Why Obama’s “recess” appointments are unconstitutional

I want to make sure this is documented here for my own record as this is crucially important. The Constitution gives the power to the President to make recess appointments when the Senate is in recess:

Article II, Section 2: – 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.

So in order for Obama to make recess appointments, the Senate must be in recess. Here’s what the Constitution says about that:

Article I, Section 5: 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.

So in order for the Senate to recess more than three days, it must have the consent of the House. But that hasn’t happened, according to the Washington Examiner:

This presents a problem for President Obama, who claims to have just made a recess appointment when the Senate is not actually in recess. The Constitution says the Senate cannot recess for more than three days without the House’s permission. The House has not granted permission, and as a result both houses have been holding pro forma sessions out of constitutional necessity.

There is an argument that pro-forma sessions are just a sham. Obama is not the first to make it. I don’t find it very persuasive, but it’s an argument that some very smart people make.

Yet in this particular case, in which the House has not consented to a Senate recess, the pro forma session does not seem to be the issue. The Constitution is the issue. Without the consent of the House to adjourn for more than three days, the Senate is in session, whether it wants to be or not.



And to top this off, Obama’s own Deputy Solicitor General argued in the Supreme Court in 2010 that Obama could not make a recess appointment unless the recess were longer than three days (via Washington Examiner):

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?

MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board. If there are no other questions –

CHIEF JUSTICE ROBERTS: Thank you, counsel.

Obama’s own lawyers argued on his behalf, to keep the NRLB operating without its nominees being appointed, that Obama was unable to recess appoint because the Senate had not been in recess for longer than three days.

But now, Obama argues that the Senate is in recess to fit his agenda, when it is clearly not.

So this is why Obama has violated the Constitution and why you should care. It’s a recess appointment today. Who knows what it will be tomorrow.

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Anonymous
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Anonymous

If this and a myriad of other decisions this guy has made are unconstitutional, why is NOONE trying to get this guy impeached or at the very least suing him to stop/reversing with these insane policies he is putting in place. I am tired of everyone saying what he does is unconstitutional but noone that is in a position to do anything to stop him doing it… WHY???? It’s not good enough for me to have everyone spewing this stuff if they are not going to act on it. It is either unconstitutional and something can and SHOULD be done to stop it or it’s not and we should quit saying it is. I believe in the constitution and put my trust and faith in those that are more educated in it they I to be honest in their accusations. It is starting to make me question if these are… Read more »

Anonymous
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Anonymous

Only flaw I see here is the presumption that the obamessiah could care about the constitution, or take actions in accordance with it.

Anonymous
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Anonymous

AS more and more CONSERVATIVES and true AMERICANS WAKE UP and see the MONSTEROUS TRAITOR in the white house, somebody will have to “END IT”,permanantly!

Anonymous
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Anonymous

Who died and made Obama the King?

Anonymous
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Anonymous

Can anyone explain to me why congress has not filed for impeachment ?
This dictator has run amuck along enough !

Anonymous
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Anonymous

They have not nor will they because the Elite GOP’s are in bed with the Dems. and both have similar goals in maintaning the status quo, and they are all GUTLESS COWARDS!

Anonymous
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Anonymous

Is there a single man or woman in Washington with enough [email protected] to take on Obama and challenge him in this Constitutional crisis? Call for impeachment or, at the very least, ask the courts to issue a cease and desist order against the tyrant.

Anonymous
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Anonymous

Must be good to be King!

Constance
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Constance

And, in addition, RS, the House and Senate are equally complicit in this by standing by and doing nothing about it. There should already be a legal challenge mounted, the representatives and senators should be out screaming on the news channels about it, and BO should be forced to explain day in and day out his decision. Nothing will be done about this. It isn’t just Obama. It’s all of them.

StNikao
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StNikao

IN AMERICA, Law is King. – Thomas Paine

Just not in Obama’s America. He views his election and inauguration as a coronation into rulership, not an office – and a personal mandate to do whatever his ideology, sponsors and ego desire and demand.

Law and Constitution be da-ned.

StNikao
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StNikao

PS – I would add to that, the LAW of GOD is the basis for US Law and Consitution…at one time.

We now have laws (enacted by godless men) that enable us to break all of the Commandments and some that would force us to do so.

StNikao
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StNikao

“…Sin IS lawlessness” – I John 3:4

kong1967
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kong1967

“Who knows what it will be tomorrow”.

If he gets elected to a second term we will see Obama unleashed. He will ignore the Constitution at will.

FillmoreBrown
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FillmoreBrown

Impeach and imprison!

Allen Poe
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Allen Poe

Impeach. or, be destroyed.

