Commentary Magazine


Our Lawless President and the Recess Appointment Fight

I agree with Pete and Alana–and many others around the blogosphere–that Obama’s mini-Putsch two days ago was both lawless and typical of this administration. Obama only cares about his re-election at this point, and if that requires the Constitution to be trashed in the process, well, so be it.

As Alana pointed out, Charles Krauthammer thinks it might be clever politics, however cynical, because the president is arguing he has to get things done and it’s all the Senate’s fault for being obstructionist. I’m not so sure. The American people take the Constitution seriously and have a limited tolerance for
politicians who try to evade it for political purposes. FDR, just off a triumphant re-election (46 of 48 states), tried in 1937 to “pack” the Supreme Court that had been obstructing his programs by adding an extra justice for every justice over 70 years of age. That would have been perfectly constitutional, as Congress has the power to set the number of justices. (There were originally six, and there were 10 after 1863. The number has been fixed at nine since 1869.) But the people would have none of it, and Congress, responding to public opinion, refused to act. It was a devastating political defeat for FDR.

A lawsuit would be necessary here, and I very much doubt an individual senator has standing. The Senate as a body might, but since it’s controlled by Democrats that won’t happen. However, a company ordered to do something by either the Consumer Financial Protection Bureau (isn’t there something Orwellian about that name?) or the National Labor Relations Board might well have a case.

There are good arguments to present. Laurence H. Tribe, a liberal law professor at Harvard, makes the case for Obama in today’s Times, but it seems to me a pretty weak one. He basically argues that as the Senate was only in pro forma session, designed to obstruct the president’s recess appointment power, the president was justified in ignoring it. But as PJ Tatler points out, the Congressional Record shows the Senate actually conducted business during at least one of these pro forma sessions. He also argues that the Senate was in an extended recess, thus justifying the president’s action in order to assure the public’s business got done. But in fact, the pro forma sessions had only begun on December 17. The nominees to the NLRB had only been nominated on December 15. The Senate could not possibly have acted on those nominations, so its power to advise and consent had been nullified by the president’s action.

It should be noted that the constitutional section in question (II/2/3) gives the president power to make recess appointments “during the recess of the Senate.” Not “a recess” but “the recess.” To me, that implies the time when the Senate has finished its business and gone home until the next regular session, which used to be long periods, not a temporary break during the holidays.

It has also been pointed out that the law establishing the CFPB states that the director cannot act until he has been “confirmed by the Senate,” and clearly he has not been.

It will be fascinating to see how this plays out. Hopefully there will be enough happening to keep the story in the news, demonstrating just how arrogant and lawless this president is.


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