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Hearing of the Senate Judiciary Committee - Executive Overreach: The President's Unprecedented "Recess' Appointments


Location: Washington, DC

Chairman Smith: On January 4th, the President announced his unprecedented appointments of three individuals to the National Labor Relations Board and Richard Cordray as Director of the Consumer Financial Protection Bureau. These appointments go well beyond past presidential practice and raise serious constitutional concerns.

The Constitution provides the President with the authority to "fill up all vacancies that may happen during the recess of the Senate." However, the President's recent appointments were made at a time at which the Senate was demonstrably not in recess.

During this supposed recess the Senate passed one of the President's leading legislative priorities, a temporary extension of the payroll tax cut. It also discharged its constitutional obligation to come into session beginning on January 3rd of every year.

Moreover, the Senate itself, which has the power under Article I, Section 5 of the Constitution to determine "the rules of its proceedings," did not believe it was in recess when these appointments were made. As Senate Majority Leader Reid stated on the Senate floor regarding a similar period in 2007, "the Senate will be coming in for pro forma sessions. . . to prevent recess appointments." What was acceptable in 2007 should be equally acceptable today.

In fact, not only was the Senate not in recess when the President made these appointments, but it appears that under the Constitution it legally could not have been.

The Constitution provides that neither house of Congress may adjourn for more than three consecutive days without the consent of the other house. Accordingly, the Senate could not have adjourned its session and gone into recess without the consent of the House, which the House did not give.

Despite these facts, the President has claimed the unilateral authority to declare that the Senate is in recess for purposes of the recess appointments clause.

Such an astounding assertion of power raises serious constitutional concerns and has the potential to adversely affect the balance of power between the President and the Congress.

Regrettably, these appointments are part of a pattern of the President bypassing Congress and exerting executive power past constitutional and customary limits.

For example, when the President's cap-and-trade legislation failed to pass Congress, he had the Environmental Protection Agency issue equivalent regulations instead.

When Congress refused to enact the President's "card check" legislation doing away with secret ballots in union elections, the President's National Labor Relations board imposed the change by administrative decree.

And, when Congress defeated the DREAM Act, the President's illegal immigration amnesty proposal, the Administration instructed immigration officials to adopt enforcement measures that often bring about the same result as the DREAM Act.

In addition to disrespecting Congress's constitutional authority when Congress has refused to enact his policy preferences, the President has also ignored laws passed by Congress.

For instance, rather than seeking legislative repeal of the Defense of Marriage Act, the President simply instructed his Justice Department to stop defending its constitutionality. And the President ignored the Religious Freedom Restoration Act by failing to give religious organizations an exemption from the Health and Human Services' contraceptive mandate.

One of the fundamental principles of American democracy is that we are a nation of laws. America's elected leaders swear to follow our Constitution and our statutes even when they do not agree with them.

With these recess appointments, the President may have violated the constitution by disregarding the rule of law.

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