President Obama’s decision to use his recess appointment power to appoint three members of the National Labor Relations Board and the Director of the Consumer Financial Protection Bureau was a monumental blunder that will permanently weaken the presidency. Either he received poor advice from the Justice Department and his White House Counsel, or he chose to ignore the caution they urged. Most likely, he listened to political advisers who told him that the move would earn him re-election support among labor and consumer groups.
Whatever the motive, it will turn out that President Obama’s short term gain will mean a long term loss for the presidency.
The language of the Constitution is crystal clear, and fits perfectly in the context that the Framers had in mind. The key language appears in Article I, Section 2, which gives the president the power to nominate “officers of the United States” with “the Advice and Consent of the Senate.” Naturally, the question would then arise; what would happen if the Senate is not in session—if they’ve left the seat of government and gone back to their respective states. Would this mean the president could not appoint an officer he needs to help run the government?
The Framers provided for this with the following language: “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 Session.” [emphasis added] The language leaves no latitude and the court read it that way; the Framers were assuming that the Senate would be in session for a period of time, and would then leave the seat of government, returning for another session the following year. During this period, the Senate was essentially out of business, and unable to confirm an official.
Since the Senate was not available to give its advice and consent to a presidential nomination, the Framers provided that the president would have the power to appoint without the Senate’s confirmation, and the officer so appointed would serve until the end of the Senate’s next session. This would give the president time to nominate, and the Senate to confirm, the same or another official before the end of the Senate’s next session.
Despite the clarity of this language, over the years presidents and Senates appear to have reached an accommodation that would avoid a constitutional conflict. Presidents were allowed to interpret the term “the Session” liberally, so that they could appoint officials when the Senate chamber was dark, even though the Senate was technically still expecting to return and do business. The Senate seems to have acquiesced in these cases, as long as the president did not abuse the power. When courts were presented with the issue, the absence of a Senate objection to the president’s action allowed them to ignore the Constitution’s plain language.
During the George W. Bush administration, the Democratic Senate apparently thought the president was going too far with recess appointments, and devised a way to narrow the window. The idea was to have a local Senator visit the Senate every three days while the chamber was dark, gavel the Senate to order, and then adjourn. It was completely pro forma, of course, and a bit absurd for that reason, but it was clear that the Senate had drawn a line in the sand; if it acquiesced beyond this point, it would in effect lose its constitutional power to confirm officials. The president, rather than the Senate, would decide when the Senate was in session.
It was still possible for a president to wedge a nomination into the three day period, but apparently the Bush administration took the hint. More likely, its lawyers recognized that to defy the Senate when it was attempting to protect its constitutional right to confirm nominees was a bridge too far and would bring on a serious constitutional challenge. Bush made no more recess appointments when the Senate was in this defensive crouch.
President Obama—ironically, a constitutional lawyer himself—ignored this danger. With his over-reach on the recess appointment power he provoked a constitutional challenge that he cannot possibly win. The Senate might have acquiesced in the past, but that does not change the language of the Constitution. The courts cannot ignore the Constitution’s words; it would be clear to them that if these recess appointments were permitted there would be nothing left of the Senate’s constitutional power to confirm presidential appointments.
Now that the DC federal appeals court has spoken, invoking the plain language of the Constitution and invalidating the NLRB appointments, the fat is in the fire. This case—or another just like it—will have to go to the Supreme Court; the president, as well as the presidency itself, will lose. Because this president arrogantly overplayed his hand, future presidents will not have the option to make recess appointments other than when the Senate has finished its business and adjourned in any year.
Peter J. Wallison is the Arthur F. Burns Fellow in Financial Policy Studies at AEI and served as White House Counsel for President Reagan.