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bieramar

Article I, Sections 5 through 7, Constitution

1. Bold emphasis in following mine
[Article I, Sections 5 through 7 of the U.S. Constitution as ratified]

Article I
Section. 5.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section. 6.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section. 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.
--- end of ratified Constitution text ---


2. Excerpts from the original draft of the Consitution which were changed following debate at the Convention in 1787 (bold emphasis mine):

- All bills for raising or appropriating money, and for fixing the salaries of the officers of Government, shall originate in the House of Representatives, and shall not be altered or amended by the Senate. No money shall be drawn from the Public Treasury, but in pursuance of appropriations that shall originate in the House of Representatives.

- The Legislature of the United States shall have authority to establish such uniform qualifications of the members of each House, with regard to property, as to the said Legislature shall seem expedient.

- Freedom of speech and debate in the Legislature shall not be impeached or questioned in any Court or place out of the Legislature;

- The members of each House shall be ineligible to, and incapable of holding any office under the authority of the United States, during the time for which they shall respectively be elected: and the members of the Senate shall be ineligible to, and incapable of holding any such office for one year afterwards.

- The members of each House shall receive a compensation for their services, to be ascertained and paid by the State, in which they shall be chosen.
--- end excerpts of original wording in the Constitution which were changed following debate ---

Money, compensation, wealth, and property were the subject of much debate and dissension - then as now.

Some of the debates:
http://www.let.rug.nl/usa/D/1776-1800/federalist/anti3.htm
http://www.let.rug.nl/usa/D/1776-1800/federalist/anti4.htm
http://www.let.rug.nl/usa/D/1776-1800/federalist/anti5.htm
http://www.let.rug.nl/usa/D/1776-1800/federalist/anti6.htm
http://www.let.rug.nl/usa/D/1776-1800/federalist/anti7.htm
http://www.let.rug.nl/usa/D/1776-1800/federalist/anti8.htm
http://www.let.rug.nl/usa/D/1776-1800/federalist/anti15.htm
http://www.let.rug.nl/usa/D/1776-1800/federalist/anti16.htm
http://www.let.rug.nl/usa/D/1776-1800/federalist/anti18.htm
http://www.let.rug.nl/usa/D/1776-1800/federalist/anti22.htm
http://www.let.rug.nl/usa/D/1776-1800/federalist/anti26.htm
http://www.let.rug.nl/usa/D/1776-1800/federalist/anti28.htm

We must remind ourselves that there was no tried and true experience of any of the Founders with a functional voluntary Union of sovereign States - where the majority of each State's residents were of differing religious sectarian beliefs than other States, with differing local laws, schools and economic bases for creating wealth.  

Was one to be loyal and swear oaths to his State?  Or to the Nation? And/or to his Religion?

After all, the one-third of the residents of the 13 British Colonies who had actively supported the Revolution had committed treason and were traitors to the Crown.  And to the north (Canada) there were still  "Americans" who had remained loyal to their own Colonies and King.  And another one-third of the residents in the 13 States remained Loyalists - or were conflicted - in their hearts.

I note that one of the current (since the Reagan administration) ongoing debates is over the use of "signing statements" when a President signs a Bill - which on first reading of this section of the Constitution seems unconstitutional, as the proper action would be to "veto" the Bill, as outlined:

"If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it."

Later in the separation of powers sections we will re-visit this issue.
bieramar

In another Forum here
coebul wrote:
President Barack Obama installed Richard Cordray as head of the Consumer Financial Protection Bureau with a recess appointment today....

Seems to me this is in direct violation of Article I Section V.  

"Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting."

It is my understanding the House has not consented.  If true this is an illegal recess appointment.


Would that such a plain reading of the 18th century document be that simple.

The intent of the clause ... was to prevent one chamber of congress from meeting sometime or somewhere separate from the other chamber.  

The constitutional mandate to prevent such political shenanigans was to require each chamber to coordinate adjournments, a/k/a recesses of more than 3 days, with each other.

When both chambers would be in recess for more than 3 days, then the presidential power for temporary appointments would be actualized.

Following from official congressional website Journal:

---
Daily Digest - Tuesday, January 3, 2012

Senate
The Senate was not in session today.
It will next meet at 12 noon on Tuesday, January 3, 2012, in a pro forma session and convene the 2nd session of the 112th Congress.
No committee meetings were held.

