Daily Archives: Jan. 14, 2012

Pro-con: Was Obama justified in making recess appointments?

No court has addressed the question of whether a president is precluded from making recess appointments during pro forma Senate sessions. But we believe the president’s action is justifiable, as former Bush Justice Department officials Steven Bradbury and John Elwood have argued persuasively in the past. The Constitution vests the president with the power to fill vacant executive- and judicial-branch slots when the Senate is in recess. This power should not be undermined — indeed, nullified — through the use of ploys. To argue that phantom pro forma sessions render the Senate “open for business” is to defy common sense. The same holds true for the fiction created when lawmakers head out of town but decline to formally acknowledge an adjournment. Both the consumer bureau and the labor relations board are agencies of the U.S. government, created by Congress, and it is inexcusable that congressional obstructionism would leave them unable to function. – Washington Post

President Obama’s 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 Senate’s 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 “recess” appointment when the Senate is demonstrably not in recess. That is a constitutional abuse of a high order. James Madison made clear that the separation of powers was not to protect government officials’ 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. – Edwin Meese, Todd Gaziano, Washington Post commentary