JD2020
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JD2020

Make your voice heard, directly to Boehner.

http://www.speaker.gov/blog/?postid=273766

JD2020
Member
JD2020

Sorry if this is too long but it is worth the read. THEN-SEN. BARACK OBAMA (D-IL): •Recess appointments ‘the wrong thing to do.’ “‘It’s the wrong thing to do. John Bolton is the wrong person for the job,’ said Sen. Barack Obama, D-Ill., a member of Foreign Relations Committee.” (“Officials: White House To Bypass Congress For Bolton Nomination,” The Associated Press, 7/30/05) •A recess appointee is ‘damaged goods… we will have less credibility.’ “To some degree, he’s damaged goods… somebody who couldn’t get through a nomination in the Senate. And I think that that means that we will have less credibility…” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05) SEN. HARRY REID (D-NV): •‘An end run around the Senate and the Constitution.’ “I will keep the Senate in pro forma session to block the President from doing an end run around the Senate and the Constitution with… Read more »

CitizenHill
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CitizenHill

The very first thing that the Speaker of the House should say is; not so fast O’bama, you’ve not the authority to over-ride the constitution and if you attempt to do so, we’ll impeach your sorry ass.
The Republicans need to grow some balls and take decisive action. . . all them seem to be are a bunch of whinny, mealy mouth wimps!

kong1967
Member
kong1967

Well, they did put Mr. Crybaby at the helm. The guy that gives in on everything.

CitizenHill
Member
CitizenHill

True

Nukeman60
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Nukeman60

Thank you, Scoop. I took that God-awful picture of Obama giving us the finger with his look of contempt and put it as background on my computer. I’m going to leave it there until he’s removed from office, one way or another. Then, and only then, will I remove it from my screen and breathe easier again.

Anonymous
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Anonymous

I wish I had your perseverance. I would end up knocking my computer off the desk and beating it with a baseball bat after a couple days.

Nukeman60
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Nukeman60

I figure when I get frustrated and want to throw the remote at the TV, I can look at the computer screen and realize the TV’s not so bad. Besides, his arrogance gives me renewed resolve. We’ll see how long I can last with it.

Anonymous
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Anonymous

Good luck.

Nukeman60
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Nukeman60

My apologies. I got up this morning, turned on my ‘puter, and saw Obama staring at me with that glare of his. I felt like I had ‘morning sickness’ and had to take it off. I thought I was a stronger person than that!

Oh well, I’ll have to find other, more productive ways to toughen my resolve about getting this POS out of office. You were right from the start. Thanks for the warning.

PS- good thing I didn’t have that baseball bat.

Anonymous
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Anonymous

You should try using Dan’s avatar, to the point, yet not overwhelming. smile

Anonymous
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Anonymous

LOL a whole couple of days? Don’t you mean couple of minutes?

Anonymous
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Anonymous

He’s baaaaack: Obama recess-appoints Dodd-Frank czar
http://michellemalkin.com/

By Michelle Malkin • January 4, 2012
Well, he made good on one promise for once.

President Obama has defied the Senate’s rejection of Dodd-Frank czar Richard Cordray and recess-appointed — just as he threatened last month and just as Soros operatives pushed him to do for months. The White House trumpeted the strong-arm move this morning.

One Republican Senator Supports Obama Recess Appointment of Cordray

U.S. Sen. Scott Brown said he supports President Barack Obama’s decision to name Richard Cordray as the nation’s chief consumer watchdog despite the objections of Brown’s fellow Senate Republicans.

Rshill7
Member
Rshill7

Hey if Brown is behind it, I’m on board…of the bandwagon bent on exposing he and all of the other pseudorepublicans we’ve got. Have we got some primaring to do or what? Something about the zip code DC is located in has this power to neuter, scare, control, members of congress.

Wouldn’t you like to know what it is? This is like a movie that freaks you out a little…or a lot. Presidents before had the decency not to do these kinds of things. Stress the system, overwhelm it. This seems like that. Alinsky living in the White House. Reincarnated as O’ and others.

It’s a dis-grace is what it is.

Anonymous
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Anonymous

I think that movie is The Blob, big government eats everything it comes in contact with and grows more with each morsel it sucks in.

We need to freeze it to stop it. I hope the ice won’t be completely melted by the time we get to use it.

patriot077
Member
patriot077

If I recall correctly he was one of the few R’s that voted for that monstrosity of a “reform” bill. Not surprised at all. The only reason I would still support him is that Elizabeth Warren, who is running against him, is far, far worse than him.

She doesn’t think anyone is entitled to the fruits of their labor – quite the reverse, they owe society for their success.