House of Representatives
There were no public bills or resolutions introduced today.
There were no reports filed today.
Read a letter from the Speaker wherein he appointed Representative LaTourette to act as Speaker pro tempore for today.
The House recessed at 11:03 a.m. and reconvened at 11:55 a.m.
There were no yea-and-nay votes, and there were no recorded votes. There were no quorum calls.
The House met at 11 a.m. and at 11:56 a.m. the Chair declared the first session of the One Hundred Twelfth Congress adjourned sine die, pursuant to section 3(b) of H. Res. 493.
No hearings were held.
--- end Journal ---
Source: http://thomas.loc.gov/cgi-bin/query/z?r112:d03ja2:/

And that's the way its been for more than 3 days - no business being done in the Senate or the House.

Obama - following legal opinions from his lawyers, just as former President Bush followed his in the same situation - has made the official judgment that it is congress which is attempting to bypass the constitutional provisions to request common recesses/adjournments.  In other word they are holding sham sessions to avoid a presidential recess appointment; they are "de facto" in recess, regardless of their faux "de jure" sessions every three days.

The next move is up to someone in the House or Senate, or a Resolution from either/both chambers, to file suit against Obama and the temporary appointment on constitutional grounds.  But Cordray would be carrying out his duties during the litigation until some federal judge ordered him not to, as the case rose to SCOTUS.  His temporary term would probably expire before SCOTUS ruled.  

I'd like to see such a lawsuit, as I've been against recess appointments for decades - they are an obsolescent remnant of times before automobiles, airplanes and the internet, which nullify the original intent.

But the political ramifications of such litigation may lean in Obama's favor, as Congress is held in much lower approval than the president.

While there'll be many political threats made via the media, there'll be much arguing behind closed doors before such a lawsuit is filed.
coebul

bieramar wrote:
In another Forum here
coebul wrote:
President Barack Obama installed Richard Cordray as head of the Consumer Financial Protection Bureau with a recess appointment today....

Seems to me this is in direct violation of Article I Section V.  

"Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting."

It is my understanding the House has not consented.  If true this is an illegal recess appointment.


Would that such a plain reading of the 18th century document be that simple.

The intent of the clause ... was to prevent one chamber of congress from meeting sometime or somewhere separate from the other chamber.  
bieramar the statement seems pretty clear "adjourn for more then three days, nor to {move} any other place...

bieramar wrote:
The constitutional mandate to prevent such political shenanigans was to require each chamber to coordinate adjournments, a/k/a recesses of more than 3 days, with each other.

When both chambers would be in recess for more than 3 days, then the presidential power for temporary appointments would be actualized.
Both houses did coordinate the adjournment.  And the House has not "consented"  

bieramar wrote:
Following from official congressional website Journal:

---
Daily Digest - Tuesday, January 3, 2012

Senate
The Senate was not in session today.
It will next meet at 12 noon on Tuesday, January 3, 2012, in a pro forma session and convene the 2nd session of the 112th Congress.
No committee meetings were held.

House of Representatives
There were no public bills or resolutions introduced today.
There were no reports filed today.
Read a letter from the Speaker wherein he appointed Representative LaTourette to act as Speaker pro tempore for today.
The House recessed at 11:03 a.m. and reconvened at 11:55 a.m.
There were no yea-and-nay votes, and there were no recorded votes. There were no quorum calls.
The House met at 11 a.m. and at 11:56 a.m. the Chair declared the first session of the One Hundred Twelfth Congress adjourned sine die, pursuant to section 3(b) of H. Res. 493.
No hearings were held.
--- end Journal ---
Source: http://thomas.loc.gov/cgi-bin/query/z?r112:d03ja2:/

And that's the way its been for more than 3 days - no business being done in the Senate or the House.

Obama - following legal opinions from his lawyers, just as former President Bush followed his in the same situation - has made the official judgment that it is congress which is attempting to bypass the constitutional provisions to request common recesses/adjournments.  In other word they are holding sham sessions to avoid a presidential recess appointment; they are "de facto" in recess, regardless of their faux "de jure" sessions every three days.

The next move is up to someone in the House or Senate, or a Resolution from either/both chambers, to file suit against Obama and the temporary appointment on constitutional grounds.  But Cordray would be carrying out his duties during the litigation until some federal judge ordered him not to, as the case rose to SCOTUS.  His temporary term would probably expire before SCOTUS ruled.  

I'd like to see such a lawsuit, as I've been against recess appointments for decades - they are an obsolescent remnant of times before automobiles, airplanes and the internet, which nullify the original intent.
You may get your wish.  SCOTUS seems more then willing to take on 0bamacare why not add an illegal appointment to the calendar?  

bieramar wrote:
But the political ramifications of such litigation may lean in Obama's favor, as Congress is held in much lower approval than the president.

While there'll be many political threats made via the media, there'll be much arguing behind closed doors before such a lawsuit is filed.
AM pointed out on the 0bama thread "even liberal pundits are calling this one fishy"., 0bama's intention are and have been clear for the last three years, he has little respect for the US Constitution.

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