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Saturday, December 10, 2011

Teddy Roosevelt: 193 recess appointments during a one second recess

This is what you call executive decision-making. When he was facing a Congress that tried to prevent him from governing by refusing to approve his appointments, TR got creative. In the split second between the gavels closing one Senate session and opening a new one, TR made 193 recess appointment.

I've wondered about the Obama administration's passivity in response to Republican obstructionism. His recess appointments have been sparse, and the unfilled offices are piling up. Obama could take the following position: that by refusing to even permit votes on appointments that require Senate approval, and then refusing to go formally into recess in order to prevent him from exercising his Constitutional authority to make recess appointments, the Senate is deliberately interfering with his executive authority and effectively preventing him from fulfilling his Constitutional obligation to execute the laws of the land; accordingly, for purposes of making appointments he is entitled, he is declaring a constructive recess, making the appointments and moving on to conduct the country's business -- including protecting hard-working Americans from depredations by unethical financial institutions by getting the new Consumer Financial Protection Agency up to speed.

OK, so he does this and Republicans throw a gigantic hissy fit. What are they going to do about it? The Supreme Court won't touch a dispute between its sister branches of government, the Republicans draft a resolution condemning his actions, and the majority Democratic Senators vote it down. With relentless attacks on the Republicans for abusing their offices by refusing to let the President make appointments he is Constitutionally obligated to make, the Democrats could create both a legal and political stalemate.

I can make a better Constitutional law argument for this as Bush's (and now Obama's) lawyers could make -- again on the basis of Executive branch prerogatives -- for allowing indefinite detention with no due process rights. This is asserted even in the case of American citizens, and even on U.S. soil, if they are declared by the President, with no provision for judicial review, to be "enemy combatants."

2 Comments:

Anonymous DOW said...

That was governing by a guy who wasn't afraid to govern. One phrase I doubt we'll ever hear from the lips of Mr. Obama is, "I'm the decider."

3:32 PM  
Blogger marketingace said...

Great blog and great point by DOW.
Another demonstration of the President's lack of the killer instinct.

2:01 PM  

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