Sens. Jim DeMint, R-SC., and David Vitter, R-La., along with 18 other Republican Senators, have sent a letter to House Majority Leader John Boehner, caliing on the House to block President Obama from making any recess appointments. Their concerns are elevated with the Senate set to adjourn next week and Democrats pushing for Obama to use the break as a pretext to plant Elizabeth Warren in the new consumer financial regulatory board.
A few weeks ago, I urged House Republicans to take this action, as I described it:
House Republicans can use a tool provided by the Constitution in Article I, Section 5, which stipulates that, "Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days. ..."
Typically, the House and Senate pass what's known as a concurrent resolution allowing them to adjourn, and its passage is a mere formality. But if the House GOP refused to agree to it, then the Senate could not recess for more than three days.
While the Constitution specifies no minimum number of days required for a recess appointment, a March 2010 Congressional Research Service report referenced a Clinton-era Justice Department brief suggesting it was more than three days.
The CRS report also noted that "(a)lthough President Theodore Roosevelt once made recess appointments during an intra-session recess of less than one day, the shortest recess during which appointments have been made over the past 20 years was 10 days."
In a statement, DeMint said, "The Republican House has stopped President Obama's ability to ram through his reckless liberal bills through Congress. Now the president is trying to stack agencies with liberal ideologues to ram through his agenda by regulation. Unelected and unconfirmed partisans at the NLRB, FCC, EPA and other agencies are destroying jobs and hurting our economy. Republicans need to fight back and stop recess appointment of controversial nominees that would never be confirmed in the proper process."
Vitter said, "“Obama has a poor track record of appointing some really controversial characters during congressional breaks. Elizabeth Warren and Craig Becker rank up there among those I’ve had the greatest concerns about."
Here's the full text of the letter:
Dear Mr. Speaker:
President Obama has used recess appointments to fill powerful positions with individuals whose views are so outside the mainstream that they cannot be confirmed by the Senate of the United States. Many of these individuals are using their positions to implement policies that destroy jobs, and infringe upon the freedom of the American people.
In 2007, the Senate limited its recesses to three days by employing pro-forma sessions in a successful attempt to thwart President Bush's recess appointment powers. Article I, Section 5 of the United States Constitution states, "Neither House, during the Session of Congress, shall, without the consent of the other, adjourn for more than three days [.]"
Given President Obama's indifference to the Senate's constitutional authority, and the American people's right to scrutinize his appointees through regular order of advise and consent, we urge you to refuse to pass any resolution to allow the Senate to recess or adjourn for more than three days for the remainder of the president's term.