Obama's 1-man rule thumbs nose at Founders

Pete Souza/White House

President Barack Obama prepares to sign legislation in the Oval Office, Jan. 3, 2012. Staff Secretary Rajesh De is pictured at left.

Article Highlights

  • President Obama’s “recess” appointments were made when the Senate was not in recess as the Constitution requires

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  • What gives the president the authority to decide whether one house of the legislature is conducting serious business?

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  • According to the Framers, when the Senate is not in recess, the president cannot make a recess appointment

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Of course President Obama is not concentrating on campaigning, White House press spokesmen assured us -- as the president headed off to Chicago for three fundraisers and a drop-in at his campaign headquarters, two days after a high-roller fundraising choked off traffic five blocks from the White House, with the assistance of a score of D.C. police cars.

No one, or at least no one who is paying attention, is fooled. It's standard presidential procedure to say you're not absorbed in campaigning even as you go out to raise money every other day. Bill Clinton, in my view, spent an undue amount of time fundraising, George W. Bush spent more, and Barack Obama makes them both look like pikers.

So Obama's scorn for the truth in this regard is only a minor matter. His scorn for the Constitution is something else.

That scorn has been expressed most recently in his "recess" appointments of members of the National Labor Relations Board and the chairmanship of the Consumer Financial Protection Bureau. The quotation marks are appropriate because when he made the appointments the Senate was not in recess as the Constitution requires.

Article II, Section 2 of the Constitution says that presidential appointments must be confirmed by the Senate unless Congress provides otherwise. But anticipating that the government may need officials when the Senate is available, the section further provides that "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 the next session."

"The House did not consent to the adjournment of the Senate this year, so there is no recess, and hence no constitutional authority to make recess appointments."--Michael Barone

What constitutes a recess? Article I, Section 5 provides "Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days."

The House did not consent to the adjournment of the Senate this year, so there is no recess, and hence no constitutional authority to make recess appointments.

The White House has belatedly trotted out an opinion from the Justice Department's Office of Legal Counsel (headed by a political appointee) saying that the president was justified in considering the Senate in recess, because the sessions it was holding every three days were just pro forma or, in the words of Obama defenders, "gimmicks."

Factually this is flat wrong. At one of those sessions the Senate passed the payroll tax cut extension, an important piece of legislation.

More important, what gives the head of the executive branch the authority to decide whether one house of the legislative branch is conducting serious business? Can the president decide that the quality of Senate debate is so poor on any particular day that he may deem it to be in recess?

The recess appointments Obama made are to important offices. The National Labor Relations Board last year issued a complaint against Boeing for building a $1 billion aircraft plant in South Carolina. The complaint was withdrawn only after the union representing Boeing's Washington state workers bludgeoned the company into promising more jobs there.

The Consumer Finance Protection Bureau, established by the Dodd-Frank Act, has unusual powers, with a guaranteed revenue stream rather than reliance on congressional appropriations and a director with a fixed term (but can it extend beyond the end of the next session of Congress?) and independence from other regulatory authorities.

On this Obama defied not only the Constitution, but Dodd-Frank, which explicitly states that the CFPB head can only take legal action after he is confirmed by the Senate. Presumably anyone aggrieved by one of his orders will sue and probably prevail.

So the appointment may turn out to be a futile act. But, hey, it's good fodder for campaign ads.

That's substantiated by the explanation for the appointment you can find of my.barackobama.com. "When Congress refuses to act, he will."

This looks uncomfortably close to the view taken by King Louis XIV. "L'etat, c'est moi," he is supposed to have said, and you don't need John Kerry's or Mitt Romney's command of French to know that that means one man rule.

The Framers of the Constitution saw it a different way. When the Senate refuses to confirm a presidential appointee, that person does not take office. When the Senate is not in recess, the president cannot make a recess appointment.

The Framers thought it more important to limit power than for government to act quickly. Obama disagrees.

Republican presidential candidates have been praising the Founding Fathers. Obama has been defying them. Interesting contrast.

Michael Barone is a resident fellow at AEI

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