Malo periculosam, libertatem quam quietam servitutem.



January 2013

About Those Non-Recess “Recess Appointments”

Written by , Posted in The Courts, Criminal Justice & Tort

The president of the United States, who heads the executive branch, does not have the authority to determine when Congress, the legislative branch, is or is not in session, according to a unanimous DC Circuit Court. Reaching the correct decision, the court found that the administration’s appointments to the NLRB were illegal:

A federal appeals court has unanimously slapped down President Barack Obama’s unprecedented claim that he can decide when the Senate is in session.

“Considering the text, history and structure of the Constitution, these appointments were invalid from their inception,” said the three-judge decision, written by U.S. Circuit Judge David Sentelle.

…The Jan. 25 ruling came after Republican senators filed a case arguing that Obama did not have the power to appoint top-level officials via a “recess appointment” if the Senate says it is in session.

Obama made that claim when he announced the appointment of two people to the National Labor Relations Board in January 2012.

The appointments allowed the board to subsequently issue a series of pro-labor, anti-business decisions. Following the court’s ruling, the board’s decisions are now vulnerable to a series of lawsuits.

The question was whether, for the purpose of recess appointments, the executive could decide what level of activity was necessary for a legislative session to be legitimate. Basically, if Senators wants to sit around all day reading newspapers instead of doing work, that’s their prerogative, and the President has no legitimate power to determine that they aren’t doing enough work to actually be considered in session. The President insisted he could, but the court sided with the view that because Congress sets its own rules, it is the sole authority on whether or not it is in session.

The administration’s political justification – that they were simply responding to Senate reaction – was also faulty. The non-recess “recess appointments” were made in January of 2012, but  2 of the 3 had only been submitted a month prior, and the Senate had not yet received all the required information to begin. As I said at the time:

This line of reasoning renders meaningless the entire concept of Advice and Consent. What is the point of even requiring Senate confirmation if the refusal of the Senate to do so just means that the President should go around them? If the Senate is expected to be nothing more than a rubber stamp, then the whole process is a massive waste of time.

Despite the legal preservation of the separation of powers and having the kibosh put on yet another attempted power grab by the executive, the larger problem with the concept of the recess appointment remains. As I also said before:

Although there are legitimate concerns with agencies being left unmanned by Senate inaction, I’m more inclined to view the idea of the recess appointment as the bigger problem here. It made much more sense when originally conceived, as the legislature was a part time body which might be out of session for months at a time. Such is simply not the case anymore. Today we have a full time legislature that rarely recesses for more than a few weeks at a time. There are few if an vacancies that are so critical they would have to be filled before the Senate soon returned to session. And if the Senate refused to do so for poor reasons, that’s a political issue best sorted out by voters at election time.

The last point is worth repeating. If the President feels the Senate is not acting sufficiently fast enough for his tastes, that’s a political matter to be resolved by political means. The public can decide who is right and who should be punished. Doing an end run around the Constitutional arrangement to have the Senate provide Advice and Consent, on the other hand, is not the appropriate response. And now we have confirmation that’s it’s not a legal one, either.