The President Abused His Power
Obama's purported recess appointments are unconstitutional and unprecedented
January 6, 2012
The Constitution grants the president the power to appoint certain officers, but this power is tempered by the Senate's role of providing advice and consent to all principal officers. The Senate's advice-and-consent duty is not merely a formality but a cornerstone of the separation of powers. When the Senate is not in session for an extended period of time, the president may make temporary recess appointments lasting up to two years. As my colleagues explained, President Obama overstepped his constitutional authority when he appointed three members to the National Labor Relations Board and Richard Cordray to head the Consumer Financial Protection Bureau on January 4.
Art. I, sec. 5 of the Constitution provides that "[n]either House…shall…adjourn for more than three days" without the consent of the other. The House of Representatives has not consented to a Senate recess. Thus, the Senate is not in recess and the president's purported recess appointments were unconstitutional and unprecedented. On December 17, the Senate began a "pro forma" session, which allows the Senate to conduct its business mostly by agents under unanimous consent procedures. Regardless of the prudence of these "pro forma" sessions, the president is well aware that the Senate remained in session. In fact, on December 23, President Obama signed a bill--the payroll tax cut extension--into law that the Senate passed earlier that day.
Certainly, the Constitution allows for recess appointments, and many presidents have lawfully exercised this power over the years. Our Constitution's Framers likely did not imagine a day when senators could communicate their consent to bills by electronic means or fly to Washington in a few hours. As a result, they provided a mechanism for the president to make appointments during necessarily long recesses. President Obama is not the first to abuse this power. But for nearly a century, the general consensus of all branches of government was that the Senate must be in recess for at least nine to 10 days before the president may make recess appointments. Thus, the Senate has a duty to protect its prerogatives and must not allow President Obama to render its constitutional role meaningless. It is up to the House and Senate to determine whether to stay in session or not, and the president cannot ignore the fact the Congress is in session any time he wants to circumvent a Senate confirmation.