Congress wasn't in recess? Congress was in session?

[Mustang]

Congress was in session when President Obama made his appointed of Richard Cordray to head the Consumer Financial Protection Bureau? Really?

Let's test that 'theory,' shall we?

Was Congress conducting any official business like considering legislation? No!

Were there any committee meetings? No!

Now, if Congress really had been in session, don't you think that the Republican majority in the House of Representatives would have passed a resolution by now, condemning President Obama's actions?

But there hasn't been any vote on that resolution. Neither has there been a vote on any measure at all.

In fact, there couldn't be any votes because neither the Senate or the House had a quorum.

So, if House and Senate members are all gone except for one or two members, and there's no official legislative business being conducted, and there can't even be a vote in either chamber because there's no quorum, how can the House and Senate be in session?

Saying that either the House or the Senate is in session under these circumstances is like a restaurant owner saying that his establishment is open for business even though his doors are locked and there are no employees there and justifying that statement just because the neon sign that blinks "OPEN" is on and visible from the street.

It's nonsensical and doesn't pass anyone's idea of what constitutes common sense.

The Republicans absolutely should take this to court. My sense is that the PR fiasco will hurt them long before any ruling is made.

 

[waltky]

Ed Meese vindicated, Obama stunned...

FLASHBACK--Ed Meese: Obama's Recess Appointments 'Breathtaking Violation' of Constitution
January 24, 2012 - Former Attorney General Ed Meese says the U.S. House of Representatives should pass a resolution condemning President Barack Obama for acting unconstitutionally in appointing a director to the Consumer Financial Protection Bureau and three members to the National Labor Relations Board without Senate confirmation and when Congress was still in session.

“I wish it would also be the Senate,” Meese told CNSNews.com, “but that probably wouldn’t happen because of the fact that [it is] in Democrat hands. But the House of Representatives should pass a sense of the House resolution condemning the president for this, so that the people themselves will understand that he is doing an unconstitutional act.” On Jan. 4, President Barack Obama ostensibly used recess appointments to name Richard Cordray the director of the new Consumer Financial Protection Bureau and to name Sharon Block, Richard Griffin and Terence Flynn to the National Labor Relations Board.

Although the Constitution does give the president the power to make recess appointments without Senate confirmation, that power only applies when the Congress is in recess. However, under the terms of the Constitution, the Congress was in session on Jan. 4, when Obama made the appointments in question. Meese and Todd Gaziano--a former Department of Justice Office of Legal Counsel lawyer who works with Meese at the Heritage Foundation's Center for Legal & Judicial Studies--published an op-ed in the Washington Post on Jan. 6 criticizing Obama’s unconstitutional appointments. “President Obama's attempt to unilaterally appoint three people to seats on the National Labor Relations Board and Richard Cordray to head the new Consumer Financial Protection Bureau (after the Senate blocked action on his nomination) is more than an unconstitutional attempt to circumvent the Senate's advise-and-consent role,” Meese wrote. “It is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.”

Appearing on “Online With Terry Jeffrey,” Meese explained why he believed Obama’s appointments were not “recess” appointments and violated the Constitution—pointing specifically to Article 1, Section 5, Clause 4 which says: “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.” “Now, under this express language of the Constitution, on January 4, when the president named Mr. Corday and named the three members to the National Labor Relations Board was Congress in session or not in session?” CNSNews.com asked Meese.

“I believe that they were in session, yes,” Meese said. “In other words, I believe that they were not in recess. And the fact is they were holding sessions on a regular basis every three days.” “Now, the interesting thing is that the Senate itself has indicated that they were in session by holding the pro-forma session,” said Meese. “During such a session at the end of 2011, during exactly the same kind of a session, they actually passed a bill, the payroll tax holiday. So there is no difference between that session and the session that was held in January, particularly on the fourth of January, during the time in which the president usurped the constitutional requirements and made these appointments.”

MORE

See also:

White House Calls NLRB Ruling ‘Unprecedented’
January 25, 2013 – The White House strongly disagreed with a federal appeals court ruling against the recess appointment of members of the National Labor Relations Board at a time when Congress was not in recess.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said Obama did not have the constitutional authority to make three recess appointments to the NLRB on Jan. 4, 2012, because the Senate was officially in session - and not in recess - at the time. If the ruling is upheld, it could call into question hundreds of rulings by the board. “The decision is novel and unprecedented,” White House Press Secretary Jay Carney said Friday. “It contradicts 150 years of practice by Democratic and Republican administrations. So we respectfully but strongly disagree with the rulings. There have been, according to the Congressional Research Service, something like 280 plus intra-session recess appointments by again Democratic and Republican administrations dating back to 1867. That’s a long time and quite a significant precedent.”

