: What Our Constitution Really Says.

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!

Rubbish.

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 nominatesthe 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

Endnotes:

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

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December 17, 2011 - Posted by | 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 »

  1. […] Recess Appointments by the President: What Our Constitution …Dec 17, 2011 … 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 … […]

    Like

    Pingback by Recess sec | Harvardunivers | July 9, 2012 | Reply

  2. It takes only a page or two to tell the truth about what our Constitution says about presidential nominations and confirmation by the Senate.

    It takes 23 pages to lie about it: justice.gov/olc/2012/pro-forma-sessions-opinion.pdf

    I linked to the lie, but it isn’t worth reading. We need to vote those Constitution violators out of office.

    Like

    Comment by Publius/Huldah | January 12, 2012 | Reply

  3. Here’s the problem with your analysis. 1. It narrowly construes the appointments clause. The vacancy can occur prior to recess. 2. The checks and balances issue is true – but because the recess appointment expires at the end of a year, this concerns are ameliorated. Finally, the SCT relies upon prior practice of Congress and the Presidents, plus the language of the Constitution to determine the extent of executive power. See Youngstown Sheet. There is a clear history of the recess appointment and Congress subsequently approving the individual for additional terms. This helps to understand and contextualize the text you are trying to interpret. See Dames and Moore v. Regan.

    Like

    Comment by tony smith | January 5, 2012 | Reply

    • You ignore what the Constitution says!

      We receive daily evidence that Congress, the president, and federal judges ignore the Constitution and do what ever they want! All you have done in your post is to tell me what I already know: Congress ignores the Constitution. The Presidents ignore the Constitution. Federal judges don’t seem to have ever read it.

      Did YOU read the Constitution when you were in law school? Have you ever read it?

      Like

      Comment by Publius/Huldah | January 5, 2012 | Reply

  4. My question is “Was Richard Cordray blocked by vote or is it another one of the secret hold things?

    Like

    Comment by Looneysam | January 4, 2012 | Reply

    • Well, Looney, I am not sure that I understand your question.

      Article I, Sec. 5, clause 2, U.S. Constitution, states, “Each House may determine the Rules of its Proceedings…” If Republicans in the Senate, following the rules of the Senate, blocked the nomination of Cordray – then, under the Constitution, Cordray’s nomination is not confirmed by the Senate.

      So obama violated the Constitution when he appointed Cordray anyway.

      Obama’s violation of the Constitution renders him properly subject to impeachment, trial, conviction and removal from office for his usurpation. See, e.g., Federalist Paper No. 66 (2nd para) and Federalist Paper No. 77, last para.

      Like

      Comment by Publius/Huldah | January 4, 2012 | Reply

      • Hear, hear…let the hearings begin. The man is under the illusion he was named Dictator, not elected President.

        Like

        Comment by Bob Mack | January 4, 2012 | Reply

        • Hi, Bob Mack! What is so distressing is that no one whom I have heard on FOX news seems to understand what OUR CONSTITUTION says about “recess appointments”; and I haven’t seen articles which reflect an understanding of what Our Constitution says about this. Obama could be properly impeached, convicted, & run out of office for this, but only a handful of us seem to know this!

          Like

          Comment by Publius/Huldah | January 4, 2012 | Reply

  5. […] Recess Appointments by the President: What Our Constitution Really Says. « Publius-Huldah’s B… 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. […]

    Like

    Pingback by New and Noteworthy for Today, January 4, 2012 - Survival Blog With A Family Focus | January 4, 2012 | Reply

  6. Well, with Congress out of session and Obama out of town, the augurs foresee a happy holiday season. Here’s wishing you one.

    Like

    Comment by Bob Mack | December 24, 2011 | Reply

    • Thank you, and the same to you, Bob!
      Is that Dennis Miller on your avatar? He is so funny…

      Like

      Comment by Publius/Huldah | December 24, 2011 | Reply

      • It’s just an old pic of me that I ran through a 3D face modeler, then cartoonized. I wish I had Dennis Miller’s facile vocabulary (& maybe a few of his excess dollars…)

        Like

        Comment by Bob Mack | December 24, 2011 | Reply

        • Well, you are a handsome fellow! Miller does have a quick wit – he’s my favorite guest on O’Reilly.

          Like

          Comment by Publius/Huldah | December 24, 2011 | Reply

  7. I like how you just ban people who disagree with you on things (you friended me on Facebook after you liked my blog, and then ban me because I like Ron Paul). Anyway you have an “ask questions” section so my questions are:

    Have you read the “anti-federalist” papers? If so what are your thoughts on their understanding that ratifying the constitution and scrapping the articles of confederation was a centralizing move stripping the states of their power?

