Obamafs recess appointments are unconstitutional
By Edwin Meese III and Todd Gaziano - Jan. 6, 2012
President Obamafs attempt to unilaterally appoint three
people to seats on the National Labor Relations Board and Richard
Cordray to head the new Consumer Financial Protection Bureau (after the
Senate blocked
action on his nomination) is more than an unconstitutional attempt to
circumvent the Senatefs advise-and-consent role. It is a breathtaking violation
of the separation of powers and the duty of comity that the executive owes to
Congress.
Yes, some prior recess
appointments have been politically unpopular, and a few have even raised
legal questions. But never before has a president purported to make a grecessh
appointment when the Senate is demonstrably not in recess. That is a
constitutional abuse of a high order.
As a former U.S. attorney general and a former Office of Legal Counsel lawyer
who provided advice to presidents on recess appointment issues, we have defended
and will continue to defend the lawful use of the recess appointment power.
Although originally conceived by the Framers for a time when communicating with
and summoning senators back to the Capitol might take weeks, it is still valid
in a modern age — but only as long as the Senate is in recess. Not only was the
Senate not in recess when these purported appointments were made, it
constitutionally could not have been.
Article I, Section 5, of the Constitution states that neither house of
Congress may adjourn for more than three days without the consent of the other
house. The House of Representatives did not consent to a Senate recess of more
than three days at the end of last year, and so the Senate, consistent with the
requirements of the Constitution, must have some sort of session every few
days.
The president and anyone else may object that the Senate is conducting gpro
formah sessions, but that does not render them constitutionally meaningless, as
some have argued. In fact, the Senate did pass a bill during a supposedly gpro
formah session on Dec. 23, a matter the White House took notice of since the
president signed the bill into law. The president cannot pick and choose when he
deems a Senate session to be greal.h
It does not matter one whit that most members of Congress are out of town and
allow business to be conducted by their agents under unanimous consent
procedures, because ending a session of Congress requires the passage of a
formal resolution, which never occurred and could not have occurred without the
consent of the House.
President Obama is not the first to abuse the recess appointment power.
Theodore Roosevelt did as well, but for almost 90 years the executive branch has
generally agreed that a recess as recognized by the Senate of at least nine to
10 days is necessary before the president can fill any vacancies with a recess
appointment.
When Senate Majority Leader Harry Reid (D-Nev.) kept the chamber in pro forma
sessions at
the end of the George W. Bush administration, he declared that was
sufficient to prevent Bushfs use of the recess appointment power. Reid was
right, whether or not his tactics were justified.
President Obamafs flagrant violation of the Constitution not only will damage
relations with Congress for years to come but will ultimately weaken the office
of the presidency. There eventually may be litigation over the illegal
appointments, but it will be a failure of government if the political branches
do not resolve this injustice before a court rules. The White House has refused
to admit or deny whether it received advice from the Justice Department (or
overruled its advice), which is telling enough, but its campaign-style
announcements about the propriety of its actions are not legally credible.
Congressional leaders of both parties must vigorously (though thoughtfully)
defend their prerogatives. Senators could filibuster all presidential
nominations, as Sen. Robert C. Byrd did in 1985 over a lesser recess appointment
issue, until Obama rescinds these wrongful appointments. The House or Senate
could condition all gmust-passh legislation for the remainder of 2012 on an
agreement to rescind these appointments. The House also could require the
attorney general to produce legal justification and testify at oversight
hearings.
If Congress does not resist, the injury is not just to its branch but
ultimately to the people. James Madison made clear that the separation of powers
was not to protect government officialsf power for their sake but as a vital
check on behalf of individual liberty. To prevent future tyrannical usurpations
of power, Congress must act to redress this serious threat to our
liberty.
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