The NLRB appointees were Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and NLRB counsel Terence Flynn. On the day he named the three NLRB members, Obama also recess appointed Richard Cordray to lead the Consumer Financial Protection Bureau. Obama nominated Cordray again this week and urged Senate confirmation. Carney insisted the ruling was narrow to “one case, one company, one court.” Article 1, Section 5, Clause 4 of the Constitution says: “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.”

Because the Republican-controlled House did not allow the Senate to adjourn, neither House was in recess. In the case of Noel Canning vs. NLRB, the court said, “Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.” The decision continued, “An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.”

Senate Minority Leader Mitch McConnell (R-Ky.), who filed an amicus brief in the case, strongly approved of the ruling as upholding the separation of powers. “The D.C. Circuit Court today reaffirmed that the Constitution is not an inconvenience but the law of the land, agreeing with the owners of a family-owned business who brought the case to the Court,” McConnell said. “For the same reasons [laid out by the Court], this decision now casts serious doubt on whether the President’s ‘recess’ appointment of Richard Cordray to the Consumer Financial Protection Bureau, which the President announced at the same time, is constitutional.”

More White House Calls NLRB Ruling ?Unprecedented? | CNS News

 

[Freewill]

Solution, do away with recess appointments except in an emergency for certain positions. Not just to circumvent the Constitution. As I said before I don't see why anyone would think Obama knows anything about the Constitution.

 

[Freewill]

Instead of posturing here is the schedule of the US Congress. Yes, they were in session on Jan 4. End of discussion.

http://hobnobblog.com/wordpress/wp-content/uploads/2012/12/2013_Congressional_Calendar_web3.pdf

 

[PaulS1950]

The congress, according to the courts, is only not in session when it is not convened for those months of the year before and after a new congress is called to session. Since the congressional session did not change after the holiday they were still in session. The same congressional session was continued after the holiday. Yes, it was in session.
As the court stated - if a day or a few days off means the the congress was not in session then that would extend to Sundays and even lunch breaks.
The president overstepped his power and got slapped for it. The sad part is that any rulings by the NTSB are null and void - a lot of tax-payers dollars go down the drain. (including the pro-union rulings that were put in place)

 

[jwoodie]

This constitutional provision was intended to provide for the orderly functioning of the Executive Branch during months-long recess periods when people had to travel by horseback to their districts, not 3 or 4 days while congressional chambers were temporarily closed.

 

[BreezeWood]

can the minority party extend a legislative session ?

 

[waltky]

More on the NLRB appointee court decision...

NLRB Ruling Expected to Impact Consumer Bureau Appointee, Former White House Counsel Says
January 31, 2013 – Last week’s court decision finding the recess appointments of three National Labor Relations Board members unconstitutional could play a major role in a case challenging the constitutionality of the Consumer Financial Protection Bureau and its recess-appointed director Richard Cordray.

“It’s potentially very serious because our case is in the same circuit, in the (D.C.) District Court, not the court of appeals, but we’ll end up in the court of appeals within a year,” C. Boyden Gray, attorney for the plaintiffs challenging the CFPB’s constitutionality, told CNSNews.com. “And the law of that case will govern our case. Now the Supreme Court could reverse or alter (the NLRB case), so we don’t have the final word. The Supreme Court will have the final word.” The Court of Appeals for the District of Columbia ruled last week that President Barack Obama’s three recess appointments to the NLRB were unconstitutional because the appointments were made when the Senate was not in recess. On the day Obama named the three NLRB members -- Jan. 4, 2012 – he also recess-appointed Cordray to head the CFPB.

The president re-nominated Cordray last week, leaving it up to the Senate to confirm him or not. The appointment of Cordray to head the new consumer bureau is just one part of the lawsuit challenging the bureau’s constitutionality. The plaintiffs include the states of Michigan, Oklahoma and South Carolina, along with State National Bank of Big Spring, Texas, the free market think tank Competitive Enterprise Institute and the seniors’ group 60 Plus Association. The lawsuit contends that the CFPB lacks congressional oversight, since its $550 million annual funding comes from the Federal Reserve, not a congressional appropriation. Further, the president cannot fire the CFPB director for policy disagreements, only for cause. The plaintiffs say the bureau “claims the power to nullify statutes” and “contends it can engage in after-the-fact lawmaking.”

