Q: Why are recess appointments in the news?
A. On Jan. 4, President Obama bypassed the Senate and appointed Richard Cordray as director of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board. His move is highly controversial over whether he exceeded his constitutional power to make appointments during a Senate recess and so exceeded the power of his office.
Q. What's at stake when the President circumvents the Senate with nominations?
A. Our constitutionally outlined system of checks and balances among the three branches of our government is undermined when the President ignores the Constitution in making appointments. The Constitution expressly assigns the Senate an advice and consent role in presidential nominations. The President nominates, the Senate acts to confirm or disprove the nomination. The Constitution says each house of Congress makes its own rules of proceeding. The Administration argues the Senate was in recess during the President's appointments, but that's a red herring. In effect, the Senate is in session when it says it's in session, not when the President says the Senate is in session. And, according to its own rules, the Senate was not in an extended recess during the President's action. The Constitution does provide for the President to make appointments when the Senate is in a prolonged recess, but there are restrictions on those powers. And in addition to constitutional limitations, practice, tradition, and legal opinions all have influenced the process. If constitutional constructions are flouted, the President could choose to make all of his own appointments and skip the Senate's advice and consent role. Similarly, if the Senate were to declare the law of the land without seeking a presidential signature or veto, that would be a clear violation of constitutional strictures. The White House would protest, just as the Senate is protesting now. The Constitution works to keep any one branch of the government from getting too powerful. It's what keeps our country a republic, not a monarchy, the form of government our founders fled, fought, and rejected.
Q: Why are you unconvinced by the Justice Department's opinion about the ability of the President to make recess appointments in certain circumstances?
A: The conclusion of the Justice Department's Office of Legal Counsel is at odds with the text of the U.S. Constitution and the administration's own previous statements. It fundamentally alters the careful separation of powers between the executive and legislative branches that the framers crafted in the Constitution. It relies on no Supreme Court decision for its conclusion that the Constitution allows the President to make these appointments. In fact, many of the Administration's conclusions are unsupported in law or the Constitution. The Justice Department recognizes that the courts might well disagree. And the action flies in the face of more than 90 years of historical practice. Taken together with a laundry list of other assertions of the power to act without Congress, this clearly is an escalation in a pattern of contempt for the elected representatives of the American people. The Senate will need to take action to check and balance President Obama's blatant attempt to circumvent the Senate and the Constitution, a claim of presidential power that the Bush Administration refused to make. No president since Theodore Roosevelt has tested the limitations on a president's power to make recess appointments as President Obama has. It was seen as a blatant power grab when Theodore Roosevelt did it, and it strikes many of us the same way from President Obama.
Monday, January 23, 2012
