Balkinization: No Recess Appointments?

Comments:

Democrats can stop an adjournment in order to prevent a recess from happening, including filibuster from what I can tell.

Republicans so far are not saying they will force the issue. http://www.cnn.com/2017/07/25/politics/trump-recess-appointments/index.html

The executive "in Case of Disagreement between [the houses of Congress], with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper." This power never was used.

It's a fair question though still would need the relevant majority to adjourn. As to tacit "approval," practicably that is so.

# posted by

Joe : 5:10 PM

Gerard was late in opening comments. Mine may be the last on this thread. Apparently it's difficult supporting Sessions versus Trump. While Trump is being loyal to himself, so perhaps is Sessions.

# posted by

Shag from Brookline : 8:53 AM

Why would Trump even bother with firing Sessions and appointing another AG when the investigation was already transferred to a Special Prosecutor? The problem is a special prosecutor with an unlimited portfolio and unlimited time and resources.

The SP works for POTUS and Trump should treat him like any other subordinate at Justice.

Trump should expressly limit the SP's portfolio to Russian attempts to influence our elections and require the SP provide a full report of the state of the investigation to POTUS and the Deputy AG in thirty days, then require the Deputy AG can certify whether prima facie evidence of a crime exists which is admissible at trial against a named person of interest.

This investigation has been going on for a year now. If they do not have a prima facie criminal case assembled by now, Trump should publish the unclassified parts of the report, terminate the investigation and relieve Mueller of his duties.

# posted by

Bart DePalma : 11:09 AM

Don't tend to comment on posts w/o comments but the "due process in lawmaking" discussion is very good.

# posted by

Joe : 1:14 PM

"The SP works for POTUS and Trump should treat him like any other subordinate at Justice"

Count on Bart to endorse a view that would make a President immune to investigations. Dictatorial has always been his leanings.

# posted by

Mista Whiskas : 7:21 PM

Mr. W:

A sitting president cannot be prosecuted.

If the SP has any evidence Trump violated a law, he can refer it to Congress.

# posted by

Bart DePalma : 7:32 PM

Mr. W:

As I noted to Shag the last time we discussed this issue on the previous Gerard open thread, Article II's grant of all executive power to the President brings with it the conflict of interest of the POTUS having to police his own executive branch. Regardless, this grant remains the law of the land. Under Article II, the idea of "independent" AGs and FBI directors is nonsense.

My solution would be a constitutional amendment dividing executive power between an elected Attorney General tasked with enforcing the law and a head of state President with all other executive power, both subject to impeachment by Congress.

# posted by

Bart DePalma : 11:12 PM

Bart, another solution is to have our investigatory executive bodies, and their heads, in the spirit of the Constitution's charge that they 'Take Care' not of POTUS, but to execute the laws, as well as civil service laws, to operate under expectations, practices and norms of some form of political independence. Given the system we have now the alternative really is a spoils system inviting corruption and lawlessness on the part of the Executive.

# posted by

Mista Whiskas : 7:25 AM

On Gerard's earlier thread, I suggested that SPAM might indulge his proposed constitutional amendment. It might be good for laughts upon analysis. But what's amazing is that SPAM seems to be relishing Trump's performance as President. Does anyone recall how SPAM addressed Bill Clinton's and Barack Obama's exercise of Article II powers during their presidencies? SPAM seems to relish the fascist, authoritarian tyrant that is President Trump.

# posted by

Shag from Brookline : 8:09 AM

Mr. W: Bart, another solution is to have our investigatory executive bodies, and their heads, in the spirit of the Constitution's charge that they 'Take Care' not of POTUS, but to execute the laws...

POTUS still has the final word in the executive branch concerning what the Take Care Clause requires, subject to impeachment and removal by Congress.

If you want the AG to exercise law enforcement power independent from the POTUS, you need to amend the Constitution.

# posted by

Bart DePalma : 8:45 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 8:59 AM

Shag:

You may note that I may have been the only one here who applied the same Article I and Article II standards to both Bush and Obama. The professors here dropped all the arguments concerning the limits of POTUS power they made against Bush when Obama took power. Not a peep when Team Obama made real all their fears about the national surveillance state by using it to spy on their political opponents. Nothing when Obama waged war without the permission of Congress and the UN.

FWIW, with the exception judicial appointments and a handful of reversals of Obama decrees, the Trump administration is about what I expected - a mess. I warned Trump supporters during the campaign that he would be unwilling or unable to enact most of his promised policies.

HOWEVER, the mandarin caste assault from the so called "deep state" on Trump's presidency is a direct and unprecedented assault on our constitutional government. This is no longer political debate. As Brett noted, if the bureaucracies can depose an elected POTUS with nothing more than anonymous misinformation and defamation, then we have indeed crossed a very dangerous rubicon.

# posted by

Bart DePalma : 9:02 AM

You don't need to amend the Constitution, you just have to recognize that without norms of professional standards and independence you have a lawless Executive always at the potential.

