Senator Ted Kennedy amicus brief opposing presidential recess appointments uncovered

Jan. 9, 2012, Fairfax, VA—Americans for Limited Government released this morning an Amicus Curiae brief by the late Senator Ted Kennedy from 2004 where he argued against the validity of the appointment of Judge William H. Pryor, Jr. to the federal bench in a recess appointment.

The discovery of the Kennedy legal brief is particularly significant in light of President Obama’s appointment last week of Richard Cordray to the Consumer Financial Protection Bureau and Sharon Block, Terence Flynn, and Richard Griffin to the National Labor Relations Board. Ironically, the NLRB “recess” appointment of Block was a staffer for Sen. Kennedy.

Bill Wilson, President of Americans for Limited Government points out, “Senator Kennedy vehemently objected to a presidential appointment that occurred while the Congress was in recess, Obama’s appointments did not even occur during a recess and clearly violate the constitutional separation of powers provisions. Kennedy must be spinning in his grave.”

Article 2, Section 2 of the U.S. Constitution states, “He (the president) shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.”

The Constitution continues to deal with appointments during Senate recesses stating, “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.”

“This last section is where Obama has run afoul of the Constitution, as even Senate Majority Leader Harry Reid admits that the Senate was in session, when Obama circumvented the highest law of the United States to make his appointments,” Wilson continued.

Reid kept the Senate in the exact pro-forma Senate sessions in 2007 to block President George W. Bush from making recess appointments. Now, Reid is praising Obama’s decision to break the very Constitution that both of them have sworn to uphold in their oaths of office.

It is anticipated that Obama’s extra-constitutional appointments of Cordray, Green, Block and Fletcher will be challenged in the federal courts. The only question is will someone file Senator Kennedy’s brief to remind the courts just how far beyond the normal constitutional lines Obama has gone.


Sen. Ted Kennedy Amicus Brief filed in Stephens v. Evans and Jordan at .

Interview Availability: Please contact Rebekah Rast at (703) 383-0880 or at to arrange an interview with ALG President Bill Wilson.