Dan Holler

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.

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.


Dan Holler

Dan Holler is the Communications Director for Heritage Action for America. Previously, he held numerous positions at The Heritage Foundation, most recently he was the Senate Relations Deputy. A Maryland native, he is a graduate of Washington College.