Trump Threatens To Adjourn Congress

Angry that the Senate is not confirming his appointees fast enough, President Trump yesterday threatened to adjourn Congress so that he could push through recess appointments.

“As the entire US government works to combat the global pandemic, it is absolutely essential that key positions at relevant federal agencies are fully staffed, and we’re not allowing that to take place through our Congress,” Trump said at Wednesday’s coronavirus briefing. “They’re just not giving it to us. We have many positions that are unstaffed because we can’t get approval.”

The president said that there were 129 appointees “stuck in the Senate because of partisan obstruction.” Under the “nuclear option” invoked first by Harry Reid and then by Mitch McConnell, executive branch and judicial nominees cannot be filibustered but senators can still block confirmation votes for other appointees.

Majority Leader Mitch McConnell had previously announced that the Senate would hold pro-forma sessions until May 4. The president now sees this as an opportunity to try an unprecedented tactic.

“If they don’t act on getting these people approved that we need because of the, we need them anyway but especially because of the pandemic, we are going to do something that will be, something that I’d prefer not doing but which I should do and which I will do if I have to,” Trump said.

“The Constitution provides a mechanism for the President to fill positions in such circumstances,” Trump continued. “The recess appointment, it’s called. The Senate’s practice of gaveling into so-called pro-forma sessions, where no one is even there, has prevented me from using the constitutional authority we’re given.”

“If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both Chambers of Congres,” the president explained. “The current practice of leaving town while conducting phony, proforma sessions is a dereliction of duty that the American people cannot afford during this crisis. It is a scam. What they do. It’s a scam and everybody knows it, and it’s been that way for a long time, and perhaps it’s never done before. It’s never been done before.”

The Constitution gives the president the power to fill vacancies that occur while the Senate is not in session. Those recess appointments expire at the end of the next Congress. However, if the Senate never recesses, the president cannot make recess appointments.

Other presidents have also bridled at the Senate’s pro-forma sessions aimed at preventing recess appointments. Barack Obama made several recess appointments in 2012 while the Senate was conducting pro-forma sessions. The Supreme Court ruled those appointments unconstitutional in a 9-0 decision.

Now President Trump threatens to go a step further than Obama’s overreach. The president’s word salad apparently refers to Article II Section 3 of the Constitution, which gives the president the authority to adjourn Congress in certain circumstances. The provision has apparently never been used before.

Article II Section 3 reads:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The problem with Trump’s strategy is that the president’s power to adjourn the houses of Congress is contingent upon a “Disagreement between them, with Respect to the Time of Adjournment.” The House and the Senate have not had a disagreement over when to adjourn. Both bodies have agreed to remain in session.

It is also unusual for a president to disagree with the Senate over recess appointments when his own party is in control. The Washington Examiner reported that Majority Leader Mitch McConnell had spoken with Trump about the appointments prior to the president’s threat, but, perhaps recognizing the horrible precedent that another nuclear option would set, McConnell does not want to cut Democrats out of the confirmation loop.

“Leader McConnell had a conversation today with the president to discuss Senate Democrats’ unprecedented obstruction of the president’s well-qualified nominees and shared his continued frustration with the process,” a McConnell spokesman said. “The Leader pledged to find ways to confirm nominees considered mission-critical to the COVID-19 pandemic, but under Senate rules will take consent from Leader Schumer.”

It appears unlikely that McConnell will appease the president by declaring an adjournment so that Trump can make recess appointments. Although McConnell is a Trump ally, he does have his limits.

President Trump’s shot across the Senate’s bow yesterday was similar to the threats he made to use national emergency authority to bypass Congress on funding for the wall last year. For several weeks prior to declaring the emergency on the border, Trump similarly telegraphed his belief in an “absolute right” to use emergency authority to appropriate funds where Congress had declined to act.

I have no doubt that President Trump’s threat to adjourn Congress – or to try to do so – is not an empty threat. The question is whether Senate Republicans would stand idly by while the president usurps their own congressional authority yet again and comments yet another constitutional crisis.

As I wrote earlier this week, President Trump’s actions betray the fact that he truly believes that he has “total authority” to do whatever he wants. The president’s abuses of executive power have become increasingly blatant and more serious over the past four years. His threat to force an adjournment of Congress to advance his own agenda is the stuff of banana republics and should be vigorously opposed by both parties. If Congress is not up to the task, it will be up to voters to defend the Constitution.

