{"id":1969,"date":"2012-01-05T18:39:31","date_gmt":"2012-01-05T23:39:31","guid":{"rendered":"http:\/\/blog.beliefnet.com\/faithandjustice\/?p=1969"},"modified":"2012-01-05T18:39:31","modified_gmt":"2012-01-05T23:39:31","slug":"jay-sekulow-obama-appointments-shred-the-constitution","status":"publish","type":"post","link":"https:\/\/www.beliefnet.com\/columnists\/faithandjustice\/2012\/01\/jay-sekulow-obama-appointments-shred-the-constitution.html","title":{"rendered":"Jay Sekulow: Obama Appointments Shred the Constitution"},"content":{"rendered":"

\"\"<\/a>President Obama is creating a constitutional crisis with the four \u201crecess appointments\u201d<\/a> he made yesterday, bypassing the authority of the U.S. Senate. His unconstitutional actions contradict centuries of precedent, as well as recent legal analysis by both the Clinton and Bush White House counsel\u2019s office and President Obama\u2019s own statements as a U.S. Senator.<\/p>\n

In 2010, President Obama\u2019s Deputy Solicitor General Neal Katyal specifically told the Supreme Court that the official legal position of the Obama White House is that a President can not make an appointment unless the Senate is in recess more than three days. He stated:<\/a><\/p>\n

“The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board.”<\/p>\n

When such a blatant violation of the Constitution occurs, one of the most common defenses is that the Constitution is unclear, or that it is too vague or confusing, thus offering opportunity for some to \u201cinterpret\u201d the Framers intent. In a sense, that is the defense put forward by those who support the President\u2019s unprecedented action. They say that it is a technicality, and that the President is free to make these appointments because the Senate is only conducting Pro Forma sessions.<\/p>\n

There\u2019s one significant problem with that argument, and it is that this is far from a technicality, and in fact is abundantly simple and spelled out very clearly in the Constitution. Anyone who takes just a minute or two to read the relevant portions should come away with the same conclusion. Allow me to explain (and if you\u2019d like your own copy of the Constitution to follow along with, you can get a free copy here<\/a> in our critical resource Foundations of Freedom).<\/p>\n

Article 2, Section 2 of the Constitution reads: \u201cHe [the President] shall have Power, by and with the Advice and Consent of the Senate, [to] appoint\u2026all other Officers of the United States.\u201d<\/em> Further, \u201cThe President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate .\u2026\u201d<\/em><\/p>\n

So, clearly, the President has sound constitutional authority to make recess appointments. And Presidents from both parties have done so. It is a clear grant of power to the President under the Constitution.<\/p>\n

However, Article 1, Section 5 of the Constitution provides that \u201cEach House may determine the Rules of its Proceedings.\u201d<\/em> 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\u2019s ability to make recess
\nappointments.<\/p>\n

It is also relevant to point out that this exact tactic was used in 2007 and 2008 when President Obama was a U.S. Senator to block the possibility of recess appointments by President George W. Bush. It has been anything but a one-sided partisan tactic. There are plenty of reasonable people who don\u2019t like either the President\u2019s power under the Constitution to make these appointments or the Congress\u2019 power under the Constitution to stop them. But the bottom line is that the Constitution specifically grants each of these powers, and unless a constitutional amendment is achieved, both powers must be respected.<\/p>\n

President Obama is well-versed on these issues. He\u2019s been a constitutional law professor, he\u2019s participated in the process as a U.S. Senator, and now he\u2019s the President of the United States. In fact, he called recess appointments the \u201cwrong thing to do\u201d<\/a> and that such appointees are \u201cdamaged goods\u201d that \u201chave less credibility.\u201d<\/p>\n

This is not an act of ignorance. It is an intentional power grab that ignores the Constitution and Senate precedent, and is likely intended to achieve a showdown with Congress for political purposes. It is a dangerous game for our nation, especially if it is played merely for political gain.<\/p>\n

Court challenges to this radical expansion of Presidential powers are already being discussed<\/a>, and we are evaluating what legal actions are available.<\/p>\n

Every American \u2013 Republican and Democrat – should read Article 2, Section 2 and Article 1, Section 5 of the Constitution, and should demand that the President retract these appointments. Likewise, every Member of the House and Senate from both parties should stand up and defend the rights of the Legislative Branch under the Constitution.<\/p>\n

We must not let one man cripple the Constitution\u2019s authority on the important matter of separation of powers.<\/p>\n

