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Friday, January 6, 2012
CNS' Hypocritical And Deceptive Recess Appointment Freakout
Topic: is taking President Obama's recess appointment of Richard Cordray as head the Consumer Financial Protection Bureau and three members of the National Labor Relations Board in the biased, hypocritical way you'd expect. A few sample headlines:

Obama on Flouting Article 2, Section 2 of Constitution: ‘I Refuse to Take No for an Answer’

The Heck with the Senate: Obama Skips 'Advise and Consent' in Naming 3 Members to NLRB

Pelosi on Obama Nullifying Constitution's Confirmation Mandate: ‘I’m Proud of What the President Did’

Of course, CNS had no problem with President Bush making recess appointments. For instance, it promoted Bush's recess appointment of a federal judge -- approvingly quoting conservative C. Boyden Gray calling Democrats' "permanent minority filibuster" against him "an unconstitutional measure" -- then touted the upholding of , approvingly quoting the right-wing American Center for Law and Justice's Jay Sekulow attacking then-Sen. Ted Kennedy's "obstructionist tactics he is utilizing in the Senate to prevent up-or-down votes on President Bush's nominees."

When CNS bothers to address the one legal argument at question regarding these appointments -- whether they can be made during a pro forma session of Congress during which no business is conducted and is intended only to  prohibit the president from making recess appointments -- it has largely ignored arguments that disagree with its predetermined conclusion that what Obama did was illegal.

A Jan. 4 article by Matt Cover asserts that "the Constitution seems to back Boehner’s position" that "either house of Congress can adjourn only for three days during a session," thus disqualifying the appointments. A Jan. 5 article by Fred Lucas cites "constitutional scholar" John Eastman claiming that Obama "simply ignored the section of the Constitution, which governs when Congress can adjourn," failing to mention Eastman's affiliation with the right-wing Claremont Institute.

CNS has thus far ignored the analysis of John Elwood, who worked in the Department of Justice and solicitor general's office under President Bush, in which he pointed out that the resolution authorizing these pro forma sessions specifically states that no business can be conducted, raising the question of the legality of such sessions. Elwood also cites a 1982 court ruling stating that "[T]here is no reason to believe that the President’s recess appointment power is less important than the Senate’s power to subject nominees to the confirmation process."

Cover also cranked out a Jan. 6 article trying to make a big deal out of how Sen. Harry Reid "took to the Senate floor during a 'pro forma' session on Dec. 23 to pass a two-month extension to the payroll tax." But that particular pro forma session was long over by the time Obama made his appointments. Ignoring Elwood's analysis, Cover insisted that "the Senate was not in recess" when the appointments were made.

Posted by Terry K. at 2:04 PM EST

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