Originally published on The Resurgent

Court rebukes Obama for recess appointments

A federal appeals court ruled yesterday that President Obama unconstitutionally exceeded his executive authority when he made three recess appointments to the National Labor Relations Board last January. As Examiner reported at the time, the president made the recess appointments in spite of the fact that the senate, which confirms presidential appointments, was still conducting pro forma sessions and was not in recess.

According to Article II section 2 clause 3 of the Constitution, the president has the power to fill vacancies that occur while the Senate is in recess. These recess appointments escape the immediate need to be confirmed by the Senate, but expire at the end of the next session of Congress. However, Article I section 5 clause 4 states that neither house of Congress can adjourn for more than three days without the consent of the other. This is done by passing a resolution in both the House and the Senate. In the case of Obama’s appointments, there is no disagreement that Congress was not formally recessed since neither the House nor the Senate had passed a resolution to end the session.

The case was prompted by a lawsuit by Noel Canning, a Pepsi Cola bottling company, according to National Public Radio. The NLRB with its new Obama appointees ruled against the company in a union dispute. The company then sued on the grounds that the Obama appointees were illegal and that without them the NLRB lacked a quorum and could not legally decide the case.

The court ruled on two points. On the first, the Washington Post describes that the three judge panel unanimously decided that a recess under the Constitution means that the Senate must be between sessions and not simply on a break. The court noted that the senate, not the president, decides when it is in recess. The court also ruled on what type of vacancies could be filled by recess appointments. In a stunning limitation of presidential power, two judges held that recess appointments were limited to vacancies that arise during a recess. All three judges were appointed by Republican presidents.

For now, the ruling applies only to the Noel Canning case, but there were many other rulings issued by the NLRB that included Obama’s appointments. These cases could be opened to legal challenges as well under the new precedent. Currently the precedent applies only to the D.C. court of appeals.

The ruling was condemned by the White House and the NLRB. “The decision is novel and unprecedented, and it contradicts 150 years of practice by Democratic and Republican administrations,” White House press secretary Jay Carney said Friday in the Washington Post. “We respectfully but strongly disagree with the ruling.” Carney did not say whether the president would appeal the decision.

In a statement on the NLRB website, the board’s chairman, Mark Pearce, said, “The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.” The board apparently intends to continue business as usual even though any decisions made are likely to be challenged by the loser.

The decision also calls into question the appointment of Richard Cordray, the director of the Consumer Financial Protection Bureau. Cordray was installed via a recess appointment at the same time as the three members of the NLRB.

During his first term, President Obama lost a series of legal challenges to his unilateral executive actions. Although his administration triumphed when the Supreme Court upheld Obamacare’s individual mandate, Obama lost many other lower profile cases. The Supreme Court upheld most of Arizona’s immigration law in spite of a Justice Department lawsuit. The Obama Administration was held in contempt for its ban on deep water oil drilling and for failing to issue permits to oil companies according to Examiner. The Environmental Protection Agency also suffered a number of legal defeats under Obama for exceeding its authority to regulate carbon and cross-state air pollution under the Clean Air Act. As previously covered by Examiner, several courts have also ruled that Obamacare’s abortion and contraception mandates are unconstitutional burdens on religious freedom. Obama’s unilateral decision to halt deportation of illegal aliens who entered the U.S. as children may also have unconstitutionally bypassed Congress.

Nevertheless, it seems that Obama’s strategy of using executive action when he cannot get Congress to act will continue into his second term. Earlier this month he signed 23 Executive Orders dealing with gun control. According to the Wall St. Journal, the president may also be considering more executive action on environmental issues as well. Sen. Barbara Boxer (D-Ca.) recently told supporters, “There doesn't have to be a bill. I'm telling you right now, EPA has the authority in the transportation sector, the electricity sector, and the industrial sector under the Clean Air Act” to enact anti-carbon regulations without congressional approval.”

President Obama’s strategy represents a test for the American system of separation of powers. While executive action might move the president’s agenda forward in the short term, as this week’s ruling shows the courts might eventually dismantle much of his legacy because it was enacted via illegal shortcuts.

Originally published on Examiner:

http://www.examiner.com/article/court-rebukes-obama-for-unconstitutional-recess-appointments?cid=db_articles

Obama’s imperial presidency

During the Bush presidency, the president was often accused by the left of acting unilaterally as an “imperial president.” It was charged that President Bush often ignored the will of the people and flouted the law with signing statements, acting more like a king than a president.

While the term has rarely been applied to President Obama, the current president’s actions have often been deserving of it. One of the most egregious examples of President Obama’s disregard for the rule of law and the Constitution was his decision to appoint three new members to the National Labor Relations Board and a head to the new Consumer Financial Protection Bureau last week. Obama styled the appointments as recess appointments although neither the House nor the Senate was in recess.