Jay Sekulow<\/a><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

President Obama is creating a constitutional crisis with the four \u201crecess appointments\u201d he made yesterday, bypassing the authority of the U.S. Senate. His unconstitutional actions contradict centuries of precedent, as well as recent legal analysis by both the Clinton and Bush White House counsel\u2019s office and President Obama\u2019s own statements as a U.S. Senator. 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He is also Chief Counsel of the European Centre for Law and Justice (ECLJ). Jay Sekulow is one of the leading defenders of constitutional rights and religious liberties in the United States. Over the past 25 years, Jay Sekulow has amassed an unparalleled record of accomplishment, arguing before the U.S. Supreme Court on 12 occasions. His aggressive litigation strategy before the Supreme Court has led to many landmark First Amendment victories. In his first case before the Supreme Court, Jews for Jesus, Jay Sekulow secured the right of religious groups to pass out tracks in airports. In Mergens, Jay Sekulow successfully protected the right of students to form Bible clubs and prayer groups on public school campuses. In Lamb\u2019s Chapel, Jay Sekulow cleared the way for churches to have equal access to public facilities in the same way that other groups are permitted to utilize those facilities. In the Bray and Operation Rescue cases, Jay Sekulow protected the free speech rights of pro-life advocates to be free from criminal prosecution for conveying their pro-life message. In McConnell v. FEC, Jay Sekulow protected the right of young people to engage in the political process by donating to the campaign of their choice. In Pleasant Grove, Jay Sekulow paved the way for governments to be able to display Ten Commandments monuments, and other monuments of their choosing, in public parks. Through the ACLJ, Jay Sekulow engages the political, legal, and cultural battles facing America today. He routinely works with Members of Congress, advising them on proposed legislation and representing them in critical legal matters. Jay Sekulow has also testified before Congress on the constitutionality of proposed legislation. Also, in addition to being a successful Supreme Court advocate, Jay Sekulow is a highly respected broadcaster. Jay Sekulow is the host of Jay Sekulow Live! which airs each weekday on over 850 radio stations nationwide, in addition Sirius and XM satellite radio. He brings insight and education to listeners daily through this national call-in radio program. He is also the host of the ACLJ This Week, the ACLJ\u2019s weekly television program. Jay Sekulow regularly appears on major media outlets, including FOX News, CNN, ABC, CBS, and NBC, where he is sought out for his vast experience in constitutional law and his unique insight into many of the pressing legal and political issues facing America today. He is frequently quoted in the nation's leading newspapers and often contributes opinion editorials to national publications. Jay Sekulow has also published numerous law review and other scholarly articles. Jay Sekulow has received numerous honors for his groundbreaking legal work in the area of free speech and religious liberties. The Legal Times has named Sekulow one of \u201cThe 90 Greatest Washington Lawyers of the Last 30 Years\u201d and the National Law Journal has twice named Sekulow one of the \u201c100 Most Influential Lawyers\u201d in the United States. In addition, TIME Magazine listed Jay Sekulow as one of the \"25 Most Influential Evangelicals\" in America. Jay Sekulow\u2019s legal work in defense of religious liberties and human rights extends beyond the United States, having founded the ECLJ in Strasbourg, France, which maintains consultative status with the United Nations. He has also opened offices in Pakistan, Africa, and Jerusalem, Israel. Jay Sekulow is a staunch defender of Israel, presenting arguments before the International Criminal Court at the Hague. His efforts in support of Israel\u2019s right to defend itself from terrorist attacks have been commended by Israeli government officials, one official stating, \"Jay was instrumentally-involved in projects that the President of Israel and the Prime Minister put on our national agenda.\" Jay Sekulow also has a passion for educating the next generation of religious liberty advocates. He is a member of the Regent University Law School Faculty as a Distinguished Professor of Law and routinely teaches courses on constitutional law and presents guest lectures. Jay Sekulow has also started educational programs in international human rights law in Strasbourg, France and at Handong University in South Korea. Jay Sekulow is a graduate of Mercer University, earning both a bachelor\u2019s degree and doctor of jurisprudence. Sekulow served on the editorial staff of the Mercer Law Review and graduated cum laude. He later earned a Ph.D. from Regent University, writing his dissertation on American Legal History. Jay Sekulow also serves on the Board of Trustees for The Supreme Court Historical Society in Washington, D.C. Jay Sekulow, ACLJ Chief Counsels full biography and video. Jay Sekulow on Facebook. Jay Sekulow on Twitter. Jay Sekulow on YouTube.","url":"https:\/\/www.beliefnet.com\/columnists\/faithandjustice\/author\/jay_sekulow"}]}},"_links":{"self":[{"href":"https:\/\/www.beliefnet.com\/columnists\/faithandjustice\/wp-json\/wp\/v2\/posts\/1969","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.beliefnet.com\/columnists\/faithandjustice\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.beliefnet.com\/columnists\/faithandjustice\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/faithandjustice\/wp-json\/wp\/v2\/users\/401"}],"replies":[{"embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/faithandjustice\/wp-json\/wp\/v2\/comments?post=1969"}],"version-history":[{"count":10,"href":"https:\/\/www.beliefnet.com\/columnists\/faithandjustice\/wp-json\/wp\/v2\/posts\/1969\/revisions"}],"predecessor-version":[{"id":1980,"href":"https:\/\/www.beliefnet.com\/columnists\/faithandjustice\/wp-json\/wp\/v2\/posts\/1969\/revisions\/1980"}],"wp:attachment":[{"href":"https:\/\/www.beliefnet.com\/columnists\/faithandjustice\/wp-json\/wp\/v2\/media?parent=1969"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/faithandjustice\/wp-json\/wp\/v2\/categories?post=1969"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/faithandjustice\/wp-json\/wp\/v2\/tags?post=1969"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}