Wednesday, May 22, 2013

Advice and Consent Is Not Optional

Advice and Consent Is Not Optional:
Ed Meese, Ronald Reagan's attorney general, spoke for many
Republicans when he
President Obama's 2012 appointment of four federal
officials without Senate approval "a breathtaking violation of the
separation of powers." But according to a recent federal appeals
, abuses like Obama's have been a bipartisan practice
in recent decades, with Republicans, including Meese's former boss,
more sinning than sinned against.
The Constitution requires the Senate's "advice and consent" for
all appointees aside from "inferior officers" whom Congress by law
allows the president or a department head to pick on his own. There
is one exception: "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
Obama cited that provision on January 4, 2012, when he
the director of the Consumer Financial Protection
Bureau and three new members of the National Labor Relations Board
(NLRB). The problem was that the Senate, which was briefly
convening every three days to prevent just that sort of unilateral
action, did not consider itself to be in recess.
Obama said banging a gavel in a nearly empty chamber did not
count, since no business was being conducted and almost all
senators were absent. The president's critics said it was not his
prerogative to decide when the Senate is in recess.
Last week the U.S. Court of Appeals for the 3rd Circuit, in a
involving an NLRB member appointed by Obama in 2010, agreed with
those critics and went a step further, saying the Recess
Appointment Clause applies only during breaks between sessions
of Congress. The 3rd Circuit's reasoning, which mirrors that of the
U.S. Court of Appeals for the D.C. Circuit in a January
addressing Obama's 2012 NLRB appointments, is
Written at a time when breaks between congressional sessions
lasted six to nine months and when travel and communication between
the capital and the states took days or weeks, the Recess
Appointment Clause was aimed at preventing important posts from
remaining vacant for long stretches of time. The fact that
officials appointed during a recess serve until the end of the
Senate's following session makes sense in light of that purpose,
since by then the Senate would have a chance to approve the
president's choice.
The D.C. Circuit (unlike the 3rd Circuit, which said resolving
the issue was not necessary to decide the case) also noted what
seems plain from the language of the Recess Appointment Clause: The
vacancies filled during a recess must "happen during the recess," a
requirement that makes Obama's appointments doubly illegitimate.
The modern practice of waiting to fill vacancies until the Senate
adjourns is plainly designed to evade the Constitution's
advice-and-consent rule.
Such shenanigans are a relatively recent development.
With the exception of Andrew Johnson, whose controversial
appointments played a role in his impeachment, all presidents
limited their recess appointments to breaks between sessions until
Warren Harding in 1921. Intrasession recess appointments remained

fairly rare
until the Reagan administration, during which there
were 73, followed by 37 under George H.W. Bush, 53 under Bill
Clinton, 141 under George W. Bush, and 26 so far under Obama.
While Obama's number is less impressive than those of his
Republican predecessors, he has broken new ground by
that he can make recess appointments whenever the
Senate is not open for business. The implication is that the
president can unilaterally appoint officials anytime the Senate
adjourns for a holiday break, the weekend, the night, or even
Modern presidents have transformed a clause aimed at allowing
them to fill posts when the Senate can't approve their
choices into a tool for filling posts when the Senate
won't approve their choices. Obama's especially brazen use
of that tool may ultimately discredit it forever, in which case he
will have inadvertently helped restore the checks and balances
designed by the Framers.