The President v. the Constitution

Intrepid reader Donald (I don't pay him nearly enough) had this to say in a recent comment:

I can hear KB's keyboard right now. Get ready for "The Man Who Was There" to Make Recess Appointments and lots of mock outrage.

The topic is President Obama's decision to make several "recess appointments" when the Senate was not in fact in recess. I have to disappoint Donald so far as my own outrage (genuine or otherwise) is concerned. I do, however, have some outrage to offer. Here is a former teacher of Constitutional Law on recess appointments, thanks to Powerline:

THEN-SEN. BARACK OBAMA (D-IL): Recess appointments 'the wrong thing to do.' "'It's the wrong thing to do. John Bolton is the wrong person for the job,' said Sen. Barack Obama, D-Ill., a member of Foreign Relations Committee." ("Officials: White House To Bypass Congress For Bolton Nomination," The Associated Press, 7/30/05)

· OBAMA: A recess appointee is 'damaged goods… we will have less credibility.' "To some degree, he's damaged goods… somebody who couldn't get through a nomination in the Senate. And I think that that means that we will have less credibility…" ("Bush Sends Bolton To U.N." The State Journal-Register [Springfield, IL], 8/2/05)

Who am I to argue with this esteemed scholar and winner of the Nobel Peace Prize? The Powerline Post goes on to quote several luminous Democrats, including Harry Reid and John Kerry to the same effect. Perhaps that will satisfy Donald's appetite for outrage.

Here is an outrage free analysis of the issue. The Constitution provides for the President to make appointments during the recess of Congress that would ordinarily require the Senate's approval. From Article 2, Section 2:

Clause 3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

The intention here is obvious: it is to allow the President to keep the government running when Congress is not in session. Recently, however, Presidents have used the power to bypass the Senate and put a nominee into the post who could not have received the approval of that body.

There is nothing unconstitutional about that. Many provisions of the Constitution have been turned to novel uses, as when a President uses the pocket veto to kill a bill without having to write a veto message explaining his action. So long as the procedures pass muster, the motives are not relevant.

However, something novel has happened here. The President made several "recess" appointments this week while the Senate remained in "pro forma" session. The Senate isn't meeting or doing any business, though it could. In pro forma session it recently passed the extension of the payroll tax cut. So is the Senate in recess or not?

The Administration argues that the pro forma sessions are just a gimmick, intended to circumvent the constitutional procedures. That may be true, but it is no truer than the fact that using recess appointments to do an end run around the Senate is a gimmick. The question is whether the procedures are observed.

It is clear that the President is abusing his authority. It is the prerogative of Congress to decide when it is in recess and when not. Consider Article 1, Section 5:

Clause 4: Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

That decisively answers the question of when Congress is in recess and who gets to decide when it is. It is in recess when both houses have agreed that it is recess. The words "or when the President thinks that the Senate is in recess" somehow got left out of the text. It is not among the powers of the President to amend the fundamental document.

This is the modus operandi of Barack Obama. He objected vociferously to Bush's use of "signing statements" which his predecessor added to signed bills in an attempt to modify their execution. Recently he added a signing statement to a bill. He vociferously objected to recess appointments until he got to make some of them.

It is another thing for him to presume a power that is explicitly granted to one of the other two branches of government. I am not sure how this might come before the courts or who would have standing to bring it. It probably ought to come before that body, if, that is, you think the Constitution matters.

Comments

[David]

Please check out this petition to ask the President to reverse these illegitimate recess appointments. 150 signatures needed to get this one public on the White House website. Sign it if you agree that this over reach of executive power should be shored up before it's too late. Republish the link on as many sites as you can to increase it’s visibility (facebook and twitter are good places, and use the shorter link if you post to them).

https://wwws.whitehouse.gov/petitions/!/petition/reverse-all-recess-appointments-made-january-1st-2012/rxpnw1B8

If you have problems with that link try the shorter one they gave me:
http://wh.gov/Wgv or try using Google Chrome.

[duggersd]

I am wondering how disconcerting I would have found these types of appointments had they been made by W. or President Gingrich/Romney/Perry/Santorum in the future. I am hoping first and foremost the next President will actually have at least some respect for the Constitution. I also hope I would find this type of action by the next President to be disconcerting.
The problem we have is unless this is reversed Constitutionally, there is a precedent. Naturally, the Democrats would be outraged, but we expect that from the likes of Kerry and Reid. What this dictator does and gets away with will leave open the door for future Presidents.
David, I really doubt this President will pay any attention to any petition. What public opinion is has nothing to do with what he does.

[larry kurtz]

Tim Johnson says this thing is destined for court suggesting an opportunity for an inquisitive university professor turned executive to occupy the courts. Should be a fun year for us students, right, Doc?

And with perfect timing, expect AG Holder to exercise the nuclear option.

You guys are toast.

[larry kurtz]

btw, Ken: nice pic.

[Mark Anderson]

It's simply Obama calling a bluff by the Republicans. If you want to change an agency that you voted into power, you don't do it by refusing to let it function.

[Ken Blanchard]

Mark: yes, you (Congress) can change an agency by refusing to let it function. Withholding funding is an essential power of Congress. What the President can't do is call a bluff by exercising powers not granted to him by the Constitution.

[Jimi]

Obama trying to end around the rules?....Shocked....I am just Shocked!