    Furthermore, if the constitution is a document limiting the power of the federal gov’t why are we 17 trillion dollars in debt, have an empire, and a giant welfare/nanny state here? All of which those so called strict constructionist conservative judges in the SC say is just fine and dandy.

    I asked these questions all you did was call me names like “ignorant” and ban me, you’ll probably just erase this comment, rather than deal with this intellectually and honestly. But in doing so you erase all pretense of being an honest person dealing with ideas and reveal yourself to be nothing more than a partisan hack who can’t talk once you’re off your track and can only reply to differing viewpoints with pejoratives like “stoopid” or “that’s crap” rather than intelligent rebuttals.

    Like

    Comment by Bob | December 24, 2011 | Reply

    • Bob! As is typical of Ron Paul fanatics, you misunderstand my always clear words.
      1. I did not block you on my FB Page b/c you support Ron Paul. I blocked you b/c you persisted in posting ignorant rants about The Constitution.

      2. Anyone who says the U.S. Constitution “stripped the States of their powers” does not know what he is talking about. I suggested (for starters) that you read my paper on Congress’ Enumerated Powers and my two papers on why the Balanced Budget Amendment is a terrible idea. Apparently, you decided you did not want to learn the Truth – but just wanted to repeat the rubbish you already believe.

      I understand how it works. You think that what you already believe is true b/c you believe it. But I’m telling you that what you believe is true, just ain’t so. The proof that what you believe just ain’t so is laid out in all my papers. I write them so that The Folks can understand them. For the best overview of what the Constitution means and how it works, read the 3 papers before mentioned.

      3. Why are we trillions of dollars in debt? If you had read my two papers on why the Balanced Budget amendment is a terrible idea, you would know the answer. Why do we have a nanny welfare state? Read my papers on the so-called “general welfare clause”, as well as the previously mentioned ones.

      4. I said you are “ignorant” b/c you were insisting on a position about the Constitution which is demonstrably FALSE. I gave you a lifeline – the 3 papers – and you spurned it. And then you repeated more of the standard ignorant rubbish which comes from Ron Paul supporters. The rubbish you recited is the standard stuff I hear all the time from people in your particular ideological group. SOMEBODY has been feeding you guys a pack of lies. And it is a crime b/c it blinds you to the miracle of our glorious Constitution. If you would trouble yourself to learn the Truth, you would see this.

      5. In my papers, I PROVE that the things you say about The Constitution are simply false.

      6. We are in the mess we are in for the reason that we all have been ignoring the Constitution for a very long time. To restore the glorious constitutional Republic our Framers gave us, we must return to The Constitution.

      Like

      Comment by Publius/Huldah | December 24, 2011 | Reply

      • Well, all I’ll say is that I’m with Patrick Henry and the anti-federalists, I’d encourage you to take the time to understand differing viewpoints rather than adolescently slander those who disagree with you as if truth begins and ends in the region between your tow ears. Good day.

        Like

        Comment by Bob | December 24, 2011 | Reply

        • See? You reject Knowledge. You want to hang on to what you already believe. You are the problem. You demonstrate obstinate ignorance.

          Read the linked article and see if you do not see yourself described. You did not have to be this way.

          davidbahnsen.com/index.php/2011/12/20/the-attraction-of-ron-paul-to-the-mediocre-among-us/

          Like

          Comment by Publius/Huldah | December 24, 2011 | Reply

          • Which candidate do you like? Or, if the answer is none, who would you appoint to the presidency had you the power?

            Like

            Comment by Frank | January 8, 2012

          • Alas, none of them. I have eliminated all of them based on the unconstitutional programs and destructive amendments they have advocated during the debates, as well as what I know of their records and moral characters. I don’t think any of the announced candidates are worth a dime.

            I’d prefer Sarah Palin to any of them. At least she understands that some things are “not the federal government’s job”, and that we need to DRILL FOR OUR OWN OIL! And she is a reformer.

            Added at 10:22 p.m. Frank, I don’t know everything. It may be that one or two of them wouldn’t be as bad as I think. But I don’t think we would see any change in direction from any of them. But I could be wrong. All We can do is do our best to find out who is the least bad and vote for him.

            Like

            Comment by Publius/Huldah | January 8, 2012

          • I just found your website and I’m really enjoying reading your commentary.
            I just want you to know that I support Ron Paul and I understand the Constitution just as you say. I agree, Congress’ powers are enumerated and limited.
            I also believe Ron Paul is the only candidate who will do his best to pull Americans back to our Constitution and founding principles all the while dodging, with no help from the LSM, their kicking and screaming.
            Thought you should know that not all Ron Paul supporters are ‘anti-federalists’.
            Though I must admit, I pretty much despise Hamilton and will never understand what George Washington saw in him. I’m definitely a Jeffersonian.
            Oh, I don’t see anything written on the Marbury case. I’ve read several opposing commentaries, some pro some anti, and my ‘existentialist’ self (haha, read your Rubio piece that I very much enjoyed) ‘feels’ it was a power grap by SCOTUS. The final decision on anything should, IMHO, rest with The People and not 9 dudes we never elected.
            Thanks for a very informative and interesting site.

