Monday, January 28, 2013

Obama's Recess Appointments-Abuse of Power?

Obama's Recess Appointments-Abuse of Power?

In its Friday edition, The New York Times reported that,

...a federal appeals court ruled on Friday that President Obama violated the Constitution when he installed three officials on the National Labor Relations Board a year ago. 

The ruling was a blow to the administration and a victory for Mr. Obama’s Republican critics — and a handful of liberal ones — who had accused him of improperly asserting that he could make the appointments under his executive powers. The administration had argued that the president could decide that senators were really on a lengthy recess even though the Senate considered itself to be meeting in “pro forma” sessions.

Article II, Section 2 of the Constitution says, "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 appeals court ruling: “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,” wrote Judge David B. Sentelle. “This cannot be the law.

Was Congress in recess? Actually, the House of Representatives must give formal permission to the Senate to shut down or go into "recess." (As the Senate must also provide permission to the House when they wish to recess.) Had the House granted the Senate, as required by the Constitution, permission to be in recess?

No, they had not. Which means, according to the Constitution, that the chamber can not adjourn for more than three days. 

As a result The Senate went into "pro forma" mode, where typically a member of the chamber will be one of a very few number of elected officials in the actual room, gavel in (to officially open the day's session) and then seconds later gavel out (to officially end the day's session.) There are no speakers or speeches. There are no Bills presented for consideration. There is no actual business conducted as the vast majority of the chamber's members aren't even there. 

Technically the Senate stayed in session. 
Functionally, it was not. 

This way of avoiding the technical closing of the Senate which, by a literal interpretation of Article II, Sec. 02, is the only time President can make a recess appointment, is a tactic originated by Democrats during the GW Bush administration. Mr. Bush did not contest it. Mr. Obama has. 

The fallout of this Court's action may be significant as any appointments made by President Obama during what he considered a "recess" may be, in the end, null and void. As may any decisions made by these appointees during their time in their position. 

The tactic seems to be a cheap way to go against the spirit of Article II, Sec. 2. It was cheap when utilized by the Democrats during the Bush years and its cheap during the Obama years. Presidents have utilized recess appointments for a long time. The history suggests they're not the "power grab" some Conservatives suggest they are. Is President Obama abusing this privilege to appoint people to positions while Congress is in recess? The New York Times says: 

Mr. Obama has made about 32 such appointments, including that of Richard Cordray, as director of the Consumer Financial Protection Bureau. President Bill Clinton made 139, while Mr. Bush made 171, including those of John R. Bolton as ambassador to the United Nations and two appeals court judges, William H. Pryor Jr. and Charles W. Pickering Sr.

The Administration has said it will appeal the decision to the Supreme Court. Therefore, this won't be over anytime soon. All of the decisions made by all of the appointees are now, I imagine, subject to great controversy pending the final outcome by the Courts. Whenever that might be. 

Is this anyway to run our Government?


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