Michael Barone‘s latest column documents his concerns about President Obama’s scorn for constitutional limitations.
That scorn has been expressed most recently in his “recess” appointments of members of the National Labor Relations Board and the chairmanship of the Consumer Financial Protection Bureau. The quotation marks are appropriate because when he made the appointments the Senate was not in recess as the Constitution requires.
Article II, Section 2 of the Constitution says that presidential appointments must be confirmed by the Senate unless Congress provides otherwise. But anticipating that the government may need officials when the Senate is unavailable, the section further provides that “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 the next session.”
What constitutes a recess? Article I, Section 5 reads, “Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days.”
The House did not consent to the adjournment of the Senate this year, so there is no recess, and hence no constitutional authority to make recess appointments.
The White House has belatedly trotted out an opinion from the Justice Department’s Office of Legal Counsel (headed by a political appointee) saying that the president was justified in considering the Senate in recess, because the sessions it was holding every three days were just pro forma or, in the words of Obama defenders, “gimmicks.”
Factually this is flat wrong. At one of those sessions the Senate passed the payroll-tax-cut extension, an important piece of legislation.
More important, what gives the head of the executive branch the authority to decide whether one house of the legislative branch is conducting serious business? Can the president decide that the quality of Senate debate is so poor on any particular day that he may deem it to be in recess?