“It doesn’t seem to belong to any branch. That’s what lies at the heart of our challenge. We’re saying it’s not accountable to any of the branches,” Gray said. “It’s physically in the Fed and paid for by the Fed, but the Fed itself, by statute, is precluded from interfering in anyway or having anything to say about what it does. So is it part of the Fed or not? If the Fed can’t do anything about it, I would argue that it’s not part of the Fed. If the White House can’t do anything about it, it’s not part of the White House, and if Congress can’t do anything about it, review its budget or anything like that, then it’s not part of Congress. So where is it?” More states could be joining the lawsuit, said Gray, but he didn’t say which ones.

Gray, who served as White House counsel for President George H. W. Bush and as the U.S. ambassador to the European Union under President George W. Bush, said the case challenging the constitutionality of the CFPB makes the same argument about Corday’s appointment as that made by plaintiffs in the NLRB case. “Cordray was nominated the same time as the NLRB appointees were nominated and our case does say his appointment was invalid,” Gray said. “Were the current decision to be upheld in the Supreme Court, that would cast a very, very deep shadow on everything that has happened at the agency since his appointment. “But, our case involves more than just the vulnerability of his appointment,” Gray continued. “It has to do with the fact that there’s no congressional oversight. There’s no White House oversight. There’s very limited judicial oversight.”

MORE

See also:

Obama’s NLRB Argument: ‘Trying to Have It Both Ways,’ Says Law Professor
January 30, 2013 – President Obama was “trying to have it both ways” when he chose to recess-appoint three members of the National Labor Relations Board on Jan. 4, 2012, says a constitutional law professor.

Although the appointments came one day after Congress began its 2012 annual session, the administration justified its appointments by arguing that Congress was "closed for business." Article 2, Section 2, Clause 3 of the U.S. Constitution 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). By making the appointments on Jan. 4 -– the day after the new session began -- the president was making sure his appointees would serve to the end of 2013 (the end of the new session.) If the appointments had been made on Jan. 3 -– the end of the old session -– the appointees would have served only through December 2012.

Last week, the Court of Appeals for the District of Columbia shot down the entire scheme, ruling that Obama’s NLRB recess appointments were unconstitutional. John Eastman, a constitutional law professor at Chapman University School of Law, said the administration’s argument is contradictory. First, Obama decided Congress was in recess, when technically it was not; and then he waited until the start of the new session so his appointees could serve until the end of 2013. To avoid the prospect of recess appointments, Congress in late 2011 did not go into recess as it normally does over the Christmas holiday. Instead, it went into pro-forma session, meaning that someone was there to gavel the session to order every few days, even though very little business actually was conducted.

But the Justice Department, in its final brief to the court, argued that while Jan. 3, 2012 was the “first day of the Senate’s current annual session,” the Senate remained “closed for business for nearly three weeks until January 23.” During that 20-day period, the administration argued, the Senate “could not provide advice or consent on Presidential nominations.” “The president’s argument that a new session started Jan. 3 [2012] and these appointments were made Jan. 4, so technically they would have until the end of 2013 (to serve their terms), that just acknowledges that Congress was in session. He’s trying to have it both ways,” Eastman told CNSNews.com. “That’s a little bizarre,” Eastman said. “So he made the appointments -- not during a recess -- for vacancies that didn’t occur during the recess and over a time span when the Senate was never in recess at all. And he is claiming he has the constitutional authority to do that, and all of the rules that they adopted after being appointed illegally are going to be valid, and they are persisting in making that argument after the D.C. Circuit told them what they did was illegal.”

NLRB Chairman Mark Gaston Pearce says the board “respectfully disagrees” with the court’s ruling and believes that the president’s actions “ultimately will be upheld” by the U.S. Supreme Court. The appeals court, in its Jan. 25 ruling, was very clear that Obama acted unconstitutionally by making his own decision on when Congress is in recess. “An interpretation of the 'recess' that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advise-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session, and he is merely displeased with its inaction. This cannot be the law," wrote Chief Justice David Sentelle.

