Republican National Lawyers Association | (RNLA)
Republican National Lawyers Association | (RNLA)

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RNLA Vice Chair Testifies That President Obama Exceeded Executive Authority
-Mr. James Uthmeier

On February 7th, 2012, Charles Cooper, the Vice-Chair of the RNLA, spoke before the House Committee on Education and the Workforce regarding the recent recess appointments made by President Obama. At the hearing, Mr. Cooper explained that the President’s actions were an unprecedented attack on our country’s cherished system of checks and balances, and that the President exceeded his constitutional authority in making the appointments.

Charles Cooper, who currently works as a partner at the law firm of Cooper & Kirk, PLLC, has been a student of the constitution throughout his esteemed career. He served as Assistant Attorney General of the Office of Legal Counsel to the Department of Justice under President Reagan, and he subsequently was involved in several benchmark Supreme Court and Federal Court involving the constitutional separation of powers.

At the hearing, Mr. Cooper first described the nature of the “pro forma” sessions that were being conducted at the time President Obama made the unconstitutional appointments. The series of sessions were held to “break the holiday period into three-day adjournments in order to comply with its constitutional obligation not to adjourn for more than three days during a congressional session without the consent of the House of Representatives,” which is required under Art. I, § 5 of the U.S. Constitution. Although the Senate provided that “no business would be conducted” during the sessions, which spanned from December 17th to the January 23rd, they passed an extension of the tax cut as requested by President Obama on December 23rd. On January 4th, the day after the Senate met in pro forma session, President Obama made three recess appointments to the NLRB and one to the CFPB.

In denouncing the appointments as an abuse of Executive power, Mr. Cooper first directed the House Committee to the language of the Constitution and the reasoning of its Framers. As set forth in the Appointments Clause, the President has the power “by and with the Advice and Consent of the Senate” to “appoint…Officers of the United States.” The Recess Appointments Clause, under Art. II, § 2 c. 3, enables the President 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.”

Such recess appointments, as described by Alexander Hamilton in THE FEDERALIST NO. 67, gave the President “auxiliary” power because “it would have been improper to oblige [the Senate] to be continually in session for the appointment of officers, yet “vacancies might happen in their recess, which it might be necessary for the public service to fill without delay.” Mr. Cooper correctly articulated, however, that “the Senate was not in ‘Recess’ during its pro forma sessions,” thus making Obama’s decisions unconstitutional.

Shortly after the appointments were made, the Department of Justice’s Office of Legal Counsel (OLC) released a statement wrongfully justifying the President’s decisions. Mr. Cooper made clear just how weak the OLC’s arguments really were. According to Cooper, the OLC’s opinion “does not suggest that the President can make recess appointments during a Senate adjournment of only three days… [nor] suggest that the Senate cannot constitutionally block recess appointments by remaining in session,” but rather, as he points out, “OLC’s legal argument rests entirely on its conclusion that the Senate is not actually in session during its pro forma sessions, and so was in continuous recess between December 17 and January 23.”

The Senate was in session, and the President does not have the authority to hold otherwise. The Constitution grants each house of congress the power to “determine the Rules of its Proceedings.” U.S. CONST. Article I, § 5, cl. 4. The Senate, by its own determination, was repeatedly in session at the time the appointments were made. Cooper, quoting Thomas Jefferson’s Constitutionality of Residence Bill of 1790, said “Each house of Congress possesses this natural right of governing itself, and consequently of fixing its own times and places of meeting, so far as it has not been abridged by . . . the Constitution.”

In Federalist 76, Alexander Hamilton explained the Framers reasons for not giving the President “absolute power of appointment.” He thought the Senate would serve as an “efficacious source of stability in the administration” and prevent unfit characters from being appointed. Clearly, President Obama’s actions violate the fundamental framework of the American government as designed and implemented by our Founding Fathers.

After establishing that the OLC failed to prove the Senate was not in session, Mr. Cooper described for the committee how the OLC relied instead on what it believed the Recess Appointments Clause really meant: “to provide a method of appointment when the Senate [is] unavailable to provide advice and consent.” See 2012 OLC Op. at 15. So basically, according to the OLC, the President gets to determine whether or not the Senate is open for business. Mr. Cooper pronounced that under this approach, “a President could circumvent the Senate’s opposition to a nominee by making seriatim recess appointments to that same office,” thus bypassing the Senate’s advice and consent function altogether.

First of all, the Senate was clearly conducting business during the pro forma sessions. As Mr. Cooper explained, the Senate extended tax cuts at the request of the President in mid-December. Additionally, Cooper expounded “the Senate had been ‘available’ to consider the pending nominations, and had been considering many of them for several months.” They were not unable to give their advice and consent to the President's nominees. They were unwilling.

President Obama himself admitted that his appointment of Mr. Cordray to the CFPB was made despite the Senate’s refusal to confirm him. Obama publicly announced, “Now, I nominated Richard for this job last summer . . .For almost half a year, Republicans in the Senate have blocked Richard’s confirmation,” and Mr. Obama proclaimed, “I refuse to take no for an answer.” The President is inexcusably circumventing the Senate and disregarding the Constitution's ‘separation of powers.'

In his testimony before the House Committee on Education and the Workforce, Charles Cooper valiantly stood up against the President’s abuse of power, declaring the President’s appointments to be “contrary to both the weight of legal authority and historical practice.” When the President exceeds the outer limits of his power, as according to Cooper, “Congress has a responsibility to resist him.”

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