It’s an issue that has struck a constitutional chord with the American people and a growing number of members of Congress. The issue: President Obama’s overreach last week in making appointments to federal agencies – appointments that bypassed the Senate – appointments that violated the separation of powers.

In just a few days, we have heard from more than 35,000 Americans who have signed on to our petition rejecting these unconstitutional appointments and urging the President to retract them.

At the same time, all Republican Senators of the Senate Judiciary Committee have signed on to a letter to Attorney General Holder expressing concern that President Obama has “deviated from over 90 years of precedent” established by the Justice Department. In that letter, posted here, the eight Republican Senators on the Judiciary Committee want to know what involvement, if any, did the Attorney General have in advising the President concerning these appointments.

Here’s the problem. These appointments have been made outside the Constitution – a move that ignores a century of precedent – a move that is simply unconstitutional.

No one questions the fact that Presidents have the authority to make recess appointments. But those must occur when the Senate is in recess, which is clearly not the case here. In an earlier post, I provided a detailed analysis that clearly spells out what is required according to the Constitution.

As I wrote just a few days ago:

Article 1, Section 5 of the Constitution provides that “Each House may determine the Rules of its Proceedings.” This includes the right to determine when to recess. Decades of legal precedent and accepted practice — by both political parties — is that consent from both chambers of Congress is required for any recess to take place, and absent such consent, each chamber must continue to meet. That is precisely what has been occurring over the last few weeks. No recess resolution has been agreed to; both the House and the Senate have been gaveling in for just a few moments of a Pro Forma session every few days, effectively blocking President Obama’s ability to make recess appointments.

In fact, many of you have asked about the exact days that the House and Senate have gaveled into Pro Forma session, thereby indicating that a recess has not occurred. In the House, a full schedule was being conducted up until December 21, 2011. Pro Forma sessions were conducted on December 23, 27 and 30, 2011, and on January 3 and 6, 2012. In the Senate, a full schedule was conducted up until December 17, 2011. Pro Forma sessions were conducted on December 20, 23, 27 and 30, 2011, and on January 3 and 6, 2012. Keep in mind that Sunday remains a non-legislative day in the U.S. House and Senate. President Obama’s controversial “non-recess appointments” were made on January 4, 2012.

It’s time for President Obama to abide by the Constitution and the rule of law. Stand with the ACLJ now and make a difference. Sign on to our petition rejecting this unconstitutional maneuver and urge the President to put the Constitution ahead of politics.

Jay Sekulow


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