Through a long chain of circumstances not worth recounting here, I ended up having breakfast yesterday in Los Angeles with former California Congressman Tom Campbell, who has lately succeeded my old graduate school roommate, John Eastman (a frequent guest on Hugh Hewitt’s radio show), as dean of Chapman University Law School. Campbell is known among conservative circles in California as something of a RINO, but in our conversation about the illegality of President Obama’s recess appointments you would never have thought so. Campbell reminded me that he had brought suit against President Clinton for violating the War Powers Act for the manner of his intervention in Kosovo in 1999, only to have the suit thrown out for lack of standing. Apparently the only party that would have standing to sue a president for violating the War Powers Act would be a serviceman, except that the Commander in Chief could order any serviceman not the bring the suit. So as a practical matter the War Powers Act is unassailable. But, Campbell added, Obama’s cavalier disregard for the War Powers Act in the Libya adventure has rendered the Act a dead letter.
We speculated on a further extrapolation of the Obama Administration’s amazing thesis that it can decide when the Senate is out of session. (Where is Robert Byrd when you need him? He was a pompous fool about the Constitution, of course, but always very noisy whenever he thought the chamber’s prerogatives were being assailed.) The Bush Administration pondered this idea, but rejected it as untenable. You can imagine how the Left would be howling today if Bush had deployed this same legal doctrine to bypass the Senate’s pro forma sessions used to block his recess appointment power. Meanwhile, Campbell noted an interesting wrinkle: the Dodd-Frank Act stipulates that regulations issued by the Consumer Financial Protection Bureau become official only upon the Senate confirmation of its director (sloppy draftsmanship), but Obama has appointed Richard Cordray on a recess basis, making it ripe for a lawsuit from a financial firm after the first regulation is issued.
Then we pondered a hypothetical: suppose a Supreme Court justice died suddenly. Could Obama simply make a recess appointment to the Supreme Court over a weekend, declaring the Senate to be out of session, say, right before the Obamacare case is heard? (No president, Tom told me, has ever appointed a judge at any level through a recess appointment, for the simple reason that you’d expect any judge to get the lifetime tenure a regular appointment offers.) What would the Court itself do in such a case? The Supreme Court’s 9 – 0 smackdown of the Obama Justice Department in the Hosanna-Tabor Church vs. EEOC yesterday perhaps suggests the Court may find different bounds for Obamaland’s jurisprudence.
UPDATE AND CORRECTION: A number of people have written in to point out that there have been many recess judicial appointments, including some famous jurists such as Earl Warren. Turns out I misconstrued what Campbell said; no president has ever bypassed the Senate and appointed anyone without submitting the person subsequently for confirmation, or whom the Senate had refused to confirm. Back in 1987, after Bork was defeated, there were some conservatives who urged Reagan to make Bork a recess appointment and thus be able to serve on the high court for the rest of that Congress. The idea never got anywhere. Reagan, instead, wrote in his diary that he was so mad that he was tempted to let the seat sit open and allow his successor (not then clear it would be Bush) fill the seat. That idea, too, was rejected.
And just to be be clear, the hypothetical we were discussing was directed at the novel theory that the president might declare the Senate to be “out of session” over a weekend when senators happened to be out of town, and install a justice without ever intending formal Senate confirmation, as Obama seems to be doing with several of this current batch of recess appointments.