Working Extra Hours Is Extra-Constitutional

I guess I shouldn’t be surprised that, according to the Tuesday-through-Thursday Republicans and the Most-Vacation-Ever President, working extra days is extra-constitutional. That’s the implication, after all, of the Administration’s little temper tantrum over the fact that the Senate stayed in session over Christmas to prevent Bush from recess appointing Steven Bradbury.

Q Tony, Reid’s quote on that was — he said he called John Bolten, who, "He called me back and said it is Bradbury or nobody. I said, you’re willing to now allow 84 of your people to get approved because of this guy? He said, yep, that’s what the President wants."

MR. FRATTO: I think what the ask of the administration was, was for the President to give up his constitutional authority to make recess appointments. The power to make recess appointments is granted to the President in the Constitution. And that’s what the President was being asked to forego.

Now, the Senate, then, went and took the extra constitutional act of — over the holidays, of engaging in speed sessions with the soul purpose of frustrating the President’s constitutional authority to make appointments.

So it’s not an offer that we make — you know, that we would find credible or appropriate. And it’s also, again, not the way this system is intended to work. The system — the way it is intended to work is the President nominates, the Senate reviews the nominee, and they can give an up or down vote on these nominees, and we can either put them in place, as the President intended, or the Senate can vote them down. That’s the power that the Constitution gives them.

Apparently somewhere between Article I and Article II of the Constitution it mandates vacations. Who knew??!

40 replies
  1. phred says:

    For a member of this administration to accuse anyone else of extra-Constitutional acts requires a level of chutzpah that I frankly did not think could exist within the physical limitations of our universe.

  2. Hugh says:

    Fratto is a mindless little creep. There is no bit of propaganda that he will not eagerly spout. If a la Woody Allen Bush ordered Americans to wear their underwear on the outside to show that they were clean, Fratto would be the one to announce it.

  3. allan says:

    …with the soul purpose of frustrating the President…

    Boy, I wish that this was Harry and Nancy;s soul purpose…

  4. ralphbon says:

    It’s not in the Constitution per se, but the OLC in George Washington’s Justice Department rendered a secret opinion that all Congresses in perpetuity must recess long enough to allow recess appointments.

  5. garyg says:

    I’ve seen a lot of disingenuous arguments in my time, but that one takes the cake.

    I tip my hat to the sheer balls of these people.

    And I fart in the general direction of the press corps, who will let it slide.

  6. DeadLast says:

    Today is one of the most bizzare days in a while (an that is saying something given the past 7 years).

    First, the White House states that non-tourture forms of waterbording is legal and necessary.

    Then Mukasey stating essentially that as long as the DOJ or WH says something is okay, there is no recourse. So Ollie North could have done whatever he wanted because the president said so. Same goes for Nixon and watergate — who knew? Abu Gonzoles could issue any opinion he wanted, even if it called for anything (say mass executions of people living in Petoria) and as long as there is a DOJ opinion stating it is okay, hell he couldn’t do anything about it. Especially if the President didn’t want him to.

    And now, Congress doesn’t have the right to thwart the will of the president by matching his games one for one. Republicans have long been against mandating vacations for the private sector (and they have been against paying for vacations or new holidays for public sector; see MLK birthday and creation of Dept of TSA).

    It is now time to drop the refrain God Bless America and start saying God Help America.

  7. pseudonymousinnc says:

    Fratto is the bargain-basement Peroxide. He seems to be given greater liberty to spew the kind of outrageous bullshit that Dana can’t say with a straight face.

    The recess appointment provision? Instituted when the US Congress didn’t meet all that often, and Senators had to get to DC in a horse and carriage.

  8. TomJ says:

    Hmmm, I somehow agree with this reasoning, why would Reid lump all these guys together in one batch? Surely some of the 84 are worth confirming and the one guy who has been rejected should be kicked out, Reid shouldn’t be talking about them together, can’t the Dems ‘just say no’, trying to deal with Bush and Senate Repubs is pointless.

  9. Veritas78 says:

    How do the logistics of this work? Is the President just refusing to send the other 84 nominations to the Senate? Fine, then. The Senate isn’t obligated to consider nominations it hasn’t been sent.

    And if he has sent them, what is to stop the Senate from voting on them anyway?

    Is he threatening the Senate with failing to staff essential offices? That’s his problem, not theirs. I don’t get it.

  10. rosalind says:

    liz “senior foreign policy advisor to romney” cheney spouted off the other day on cnnmsnbcfox something to the effect that john mccain was lowering the political discourse. i waited for her to burst into flame but – alas.


    can’t wait to see what wingnut welfare wagon she hitches her falling star onto next. (maybe we should start a pool).

  11. MadDog says:

    EW said:

    Apparently somewhere between Article I and Article II of the Constitution it mandates vacations. Who knew??!

    Puleeeeeze, don’t give Junya any ideas! I’m betting David Addington is already zeroxed a copy of this:

    Article 2, Section 3, Clause 2 of the US Constitution – The President may call extraordinary sessions of one or both Houses of Congress. If the two Houses cannot agree on a date for adjournment, the President may adjourn both Houses to such a time as he thinks fit.

    • Fractal says:

      Stimulus bill

      Did the Senate adopt the whole Finance Committee package, including extended unemployment benefits and low-income energy assistance?

      • CTuttle says:

        Reid offered an amendment that passed re-instituting the LIHEAP, but the Unemployment extension fell by the wayside, I’m not sure what all was contained in it…

  12. RevDeb says:

    OOPS, Durbin taking morning business time . . . . we are stalling again so the good old boys can go back into the cloak room, smoke their cigs and sell out the country with their horse trading.

  13. Fractal says:

    *drive by* Or am I supposed to say “sorry for lurking?”

