Republicans in the House of Representatives are currently attempting to prevent Barack Obama from making recess appointments, contrary to the spirit of the Constitution — the same Constitution that they read on the House floor at the beginning of the 112th Congress.
It’s a complete farce, and there’s no reason at all for Obama to play along.
Obama should make a recess appointment in the face of the House GOP’s antics — now. It would be good for his Presidency, as a display of his influence. Not only that, but it would be good for the Constitution, too.
Law professor Victor Williams had an important column last week arguing that “Obama should recess-appoint a substantial number of nominees” for the all important reason that it’s time “to re-establish constitutional order.” He’s right.
To review: the House is attempting to block recess appointments to the executive branch by holding occasional pro forma sessions throughout the month, and pledging to do the same when needed throughout the rest of the 112th Congress. By constitutional mandate, neither chamber of Congress is allowed to adjourn for more than three days during a session if the other hasn’t recessed. So the Senate is required to hold its own pro forma sessions. And since a Clinton-era Department of Justice opinion stated that a recess must exceed three days to count for the purposes of making recess appointments, the president is apparently prohibited from acting.
As Williams points out, this goes against the letter and spirit of the Constitution, which gives the House no role at all in appointments and confirmations.
The president could — and must — fight back. Williams stresses that Obama is not bound by the old DOJ opinion; he could simply ignore it and appoint someone anyway. Indeed, he could claim quite reasonably that the three-day minimum only applies to normal recesses, but not to the phony business that’s going on this month. After all, the Senate is for all practical purposes out of town for a month, with no intention of acting on any nominations or anything else. The Senate is only in because the House of Representatives, which again has no Constitutional role in confirming nominations — is forcing them to hold these silly pro forma sessions.
Williams does not note the other option; Obama could use his never-tested Article II power to resolve a dispute over adjournment in favor of the Senate, although in my view that would be on much steadier grounds if the Senate had actually asked him to act.
Either way, the president’s power of appointment is at stake here, and the president has both ample constitutional room to act and ample reason to do so.