President Obama is not one to let the Constitution get in the way of a “recess appointment.” He just named Richard Cordray to direct the Consumer Financial Protection Bureau, and he has announced three similar recess appointments to the National Labor Relations Board. But Obama is making these appointments at a time when the Senate is actually in session, according to the Constitution and under all definitions accepted by authorities for the last century. If the Senate is in session, the Constitution requires the Senate’s advice and consent to these appointments. This attempt to circumvent the legislative branch is a violation of Obama’s oath of office to uphold and defend the Constitution. Instead he is thumbing his nose at it and daring Congress, or anybody else, to stop him. It’s the same sort of fundamental disrespect for the rule of law that is routinely practiced by tinhorn dictators like Hugo Chavez.
If Democrats care about preserving the Constitution, the danger of executive usurpation, and protecting the separation of powers among co-equal branches, they must stand up now and tell Obama to back off. If they stand meekly by and let him get by with it, Democrats will surely rue the day when they lose the White House, and this new, illegal power is wielded against them by a Republican president as willing as Obama to ignore the Constitution.
A president’s recess appointment power exists under Article II, Section Two of our Constitution, and it requires the Senate to be in recess at least three days before the power is exercised. Nowhere does it say the president gets to decide when the Senate is in recess; only Congress can do that. It has never been understood any other way.
To justify this power grab, Obama contends that the Senate has actually been in recess for weeks because the Senate’s brief pro forma sessions every three days are a sham since no official business is conducted. Obama might as well argue that his appointments are legal because the moon is made of green cheese. Article I, Section Five of the Constitution states, in part, that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days …” The House has not consented to a Senate recess. Thus, the Senate’s pro forma sessions are strictly constitutional, the Senate is legally in session, and Obama must seek its advice and consent on these appointments. Otherwise, they are null and void and will be thrown out by a federal court. Obama is counting on that not happening before November’s election.
It makes zero difference where you stand on political parties, the CFPB, financial reform policy, the NLRB, the imperial presidency or congressional obstructionism. If Obama doesn’t like getting the Senate’s advice and consent to his nominees, he should take his case to the American people and ask them to amend the Constitution. What he can’t do is make up his own rules to suit his re-election campaign strategy. Only Senate Democrats can credibly tell Obama to back away from this constitutional crisis. The nation is watching to see if they will.
