Much has already been written about President Bush’s 17 recess appointments announced on Thursday, many of them extremely controversial. It’s an old trick meant to get around those pesky Senate confirmation hearings. Every president uses it to one degree or another. Ronald Reagan made 240 during his two terms. George H.W. Bush made 77 in his one term. Bill Clinton made 140 in his two terms. George W. Bush made 110 in his first term. But these
appointments are different. Based on precedent, the appointments would expire at the conclusion of the next session of the Senate at the end of 2006. But this president, in an interpretation that can only be termed bizarre, is insisting that a one-minute ceremonial pro forma meeting of the Senate that occurred on Tuesday, January 3rd, represented the opening meeting of the second session of the 109th Congress, which he interprets as giving life to his recess appointments until the end of 2007 rather than 2006.
Largely lost amidst the outrage being expressed over the appointments themselves was an unusual twist reported without elucidation by the Associated Press and carried by hundreds of newspapers:
Under the Constitution, the president may avoid the Senate confirmation process and make appointments while the chamber is in recess. Such appointments usually are short-term, expiring at the end of next congressional session.
But because the Senate held a pro forma session Tuesday and then adjourned, the White House contends the second session of the 109th Congress has begun. Therefore, the White House believes Bush’s nearly 20 recess appointments are valid until the following session, which won’t conclude until the end of 2007.
You might well be excused if you did not know that the Senate was in session this past Tuesday. It wasn’t covered by the media. No business was conducted. No legislation was enacted. The roll was not called. If it had been, there would have been no Senators present to answer “here.” Confused? The answer lies in small print on the home page of the Senate web site:
Tuesday, Jan 3, 2006
The Senate convened at 12:00 noon for a pro forma session only and adjourned at 12:01 p.m. No record votes were taken.
Still confused? The rationale for this pro forma session of Congress can be found in Article I; Section 5 of the Constitution of the United States:
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
.
Which the Senate web site explains as follows:
This section was included to prevent either chamber from blocking legislation through its refusal to meet. Each chamber takes very seriously its independence of the other body. To avoid having to ask the other chamber for permission to adjourn, the Senate and House simply conduct pro forma (as a matter of form) sessions to meet the three-day constitutional requirement. No business is conducted at these sessions, which generally last for less than one minute.
In other words the White House is interpreting a procedural, entirely ceremonial, one-minute meeting of the two houses of Congress, designed to preserve the independence of the two bodies from one another, as giving the president a green light to make a two-year end run around the Constitutionally mandated role of the Senate to “Advice and Consent” in the appointment of Federal officials.
Article II; Section 2 of the 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.
Surely the authors of our revered Constitution never envisioned technicalities and bizarre interpretations of that document to be utilized to make a two-year end-run around the Senate. In fact, clearly the original intent of the recess appointment was to fill only those vacancies that actually occurred while the Senate was not in session. Back in those early days of the Republic Congress did not meet as often as it does today, and the logistics of late eighteenth century roads and modes of transportation rendered it impractical to call a special session of Congress on short notice. That is what the Founders had in mind when they wrote the recess appointment into the Constitution. Moreover, the Bush interpretation that three-day technical adjournments between pro forma ceremonial meetings of the Senate constitute actual meetings and adjournments between which recess appointments can be made flies in the face of all precedent, as well as all mainstream interpretations of the Constitution. Even recess appointments made during ten-day recesses have stirred controversy as to whether they pass constitutional muster. This new three-day interpretation would seem to be way beyond the pale. Finally, it is extremely doubtful that the framers of the Constitution would have considered Tuesdays pro forma Senate meeting as a legitimate meeting and adjournment for purposes of a recess appointment. The 1828 edition of Webster’s Dictionary defines “adjournment” as “the time or interval during which a public body defers business.” Since the Senate did not formally meet; no votes were taken; and no business was discussed, these ceremonial meetings of less than one minute in duration could hardly meet the criteria of a meeting and an “adjournment,” particularly as the terms were understood when the Constitution was written. Doesn’t the Bush administration consider itself one that believes in a strict constructionist interpretation of the Constitution?
If the Senate allows the Bush administration’s view that these are valid two-year recess appointments to prevail, they will be ceding unprecedented (and very likely unconstitutional), power to the Executive Branch — not to mention abrogating their own right and responsibility to “advice and consent.”
Perhaps even some Republicans in this most partisan of Congresses will finally stand up to this White House’s blatant usurpation of the powers bestowed upon it by our Constitution. If not it may be time to ask whether we still live in a democracy.
(Now cross-posted
at Daily Kos. If you agree that this is important please recommend).
between Bush and the majorities in both houses, one can only conclude that there was a secret meeting where everyone swore fealty and knelt under George’s sword. There have been no vetos, not one. Threats yes, but not action. In return, there has been unpresidented money laundering, pork barrels and a gigantic deficit. Nearly every congress repub OWES DELAY since Delay has been doling out money from his little black box. Now we are beginning to know the source of the largess.
