Senate, Don’t Confirm Appointees Unless Obama Retracts Unconstitutional Appointments

The ACLJ is calling for the Senate to take strong action in response to the “dangerous precedent” set by President Obama’s non-recess appointments. In a letter sent to Members of the U.S. Senate today, Jay Sekulow, ACLJ Chief Counsel, urged:

On behalf of our organization and the more than 84,000 Americans who have signed our Petition to Retract Unconstitutional Appointments, we urge the Senate to take decisive action in opposition to President Obama’s unconstitutional non-recess appointments. We urge you to use your power under the Senate rules to prevent the confirmation of any Executive Branch nominees unless and until President Obama secures the resignation of each of his unconstitutional appointees.

In addition to explaining why the appointments, made while the Senate was still in session, are unconstitutional, the letter warns, “If the President has the power to determine when the Senate is and is not in session, he would have nearly limitless power to appoint whomever he wishes without the constitutionally mandated advice and consent of the Senate.” The Senate must take action to “restore the separation of powers and the constitutionally mandated advice and consent of the Senate in the presidential appointment process.”

This week Congress has already held two hearings related to these non-recess appointments.

Today, the House Oversight and Government Reform Committee held a hearing to discuss options available to respond to President Obama’s “recess” appointments. The Wall Street Journal reports, “Committee Chairman Darrell Issa (R., Calif.) lambasted Mr. Obama’s appointments as a ‘political power play’ . . . .” Republican lawyer C. Boyden Gray, who himself was a recess appointee under the Bush Administration, testified that while the House may not have standing to file suit itself, “‘There’s going to be a challenge’ and ‘what you say will be taken very, very seriously.’”

Sen. Mike Lee (R., Utah), a former lawyer specializing in appellate and Supreme Court litigation, testified . . . “You have my assurance that I and my Republican colleagues will continue to explore and attempt to exhaust every available option” . . . .

Yesterday, Several members of the Senate Banking Committee, including Senator Roger Wicker (MS), boycotted the testimony of President Obama’s non-recess appointee to head the Consumer Financial Protection Bureau, Richard Cordray. Of the members who attended Cordray’s first Senate hearing, some expressed concern over the legitimacy of his appointment and whether any actions he takes will withstand legal scrutiny. Senator Mike Johanns (NE) stated, “If we accept the premise of your validity in this position, . . . then we accept the premise that our ability to offer advice and consent basically disappears, because the President can determine when we're in recess and not in recess, and just appoint whoever.”

We will continue to keep you informed as we work with Congress on this issue.