By DAVID B. RIVKIN JR. And LEE A. CASEY
President Obama's appointments of Richard Cordray as head of the new Consumer Financial Protection Bureau, and of three new members of the National Labor Relations Board, are all unconstitutional.
Each of these jobs requires Senate
confirmation. The president's ability to fill them without that
confirmation, using his constitutional power to "fill up vacancies that
may happen during the recess of the Senate," depends upon there actually
being a recess. Both the House of Representatives and the Senate are
open for business. The new appointees can pocket their government
paychecks, but all their official acts will be void as a matter of law
and will likely be struck down by the courts in legal challenges that
are certain to come.
The Constitution's Framers assumed
that Congress would convene only part of each year, and that there would
be long stretches during which the Senate would be unavailable to play
its critical "advice and consent" role in the appointment of federal
officials. Their solution was to allow the president to make temporary,
"recess" appointments permitting the individuals chosen to serve for up
to two years, until the end of Congress's next session. This, it was
thought, would give the Senate time to act upon actual nominees for the
offices once it reconvened without leaving these—perhaps critical—posts
vacant for many months.
Presidents have used this authority
with alacrity, especially in recent times, as a means of putting a
favored nominee on the job even in the face of significant Senate
opposition. Historically, the president's lawyers have advised that this
is a constitutionally permissible exercise of his recess-appointment
power, so long as the Senate is actually in recess.
The Constitution does not define a
"recess," but in view of the original purpose of the recess-appointment
power, a senatorial absence of more than a few days has been considered a
necessary prerequisite. This is particularly the case because the
Constitution also provides (in Article 1, section 5, clause 4) that
neither house of Congress can "adjourn for more than three days" without
the other's consent—thus ensuring that the flow of legislative work
cannot be unilaterally interrupted. The Senate can hardly be in recess
in the absence of such an agreement—and there is none now.
In more
recent years, and especially during President George W. Bush's
administration, the Senate has attempted to limit recess appointments
even further by remaining "in session" on a pro forma basis. Whether
such sessions are inherently sufficient to defeat a presidential recess
appointment is debatable. However, in circumstances where the Senate is
not merely in session as a theoretical matter, but is actually
conducting business—albeit on the basis of agreements that measures can
and will be adopted by "unanimous consent" without an actual vote—there
can be no question that it is not in recess.
That is the situation today. The
traditional test, as articulated in a 1989 published opinion by the
Justice Department's own constitutional experts in the Office of Legal
Counsel, is "whether the adjournment of the Senate is of such duration
that the Senate could 'not receive communications from the President or
participate as a body in making appointments.'" Today's Senate, which is
controlled by the president's own party, is fully capable of performing
both functions in accordance with its rules. Indeed, the Senate is so
much in session that on Dec. 23—three days after beginning its pro forma
session—it passed President Obama's current highest legislative
priority: a two-month payroll tax holiday, which the president promptly
signed.
Mr. Obama is claiming an open-ended
authority to determine that the Senate is in recess, despite that body's
own judgment and the factual realities. That is an astonishing and, so
far as we can tell, unprecedented power grab.
It is not up to the president to
decide whether the Senate is organized properly or working hard enough.
However much the supposedly power-hungry President George W. Bush may
have resented the Senate's practice of staying "in session" to defeat
his recess-appointment power, he nevertheless respected the Senate's
judgment on the point.
The president has done his new
appointees and the public no favors. Both the National Labor Relations
Board (NLRB) and the Consumer Financial Protection Bureau are regulatory
agencies with profound real-world impact. Those individuals and
businesses subject to regulations and rulings adopted during the tenure
of Mr. Obama's recess appointees can challenge the legality of those
measures in the courts, and they will very likely succeed.
Only two years ago in New Process Steel v. NLRB,
the Supreme Court undercut hundreds of NLRB decisions by ruling that
the board had not lawfully organized itself after the terms of two
recess appointee members expired, leaving it without a quorum. Similar
issues will arise when both the new financial bureau and the NLRB begin
to act with members whose appointments are constitutionally
insupportable.
The fact that the president has
apparently triggered the constitutional crisis without really expecting
to produce any lasting policy impact, and for no better reason than to
bolster his claim of running against a "do-nothing" Congress (the key
part of his re-election campaign), makes his behavior all the more
reprehensible.
Messrs. Rivkin and Casey are Washington, D.C.,
lawyers who served in the Justice Department during the Reagan and
George H.W. Bush administrations. Mr. Rivkin is also a senior adviser to
the Foundation for Defense of Democracies.
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