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Right Turn
Posted at 08:45 AM ET, 01/05/2012

Obama’s recess appointments: The ex-law professor makes a power grab

It is fair to characterize the Republican reaction to President Obama’s “recess”(there wasn’t one, the GOP lawmakers, point out) appointment of not only Richard Cordray to the new consumer protection bureau, but three members of the National Labor Relations Board who were sent up for consideration only in December, as furious.

In one of several statements, Senate Minority Leader Mitch McConnell (R-Ky.) blasted the president:

Just hours after he circumvented the American people by ‘recess’ appointing Richard Cordray to the CFPB, the President has upped the ante by making several additional recess appointments, this time to the NLRB. Although all of these appointments potentially raise legal and constitutional questions, the NLRB appointments are particularly egregious. Because the President waited to nominate Sharon Block and Richard Griffin until just two days before the Senate was scheduled to adjourn last month, neither has undergone a single confirmation hearing or a single day of debate by the representatives of the American people.
Congress has a constitutional duty to examine presidential nominees, a responsibility that serves as a check on executive power. But what the President did today sets a terrible precedent that could allow any future President to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress. This was surely not what the framers had in mind when they required the President to seek the advice and consent of the Senate in making appointments.

Speaker of the House John A. Boehner (R-Ohio) was similarly irate in responding to Cordray’s appointment:

This is an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department. The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our constitution.
This position had not been filled for one reason: the agency it heads is bad for jobs and bad for the economy. It’s clear the President would rather trample our system of separation of powers than work with Republicans to move the country forward. This action goes beyond the President’s authority, and I expect the courts will find the appointment to be illegitimate.

And not surprisingly, presidential candidate Mitt Romney joined in the furious pushback.

Just back from vacation, President Obama has wasted no time in returning to one of the top items on his agenda: doling out favors to his big labor political allies; and giving them a dangerous level of power over businesses and workers. His recess appointments to the National Labor Relations Board give this unaccountable and out-of-control agency the authority to continue acting in ways that create uncertainty for businesses, drive up their costs, and discourage hiring or investment. President Obama’s preference for partisan politics over economic growth will only hurt the millions of middle class families across the country who lose out every time the union bosses win. As president, my focus from day one will be on getting our economy turned around by pursuing policies that strengthen rather than stifle job creation.

At the heart of the matter is Obama’s decision to override his own lap dogs in the Justice Department and, while the Senate remains in pro forma session, void the requirement of Senate confirmation. John Yoo, no softie when it comes to executive power, explained: “Any private party can challenge this nomination by refusing to obey any regulation issued by the agency as the act of an unconstitutional officer.’ So what’s the basis for Obama’s decision to wreck legal havoc?

Yoo finds it uncompelling:

The President’s power over what are known as “recess appointments” stems from Article II of the Constitution, which grants him the authority “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.” The Constitution does not define what a “recess” is — the Senate adjourns for short periods of time, and the question becomes when an “adjournment” becomes long enough to turn into a “recess.” In the past, Attorneys General and Presidents have thought that an adjournment would have to be longer than at least 10 days to become a “recess.” . . .
Obama is claiming the right to decide whether a session of Congress is in fact a “real” one based, I suppose, on whether he sees any business going on.
This, in my view, is not up to the President, but the Senate. It is up to the Senate to decide when it is in session or not, and whether it feels like conducting any real business or just having Senators sitting around on the floor reading the papers. The President cannot decide the legitimacy of the activities of the Senate any more than he could for the other branches, and vice versa.

This is rather standard separation-of-powers fare.

There are arguments suggesting that the law is not so clear. But as a matter of judgment and precedent, the president has tried, as what John Elwood calls a “high-roller” move, one intended to provoke legal challenge and demonstrate his lack of respect for a co-equal branch of government. (Newt Gingrich should listen up and learn something about overreach and respect for other branches of government.) As the editorial board of the Wall Street Journal put it:

These appointments are brazen enough that they have the smell of a deliberate, and politically motivated, provocation. Recall the stories over the New Year’s weekend, clearly planted by the White House, that Mr. Obama planned to make a campaign against Congress the core of his re-election drive. One way to do that is to run roughshod over the Senate’s advice and consent power and dare the Members to stop him.

A series of Republican lawmakers have stepped forward to denounce the move and warn that a Republican president will now be tempted to act in a similar high-handed fashion.

The courts will get a chance to consider the issue, and Obama may well be rebuked. But it’s not clear this is even a smart political move. As the erudite Democrat Mickey Kaus observed, simply because the Senate won’t confirm his picks is no justification for the president’s end-around the Constitution. He deemed the move “Chavez-y” and “distasteful [and] risky.”

It also gives the Republicans the upper hand in their argument that Obama is interested not in governance, just in naked partisan power plays. That may send a tingle up the legs of the left, but to average voters it may well seem like bad faith by a president who has long since proved unable to work within the system of separation of powers.

And the hypocrisy here is a bit much to bear. As a senator, Obama excoriated the practice of recess appointments (George W. Bush actually waited for a real recess) and joined the lefty lawyers in yelping that Bush was shredding the Constitution by, among other things, making signing statements and refusing to implement parts of legislation. It turns out the constitutional law professor’s respect for the Constitution was only a campaign talking point.

By  |  08:45 AM ET, 01/05/2012

Categories:  law, President Obama

 
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