Pretty much everyone has weighed in on President Obama’s so-called “recess” appointments, and there is widespread agreement amongst conservative legal experts that the move was blatantly unconstitutional; nothing more than a brazen political power grab.
A couple hypothetical examples really help explain the significance of President Obama’s actions. In effect, he is moving the Senate from an institution that votes on confirmation to one that votes on retention.
But first, it is important to understand the legal case against President Obama. President Reagan’s former attorney general Edwin Meese III put it best:
President Obama’s attempt to unilaterally appoint three people to seats on the National Labor Relations Board and Richard Cordray to head the new Consumer Financial Protection Bureau (after the Senate blocked action on his nomination) is more than an unconstitutional attempt to circumvent the Senate’s advise-and-consent role. It is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.
It is this flagrant violation of the separation of powers that deserves more scrutiny. Absent appropriate legal, legislative and public pushback, it would be foolish to believe President Obama will not continue to use his newfound power even more aggressively.
As a constitutional scholar, President Obama surely knows the United States Constitution empowers the Senate to “determine the rules of its proceedings” and ensures neither the House nor Senate can adjourn for more than three days “without the consent of the other.” The Constitution makes clear Presidential action is not needed “on a question of adjournment.” As others have noted, the logical conclusion drawn from President Obama’s stunt is that he alone has the power to determine whether the Senate is in session.
Power grabs are rarely finite, so just for fun, suppose Attorney General Eric Holder resigns under immense pressure from the “Fast and Furious” debacle. Rather than go through a laborious confirmation process and deal with even more probing questions, President Obama could simply wait for a temporarily empty Senate floor, and install his new attorney general.
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