            Like

            Comment by icouldahad | January 26, 2012

          • Dear icouldahad,

            It sounds as if you have been reading the poison spewed by Lew Rockwell & Thomas DiLorenzo. Many people repeat that stuff; and I am sorry to say, many of the Ron Paul supporters have been deceived by it.

            DiLorenzo has been very busy promulgating lies about Alexander Hamilton. Hamilton wrote most of The Federalist Papers. Those Papers are essential in order to understand the original intent of Our Constitution.

            If we don’t go by that original intent, then the judges interpret Our Constitution however they please. And indeed, about 100 years ago, the notion that the Constitution means whatever the supreme Court says it means took over this land.

            I am trying to restore the original understanding of Our Constitution, and thus rely on The Federalist Papers to demonstrate that original intent. Alexander Hamilton wrote most of the Federalist Papers. DiLorenzo is the leader of the attack on Hamilton. He promulgates the most vicious lies about Hamilton. Unfortunately, there are people in this Country who glory in the joy of hating a man – Hamilton – who is vastly their intellectual superior. DiLorenzo feeds that hatred.

            By telling lies about Hamilton – the author of most of The Federalist Papers – DiLorenzo undermines our greatest tool for understanding the original intent of Our Constitution.

            DiLorenzo is thus the queen termite who is undermining our Constitution. And while undermining Our Constitution by trashing Hamilton, he manages to fool people on our side into thinking that he is a conservative. I come across many men on the internet who parrot DiLorenzo’s lies about Hamilton, and hence refuse to read what Hamilton actually said in The Federalist Papers.

            I quote Hamilton all the time! Read my papers, and you will see that WE NEED HAMILTON to understand Our Constitution. You need to see what Hamilton actually said – in his own words – not what others say about him.

            And I discuss Marbury v. Madison under the Category: Original and appellate jurisdiction.

            Like

            Comment by Publius/Huldah | January 26, 2012

  8. […] Publius Huldah has done the hard work for us …. […]

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    Pingback by Recess Appointments: Getting Around The Senate « Tarpon's Swamp | December 20, 2011 | Reply

  9. Thanks, Huldah, for another “explanation”.
    For God & Country
    Ruth Ann Wilson

    Like

    Comment by Ruth Ann Wilson | December 18, 2011 | Reply

  10. PH, I strongly suspect the framers would have defined “extraordinary Occasions” to that of declaring war and major natural disasters had the Constitution been written in this century. To negotiate a treaty, vote on it and both parties sign it…. had to take months in the 1800 century. So I can see why Hamilton used promptly ratifying treaties as an example. Congress can convene in hours now, instead of the days or weeks it took in the 1800’s.There is no way the framers could have envisioned the speed of travel & communication in today’s world. The changes in the speed of travel & communication even in my lifetime has been significant.

    Thanks for making learning the meaning of the constitution so interesting.

    Like

    Comment by Spense | December 17, 2011 | Reply

  11. PH, well done as usual…. I do have one question about Art 2, sec 3… where is states the president may, “on extraordinary Occasions, convene both houses, or either of them”

    I have to believe an “extraordinary occasion” would be if we were attacked or an attack was considered eminent , but is it limited to that?

    Like

    Comment by Spense | December 17, 2011 | Reply

    • Thank you, Spense! As you know, the power to “declare War” is vested in Congress alone (Art. I, Sec. 8, cl. 11). So, if – at a time when Congress was in Recess- the President thought Congress needed to declare war, it would be – as you have already so clearly seen – appropriate for the President to convene Congress.

      In the next to the last para of Federalist Paper No. 77, Hamilton says that it might be necessary for the President to convene the Senate if a Treaty needs to be promptly ratified.
      [Note: I found No. 77 by typing “extraordinary Occasions” in the search box at the on-line Ed. of The Federalist papers I use.]

      Our Constitution does not define “extraordinary Occasions”, and neither do The Federalist Papers. I expect our Framers realized that they could not anticipate every contingency which might necessitate the convening of Congress. So there is some flexibility here. But remember, a President who abused the power to convene Congress could be made to pay dearly for it!

      Like

      Comment by Publius/Huldah | December 17, 2011 | Reply


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