Article II section 2 clause 3 of the Constitution gives the president the power to fill vacancies that occur while the Senate is in recess. These recess appointments escape the immediate need to be confirmed by the Senate, but expire at the end of the next session of Congress.

Article I section 5 clause 4 states that neither house of Congress can adjourn for more than three days without the consent of the other. This is done by passing a resolution in both the House and the Senate. In this case, there is no disagreement that Congress was not formally recessed since neither the House nor the Senate had passed a resolution to end the session.

President Obama’s claim is that since Congress was not conducting business, he met the constitutional requirement. In the New York Times, White House counsel Kathryn Ruemmler said that “the Senate is functionally in recess,” even though neither house had passed a resolution to end the session as required by the Constitution. In fact, Congress acted on the president’s payroll tax bill only a few days before Christmas and had considered other legislation as well.

The recess appointments were a reaction to the failure of the Senate to confirm a number of Mr. Obama’s nominees including Richard Cordray, the nominee to lead the new consumer protection bureau. Republicans had filibustered Cordray’s nomination last month over opposition to the lack of oversight of the new agency. It is worth noting that President Bush declined to make recess appointments while Congress was in session even though Democrats had filibustered a large number of his nominees as well.

President Bush also took criticism for launching the wars in Afghanistan and Iraq, but he did so with congressional approval in both cases. In contrast, President Obama not only launched his Libyan war without consulting Congress, but he also claimed that the War Powers Act, which requires authorization from Congress when U.S. troops are in combat for more than 60 days, did not apply.

In the past, President Obama has also ignored Congress and the legislative process on other issues as well. A year ago the Atlanta Conservative Examiner detailed how two of President Obama’s agency heads bypassed Congress. The FCC enacted net neutrality rules as administrative law after a federal court ruled that the FCC did not have the authority to regulate the internet. At about the same time, the EPA began regulating carbon emissions in the same manner after Congress failed to pass a cap-and-trade law.

There have been other legislative power grabs by President Obama and his regulatory heads as well. In a well-known case, the National Labor Relations Board filed a complaint against Boeing because the aircraft manufacturer, which is unionized at its Washington State plants, planned to build a new factory in South Carolina, which is a right-to-work state. The complaint alleged that Boeing was illegally retaliating for strikes by workers in the Washington factories. There is no law preventing unionized companies from opening new locations in right-to-work states. The NLRB and the union withdrew the complaint last month after Boeing’s union workers approved a new contract.

In one case, the Obama administration’s disregard for the law played into the hands of its opponents. After the passage of the Affordable Care Act, better known as Obamacare, the Department of Health and Human Services began issuing waivers that allowed favored companies and unions to keep their current health care plans until 2014. According to The Hill, over 1,200 organizations received the waivers. The large numbers of groups requesting waivers allowed Republicans to claim that the health care law was expensive and unworkable.

The problem is the ACA did not authorize the government to grant waivers or deviations from the new health insurance requirements. According to the Daily Caller, the Department of Health and Human Services granted itself the waiver authority in an apparent violation of the law. The article cites Heritage Foundation health policy expert Edmund Haisimaier who noted, “I count twenty-one other sections of PPACA [Patient Protection and Affordable Care Act] in which Congress did grant HHS explicit, new waiver authority with respect to specific provisions. Thus, it is reasonable to presume that if Congress had intended the department to institute a waiver process as part of its implementation of this particular provision, Congress would have said so in the statute.”

Another recent revelation from the Obama White House is reminiscent of Marie Antoinette’s “let them eat cake” moment from the French Revolution. According to a new book, “The Obamas” by New York Times correspondent Jodi Kantor, during the height of the Great Recession in 2009, the Obamas threw a star studded Halloween party. The N.Y. Post reports that the party, put on by Johnny Depp and Tim Burton, coincided with the release of Burton’s film adaptation of “Alice in Wonderland.” In addition to Depp’s Mad Hatter, the party also featured George Lucas’s emissary, the original Chewbacca, mingling with guests. The party was apparently covered up by the White House amid concerns about how it would look amid a time of recession and high unemployment.

President Obama’s tenure has resulted in unprecedented expansion of the powers of the executive branch. His overreach should alarm liberals as well as conservatives because it is likely that his practices will be continued by future presidents of both parties. Americans have a right to expect better of a former professor of constitutional law.

Read this article on Examiner.com:

http://www.examiner.com/conservative-in-atlanta/obama-s-imperial-presidency