Under the Constitution, appointment of senior government officials is a power shared between the president and the Senate. Under President Obama, that power is no longer shared. It’s all his. On Wednesday, Obama made one “recess” appointment to the Consumer Financial Protection Bureau, a new financial oversight entity created under the Dodd-Frank legislation, and three recess appointments to the National Labor Relations Board, a small independent agency that oversees labor-management issues for some 6 million workplaces.
If the Senate had been on recess, it would have been the president’s prerogative to make the appointments. But the Senate was not on recess. Under the law, the Senate has to be in recess for three days in order for the president to make a recess appointment.
In a 2010 hearing, then-Deputy Solicitor General Neal Katyal told Supreme Court Chief Justice John Roberts that a recess had to be at least three days, “The recess appointment power can work in a recess. I think our office has opined the recess has to be longer than 3 days.”
And a 1993 Justice Department brief states, “the Constitution restricts the Senate’s ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. … Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days.”
The relevant section of the Constitution is Article I, Section 5, which states that neither the House nor the Senate can recess for more than three days without the consent of the other. The House did not consent to the Senate recessing, and so it is still in session.
The circumvention of shared powers goes far beyond the officials that Obama purportedly appointed. If he is allowed to use this tactic, he, along with every future president, no longer needs to seek the advice and consent of the Senate to appoint officials. Having that power, why would any president bother with the Senate?
On Wednesday, in Ohio, Obama said, “But when Congress refuses to act, and as a result, hurts our economy and puts our people at risk, then I have an obligation as president to do what I can without them.”
What Obama is saying is that he is above the law. He does not need to bother with the Constitution. He’s deciding this on his own. This is unprecedented, and goes beyond the actions of prior presidents.
In 2007 and 2008, Senate Majority Leader Harry Reid blocked President George W. Bush from granting recess appointments by keeping the Senate in session.
Reid wrote to then-Chief of Staff Josh Bolten on February 28, 2008, saying, “I held pro forma sessions to block the President’s attempt to evade the Senate confirmation process.”
In August 2007, Joe Biden, then-chairman of the Senate Foreign Relations Committee, declared, “There will be no recess appointments on my committee or they will not get another single nominee for anything at all from the Committee on Foreign Relations. I made that clear to the secretary of state. Absolutely, positively clear. Not a one. Mark me down. Not a one.”
What has always made America great is the remarkable liberties that are entrusted with every individual. These liberties are preserved because the government has limits.
The framers of the Constitution ensured that no individual official would have any significant unaccountable power. By ignoring the limits imposed upon him by the Constitution, which he swore to defend, Obama is on a path to tyranny.
Who knows when Obama’s power grab will end, and how many of our liberties are at risk?
Examiner Columnist Diana Furchtgott-Roth ([email protected]), former chief economist at the U.S. Department of Labor, is a senior fellow at the Manhattan Institute for Policy Research.