# posted by

Mista Whiskas : 9:16 AM

"mandarin caste assault from the so called "deep state" on Trump's presidency"

Nonsense. Our agencies tasked with policing foreign interference came across evidence of such and quite properly looked into it. The Trump campaign and administration has heightened such suspicions by a pattern of misrepresenting their actions in this matter. Its something close to a traitor who would want our agencies to not take such matters seriously.

# posted by

Mista Whiskas : 9:34 AM

Mr. W:

Sorry, you cannot legally amend the Constitution with contrary "norms of professional standard and independence."

Further, the bureaucracy have not discovered any evidence Team Trump entered into a conspiracy with the Russian government to "hack the election." The only evidence "the Russians" hacked the DNC and Clinton campaigns to provide emails and documents to Wikileaks is not admissible in any court of law - the opinion of a Democrat IT contractor based on alleged examination of servers withheld from law enforcement. The allied Democrat "deep state" and media claims of a Trump conspiracy with Russia are the proverbial "big lie."

# posted by

Bart DePalma : 9:44 AM

Manafort, Flynn and Rick Gates have broken the law regarding registering as foreign agents.

Trump Jr and Manafort broke federal election law.

Sessions lied under oath to Congress.

All this is, of course, in addition to the findings of over a dozen intelligence agencies that Russia desired a Trump victory and took efforts, including dissemination of false information and illegal procurement and release of information, to reach that end.

# posted by

Mista Whiskas : 9:47 AM

"you cannot legally amend the Constitution with contrary "norms of professional standard and independence."

The norms are in no way contrary to the Constitution.

A Constitutionally elected Sheriff may have the authority to fire his trained deputies and hire only corrupt, untrained relatives who would look the other way when the Sheriff's allies do illegal things, but if a Sheriff adopts, and the public holds him to, a policy of professionalism in his operating of the office he has in no way violated his State Constitution. Likewise, a POTUS may have the authority to act in the corrupt, lawless fashion you advocate, but his employees would be correct to resist him, the public would be right to be outraged, and the Congress would be right to immediately impeach him.

# posted by

Mista Whiskas : 9:52 AM

Yes absolutely Truth never dies but wins lately.There will modifications occuring all over but now in this judgement too.
Thanks,
Isabella Jarosz

# posted by

Unknown : 9:55 AM

"The only evidence "the Russians" hacked the DNC and Clinton campaigns to provide emails and documents to Wikileaks is not admissible in any court of law - the opinion of a Democrat IT contractor based on alleged examination of servers withheld from law enforcement."

This is nonsense. Additionally, much of the evidence is classified, but it must be powerful stuff as every GOP congresscritter briefed has agreed with the conclusions. It's interesting that in reliance on intelligence with less agreement you supported a disastrous war, indeed even when the agencies later admitted their errors you continued to, but in this case you change your tune. Similar to how you never criticized, indeed relied on leaks re the Clinton investigation but decry leaked information about the current GOP administration as 'deep state' sabotage (let's remember that the particular 'Democrat deep state' agency in question was headed by a lifelong GOP hack who violated agency policy to help swing the election to the GOP in an 'October surprise.'). Hypocrisy and nonsense.

# posted by

Mista Whiskas : 9:59 AM

Mr. W: Manafort, Flynn and Rick Gates have broken the law...

Straw men. None of your criminal allegations have anything to do with your claim the "Deep State" was heroically defending the nation from Russian interference with our elections. We previously discussed your lack of evidence for these charges.

BD: "you cannot legally amend the Constitution with contrary "norms of professional standard and independence."

Mr. W: The norms are in no way contrary to the Constitution.

How is the FBI Director and the AG acting with executive authority independent of the POTUS consistent with the grant of all executive power to the POTUS? There is a reason why many state constitutions divide executive power between the governor and the AG.

# posted by

Bart DePalma : 10:00 AM

BD: "The only evidence "the Russians" hacked the DNC and Clinton campaigns to provide emails and documents to Wikileaks is not admissible in any court of law - the opinion of a Democrat IT contractor based on alleged examination of servers withheld from law enforcement."

Mr. W: This is nonsense.

Before a prosecutor can admit an expert opinion, you have to provide the evidence which forms the basis of that opinion to the defense and the jury. For example, in the OJ case, the DA could not have a witness opine about the gloves allegedly worn by the murderer and refuse to supply the gloves themselves.

Additionally, much of the evidence is classified...

What classified evidence? The Democrats refuse to provide their servers with the alleged evidence to law enforcement or the intelligence agencies to be classified.

It's interesting that in reliance on intelligence with less agreement you supported a disastrous war...

Red herring. Team Bush's (and the UN's) evidence for their allegations against Iraq filled volumes. The Democrat IT contractor offered an article of evidence free opinion in the media.

the particular 'Democrat deep state' agency in question was headed by a lifelong GOP hack who violated agency policy to help swing the election to the GOP in an 'October surprise

Please. Comey was the one who refused to enforce the Espionage Act against Clinton by arbitrarily rewriting the law. If this hack did his job, FBI would have made a criminal referral to Justice the size of a small book.

# posted by

Bart DePalma : 10:15 AM