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Department of Justice defends Obama's illegal recess appointments

 “Since the general civilization of mankind, I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachment of those in power than by violent and sudden usurpations.”

 James Madison

According to the Wall Street Journal, the Justice Department’s Office of Legal Council believes that President Obama’s “recess” appointments last week were legal:

The Justice Department’s Office of Legal Counsel issued a Jan. 6  opinion at the request of the White House, saying that despite so-called pro-forma sessions of the Senate, some as brief as a few seconds, the Senate meetings do not constitute legitimate sessions that would preclude presidential recess appointments.

“Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner” that would prevent recess appointments, the OLC opinion said.  “Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period.”

Notice that this defense only addresses the question of whether or not the Senate was in session when the appointments were made.  The OLC makes no attempt to discuss the crystal clear wording and intent in this part of the Constitution.  As I explained earlier this week, it doesn’t exactly take a Constitutional scholar to interpret this clause:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Article 2, Section 2

Obviously, whether the Senate was in session last week or not is irrelevant.  These vacancies didn’t occur while the Senate was is recess so the president has absolutely no power of recess appointment in this situation.  That fact isn’t even up for debate.

This is why we as citizens must always pay close attention to everything the government is doing.  Anytime that politicians aren’t being held accountable, they will distort the language of the Constitution and the law in new ways to grant themselves more power.

Every president as far back as I can remember has chosen to simply ignore the part of the Recess Appointments Clause that limits his power to vacancies that occur during recess.  It might seem minor on its own but this reinterpretation of the Constitution gives the president just a little more power and weakens the separation of powers.  And we are allowing it to happen.

In how many other ways are public officials in all three branches finding subtle ways to grab a little bit more power without grabbing your attention?  All it takes is a little power here and there.  First through these unconstitutional recess appointments.  And then a little more through the NDAA.  And then a little more through SOPA.  Before you know it, most of the power that we have as individuals to protect ourselves from the government is gone.

The natural tendency for government is to grow and grab more power unless we as citizens are informed and actively engaged in defending our freedom.  No one else is going to defend it for us.  In fact, politicians actually have a whole lot to gain personally in both power and money from taking our freedom and selling it to special interest groups so we always have to be vigilant.

Little bits of power add up much faster than most of us can imagine.  Some people have a hard time getting outraged over the president overreaching on these recess appointments because it’s hard for them to imagine the United States becoming openly oppressive.  I can understand that.  But if we wait to start passionately fighting to defend our freedom until we can see tyranny on the horizon, it will be way too late.

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Rich Mitchell

Rich Mitchell is the editor-in-chief of Conservative Daily News and the president of Bald Eagle Media, LLC. His posts may contain opinions that are his own and are not necessarily shared by Bald Eagle Media, CDN, staff or .. much of anyone else. Find him on twitter, facebook and

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