Congressman Pete Olson

Representing the 22nd District of Texas

President willing to violate Constitution for political gain

January 23, 2012
Op-Ed

Bay Area Citizen
Olson: President willing to violate Constitution for political gain
Posted: Monday, January 23, 2012 3:38 pm

The arrogance of the Obama Administration has never been more pronounced than in its recent decision to make recess appointments for senior agency officials even though the U.S. Senate was in session, disregarding our Constitution and its system of checks and balances. These illegal appointments also demonstrate the President's selective logic and willingness to foment legislative crisis in order to pursue political benefit. The appointment of Richard Cordray to the Bureau of Consumer Financial Protection, and the appointments of Sharon Block, Terence Flynn and Richard Griffin to the National Labor Relations Board; were a direct violation of the recess appointment provision in the U.S. Constitution. In the case Mackie v. Clinton, the Justice Department implied that the President may make a recess appointment during a recess of more than three days. The Congressional Research Service notes that no President in the last 20 years has attempted a recess appointment without Congress being out of session for more than nine days.

However, the President determined that since the Senate wasn’t conducting any business, the Senators had gone home for the holidays, and the only reason the Republicans were keeping the Senate in session (called “pro-forma”) was to stop him from making recess appointments, then he could make recess appointments. But whether doing business or not, the Senate was in session, and the President violated the Constitution, asking for a fight in which he is confident he will be the political victor, if not the principled one. President Obama’s actions are an egregious display of executive overreach. The President’s Justice Department created its own definition of what qualifies for Congress to be in session by calling the Senate’s most recent pro-forma session a parliamentary ploy. Yet, the President was happy to sign into law the two-month payroll tax holiday which passed Congress in December when the Senate was in pro-forma session.

In fact, Senate Majority Leader Harry Reid used the pro-forma session in 2008 to prevent President Bush from making recess appointments. It was his way of protecting Senate power by pre-empting any plans by President Bush to make recess appointments. Yet, in this instance, he completely reversed himself on the matter. This blatant disregard for the constitutional process is hypocritical and troubling. In addition, the Constitution states, in part, that "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days..." The House had not consented to a Senate recess. Thus, the Senate's pro-forma sessions are strictly constitutional, the Senate is legally in session, and President Obama must seek its advice and consent on these appointments. The President and the leaders of Congress have a duty to obey and uphold the Constitution. I have signed onto a letter to the President requesting that these recess appointments be rescinded. I am also a cosponsor of a resolution disapproving these unconstitutional appointments. I will continue to urge the House to use every resource available to correct the President's unconstitutional action and live up to John Adam's dictum that we must have a “government of laws and not of men.”