It all gives new meaning to the phrase “Invest in America, Buy a Congressman”.
Thanks for this important news.
Has his crew found the loophole to allow him to refuse impeachment proceedings yet?
How are the first session recess appointments affected? I might have missed it. Do they become permanent if not acted on? I’m thinking about Bolton mostly.
I think this is the first time they have claimed that the pro forma meetings constitute legitimate meetings of the Senate. They are clearly drawing a line in the sand and daring the Senate to cross it.
The Senate should meet… and cross it.
While it would have no constitutional weight, they should meet and issue a resolution condemning him and his actions. And call upon the House to consider impeachment.
Then they should — in session — consider his appointments and dispose of them as is appropriate (reject or approve). When those rejected don’t vacate office at the normal and traditional time, the Senate should call upon the Supreme Court for immediate attention to the matter.
Great work jpol. Typical Bush — rules are made to be broken.
Why does Bush need to use recess appointments to get his people confirmed when he has a majority of his party?
There is something else going on, when the admin needs to use tricks to fill staff positions. It can’t just be the fear of a filibuster on each of these appointments, can it?
Members of the GOP are starting to vote against his appointees. Like they rolled Miers. They’re starting to understand that he’s filling government with more “Brownies”… and might reject them.
No, but it could well be an imperial arrogance whereby they don’t feel the need to subject themselves to second-guessing and cross-examination in the confirmation hearings.
They clearly feel they are above the law… ALL law, including the Constitution.
jpol
You’re #1 at Daily Kos, Jerry!
.
WASHINGTON – Embattled Rep. Tom DeLay decided Saturday to give up his post as House majority leader, clearing the way for new leadership elections among House Republicans eager to shed the taint of scandal.
Two officials said DeLay, R-Texas, was preparing a letter informing fellow House Republicans of his decision. These officials spoke on condition of anonymity, saying they did not want to pre-empt the formal announcement.
Congressman Tom DeLay is seen in the 331st District Court in Austin, Texas on October 21, 2005. About two dozen Republicans have promised to sign a petition calling for elections to permanently replace DeLay as majority leader in the House of Representatives. Jay Janner/Pool/Reuters● AP/Ipsos Poll: Democrats 49% Favored over GOP 36%
WASHINGTON – In an ominous election-year sign for Republicans, Americans are leaning sharply toward wanting Democrats to take control of Congress, an AP-Ipsos poll finds. Democrats are favored 49 percent to 36 percent.
The poll was taken this week as Republican lobbyist Jack Abramoff pleaded guilty to tax evasion, fraud and corruption charges and agreed to aid a federal investigation of members of Congress and other government officials.
About a third of the public, 34 percent, approves of the job Congress is doing, and nearly twice as many, 63 percent, disapprove, according to the poll of 1,001 adults taken Jan. 3-5.
● Congress Report Doubts Bush Justification of Domestic Spying
WASHINGTON (AFP) – The US Congress’s research arm has reportedly concluded that the Bush administration’s justification for eavesdropping without warrants “conflicts with existing law and hinges on weak legal arguments.”
“The Congressional Research Service’s report rebuts the central assertions made recently by (President George W.) Bush and Attorney General Alberto Gonzales about the president’s authority to order secret intercepts of telephone and email exchanges between people inside the United States and their contacts abroad,” The Washington Post reported.
The findings have prompted Democratic lawmakers and civil liberties advocates to repeat calls for Congress to conduct hearings on the monitoring program and attempt to halt it.
“It appears unlikely that a court would hold that Congress has expressly or (implicitly) authorized the NSA electronic surveillance operations here,” the authors of the report wrote, according to the Post.
“Treason doth never prosper: what’s the reason?
For if it prosper, none dare call it treason.”
▼ ▼ ▼ MY DIARY
This is absolutely hilarious. If there weren’t anything riding on this (like, ya know, our tax dollars, FCC censorship, blah blah blah) I would give props to Bush for pulling a fast one.
“But Senate didn’t meet!”
“Yes it did! It was a stealth meeting for sixty seconds!”
It’s like haggling with the games folks at the carnivals. He walks away with a sense of achievement or victory in knowing how the game is rigged and how he got ripped off…missing the larger point of allowing himself to be ripped off.
These guys are classic. I’m so entertained.
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.
As long as we are into parsing, did the vacancies “happen” while the Senate was in recess — I’d assume the vacancy happened when the previous holder resigned.
Now I realize this goes against tradition, but just about everything is administration does is against tradition.
Or I have an idea: defund the positions with the most noisome recess appointments until we have real hearings on these people. At the very least we would make our point, and if we can get a majority, Bush may sputter and complain but will ultimately back down.