Obama’s “Recess” Appointments

Today President Obama took his war against Congress to a new level, announcing four “recess appointments” when the Senate was not, in fact, in recess. The appointees included Richard Cordray to head the new Consumer Financial Protection Bureau and three new members of the National Labor Relations Board.

Republicans reacted strongly; Mitch McConnell described the appointments as an “unprecedented move” that “arrogantly circumvented the American people,” while John Boehner described today’s action as “an extraordinary and entirely unprecedented power grab by President Obama that defies centuries of practice and the legal advice of his own Justice Department.” Boehner’s characterization is harsh but correct.

For everything you want to know about recess appointments, check out this article on the subject by the Congressional Research Service. Here are some of the key points:

The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over time, the Department of Justice has offered differing views on this question, and no settled understanding appears to exist. In 1993, however, a Department of Justice brief implied that the President may make a recess appointment during a recess of more than three days.10 In doing so, the brief linked the minimum recess length with Article I, Section 5, clause 4 of the U.S. Constitution. This “Adjournments Clause” provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days ….” …

The historical instances cited here indicate that recess appointments have, on occasion, been attempted during sine die adjournments of three days or fewer. Nevertheless, the instances cited here each have unique characteristics, and their potential applicability under current practices and conditions remains open to question. 35 As far as can be determined, no succeeding President has made recess appointments under similar circumstances. The shortest recess during which appointments have been made during the past 20 years was 10 days.

In 2010, the Obama administration expressed its agreement with the three-day rule:

Mr. Obama’s own top constitutional lawyers affirmed that view in 2010 in another case involving recess appointments. Asked what the standard was for making recess appointments, then-Deputy Solicitor General Neal Katyal told the justices the administration agreed with the three-day rule.

“The recess appointment power can work in a recess. I think our office has opined the recess has to be longer than 3 days,” Mr. Katyal said.

The Senate was in pro forma session yesterday, so there is no recess and Obama’s appointments are invalid by any historical or legal–according to his own Department of Justice–standard.

This is classic Barack Obama. Heedless of history, American tradition and the law, he cares about nothing but his own political interests. If his appointees were people of integrity, they would decline to assume the offices to which Obama purports to appoint them.

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