Seedless Wry - constitution Obamacare

Recess Appointment - with Congress in session?

President Obama assured the validity of his latest appointment - a recess appointment of Richard Cordray to head up the Consumer Financial Protection Bureau - will be determined in the courts.

The President's use of a recess appointment is authorized by Article 2, Section 2 of the Constitution, which states:

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.

In this particular instance, however, the Senate was still in session when the so-called recess appointment was made. While no official business was scheduled, the Senate formally remained in session to avoid the prospect of just such a recess appointment. The President moved forward with the appointment anyway.

At issue here is whether the President has the power to define what constitutes a "Session" of the Senate. The answer is plain, because the Constitution addresses the matter in Article 1, Section 5, Clause 2, stating:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

The Senate then has the power to define what constitutes a "Session"; the President does not have this power. Any fair-minded court will quickly overturn this recess appointment.

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