In January, Senate Republicans claim, the supreme ruler made several unconstitutional appointments. Adding fuel to the fire, one of Obama’s appointments, Richard Corday, was already previously rejected by the Senate for some six months. Obama, naturally, counters the appointments are legitimate.
A challenge is being organized. “The president’s decision to circumvent the American people by installing his appointees at a powerful federal agency, when the Senate was not in recess, and without obtaining the advice and consent of the Senate, is an unprecedented power grab,” said Senate Minority Leader Mitch McConnell.
Under the Constitution (Article II, §2, clause 2), the President and the Senate share the power to make appointments to high-level policy-making positions in federal departments, agencies, boards, and commissions. Generally, the President nominates individuals to these positions, and the Senate must confirm them before he can appoint them to office. The Constitution also provides an exception to this process. When the Senate is in recess, the President may make a temporary appointment, called a recess appointment, to any such position without Senate approval (Article II, §2, clause 3). — Congressional Research Service
So if you want to stop the President from making appointments without Senate approval, you keep the Senate in session. How? Basically, although most Senators are home for the holidays, every couple of days someone comes in, gavels-in and gavels-out, then goes home to drink nutmeg and rum. During these sessions, no business is conducted and no voting occurs. Is the Senate technically in session? Yes. Is it a gimmick? Obviously.
However, there is precedent. Democrat Harry Reid first used this technique to successfully block Republican President George Bush from making appointments in 2007. The Republicans, and if truth be told many constitutional lawyers, claim pro forma or not, if the Senate is in session, well — it’s in session. Of course, Obama’s massive ego won’t allow him to be held in check by an irritating Democratic slight of hand, so he ignored it. Or, if you believe the Senate was in session, he broke the law.
Enter Mr. Miguel Estrada for the Republicans.
Now Estrada, a Washington-based attorney, has a bitter history with Democrats. Back in the day, then top dog George W. Bush nominated him to be an appeals court judge but Estrada caught a smack down from Senate Democrats in the first-ever partisan filibuster of a judicial nominee. Faced with this long-term obstacle, Estrada ultimately withdrew from consideration.
So Miguel Estrada is back. He’s in the lime-light and he has an ax to grind.