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Will Obama's Recess Appointments Erode Constitutional Checks and Balances?

12:15 PM, Jan 12, 2012 • By MARK HEMINGWAY
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Over at The Washington Examiner, Stephanie Hessler, an adjunct fellow at the Manhattan Institute and a former constitutional lawyer for the Senate Judiciary Committee, examines Obama's recent recess appointments. The appointments have been controversial because they didn't occur when the Senate was in recess. Hessler concludes that the appointments are unconstitutional and threaten to erode the checks and balances between the executive branch and the legislature: 

At the end of December, the House did not consent to the Senate taking a recess. So, in order to comply with the Constitution, the Senate has been having pro forma sessions a few times a week, in which a senator gavels the chamber into session for brief periods of time.

The president correctly notes that little work is being done right now, but that's legally and constitutionally irrelevant. The Senate is not required to do any particular work on any particular day. (Indeed, some would say that the less it does, the better.)

By its own assessment, the Senate was not in recess -- nor could it have been under the Constitution without the House's consent. And in any case, it is not for the president to judge the procedures of the Senate.

To the contrary, the Constitution provides that "Each House may determine the rules of its proceedings." It is  bedrock principle of separation of powers that each branch controls its own internal functions.

The president cannot require Congress to act on his priorities. To the contrary, Congress acts independently of the president as a check and balance to his power.

Read the rest here.

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