MORE

 

[asaratis]

Congress was in session when President Obama made his appointed of Richard Cordray to head the Consumer Financial Protection Bureau? Really?

Let's test that 'theory,' shall we?

Was Congress conducting any official business like considering legislation? No!

Were there any committee meetings? No!

Now, if Congress really had been in session, don't you think that the Republican majority in the House of Representatives would have passed a resolution by now, condemning President Obama's actions?

But there hasn't been any vote on that resolution. Neither has there been a vote on any measure at all.

In fact, there couldn't be any votes because neither the Senate or the House had a quorum.

So, if House and Senate members are all gone except for one or two members, and there's no official legislative business being conducted, and there can't even be a vote in either chamber because there's no quorum, how can the House and Senate be in session?

Saying that either the House or the Senate is in session under these circumstances is like a restaurant owner saying that his establishment is open for business even though his doors are locked and there are no employees there and justifying that statement just because the neon sign that blinks "OPEN" is on and visible from the street.

It's nonsensical and doesn't pass anyone's idea of what constitutes common sense.

The Republicans absolutely should take this to court. My sense is that the PR fiasco will hurt them long before any ruling is made.

Can't tell from watchin' it on CSPAN... The floor looked as empty as ever, but I kept seein' reruns on the news about back when some congressman said something he thought was gonna happen after the vote tomorrow but it was taped twelve weeks ago when the guy they was quotin' and bashin' was involved in somethin' else and they're doin' a story about his ass now.

It's like every time I see a file clip of Andy Madoff jostling with the news hounds I think maybe they hadn't put his ass in jail yet. So, was he in jail last week? I dunno!

Was Congress in session? At this particular time, what difference does it make?...but we need to find out?

...don't we Hillary?

 

[asaratis]

Let me attempt to set you people straight....congress was in session.

When congress is in session, it is from a date in time to a date in time. At any time between those times, congressmen are subject to being called to the floor. When congress is not in session, congressmen are on vacation and the houses are empty.

When the houses are empty except for two warm bodies while congress is in session, it may mean that a filibuster is in progress and all else have left for the night.

Just because congress was in session does not mean that there couldn't have been absolutely NOTHING getting accomplished when the houses were empty.

The correct answer to the poll is to the affirmative.

 

[Zander]

If a Republican is in the White House-- Congress was in session
If a Democrat is in the White House-- Congress was NOT in session.




Sorry Mustang- we have clear and distinct separation of power in this country- a system of Checks and balances. Congress was in session and Obama violated the Constitution.

 

[Katzndogz]

SCOTUS is right only when democrats agree with them. Otherwise it's wrong and should be ignored.

 

[Ringel05]

Congress was in session when President Obama made his appointed of Richard Cordray to head the Consumer Financial Protection Bureau? Really?

Let's test that 'theory,' shall we?

Was Congress conducting any official business like considering legislation? No!

Were there any committee meetings? No!

Now, if Congress really had been in session, don't you think that the Republican majority in the House of Representatives would have passed a resolution by now, condemning President Obama's actions?

But there hasn't been any vote on that resolution. Neither has there been a vote on any measure at all.

In fact, there couldn't be any votes because neither the Senate or the House had a quorum.

So, if House and Senate members are all gone except for one or two members, and there's no official legislative business being conducted, and there can't even be a vote in either chamber because there's no quorum, how can the House and Senate be in session?

Saying that either the House or the Senate is in session under these circumstances is like a restaurant owner saying that his establishment is open for business even though his doors are locked and there are no employees there and justifying that statement just because the neon sign that blinks "OPEN" is on and visible from the street.

It's nonsensical and doesn't pass anyone's idea of what constitutes common sense.

The Republicans absolutely should take this to court. My sense is that the PR fiasco will hurt them long before any ruling is made.

Regardless of you're (sic) "logic", the session that was in play is known as the Pro Forma session. This tactic was authored by Harry Reid and approved by congress to prevent the Republicans from naming appointees when congress was in recess that Democrats didn't approve of. Looks like their own procedure came back to bite them in the ass.

 

[OriginalShroom]

I see the Left here ignores history just as they do on the other sites..

Or they just have horrible memories.

They all seem to forget that pro forma session was a creation of Senator Harry Reid (D) in response to President G.W. Bush appointing Bolton to the U.N. after the tradition 10 days of recess had passed.