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.

Comment Policy: Please read our comment policy before making a comment. In short, please be respectful of others and do not engage in personal attacks. Otherwise we will revoke your comment privileges.

To our ad-free users: I apologize for the ad below but unfortunately DISQUS requires this ad in order to use their commenting system and I cannot make it go away.

92 thoughts on “Why Obama’s “recess” appointments are unconstitutional

  1. 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 just put out there to get us conservatives fired up (noted how RS is trying to get their point on the record).

    If his actions are unconstitutional … get him out of office on a legal basis and get these decisions reveresed. Don’t get me wrong. I am NOT an Obama supporter AT ALL. Just getting tired of hearing these things but nothing coming of it. Talk is cheap. Do something or shut up. I’m tired of getting my hopes up and my disgust for this guy is at its peak.

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

  3. 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!

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

    1. 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!

  5. 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.

  6. 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.

  7. 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.

    1. 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.

  8. “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.

  9. 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 his controversial nominations.” (Sen. Reid, Congressional Record, S.15980, 12/19/07)
    •‘They are mischievous.’ “Also, understand this: We have had a difficult problem with the President now for some time. We don’t let him have recess appointments because they are mischievous, and unless we have an agreement before the recess, there will be no recess. We will meet every third day pro forma, as we have done during the last series of breaks.” (Sen. Reid, Congressional Record, S.7558, 7/28/08)
    •Recess appointments an ‘abuse of power.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)
    •A recess appointee will have ‘a cloud hanging over his head.’ “Senate Minority Leader Harry Reid (D-Nev.) denounced the appointment as ‘the latest abuse of power by the Bush administration,’ adding that Bolton would arrive at the UN ‘with a cloud hanging over his head’ because he could not win confirmation.” (“Bush Puts Bolton In UN Post,” Chicago Tribune, 8/2/05)

    SEN. DICK DURBIN (D-IL):

    •‘Troubling.’ “When you have an appointment that is this critical and this sensitive, and the president basically says he’s going to ignore the will of the senate and push someone through, it really is troubling.” (“Bush Sends Bolton To U.N.” The State Journal-Register [Springfield, IL], 8/2/05)
    •‘Could easily be unconstitutional.’ “I agree with Senator Kennedy that Mr. Pryor’s recess appointment, which occurred during a brief recess of Congress, could easily be unconstitutional. It was certainly confrontational. Recess appointments lack the permanence and independence contemplated by the Framers of the Constitution.” (Sen. Durbin, Congressional Record, S.6253, 6/9/05)

    SEN. JOHN KERRY (D-MA):

    •Recess appointments an ‘abuse [of] the power of the presidency.’ “‘It’s sad but not surprising that this White House would abuse the power of the presidency to reward a donor over the objections of the Senate,’ Kerry said in a statement …” (“Recess Appointments Granted to ‘Swift Boat’ Donor, 2 Other Nominees,” The Washington Post, 4/5/07)

    SEN. FRANK LAUTENBERG (D-NJ):

    •“…bends the rules and circumvents the will of Congress.”(“President Sends Bolton to U.N.; Bypasses Senate,” The New York Times, 8/2/05)

    SEN. MAX BAUCUS (D-MT):

    •“Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered…” (“Dem Baucus Joins GOP In Blasting Obama CMS Recess Appointment,” The Hill, 7/7/10)

    http://www.redstate.com/sunshinestatesarah/2012/01/04/hypocrisy-noun-from-the-greek-term-for-senate-democrats/

  10. 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!

  11. 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.

    1. 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.

      1. 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.

          1. 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.

  12. 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.

    1. 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.

      1. 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.

    2. 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.

      1. 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!

  13. 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.

    1. 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.

  14. 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.

  15. 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.

  16. 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.

    1. 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.

  17. 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!

  18. 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 quicker way.

    I think O’ doesn’t give a damn if he gets thrown out or not. He is the guy that is there to see how far the envelope can be pushed before it rips. He has no shame, no scruples, no morals, and no foundation in America itself, nor in any manner of decency that you or I might subscribe to. He was a stealth candidate and is a stealth president…quite like “The Manchurian Candidate”.

    The wheels of injustice are spinning rapidly. We and/or our elected leaders need to find the emergency brakes, fast. They know how the impeachment of Clinton turned out. They are saying I dare you…anything to obfuscate the horrible, constitution shredding performance of this president and his captive cronies in the house and the senate. They want the ignorant electorate looking anywhere, everywhere, except the stats, where this man has failed in every measurable metric.

    1. 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.

  19. 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 the near future after the bloodshed ends, our children will put safeguards in the constitution that prevents a barbarian from occupying the highest office in the land.

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

    1. 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.

  21. 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.

      1. 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!

        1. 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.

  22. 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.

  23. 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.

  24. 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.

  25. 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.

    1. 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.

  26. 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’…

    1. 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).

      1. 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).

  27. 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.

  28. 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.

    1. 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.

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

          1. 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.

  29. 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.

    1. 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.

  30. … 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!!!

  31. Good to document this travesty. And Boehner/McConnell must stand on their hind legs and fight this latest overreach. It isn’t enough to just go on the record and voice their displeasure.

    p.s. scoop, I think you left out “not” in your 2nd opening sentence.

      1. Yeah, well after they change their diapers they better figure out whether they like being treated like potted plants and get some guts.

Comments are closed.