Free Markets, Free People


Proposed Constitutional Amendment

I think the president’s recess appointment power should be revised, as indeed the entire process of nomination and confirmation to appointed posts. The recess appointment power is really a holdover of the days when Congress was absent from Washington DC for 6 to 9 months of the year. At the same time, I don’t think the Framers intended for Congress to defeat appointments via filibuster, either. A president deserves an up-or-down vote on his nominees. So I would propose an amendment that does the following things:

1. Repeal the power of the president to make recess appointments.

2. The Senate must return a confirmation vote on all presidential appointees within 60 working days.

3. If no vote has been held within 45 working days, cloture on the debate will be automatically imposed, and all other Senate business must cease until a confirmation vote is held.

4. If a confirmation vote is not held within 60 working days, the nomination is automatically confirmed, and the Senate majority and minority leaders will be expelled from the Senate, and barred from reelection or reappointment to the Senate during the current term.

This would eliminate the president’s ability to sneak in an unconfirmable nominee during a recess, and would force him to be more selective about his nominees, and would force the Senate to explicitly confirm or reject every nominee, or wave bye-bye to the Senate leadership.

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Dale Franks
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17 Responses to Proposed Constitutional Amendment

  • “The recess appointment power is really a holdover of the days when Congress was absent from Washington DC for 6 to 9 months of the year. ”

    I can’t believe the framers didn’t realize this. Its a gaping hole in the process they allowed. I wonder if it was intentional to dilute this part of Congress’ power.

    If Congress can thumbs down all your picks as President, an executive can be shutdown by congress by thumbing down any of his picks. It basically would allow Congress to make all his picks for him. What executive can function like that when his first line of lieutenants have split loyalties.

    I know we’re probably assuming there would be negative fallout from Congress thumbing down votes and that would be a check against such abuse. I don’t believe that is necessarily true. It depends on how the media wants to frame the situation. I could see if the media likes the current congress, the situation would be described as ‘the president making such poor picks Congress can’t confirm them.’ Instead of calling out Congress for abusing their power.

    • @jpm100 Gotta say you are wrong. Congress was meant to be able to check the President — and in particular, the Senate (which was appointed by state legislatures) was intended to check the ability of the federal government to impose unacceptable officials upon the nation.

      However, the Framers recognized that distance meant long travel times, and citizen legislators might spend much of their time at home meeting constituents and running their own affairs. They therefore created a mechanism by which the President could temporarily fill vacancies during these long absences. If one looks at the use of the recess appointment over the last century, it is clear that it has been abused — and Obama’s recent moves are merely the most egregious.

      By the way, my reflections on his actions can be found here — http://rhymeswithright.mu.nu/archives/325376.php

  • “I don’t think the Framers intended for Congress to defeat appointments via filibuster”

    1. On what do you base that?

    2. The Framers did not intend the Senate to be popularly elected, either.

    3. What you suggest would move us away from a republic

    4. You idea would invite chicanery, resulting in the expulsion of elected Senators

    5. Your idea could be used to totally grid-lock all Senate business (seems to me)

    • @Ragspierre <>
      They gave the president the power to make recess appointments.

      <>
      That’s silly. It merely streamlines an existing appointment process by forcing the Senate to act.

      <>
      *shrug* I suppose. If a majority wanted to have the leadership expelled. And a convenient nomination was available.

      <>
      *shrug* I suppose. If a convenient nominee was available. It’d be gridlocked for 15 working days. And I suppose it might even matter, if I cared that the Senate was gridlocked. Which I don’t.

  • I think what the Framers did not consider is the prevalence of the two party system. I believe that they intended a sort of positive tension between the House, Senate, and Executive Branch, not negative tension between two parties who dance in lockstep not on the basis of the branch of government they represent but with their party.
    The House was supposed to be the rabble (Commons) pushing for laws popular with the people because of their always close proximity to an election, the Senate the deliberative body and a check on the popular will (Lords) because 2/3 are always 4 to 6 years from an election by the legislatures, and the President being responsible for executing the laws Congress as a whole passed. Each a check on each other.
    Here we have a situation where Congress passed a law (Dodd-Frank) and the new Congress does not have the power to repeal it, but has enough minority power in the Senate to use a technical process to try and stop the law from being implemented and trying to leverage the advise and consent process to blackmail the majority into revising the law.
    I think that Framers would look upon an effort of a new Congress to prevent a law from being implemented, when they don’t have the votes to repeal is essentially obstruction of justice.

