Of course President Obama is not concentrating on campaigning, White House press spokesmen assured us -- as the president headed off to Chicago for three fundraisers and a drop-in at his campaign headquarters, two days after a high-roller fundraising choked off traffic five blocks from the White House, with the assistance of a score of D.C. police cars.
No one, or at least no one who is paying attention, is fooled. It's standard presidential procedure to say you're not absorbed in campaigning even as you go out to raise money every other day. Bill Clinton, in my view, spent an undue amount of time fundraising, George W. Bush spent more, and Barack Obama makes them both look like pikers.
So Obama's scorn for the truth in this regard is only a minor matter. His scorn for the Constitution is something else.
That scorn has been expressed most recently in his "recess" appointments of members of the National Labor Relations Board and the chairmanship of the Consumer Financial Protection Bureau. The quotation marks are appropriate because when he made the appointments the Senate was not in recess as the Constitution requires.
Article II, Section 2 of the Constitution says that presidential appointments must be confirmed by the Senate unless Congress provides otherwise. But anticipating that the government may need officials when the Senate is unavailable, the section further provides that "the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the next session."
What constitutes a recess? Article I, Section 5 reads, "Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days."
The House did not consent to the adjournment of the Senate this year, so there is no recess, and hence no constitutional authority to make recess appointments.
The White House has belatedly trotted out an opinion from the Justice Department's Office of Legal Counsel (headed by a political appointee) saying that the president was justified in considering the Senate in recess, because the sessions it was holding every three days were just pro forma or, in the words of Obama defenders, "gimmicks."
Factually this is flat wrong. At one of those sessions the Senate passed the payroll tax cut extension, an important piece of legislation.
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