Rshill7
Member
Rshill7

I’d like to give him the benefit of the doubt but doubt there’d be any benefit to it.

These folks are too dumb too understand that if there ain’t no fruit, there won’t be no labor. That’s when the whips come out and fools try to run businesses…folks like Robert Reichchchchchchshuh!

B-Funk
Member
B-Funk

I sincerely hope I’m not getting desensitized to all of this nonsense, but this doesn’t surprise or shock me. I’m not even mad. I’m just feeling determined to get this sham of an administration replaced with people who care about being accountable.

NYGino
Editor
NYGino

The administration should be able to be replaced by the electoral process. I say “should” because the way this one operates and ignores the law it might take other measures. The other problem is the imbedded bureaucrats that are not subject to electoral change and can hinder and hurt a patriotic administrations attempts at bringing our country back to being one that abides by the laws of the land and respects the Constitution. The State Department is a prime example.

Nukeman60
Member
Nukeman60

Everybody here brings up excellent points. So, then, with all the facts pointing to this being unconstitutional, why isn’t SOMEBODY in the Congress doing anything about it?

Most certainly, Obama wants to make the Congress obsolete and if they don’t jump on this, they soon will be.

NYGino
Editor
NYGino

Nukeman60, I’ve asked that same question numerous times and am still without an answer.

JoeKidd
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JoeKidd

Barack Obama is NOT “lawful authority.” The Constitution is. And he has knowingly violated it, even by the testimony of his own solicitor general. On this front and many others, the man must be stopped. Period.” ~Quin Hillyer
Source for quote: Obama The Tyrant Must Be Stopped — The American Spectator
http://spectator.org/blog/2012/01/05/obama-the-tyrant-must-be-stopp

K-Bob
Editor
K-Bob

Hillyer was anti-Palin before being anti-Palin was “cool.”

PunditPawn
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PunditPawn

The lawsuits of companies affected by Obama’s illegal appointees policies will happen rapidly, and his appointees actions will never withstand any reasonable court challenge.

Anonymous
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Anonymous

Isn’t ironic that the President’s oath is to protect and defend the Constitution?

He also now has the power to detain and arrest any American if he so chooses.

He brought socialized medicine to America.

He is quietly creating national data bases to maintain electronic records for every American. The Washington Examiner has been reporting on HHS plan for access to all of our medical records.

America has always been the beacon of hope for those who sought freedom and valued individual liberties.

Let’s call for the restoration of American principles and hope that we will prevail in 2012.

Allen Poe
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Allen Poe

Once more to the breach. While you are busy nitpicking, Obama is placing in order, bosses that do only Ob’s commands, that includes military. People that will control the USA dollar. People who will always be Obama’s Quizlings. People who control your food supplies. People who control your movements. People who make money, denying your you rights. Call your reps, and Senators. Send EM’s to your eletecd officials. Call your police, FBI, CIA. Let Obama know we are after him.

cottontufts
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cottontufts

It does not take an attorney to tell what the Constitution says, educate yourself with a little background on the Constitutional Convention, a reading of the Federalist Papers, and a carefull reading or two of the Constitution itself, and you will be better able to interpret the Constitution than most lawyers and politicians.
And you should know the Constitution better than the lawyers precisly because this country is full of professional lawyers, and politicians!

Rshill7
Member
Rshill7

Here’s what really bothers me with O’, among many other aspects of he. It isn’t unconstitutional until the Supremes rule it unconstitutional. In other words, someone “with standing” must be aggrieved or harmed in some way in order to file suit against a law as unconstitutional. In the O’ birth certificate lawsuits, they were all struck down before hearing and therefore could not proceed because no one with standing filed suit challenging his birth certificate or lack thereof. It seems to me that each and every citizen would have standing in such a suit but appears as if the courts didn’t hold to that standard. It appears that only he or she who was running against O’ in an election would have standing. So, many unconstituional laws and acts go unchallenged and as such go about their merry way unconstitional or not. There needs to be a better way. A… Read more »

patriot077
Member
patriot077

It’s this blatant disregard for process and constitutionality that gives me the willies to think of a re-election. The consequences of an unfettered lame duck prez, who gives not a fig for the voters, are too horrible to imagine.