    • @CaptinSarcastic I agree with everything you wrote except the last sentence. My reading of the Founders, especially the Federalist papers makes me think that most of them would be just fine with obstruction and gridlock. They knew that they needed a Federal government since the Articles of confederation failed, but they did not want it to get too powerful.

  • The filibuster itself may be unconstitutional since there is nothing in the Constitution that even comes to suggesting that bills and other votes that do not specifically require a super-majority could be made to require a super-majority.
    I think it would be a crushing blow to lobbyists if they could not use the minority to obstruct the majority, but I think it would actually be a relief to members themselves. Elections should have consequences, not just elections where a party has more than 60 Senators elected.
    I don’t agree with many conservative policies, or for that matter many liberal policies, but I am firmly against having no policies because the minority disagrees with the will of the majority, or worse, because lobbyists are paying to thwart the will of the majority.
    Second, Article I, Section 3, expressly says that the vice president as the presiding officer of the Senate should cast the deciding vote when senators are “equally divided.” I say it is a stark violation of the Constitution to eliminate this Constitutional requirement with a procedural rule of the Senate. If a vote has 51 votes or 50 Senators and the VP behind it, it is all that is Constitutionally required. I think a Constitutional Amendment would be required to make the filibuster, not to make a simple majority vote legal.

    • @CaptinSarcastic I’d have to disagree. Given that Debate is unlimited in the Senate, every Senator has a right to speak on an issue to his/her heart’s content without limitation. Remember — in the old days, speeches by the likes of Webster, Calhoun, and Clay went on for a day or two. Not only that, but the filibuster has its origins in the practices of the first couple of US Senates — therefore I would argue that the Framers themselves would accept the practice as legitimate.

      • @RhymesWithRight Good point, I agree with you on the filibuster in it’s original form that was itself based on the rule of unlimited debate, however in it’s present form, a procedural block has nothing to do with debate so I would say that this form violates the Constitution.
        You can’t vote until I am done talking, fine, we’ll wait, or if it’s that important to you, we’ll reconsider. But You can’t vote ever because I am going to pretend that I never stopped talking, no way.

        • @CaptinSarcastic Actually, I prefer describing the current approach as “I’ll yield my time so the people’s business on other matters can be done, but reserve the right to resume speaking when we take this matter up again.

  • How about the Death Penalty for voter fraud?

  • I prefer abolitionist William Lloyd Garrison’s amendment in the form of rapid oxidation. “So perish all compromise with tyranny!”

    The total disregard for an honest interpretation of the commerce clause should demonstrate to anyone it doesn’t matter how cleverly you word the rules. They will break them. And power mad rulers like Pelosi will scoff at the suggestion that her grand blueprint be subject to the scrutiny of constitutionality.

  • We just need to do away with the practice of “dual-tracking.” A piece of garbage given to us by Sen. Byrd.

    If a senator wants to filibuster, then he/she can get their ass up there and bring a little Mr. Smith goes to Washington up in this bitch. Prove to the nation that bringing the senate to a grinding halt is a worthy cause – and if it is not, then sit your ass down and vote up or down.

    These days, senators can filibuster in secret! Total Bullsh!t.

    Cheers.

  • If we were going to expend energy and capital on a constitutional amendment, I can think of several others that are more important.

  • All congress has to do is pass a law saying that recess appointees will undergo a yes or no confirmation vote ten days after congress is back in session. Problem solved.

  • I should mention that what Obama has done is NOT a recess appointment. Republicans are still gaveling in for a few minutes each day. Democrats did this when Bush was President to prevent him from making recess appointments.

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