Wednesday, February 6, 2013
In January, a unanimous Court of Appeals for the DC Circuit held that the president violated the Constitution by making “recess appointments” when the Senate was not, in fact, in recess.
If you think this is just another one of those dry, lawyerly technicalities, think again. One of the Constitution’s essential checks and balances is the requirement of Senate “advice and consent” for presidential appointments. The Recess Appointments Clause of Article II provides a narrow exception to that requirement: the president can fill executive branch vacancies that occur between Congress’s official sessions.
Last year, President Obama became the first president to make “recess appointments” while the Senate was still in session when he appointed three members of the National Labor Relations Board.
In trying to defend Obama’s power grab, the administration revealed its deep contempt for the rule of law. As the DC Circuit’s opinion makes clear, the administration had argued that the president should have the sole, unfettered discretion to determine when the Senate is in “recess,” constitutionally speaking. Under this theory, the president could literally wait until the Senate is on a lunch break, and then quickly appoint Chuck Hagel to the Pentagon — and nobody could second guess him. This assertion was so brazen that a shocked Court of Appeals flatly declared: “This will not do.” The president’s interpretation of the Recess Appointments Clause “would demolish the checks and balances inherent in the advice-and-consent requirement,” said the Court.