by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Among the examples he cities of the current president’s disinterest in the rule of law is his use of recess appointments:
On January 4, President Obama made three appointments to the National Labor Relations Board and one to the Consumer Financial Protection Board. These were “recess appointments,” made under the president’s power to fill jobs when the Senate is not in session to provide its advice about and consent to his nominations. In this case, however, the Senate was in session. Under the Constitution neither chamber of Congress can adjourn for long without the consent of the other, and the Republican-controlled House forced the Senate to hold pro forma sessions to stop Obama from being able to make appointments without getting Senate approval.
The administration’s legal position is that the president can determine that the Senate is out of session even when it says it is in session. It says that the Senate is not “capable” of exercising its constitutional functions during these pro forma sessions. Senator Mike Lee (R., Utah), a former Supreme Court clerk who has been Obama’s toughest critic on the issue, points out that this argument is clearly incorrect: The Senate can pass bills and confirm nominees if it so chooses, even if it does not intend to conduct major business.
In the court of public opinion, the administration’s defenders press a different argument: The Republicans had subverted norms of good government by using the filibuster to block appointees, and in the case of the CFPB they had done so to force changes to the statute — an unprecedented tactic. But norms can’t trump constitutional rules, and in any case the CFPB itself breaks precedents. It is an independent agency, free of accountability to the executive or legislative branches of government, on steroids: Its director doesn’t answer to the president or a board, and its funding does not come from Congress. Appointing someone to run the CFPB when the Senate has refused to confirm him compounds the problem.
Some themes emerge from this list. In most of these cases, President Obama has bypassed Congress, rewriting laws or appointing nominees without its consent. (Even at the height of liberal power in the capital, in 2009–10, Congress was not going to enact a law making Notre Dame cover abortion drugs.) In most of these cases, too, his actions have been unprecedented. Not only has nobody taken them before, nobody has even suggested they would be legitimate before. No other president has made recess appointments during a pro forma session of the Senate, for example.