Iowa

[detbuch]

Originally Posted by spence

Also regarding the recent recess appointments.

The situation appears to be that Republicans were blocking the appointment on ideological grounds, where they opposed the laws the appointment was intended to oversee. Without the appointment that area of government would cease to function.

However you, or whatever opinion you read think the situation "appears" to be--and that opinion and those laws and that agency are formed partially if not wholly on"ideological" grounds--the appointment is supposed to be debated in the Senate for its advice and consent. So long as Congress is not in recess, a recess appointment cannot be made. These appointments were not made in time for the debate, a move that Obama made to circumvent that Constitutionally mandated debate. He wanted to wait for a recess to block that debate. Who is blocking who is a matter of politically slanted opinion.

If anything it looks like Republicans were intentionally impeding the President's Constitutional authority to execute existing US law.

No, he does not have constitutional authority to make a recess appointment if Congress is not in recess. And yes, Repubs were intentionally impeding him from avoiding the Constitutional advice and consent of the Senate. He, or you, or the Dems, may not like the process (which they have used to their advantage), But one of the Constitutional purposes of the Senate is to slow down legislation, to debate and deliberate, to oppose what it should oppose. And much "existing" US" law, especially that law that has been created by these administrative regulatory agencies does not have support in the Constitution. They have been unconstitutionally given powers that were granted to Congress, and Congress was not given the authority to delegate powers of legislation to unelected agencies. The power of legislation Constitutionally rests on those representatives that the people elect. These agencies have been given that power to legislate (and therefor tax) without representation--a grievance at the very heart and soul of the American Revolution.

Perhaps the real question here is if a pro forma recess is really a recess? I don't think the Constitution is really clear here. It doesn't seem to pass the smell test regardless of who's doing it.

-spence

The recess power has been "interpreted" for over 100 years by attornees general and those they designate in the DOJ office of legal counsel that an official, legal senate recess is of at least 10-25 days duration. In a 2010 SCOTUS hearing on an NLRB issue, Obama's deputy solicitor general Neal Katyn said "The--the recess appointment power can work--IN A RECESS. I think our office has opined the recess has to be longer than 3 days." And yes, Harry Reid blocked Bush's recess appointmens in his last two years with pro forma recess. It only takes one Senator to block the move to recess for any reason. It appears that this move to overide Congress is another small chink in the Constitutional separation of powers--another transfer of power to the almighty executive.

BTW, have you noticed that the original discussion on this from yesterday has disappeard? Or is it just on my computer? Do the rest of you have yesterdays posts?

[spence]

Originally Posted by detbuch

BTW, have you noticed that the original discussion on this from yesterday has disappeard? Or is it just on my computer? Do the rest of you have yesterdays posts?

JohnR whacked the server and had to go to a previous backup. I'm afraid all our poetry has been forever lost.

I remembered this open topic so I brought the issue back up.

-spence

[detbuch]

Originally Posted by spence

JohnR whacked the server and had to go to a previous backup. I'm afraid all our poetry has been forever lost.

-spence

It has to be floating out there somewhere in the great ether. Some future generation of us, or other species, will find it and wonder from what great civilization came this profound literature. Maybe great studies will be done on it. It may solve future crises. Not.

[spence]

Originally Posted by detbuch

It has to be floating out there somewhere in the great ether. Some future generation of us, or other species, will find it and wonder from what great civilization came this profound literature. Maybe great studies will be done on it. It may solve future crises. Not.

Good point. I'm sure Google already has golden disk backups in a secure lunar base. Next to the Constitution, Rush Permanent Waves, and the Bible.

-spence

[spence]

Originally Posted by detbuch

However you, or whatever opinion you read think the situation "appears" to be--and that opinion and those laws and that agency are formed partially if not wholly on"ideological" grounds--the appointment is supposed to be debated in the Senate for its advice and consent. So long as Congress is not in recess, a recess appointment cannot be made.

And the Obama Admin is simply challenging the idea that Congress is really not in recess. It was wrong when the Dems did it to Bush and it's wrong when the GOP does it to Obama.

These appointments were not made in time for the debate, a move that Obama made to circumvent that Constitutionally mandated debate. He wanted to wait for a recess to block that debate. Who is blocking who is a matter of politically slanted opinion.

My understanding is that the GOP has refused to hear nominees for about six months. They're trying to hold the legislation hostage unless Obama makes significant concessions in the Government ability to protect consumers.

No, he does not have constitutional authority to make a recess appointment if Congress is not in recess. And yes, Repubs were intentionally impeding him from avoiding the Constitutional advice and consent of the Senate. He, or you, or the Dems, may not like the process (which they have used to their advantage), But one of the Constitutional purposes of the Senate is to slow down legislation, to debate and considerate, to oppose what it should oppose.

