January 28 2013
Good News: Recess Appointments Can Only Be Made During Recess
A rare bit of good news last week: A DC Circuit Court of Appeals panel ruled that President Obama’s “recess” appointments of three people to the NRLB are unconstitutional.
The ruling in no way affects recess appointments in general. But President Obama made these recess appointments when the Senate wasn’t in recess.
The Senate was holding stripped down, pro-forma sessions in which a minimal amount of business was transacted. But the issue is who gets to decide whether the Senate is in session—the Senate or the Executive?
The panel stated:
An interpretation of “the Recess” that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law. The intersession interpretation of “the Recess” is the only one faithful to the Constitution’s text, structure, and history.
Ross Kaminsky of the American Spectator points out that the ruling even quotes from the Federalist Papers, another good sign. The ruling protects the Constitution from a power grab by history’s most famous professor of Constitutional law:
The power of a written constitution lies in its words. It is those words that were adopted by the people. When those words speak clearly, it is not up to us to depart from their meaning in favor of our own concept of efficiency, convenience, or facilitation of the functions of government. In light of the extensive evidence that the original public meaning of “happen” was “arise,” we hold that the President may only make recess appointments to fill vacancies that arise during the recess.
There was some chatter on the Sunday talk shows that this ruling would check the administration’s tendency to find ways around Congress and the normal way things have been done in this republic. I wish I were that optimistic. But it was nevertheless an encouraging ruling. Richard Cordray was appointed to head up the Consumer Financial Protection Bureau, a job killer masquerading as consumer protection, the same way. But nobody has filed a suit to test Cordray's status.
It is unclear what the ruling means for the decisions, nearly three hundred of them, this illegally constituted board made. Nor have we heard yet whether the three board members will voluntarily step down.