After the recess appointment by George W. Bush of John Bolton to the position of Secretary to the United Nations, Senator Harry Reid of Nevada and Senator Barack Obama of Illinois devised a scheme to prevent the President from making any more recess appointments. They used the “pro forma” session where the Senate and House of Representatives would gavel-in every third day. This kept the Congress from being in recess when the “recess appointments” could be made. President Bush did not make a single recess appointment during his last two years in office because of this tactic.
Now President Obama has decided on his own that Congress is in recess. He made four “recess appointments” on Wednesday while the Senate was in pro forma session. The President argues that the Congress is in recess since no official business is being performed.
Obama will probably find himself in court as the defendant in several legal cases regarding his appointments.
- Separation of Powers: a plaintiff will argue that the President cannot define what constitutes a “recess” by Congress due to the separation of power delegated to each branch of government. This argument was brought up in an editorial in yesterday’s Washington Examiner.
- The Director of the Consumer Financial Protection Bureau must be confirmed by the Senate: The language in the Dodd-Frank Act requires the Senate to “confirm” the appointment of former Ohio Attorney General Richard Cordray. This language is different from the Senate’s “advise and consent” role that usually applies to Presidential nominees. The Cato Institute makes the case in an op-ed that appeared on January 5.
- The Senate was not given time to advise and consent: The three nominations to the National Labor Relations Board were made on December 15. The Senate has yet to schedule hearings on these nominations. The President turned these nominees into recess appointments on January 5. As a result of this, the argument can be made that the President could nominate and appoint anyone to any position while Congress is away for a long weekend. Obama could install Bill Ayers as Secretary of Education and Van Jones as Secretary of Energy without a peep from Congress.
The Los Angeles Times called Obama’s appointment of Cordray as a “rational response” to the Republican obstructionism. The Times did not say anything about the NLRB appointments. I am sure they will be forthcoming with their opinion on that. Right?
The Chicago Tribune warns Cordray to “watch your reach“. The Tribune believes that any decision Cordray makes will lose in a court challenge to his authority.
The Washington Post calls the appointments “justifiable“. The Post makes the argument that pro forma sessions don’t make common sense, so the President was within his right to determine that Congress was in recess.
The Wall Street Journal wants to “hear Mr. Obama’s legal justification” for declaring that Congress is in recess. So do I. Unfortunately, we may not get a legal ruling until after the damage is done. The Director of the Consumer Financial Protection Bureau has unlimited authority over financial institutions without congressional oversight. The NLRB sued to stop Boeing from opening a factory in South Carolina. The next election can’t come soon enough.