President Obama’s recess appointment of three members of the National Labor Relations Board and Richard Cordray to the Consumer Financial Protection Bureau continues to reverberate. The most compelling legal analysis on the subject is offered by conservative legal figures, most aptly today by Todd Gaziano of the Heritage Foundation and former attorney general Ed Meese:
Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days.
The president and anyone else may object that the Senate is conducting “pro forma” sessions, but that does not render them constitutionally meaningless, as some have argued. In fact, the Senate did pass a bill during a supposedly “pro forma” session on Dec. 23, a matter the White House took notice of since the president signed the bill into law. The president cannot pick and choose when he deems a Senate session to be “real.
Senate Majority Leader Harry Reid found this entirely compelling, until this week. (Gaziano and Meese write: “When Senate Majority Leader Harry Reid (D-Nev.) kept the chamber in pro forma sessions at the end of the George W. Bush administration, he declared that was sufficient to prevent Bush’s use of the recess appointment power. Reid was right, whether or not his tactics were justified.”) At the time, neither the mainstream media or liberal lawyers decried Reid’s move. The Democrats (presumably including the then-junior senator from Illinois) themselves understood that the Congress controls its own schedule.
And if you prefer the analysis of the Justice Department, the last word which we know about (Obama won’t say whether he bothered to ask his Justice Department or what the lawyers said) has provided 20 years of guidance to constitutionally respectful presidents. David Rivkin and Lee Casey remind us of it:
The traditional test, as articulated in a 1989 published opinion by the Justice Department’s own constitutional experts in the Office of Legal Counsel, is “whether the adjournment of the Senate is of such duration that the Senate could ‘not receive communications from the President or participate as a body in making appointments.’ ” Today’s Senate, which is controlled by the president’s own party, is fully capable of performing both functions in accordance with its rules. Indeed, the Senate is so much in session that on Dec. 23 — three days after beginning its pro forma session — it passed President Obama’s current highest legislative priority: a two-month payroll tax holiday, which the president promptly signed.
The argument that Obama is justified in taking this extra-constitutional step because the Senate was obstructionist is factual wrong and legally irrelevant. The NRLB nominees were sent up in December and have yet to have a single hearing. But if they had been filibustered, the analysis would be the same. Under our system of divided government, the Senate is empowered to block, by vote or filibuster, the president’s nominees. What’s next — implementing legislation that has been filibustered?
The argument that pro forma sessions aren’t real is also belied by the facts. After all, as a former Justice Department lawyer reminds us: “The [Congressional Record] for Dec. 23 shows that Senate Majority Leader Harry Reid specifically asked for unanimous consent for H.R. 3765 so ‘that if the House passes and sends to the Senate a bill which is identical to the text extension of the reduced payroll tax, unemployment insurance, TANF, and the Medicare payment fix, the bill be considered read three times and passed.’ . . . . That’s not a ‘gimmick.’ That’s legislating.”
The left — big surprise — views the Constitution as irrelevant when the president (so long as he’s acting for good and noble reasons) has important things to do. It is especially distasteful that he is willing to provoke a constitutional furor and throw the actions of both entities into uncertainty (any actions undertaken by improperly installed appointees are invalid) as a political stunt, to boost his leftist base and pick a fight with a co-equal branch. It’s the politics of Chicago and Newt Gingrich, daring anyone to stop him.
But on the left there is a growing sense of queasiness. Do they really want to set the precedent for President Romney or Santorum? And really, with this ploy why would the president ever submit to the ordinary confirmation process? The left-leaning Bloomberg View editorial board writes:
We understand why the president, out of deep frustration, went around Republican senators. . . . Nevertheless, our desire to have effective regulation doesn’t trump our reservations over the president’s unusual methods. . . .
We think the president, who is making confrontation with congressional Republicans a major theme of his re-election effort, is choosing politics over principle, and playing dangerously with the Constitution’s checks and balances, in choosing to tell the Senate when it is and is not in session.
Tim Noah at the New Republic likewise grasps the lack of legal support for the president’s action: “I’m having trouble understanding how the recess appointment of Cordray can possibly withstand a legal challenge. And I’m really having trouble understanding why Obama didn’t take advantage of his constitutional window [January 3], when the Senate was inarguably in recess.” Because he wants the fight, not the appointees.
Obama is playing to the very worst inclinations on the left — the contempt for the strictures of precedent and the Constitution, which act as a check on needless confrontation, government overreach and legal chaos. Obama has made worse decisions in his presidency (putting the Afghanistan war on an election timetable), but he has never made one so destructive of the fabric of the Constitution and the comity that is essential for productive governance.