Congress isn't trying to "slow down" new legislation. The objective of the GOP is to use procedural trickery to change existing law they don't like.

There's a big difference.

And much "existing" US" law, especially that law that has been created by these administrative regulatory agencies does not have support in the Constitution. They have been unconstitutionally given powers that were granted to Congress, and Congress was not given the authority to delegate powers of legislation to unelected agencies. The power of legislation Constitutionally rests on those representatives that the people elect. These agencies have been given that power to legislate (and therefor tax) without representation--a grievance at the very heart and soul of the American Revolution.

But aren't these agencies a product of Congressional legislation? And if not Constitutional, shouldn't the proper course of action be to challenge the legislation before the Judiciary?

The recess power has been "interpreted" for over 100 years by attornees general and those they designate in the DOJ office of legal counsel that an official, legal senate recess is of at least 10-25 days duration. In a 2010 SCOTUS hearing on an NLRB issue, Obama's deputy solicitor general Neal Katyn said "The--the recess appointment power can work--IN A RECESS. I think our office has opined the recess has to be longer than 3 days." And yes, Harry Reid blocked Bush's recess appointmens in his last two years with pro forma recess. It only takes one Senator to block the move to recess for any reason. It appears that this move to overide Congress is another small chink in the Constitutional separation of powers--another transfer of power to the almighty executive.

Everything I've read on the history of the issue points to the recess appointment power to be available when the Senate can not be readily assembled to consent. I'm not sure though, in modern times, what the difference is if the Senate simply doesn't want to consent.

Both sides have used this and perhaps it's time to get some clarification.

-spence

[detbuch]

Originally Posted by spence

And the Obama Admin is simply challenging the idea that Congress is really not in recess. It was wrong when the Dems did it to Bush and it's wrong when the GOP does it to Obama.

What is there to challenge. It is up to Congress to decide if it is in recess. Giving the power to the president to decide when Congress is in recess is overstepping separation of powers. The SCOTUS has no say, Constitutionally, about when Congress is in recess. It is solely a Congressional responsibility and prerogative. The dispute should be decided in Congress, not by the POTUS or the SCOTUS.

My understanding is that the GOP has refused to hear nominees for about six months. They're trying to hold the legislation hostage unless Obama makes significant concessions in the Government ability to protect consumers.

Again, that you may not like it, it is a legitimate part of the legislative process. And the burden of protecting consumers should not be a concern of the Federal Gvt. I understand that current view of the Commerce Clause means that the government can do whatever it wants. That it has gotten that far is such an obvious travesty of judicial "interpretation" and government overreach that it shouldn't even have to be discussed. And if there were some some way that the Federal Gvt. were supposed to protect consumers, the proper way would be through law passed by Congress with debate and vote by Congress, not by a creation of some permanent watchdog agency which can dictate law by fiat. It would be perfectly OK to appoint research agencies to advise the Congress, but not so much to give those agencies regulatory power.

Congress isn't trying to "slow down" new legislation. The objective of the GOP is to use procedural trickery to change existing law they don't like.

There's a big difference.

Congress is using existing law and procedure.

But aren't these agencies a product of Congressional legislation? And if not Constitutional, shouldn't the proper course of action be to challenge the legislation before the Judiciary?

Agencies are a product of Congressional legislation, but laws that these agencies propagate are not. Laws passed by Congress are supposed to be debated and voted on by Congress which will be held responsible by the people. Laws are not supposed to be imposed on the people by unelected officials who are not accountable to the people. Of course, Congress would not challenge the creation of such agencies since it can direct them to do things for which Congress will not be held responsible. It's a way both parties can "do things" without being blamed. Not only is current jurisprudence of the opinion that Congress can do whatever it wishes due to "interpretations" of various clauses such as Commerce or Welfare, the judges, for the most part, understand that since it is the prerogative of Congress to legislate, it can legislate as it wishes. The judges merely decide on whether cases are in breach of those laws. We have as a result of judicial "interpretation" a growing central gvt. that regulates through administrative agencies. It is a more convenient way to amass regulations while avoiding responsibility. Beyond the hundres that already exist, you can expect to see more of such agencies expanding the administrative State, as opposed to the representative government, and this was predicted by many, including De Tocqueville, to result in a form of a so-called "soft despotism" which is not opposed by the people since it is ostensibly for their benefit.

Everything I've read on the history of the issue points to the recess appointment power to be available when the Senate can not be readily assembled to consent. I'm not sure though, in modern times, what the difference is if the Senate simply doesn't want to consent.

It is absolutely the right of the Senate not to consent. Why must it?

Both sides have used this and perhaps it's time to get some clarification.

-spence

It won't be clarification. It will be imposition