Sometimes, Barack Obama acts like the Constitution does not apply to him and the Congress is an imaginary being. Thursday, the U.S. Supreme Court brought the president back to Earth when it reminded him that that the Constitution’s Appointments Clause and the U.S. Senate are very much part of reality. They did this by saying that the U.S. Court of Appeals got it right when it voided three of Obama’s recess appointments to the National Labor Relations Board.
The High Court upheld the D.C. Circuit’s 2013 ruling that the president could not end-run the confirmation process merely because at the beginning of 2012 the U.S. Senate was meeting every three business days in, what lawyers call, pro forma session. Oh, and during that pro forma session the Senate was also busy passing the payroll tax extension. Some pro forma session.
In its decision, the Court made clear that our president answers to Article II, Section 2, Clause 2 of the Constitution which, in the words of the Court, “says that the President ‘shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.’”
For good measure, Justice Stephen Breyer, a Clinton Appointee, gave the Founding Fathers their due, “The Federalist Papers make clear that the Founders intended this method of appointment, requiring Senate approval, to be the norm.”
Now, the language of the Constitution is pretty straight forward. If you are the president and you want to appoint someone to a position of serious responsibility that nominee must be vetted and approved by the Senate.
Yes, the Senate can be cantankerous, unruly and even stupid. But, these are not constitutionally recognized rationales for the president to thumb his nose at the Appointments Clause.
The president thought that he had a better idea, and decided to take his cue from that paragon of virtue Warren G. Harding and the first president to be impeached, Andrew Johnson. Mr. Obama appointed someone (make that three someones) to posts that otherwise required confirmation, despite the fact that the Senate was still in session.
Barack Obama figured that he could roll the Senate and roll the dice in one fell-swoop. He bet that he could hang his hat on the Constitution’s Recess Appointments Clause -- and get away with it. He bet wrong.
The Recess Appointments Clause permits the president to make a temporary appointment when Congress is really out of session, not when it has adjourned for a period of less than 10 ten days -- in the view of the Court.
But, here’s the thing. When the president filled the NLRB with three supposed recess appointments the Senate was still doing its thing. It was very much “in session.” In other words, the Senate was busy, but the White House was hell-bent on imposing its appointees on the American public, advice and consent be damned.
A reminder. Mr. President, although you may feel nothing but contempt for the GOP you remain bound by the Constitution.
Lloyd Green was staff secretary to the George H.W. Bush campaign’s Middle East Policy Group in 1988 and served in the Department of Justice between 1990 and 1992.