by Lloyd Green

Sometimes, Barack Obama acts like the Constitution does not apply to him and the Congress is an imaginary being.  Friday, the United States Court of Appeals brought the president back to Earth and reminded him that that the Constitution’s Appointments Clause and the U.S. Senate are very much part of reality by voiding three of Obama’s recess appointments to the National Labor Relations Board.

The D.C. Circuit ruled that the president could not end-run the confirmation process merely because at the beginning of 2012 the U.S. Senate was meeting every three business days in, what lawyers call, pro forma session.  Oh, and during that pro forma session the Senate was also busy passing the payroll tax extension.  Some pro forma session.

In its decision, the Court made clear that our president answers to Article II, Section 2, Clause 2 of the Constitution which, in the words of the Court, “provides that the president ‘shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.’”

Now, the language of the Constitution is pretty straight forward.  If you are the President and you want to appoint someone to a position of serious responsibility that nominee must be vetted and approved by the Senate.  Yes, the Senate can be cantankerous, unruly and even stupid.  But, these are not constitutionally recognized rationales for the president to thumb his nose at the Appointments Clause.

George Washington respected the Appointments Clause.  Abraham Lincoln respected that rule.  John F. Kennedy respected the Appointments Clause.  Ronald Reagan respected the Appointments Clause.  Barack Obama, former president of the Harvard Law Review and constitutional law lecturer at the University of Chicago?  Not so much.

The president thought that he had a better idea, and decided to take his cue from that paragon of virtue Warren G. Harding and the first president to be impeached, Andrew Johnson.  Mr. Obama appointed someone (make that three someones) to posts that otherwise required confirmation, despite the fact that the Senate was still in session.

Barack Obama figured that he could roll the Senate and roll the dice in one fell-swoop. He bet that he could hang his hat on the Constitution’s  Recess Appointments Clause — and get away with it.

The Recess Appointments Clause permits the president to make a temporary appointment when Congress is really out of session to vacancy that really first arises when Congress is really out of session — as when it has adjourned sine die, lawyer-speak and Latin for “without date”.  Under the Recess Appointments Clause, 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 their next Session.” Id. art. II, § 2, cl. 3.

Here’s the thing.  When the president filled the NLRB with three supposed recess appointments the Senate was still doing its thing.  It was very much “in session.”  In other words, the Senate was busy, but the White House hell-bent on imposing its appointees on the American public, advice and consent be damned.

To top it all off, none of the vacancies arose which the president sought to fill first arose while the Senate was in recess.  In other words, President Obama played a waiting game in the hope that his nominees could skirt the Constitution and the Congress.

A reminder. Mr. President, although you were reelected you remain bound by the Constitution.  Indeed, just this week you swore on two Bibles to uphold it.  Now it is time for you to remember your Oath.

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Lloyd Green was counsel to the George H.W. Bush campaign in 1988, and served in the Department of Justice between 1990 and 1992.


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