One problem with recess appoints is that they are indeed temporary, but that is less of a barrier than many expect. Take, for instance, the appointments made last week. Because they were made AFTER the Second Session of the 112th Congress began, they will continue through this year and the entirety of the First Session of the 113th Congress (i.e., December 2013). If President Obama wins a second term, he can deal with Senate confirmation then, but at the very least, these appointees will serve the remainder of his term.
One non-hypothetical should clarify things for President Obama’s fellow Democrats who are now applauding the move. For unknown reasons, New Jersey Democrat Robert Menendez is currently holding up a judge from his home state. If President Obama applies his newly found power evenly, and without regard to party, he would bypass this Democrat-led obstructionism, which many in the press believe is motivated purely by personal animosity.
That, however, is an unlikely scenario because President Obama is using his newfound executive power to rally his base and campaign against Republicans in the run up to the 2012 election. If we play this out what is more likely to happen – hypothetically, of course – we can see the real threat we face when it comes to separation of powers.
Imagine a newly elected president. One of his biggest hurdles is establishing a cabinet and getting all the right people in place. The system of checks and balances is laborious. Instead of waiting for hundreds of confirmations, he decides to use the powers discovered by President Obama and simply “recess” appointing his entire cabinet. Given the timing, those officials would be allowed to serve for nearly two years.
As noted earlier, the role of the Senate now shifts from confirmation to retention, as the new president could move his nominations through the traditional Senate process. But the debate would change from should the person do this job; to should this person continue to do this job. It fundamentally alters, beyond recognition, the Senate’s constitutional duty of “Advice and Consent.”
Mr. Meese observed it is a “serious threat to our liberty” and “the House or Senate could condition all ‘must-pass’ legislation for the remainder of 2012 on an agreement to rescind these appointments.” Americans should not take President Obama’s outrageous actions lightly, nor should Congress.