By Publius Huldah ——Bio and Archives--December 1, 2011
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...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...[emphasis added]Do you see? The constitutional scheme is that the President nominates -- the Senate confirms or rejects the President's nomination. This is the "check" which Our Constitution imposes on the President's nominations. The purpose is to protect us from the loons, incompetents, or toadies whom various presidents have, from time to time, nominated. NOW let us see what Our Constitution says about recess appointments. Article II, Sec. 2, last clause, says:
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. [emphasis added]Do you see? The Vacancy must have happened at a time when the Senate was already in Recess! So! The President may not properly circumvent the Senate's constitutionally granted power to reject his nominations by means of cheap gimmicks such as forcing the Congress to adjourn, or by waiting until Congress is in recess, to "recess appoint" someone whom the Senate has already refused to approve!
...The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments "during the recess of the Senate, by granting commissions which shall expire at the end of their next session."... [caps are Hamilton's]Do you see? Article II, Sec. 2, last clause, means exactly what it says. Before this clause even kicks in, the vacancy must have happened while the Senate was in "recess". So! The Constitution requires the President to submit his nominations to the Senate for their approval. A President who disbands Congress so that he can circumvent the constitutional provisions which grant to the Senate the power to reject the President's nominations, is a usurper & a tyrant who should be promptly impeached and removed from office. 3 If the Senate rejects any nomination, the President may not circumvent that rejection by unconstitutional gimmicks such as those proposed by Arkush. If people wish to show how clever, creative, or original they are, then they should write a novel. When applying Our Constitution, we must display only Obedience. Now you know how to look things up in Our Constitution and check it out in The Federalist Papers. Political consultants, journalists, TV pundits, talk show hosts, candidates for office, people in Congress, in the Executive Branch, and sitting on Federal Benches don't know how to do this. So you must do it and spread the Word if we are to restore our Constitutional Republic. PH
...on the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independence, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist', being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to its genuine meaning.... (page 83) [emphasis added]3 On impeaching the President for usurpations of power -- i.e., acting outside the few enumerated powers granted to the President by Our Constitution -- see Federalist No. 66 (2nd para) & Federalist No. 77 (last para.) PH
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Publius Huldah is a retired lawyer who lives in Tennessee USA. She writes on the U.S. Constitution. Before getting a law degree, she got a degree in philosophy where she specialized in political philosophy and epistemology (theories of knowledge).