Anonymous
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Anonymous

Still more….The office to which is being filled was never filled by anyone ever because it’s a brand spanking new position. In order for it to be called a recess appointment, someone must have already BEEN in that position and to have stepped down or passed on as in death. Since neither is the case, a recess appointment doesnt apply. Constitutionally speaking, Dear leader hasn’t the authority even if recess was declared by the House and Senate. Furthermore as it has already been brought up, the law clearly states that the Senate shall confirm the appointment so th eposition doesn’t really exist until the Senate confirms an individual to the position. Which came first the chicken or the egg on Dear Leader’s face. Furthermore, the stupid idiotic law guiding this consumer czar is unconstitutional from the get go and why these retards don’t challenge it is beyond sanity. Perhaps, in… Read more »

Anonymous
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Anonymous

We think alike and obviously on the same page.

God Bless America, may We the People save her!

Anonymous
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Anonymous

Just making sure we all see the same thing but it sure looks like PBHO is giving us all the finger. Yes? No?

Nukeman60
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Nukeman60

He does that quite a bit; when giving a shoutout to a member of the opposite party, when talking of an opponents qualities, when asked a disturbing question, etc.

StNikao
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StNikao

Here is a partial list of Obama’s breaches of the Constitution and order: “Obama, First President to…”
http://www.blogger.com/comment.g?blogID=6034478&postID=2454218438309937304&page=1&token=1325511857352

Bet you all could add to it.

Anonymous
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Anonymous

Impeach and Imprison or the Comrade will take over America with the assistance of his Czars!

American Duckie
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American Duckie

I…..M……P……E……A……C……H dear leader. He swore to uphold the Constitution, and since his occupation of the White House, he and his sycophants have trashed, walked on, worked around and willfully ignored it. Someone in our congress needs to have a hard enough spine to start proceedings. The voters need to get on the phones and demand dear leader’s removal.

MJS
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MJS

We have to wait till he’s re-elected and we have the numbers in the Senate.

Anonymous
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Anonymous

Because MJS is actually an Obama campaign troll here to convince us that none of our candidates are any good so we may as well stay home and let Obama have a second term. What if the repubs lose seats in the 2014 mid-term? It’ll be impossible to stop him them. He has to be voted out this year! Period!

MJS
Member
MJS

Far from it, I’m a solid Constitutional Conservative.

I’m calling it like I see it. I look at the map, everyone is talking about Romney, and I explain for a variety of reasons why he is the worst choice and why I can’t support him.

We will pick up seats in the House, but there will be a lot of replacing Tea Party people who didn’t live up to their promises and were corrupted by Boehner. They should be replaced with REAL Conservatives-SOLID ones. We will win the Senate, but we must have SOLID Conservatives in there.

Unless Perry comes back in SC or Newt destroys Romney, Romney will go on to win the nomination and lose in the general.

Allen Poe
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Allen Poe

No we don’t.

MJS
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MJS

Sure we do, when he keeps pushing his line-stepping see what citizens do

MJS
Member
MJS

Sure we do, when he keeps pushing his line-stepping see what citizens do

Proud American
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Proud American

What’s the legal recourse? Cry Baby Boehner won’t do anything, he will tuck his tail under his hind legs and run for the corner.

NYGino
Editor
NYGino

Would that be before or after he plays another round of golf with him?

nuffsaid
Member
nuffsaid

Great photo. My guess is that the silk-suited, Re-election-publicans will not dare raise a finger against you.

Here’s the best part- You know that we. decent freedom-loving Americans have the moral and legal high ground here, but like Hugo Chavez, the truth is not much more important than Muslim wife #2.

Oh those Republicows’ll puff and bluff and hold town meetings and send out requests for donations and maybe even print up some bumper stickers. I probably don’t have to remind a great bull-s****** like you that these bulls have already been castrated. I look forward to watching as you grind these RINO’s into hamburger. Maybe you can squeeze a tear or two from Boehner as he remembers his mom.

DaMz
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DaMz

Time to take it to the streets people , nuff with this sitting around taking it up the yang. We need to go back to (peaceful) protests with the teaparty and make some noise.Light up the phone lines and emails. I know its all been done before but its push back. Right now they see us as having given up and they are winning. Which is very dangerous right now. This man is power HUNGRY. Get pissed FIGHT. and please stop fighting eachother during these primary’s, they are using it to weaken us. Divide and conquer, the oldest trick in the book.

Anonymous
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Anonymous

This is very telling…

Article II, Section 2: – 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.

The Financial oversight is a NEW position. A new position does not expire.

Goldni007
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Goldni007

I missed that. Good point.

Anonymous
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Anonymous

I stated this in my post as well.

patriot077
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patriot077

And since the vacancy did not happen during the recess of the Senate, is the appointment therefore even more fraudulent?

It’s my understanding that all recess appointments are good only for the remainder of the congressional session.