    Busy day in the salt mine, but I have been carefully following everything from EW and all the comments here, and it was truly an amazing full-court press from all the usual suspects all testifying on the same day in defense of the indefensible. I hope commenters were right that Senators are going to be disgusted enough to switch votes and condemn this dictatorship.

    But all is not hopeless. Even if the DOJ and Muke refuse to challenge law-breaking, and even if Congress only talks and fails to act, there are real victims out there suffering real injuries and they will become plaintiffs in real lawsuits which real judges will hear in real courts. For example, the three admitted victims of waterboarding, the 100 admitted victims of enhanced interrogation techniques, the hundreds at Gitmo. Many of them have real lawyers at enormous (and enormously powerful) law firms right here in D.C. This ain’t over, folks. It’s just beginning. There will be war crimes trials, that is why these assholes are so desperate.

    • Hmmm says:

      I hope you’re right too, but I can’t help adding to one thing you said:

      …there are real victims out there suffering real injuries and they will become plaintiffs in real lawsuits which real judges will hear in real courts…

      …and the State Secrets doctrine will really be invoked.

      • Fractal says:

        The Supreme Court has already heard three of these cases and ruled against the President and the Executive branch three times. There are boatloads of litigation over the horizon that will not be blocked by invoking the state secrets privilege. Plus, as others have explained far better than I can, proof is required to support invoking that privilege. I’m more familiar with Executive privilege, see Reynolds v. U.S., but it takes more than just the Preznit saying “I said so,” IIRC.

    • GulfCoastPirate says:

      If they are so desparate then what makes you think they won’t simply cancel elections and take over. Send Congress and the courts home. Who’s going to stop them?

      If these people you speak of are so powerful then when will we hear of preparations being made to have these war crimes trials? When will they start speaking publicly of the possibility we won’t be returning to anything near normalcy if the Congress (the people) don’t start acting to guarantee it?

      If the Congress knows they are so desperate then why are they doing nothing?

  14. RevDeb says:

    As Glenn wrote so succinctly this morning:

    Under the perfectly calibrated agreement reached in the Senate — whereby each amendment needs the number of votes it is certain not to receive — this pattern will repeat itself over and over today. The only real remaining question with all of these issues appears to be the extent to which the House can mitigate some of the worst provisions in what will soon be the Senate’s warrantless surveillance and telecom amnesty bill.

    • cboldt says:

      Under the perfectly calibrated agreement reached in the Senate

      Well, Cardin’s 4 year sunset didn’t get a simple majority, and it was calibrated with a 60 vote threshold.

      • selise says:

        no, but there were lots of missing votes. if a simple majority had been required, some of those missing votes might have been accused of causing it’s failure.

        reid is also protecting certain missing senators.

  15. cboldt says:

    Being a fan of “read the source” …

    The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate

    US Constitution – Article II, Section 3

    Reid finally outright said that FISA will pass next week. Monday at the earliest, probably Tuesday.

    LIHEAP and unemployment extension were not in the passed economic stimulus (I think of it as a payday loan, because the people paid the money in, in the first place, and will have to pay it back in the future)

    • JohnJ says:

      (I think of it as a payday loan, because the people paid the money in, in the first place, and will have to pay it back in the future)

      I am sorry to break with the demeanor of this site but, I must admit that this is the first comment I have seen here that really pisses me off! You think wrong.

      I normally like your comments but watch the spurious, uninformed opinions.

      To someone who is surviving on Unemployment Compensation right now, you just insulted a whole lot of people. Just to make you feel a little more smug, my unemployment checks are for $275 per week. My total benefits available were ~$8000 TOTAL! I’d kill for a payday loan that WAITED for a payday.

      Unemployment is ALWAYS paid for out of my check, even if I never collect. The only payback is going back to work and the payments continue.

      To qualify for UEC you must be out of work through NO FAULT OF YOUR OWN! Incompetence, or bad behavior and you are disqualified! If I go to get food stamps right now, I am automatically qualified, because I have been fully vetted by the UEC system. Have you ever seen the amount of paper work and qualifications that allows me to skip? Government employees do not take skipping paper work lightly.

      If this is like a low-rent “payday loan” then it is one I paid for before I ever got it and will continue to pay for as long as I am working.

      Too much unearned money does something to people’s brains! I now have to question everything you have said if you can spout something like that! You have just lost every shred of credibility with me. One of the great things about reading here is I don’t have to fact-check most of the opinions here, people have developed credibility.

      It’s hard enough to keep up enough self respect to give a good interview while sucking-up to someone, without elitists that couldn’t survive for 2 weeks in the “system” insulting you.

      Would you like to try feeding and housing a family of four including a handicapped child on $275 a week? BTW my rent is ~$400 of that $275, so we may also be homeless real soon.

      Once again, I apologize for the distraction to the real subject and violating the normal tone of here.

  16. JohnLopresti says:

    The following contribution is is about an informational hiatus, which is different from vacations, yet is a functional equivalent in the sense that if the folks remain in town and the information takes a holiday the result is similar. Bush this past Monday included in next year’s draft budget a presidential proposal to move the foia office which congress situated at the national archive; my guess is this is Addington and Mukasey agreeing that crew’s future discovery requests involving Nara instead beginning October 2008 would go to doj where Bush’s budget proposes to locate the Nara-foia oversight official. One source reports Leahy has obtained Cornyn’s cosignature on a letter to Bush rejecting the new scam which proposes to hide information in a conflicted Doj. Since the Nara post recently received strengthening in a December 2007 law Bush signed, a professional journalism organization has joined the chorus of the disenchanted writing its own letter to Bush decrying the administrative ploy as set forth in Bush’s draft FY2009 budget. An open records advocacy entity has more on its site.

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