On Tuesday, President Obama announced four “recess appointments” to fill vacancies in the National Labor Relations Board and the Consumer Financial Protection Bureau. These four appointments are indicative of a growing trend in the Executive Branch of government to circumvent the Constitution and rule by fiat. The appointment that has the Republicans up in arms is the appointment of Richard Cordray to head the newly created Consumer Financial Protection Bureau. Obama first nominated Cordray to head the agency in July but his confirmation has been blocked by the Senate. In December, the Senate voted to delay the consideration of Cordray’s appointment 53 to 45.
In making the announcement, Obama told a crowd at an Ohio town hall meeting, “I refuse to accept ‘No’ as an answer” showing his growing willingness to bypass Congress and “go it on his own” when Congress stands in the way of his doing what he wants to do. Recess appointments are not new. Previous Presidents have made appointments of judges and other high-level officials in the past with minimal opposition from the Congress. While the Constitution allows for recess appointments there are limitations on that power.
Article II, Section 2, Paragraph 3 says,
“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)
Notice, this clause does not give the President the power to fill any vacancy he pleases, but only those that “happen” (come-up or occur”) while the Senate is in recess. It does not include those vacancies that happened before the Senate went on recess or positions previously created by Congress but not yet filled. Constitutional recess appointments are a logical and practical solution created by the Founders for dealing with unexpected vacancies in important positions such as Cabinet Members, Supreme Court Justices, etc., due to incapacitation, death or resignations that may happen while the Senate in not in session. Vacancies that existed before the Senate recessed and all other Executive appointments are subject to the conditions given in Article II of the Constitution.
“He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, ………….. And he shall nominate, and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministries and Consuls, Judges of the Supreme Court and all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by Law vest the appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”(Art. II, Sec. 2, Par. 2, U.S. Constitution)
According to this clause the President does not have the power to appoint someone to maintain his lawn at the White House unless that position has first been established by law and the President or the head of the Grounds Keeping Department has been authorized by law to make the appointment without the approval of Congress.
The practice of “recess appointments” as practiced by previous Presidents and carried to a new high by Barack Obama cannot be allowed to continue. The fact that it has become a tradition over the past century, in spite of the clear language of the Constitution does not change the constitutional injunction that elected officials honor their oath to defend the Constitution. To paraphrase an old theological question; How long does an error have to continue before it becomes truth?
Obama’s lawless, arrogant and dismissive attitude toward the Constitution and other institutions of the American government that we have cherished for over two centuries only highlights the critical need for us to return to constitutional government at the first opportunity. We cannot afford to nominate a Republican candidate in the 2012 election where there is the slightest doubt as to his or her fidelity to the Constitution and our founding principles.
Executives Orders and “signing statements” are two other common practices of modern Presidents that are just a pernicious and unconstitutional as “recess appointments”. All three have been abused frequently by Barack Obama to circumvent the intent of Congress. These will be discussed in future posts.