JoeKidd
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JoeKidd

I’m not sure how much of a difference there would be if Obama actually intended on being the very last American president ever. Just sayin’…

StNikao
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StNikao

That thought has come to my mind. And the scene at the end of the Planet of the Apes movie.

He’s really acting like a muslim conquerer. Rape (attack on morality, morale, terror, threat, bullying), murder (9/11, mismanaged war), pillage (bailouts, trillions in debt, none of it accounted for), burn (WTC 9/11).

StNikao
Guest
StNikao

Addendum:

Rape (attack on morality, morale, terror, threat, bullying), murder (9/11, mismanaged war, *abortion*), pillage (bailouts, trillions in debt, none of it accounted for), burn (WTC 9/11).

TC_LeatherPenguin
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TC_LeatherPenguin

I’ve been close to punching people out over the Section 5 clause, trying to explain to them that the pro-forma Senate sessions are Constitutionally mandated, not “a gimmick.” It was a gimmick when Reid did it to thwart Bush2 from making recess appointments (following Bolton’s appointment), but now Reid–NOT the Republicans–was legally required to hold those sessions or Boehner could impeach his ass.

NickDeringer
Member
NickDeringer

Senator Mitch McConnell issued a list of quotes from One-bama illustrating the shameless hypocrisy and arrogance of this Dictator in Chief.

THEN-SEN. BARACK OBAMA (D-IL): Recess appointments ‘the wrong thing to do.’ “‘It’s the wrong thing to do. John Bolton is the wrong person for the job,’ said Sen. Barack Obama, D-Ill., a member of Foreign Relations Committee.” (“Officials: White House To Bypass Congress For Bolton Nomination,” The Associated Press, 7/30/05)

Source: Powerline

Let’s not forget what One-bama did with Lybia and the “kinetic military action” and his failure to get authorization from Congress.

But Scoop asks the most important question:

Who knows what it will be tomorrow.

We need to take this election seriously. We are not picking a new puppy. We are picking the leader of the free world. And if One-bama is reelected, our world won’t be very free.

Anonymous
Guest
Anonymous

We would better off arming ourselves with everyhthing we have now and getting over to DC and waste the bastards before we lose the oppurtunity whilst he’s still weak. Not holding my breath for this to happen even if Dear Leader came forth tomorrow and declared himself president for life.

If anything is a sure thing, the people will just bitch and go back to their fields.

NickDeringer
Member
NickDeringer

I think we’re a long way from armed conflict.

MJS
Member
MJS

?? will you say that when obama is re-elected?

NickDeringer
Member
NickDeringer

Will you take up arms if he is?

Anonymous
Guest
Anonymous

I’ll create a diversion, you run him through. Poor eyesight has limited me to that. Are you in?

NickDeringer
Member
NickDeringer

Sure

Anonymous
Guest
Anonymous

No. He’ll be kissing Obama’s hind-end

Allen Poe
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Allen Poe

Yes, if I have to crawl up to the line.

Allen Poe
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Allen Poe

Sadly, I agree. Our forefathers would have already set up camp. Yes, i know, the USA has changed. for the better? I think not.

NickDeringer
Member
NickDeringer

We have the power to change it back. I support Perry because he’s NOT another Washington Insider. He won’t fix everything, but he will get us started on the right road.

Perry/Rubio 2012 because the last thing we need is a Washington Insider guarding a town full of Washington Insiders.

Anonymous
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Anonymous

did mr speaker actually do something proactive in favor of us americans?

Anonymous
Guest
Anonymous

Great picture of Bam….shows him for what he is and what he thinks of us and America.

MaxSteele
Member
MaxSteele

Yes, thank you TRS for posting. It is my interperatation of the recess clause that it is just there for an emergency. For example, say both houses are recessed for vacation and then an important position becomes vacant without warning (say a death) then it allows the president to fill that position until the end of the term where the person then has to go through the due process.
It is not there for the president to attempt to bypass the senate or congress and appoint people he wants into positions.
If there are any attorneys out there or constitutional experts I would like to hear what the interpretation is as it seems pretty obvious to me.

Allen Poe
Guest
Allen Poe

Laws do not need to be interpreted. They are plain English. If you understand English, you know what it means. You do not need an ‘expert’ to explain it. Your assessment agrees with mine. We just disagree on how to handle it. Impeach, I say.

straw man
Guest
straw man

… who knows what it will be tomorrow…

After listening to Rush today, I think it’s going to be a trillion dollar program to bail out under water mortgages using Freddie and Fannie WITHOUT ANY NEW AUTHORIZING LEGISLATION.

Constitution, schmonstitution…. OMG! people’s houses have lost value so we have to do something!!!

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