by Mitch Kokai
Senior Political Analyst, John Locke Foundation
“We can’t wait,” Barack Obama took to saying after the Republicans captured a majority in the House and refused to pass laws he wanted. He would act to get what he wanted regardless of law.
One example: his recess appointments in January 2012 of three members of the National Labor Relations Board and the head of the Consumer Financial Protection Bureau.
Last month, the U.S. Court of Appeals for the District of Columbia ruled unanimously that the NLRB recess appointments were unconstitutional.
The decision, written by Judge David Sentelle, noted that the Constitution speaks of “the recess,” not “a recess,” and reasoned that it could only be referring to the recess between annual sessions of Congress.
Obama, like many presidents before him, interpreted the phrase as referring to any recess during which Congress is not in session. But he went one step further.
When Harry Reid became Senate majority leader in 2007, he started holding pro forma meetings of the Senate every three days and stating that the Senate was not in recess. George W. Bush, who had made recess appointments before, stopped doing so.
Bush took the view that, since the Constitution says that each branch of Congress makes its own rules, the Senate was in session if the Senate said so. Obama took the view that he would decide whether the Senate was in session. Who cares what the Constitution says?
As Sentelle pointed out, Obama’s view would entitle the president to make a recess appointment any time the Senate broke for lunch. “This cannot be the law,” the judge wrote.