By rejecting their constitutional responsibilities to provide advice and consent on these nominations, by substituting extreme obstruction for reasons unrelated to the qualifications and merits of the individual nominee, by doing this for pure political brinksmanship, the republicans have created a constitutional crisis.
They have defied the constitution to the point that the government therein defined can no longer function. President Obama took drastic action to minimize the damage, but this particular crisis will persist as long as conservative extremists remain in the Senate in sufficient numbers to sustain a filibuster.
The filibuster was never meant to be used as the republicans are using it. It is supposed to be a lever, not a straightjacket.
The oath to support and defend the Constitution carries the implied oath to support “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States”. Even the ones republicans hate.
Without that support, we are not a nation of laws. Without that support, we do not have a constitutional government.
Read the Article at HuffingtonPost
What I have been wondering is why Reid and the other Democrats have been going along with the pro-forma sessions in the first place. If they refused to not recess, and the House wanted to, then there would be disagreement between the two and Article II sec. 3 could be invoked. This would let the President dictate the time of recess and reconvening.
Mike Lee went ballistic over President Obama’s recess appointments in January. This is how someone who believed in presumption of innocence might have worded it:
Senator Mike Lee formally responded to the President’s (allegedly) unconstitutional recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau. In a statement delivered at a Judiciary Committee business meeting, Lee outlined the (allegedly) unconstitutional nature of the appointments and criticized the justification offered by the Justice Department’s Office of Legal Counsel.
“President Obama used (in Lee’s opinion) deeply flawed legal reasoning to circumvent the Constitution’s clear requirement that the Senate must be in (official) recess in order to make such appointments,” said Sen. Lee. “The President’s assertion that
he(the Office of Legal Counsel) may unilaterally determine for himself(the administrative branch of government) whether or not the Senate is in recess (allegedly) violates the Constitution’s fundamental separation of government powers and the Senate’s rightful prerogatives.”
“Although some Senate Democrats claim prior ‘obstruction’ of nominees during this Congress, in reality Senate Republicans have willingly allowed the overwhelming majority of the President’s nominations to pass through the Judiciary Committee with little controversy and receive an up or down vote on the floor.”
Passing a nominee out of committee does not necessarily mean that the nominee got an up-or-down vote.
Getting nominees confirmed has proved a challenge for the administration. A recent report from the Constitutional Accountability Center in Washington said the federal judiciary had had more than 750 days with at least 80 vacancies on the federal bench, which adds to the workload of an already overburdened judiciary.
“Never before has the number of vacancies risen so sharply and remained so high for so long during a president’s term,” wrote the group, which noted that all presidents come into office with a backlog that gets worked down more quickly over time.
Judicial nominations have been a source of escalating conflict since the fight over President Ronald Reagan’s attempt to nominate Robert H. Bork to the Supreme Court in 1987. Over the years, fights have included refusals by Senate Republicans to hold hearings on Mr. Clinton’s nominees and Democratic senators filibustering nominees of Mr. Bush.
Now that conflict is just one of many in a continuing battle between Congress and the president that also includes nominations to the executive branch and efforts to pass major legislation.
While Mr. Obama was relatively slow to nominate judges earlier in his term, his team has now sped up, the group said. But Congress has been slow to confirm nominees, some of whom “go through committee without any opposition and still spend months and months waiting for a vote on the Senate floor,” said Doug Kendall, the group’s founder. “That’s never happened before, and it’s a big part of the reason the judicial vacancy problem has reached crisis proportions.”
Back to Mike Lee (NO relation):
“Given this President’s (allegedly) blatant and egregious disregard both for proper constitutional procedures and the Senate’s unquestioned role in such appointments, I find myself duty-bound to (commandeer the authority of the judiciary to determine constitutionality, ignore my “advise and consent” responsibilities under the Constitution, and) resist the consideration and approval of additional nominations until the President takes steps to ‘remedy’ the situation. Regardless of the precise course I choose to pursue, the President certainly will not continue to enjoy my nearly complete(ly imaginary) cooperation, unless and until he rescinds his (allegedly) unconstitutional recess appointments.”
Now that we’ve seen the rant, let’s look at the Constitution.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
US Const. Article II, sec 1.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and 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, in the Courts of Law, or in the Heads of Departments.
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.
US Const. Article II, sec 2
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.
US Const. Article II, sec 3
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
US Const. Article VI
“I, (name of Member), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
- Lee has personally determined that these particular recess appointments are unconstitutional. He has no constitutional authority to make such a determination. His constitutional authority is limited to legislative actions, confirming specific actions of the President, and approving selected structural matters of the country. “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Unless he has legal standing to challenge a law in court, his only constitutional remedy is to change the law. In either event, he is obligated to support the law until it is legally determined to be improper.
- It is Lee’s Constitutional duty to support the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof”. While he has the authority to oppose specific nominees, he does not have the authority to reject the Constitutional mandate for a confirmation process.
- The President has a Constitutional obligation to “take Care that the Laws be faithfully executed”, and the obligation of a Senator to “support and defend the Constitution of the United States” and “bear true faith and allegiance to the same” requires him to support and enable the President to fulfill his own obligations to the Constitution.
- By putting his ideology ahead of his (alleged) commitment to the Constitution, he is rejecting his oath to “well and faithfully discharge the duties of the office”. He has set himself up as judge, jury, and executioner for laws that offend his ideology. This is how dictators operate, not American Constitutional officers. This could easily be considered an impeachable offense. If he does not like a law, his sole Constitutional remedy is to change the law. Congress does not have the authority to implement, or prevent the implementation of, a law.
This is an anti-constitution power grab.
Lee has made at least two oaths he clearly holds above his oath of office. His loyalties are divided. Patriotism or subversion?