Washington, Jan 18 -
Mr. Speaker, the United States Constitution is the law of the land
It must be followed in the spirit and in the letter of the law.
Article II, in Section 2, gives the Executive authority to appoint certain public ministers with Advice and Consent of the U.S. Senate.
When the Senate is in recess, the Executive can make temporary appointments until the end of legislative session.
See, the Constitution envisions cooperation by the Executive with the Senate over naming persons to offices that rule over the people of America.
Both the Executive and the Senate must agree prior to an official appointment.
The Senate –- within their legal prerogative -- has been blocking three NLRB appointments, and the appointment of head of new Consumer Financial Protection Bureau.
However, ignoring the Senate, the Executive appointed these people anyway. He declared the Senate was in recess when he made such appointments.
But was it?
Well, constitutional experts disagree. The Senate was in a Pro Forma Session. One reason they were in Pro Forma Session was to prevent recess appointments.
During Pro Forma Sessions, the Senate can do business, and meet the Consitutional requirements to not recess without permission of the House of Representatives.
More from the Constitution.
Article I, section 5 says no chamber (House-Senate) can recess for more than three days without approval of the other chamber.
The House did not and even could not agree to a recess of the Senate -- because the Senate was in session – not in a recess.
The Executive’s claim that the Senate was in recess is flawed because the House did not consent to a Senate recess. Thus, the Senate legally had to still be in session until the House agreed to a recess under the Constitution.
Furthermore, the Congress determines when it is in recess, not the Executive Branch.
There is more evidence the Senate was in Session.
The Executive says the Pro Forma Session was not a real session, but a recess – so thus the recess appointments.
However, during the Pro Forma Session, the Senate passed legislation.
The controversial Payroll Tax Extension became law signed by the Executive.
If the Senate was in recess as the Executive claims, then it seems this Payroll Extension Law is null and void.
Because Congress cannot pass legislation unless it is in session.
However, the opposite is true.
Since the Payroll Tax law was passed during a Pro Forma Session and the appointments were made during this Pro Forma Session then the appointments are null and void. They violate the letter and spirit of the Constitution.
The appointments were made without confirmation of the Senate. These were not recess appointments because the Senate was in session.
The Executive cannot have it both ways.
The Executive cannot use linguistic gimmicks to redefine the words “recess and session” to his own liking – just so he can have it his way.
The letter and spirit of the Constitution have been bruised and violated by his actions.
The Constitution must be followed whether one agrees with what it says or not.
Even if the Executive wins his argument, which is logically and legally flawed, he has ignored the framework of the Constitution which is built for Executive cooperation with Congress.
The Executive went his own way.
And that’s just the way it is.