Bush defies Constitution and Senate, AGAIN !

Maybe Mark Kennedy was right when he said that the Senate does not need another attorney. But I don’t think a Doctorate in Jurisprudence (or for that matter a Doctorate in Remedial Reading) is required to see that President Bush has misread the Constitution.

Once again, Bush is exerting Executive Authority when the Constitution clearly intended that the Senate participate in their “Advice and Consent” responsibility. There was a reason for the length of the terms … House is two years so that Congressmen would be responsive to the immediate needs of the people … the President for four years … and the Senate for six staggering terms so that they would extend longer than the President’s term.

Bush’s latest excursion beyond his scope is in Article II, Section 2.2 of the US Constitution:
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
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.

The process is clear. The President nominates and the Senate confirms.

Originally Congress was thought to be a citizen legislature and it was not uncommon for it to be in session for only half the year and the other half as citizens attending to their personal businesses. The Founding Fathers recognized the necessity for continuation of government and included a provision to allow appointments that occurred during the recess period to be filled until the end of the Congressional term. Since the 20th Century, Congress is essentially in year-round session. The Senate declares a “recess” but in actuality it is a time period when they are just not voting on legislation. John McCain was certainly not “vacationing” in Iraq last weekend … more likely he was “fact-finding”. Senator John Thune held a field hearing of the Energy Subcommittee of the Senate Ag Committee on April 4th in Brookings while other Senators had informative sessions with their constituents such as Amy Klobuchar who participated in Connecting with Government: Public Forums with Minnesota's Elected Officials.

Yesterday, while the Senate was in recess until April 10th, Bush made a number of recess appointments. One has gotten a lot of publicity – Sam Fox as Ambassador to Belgium. Fox was nominated by Bush on January 9 but pulled March 28th, Bush withdrew his nomination. During the White House new briefing, Bush’s spokesperson was asked about it.

“Did senators threaten to put holds on him…

PERINO: I don’t know. I do know that they were — his nomination would not have passed today if the vote had been called up.

And why not let the vote go ahead?

PERINO: We just decided to withdraw his name.”

So, when the Senate Foreign Relations Committee (which Norm Coleman sits) was scheduling a vote, Bush pulls the nomination and waits until the lights go out in the Senate to make a recess appointment.

The Fox nomination is a clear example of Bush’s rejection of the Senate’s Constitutional duty … yet, technically since his nomination was pulled, one could argue that the vacancy became open during the “recess” period and Bush was within the guidelines.


But that is not the only recess appointment that Bush made. On November 13, 2006, Andrew Biggs was nominated to be Deputy Commissioner of Social Security, however the Republican-controlled Senate under Senate Rule XXXI did not approve his nomination. On January 9, 2007, Bush re-nominated Biggs.

In February, Senate Finance Committee Chairman Max Baucus announced that “ It’s time to move on to a real discussion about the long-term finances of Social Security and the Federal budget. ” Further, Baucus stated “Mr. Biggs has championed Social Security privatization in the past, and he continues to think it’s a good idea today. It’s a bad idea to give the number-two position at the Social Security Administration to someone who still supports this failed proposal. Baucus concluded that the Biggs nomination would not be addressed by the committee.

Besides Baucus philosophical concerns of how Biggs would lead the department, there was also allegations Biggs violated a federal ban on congressional lobbying by federal employees when he edited the prepared testimony for a lobbyist [named Derrick Max] appearing before Democratic Policy Committee Social Security hearing.

This is not the first time that Bush has used recess appointments – most significantly, John Bolton to be the United Nations Ambassador. And Bush is not unique … Clinton did the same thing.
Sen. Christopher J. Dodd, who also sits on the Foreign Relations Committee with Coleman, thinks the appointment may have violated Senate rules. "I seriously question the legality of the president's use of the recess appointment authority in this instance. I intend to seek an opinion on the legality of this appointment.


The motivation for the replacement of the Gonzales-8 US Attorneys was to be able to utilize a provision in the Patriot Act that allowed the Attorney General to make appointments without Senate confirmation. Once again, another example of the Executive Branch assuming powers from the Legislative Branch.


It’s time for Norm Coleman and Amy Klobuchar to address this issue … it should not matter if the President is a Republican or Democrat. Everything may change as a result of the 2008 election, so now is the time for the Senate to exert is responsibility. Two actions should be taken :
1. A Sense of the Senate Resolution needs to be passed informing the President that this is a violation of his authority.
2. A lawsuit should be intiated to have the Judicial Branch interpret the Constitution once and for all.


Link to news story