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What recess appointment power?

Since the moment President Obama announced his appointments to the Consumer Financial Protection Board and the National Labor Relations Board, there has been an ongoing debate over whether or not the Senate was in recess when these appointments were made.  The whole spectacle has been really interesting – but it’s basically irrelevant in this situation.

A better question to be asking at this point is – doesn’t it seem odd that the Founders would require the President to get his appointments confirmed by the Senate… and then let him just do whatever he wants through recess appointments?  Why would they do something that seems so illogical.

The short answer: they didn’t.

If a vacancy in the executive branch opens up while the Senate is in recess, then the president has the power to appoint someone to serve temporarily.  But unless a vacancy actually occurs while the Senate is out of session, the president has absolutely no power of recess appointment.

Don’t believe it?  The Constitution is pretty clear on the topic:

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.

Article 2, Section 2

That clause couldn’t any more straightforward.  But in case there is still any doubt, Alexander Hamilton explained the purpose of this clause in Federalist #67 as well:

The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” (emphasis in original)

The fact that the three appointments the president made to the NLRB are unconstitutional is not up for debate.  But Obama did make a weak attempt to argue that his appointment of Richard Corday to the CFPB is different because it’s a new agency and it can’t function without a director.

Unfortunately for the president, he’s dead wrong on that point as well:

“It has been held by that venerable body [the Senate], that if new offices are created by Congress, the president cannot, after the adjournment of the senate, make appointments to fill them.  The vacancies do not happen during the recess of the senate.” (emphasis in original text)

William Rawle, A View of the Constitution of the United States 1825

And:

By “vacancies” they understood to be meant vacancies occurring from death, resignation, promotion, or removal.  The word “happen” had relation to some causality, not provided for by law.  If the senate are in session, when offices are created by law, which as of yet have not been filled, and nominations are not then made to them by the president, he cannot appoint to such offices during the recess of the senate, because the vacancies did not happen during the recess of the senate.

Joseph Story, Commentaries on the Constitution 1833

So the purpose of recess appointments was in no way intended to give the president a way to get around Senate decisions that he doesn’t like (shocker!) – it was to ensure that the government can continue to function if something unexpected happens in the executive branch while the Senate is out of town.  Now that makes a lot more sense!

Considering that President Obama is supposed to be a Constitutional scholar, you’d think he’d already know something basic like that.  I guess an education from Columbia and Harvard isn’t all it’s cracked up to be.

If it was, he should already know that the system for confirming appointments wasn’t created by accident.  It has an essential purpose – to limit the power of the president.  More specifically, it was designed to limit the power of presidents who say things like this:

“I refuse to take ‘no’ for an answer,” Mr. Obama said in Shaker Heights, drawing applause from his audience. “When Congress refuses to act and as a result hurts our economy and puts our people at risk, then I have an obligation as president to do what I can without them.”

This kind of mindset is exactly why the system of checks and balances in the Constitution is so critical to protecting our freedom.  He is determined to appoint political cronies to certain executive agencies regardless of their qualifications (or lack thereof).  We can only imagine what he’d be doing if he wasn’t being restricted by that darned Constitution thingy.

When the Founders required Senate approval for those nominations, they were trying to force the president to nominate high quality candidates and to prevent him from using appointments as political favors, among other things.  So, for example, if the president started passing out appointments to reward political donors the Senate has the power to stop him from doing that.

But if the president has the power to just install anyone he wants during a recess every time the Senate rejects his nominee, the whole system of checks and balances falls apart.  At a time when the president has actually come out and announced that it is his intention to ignore the separation of powers and grab as much power as possible, the system of checks and balances is more important than ever… and our liberty is in serious danger.

This is where the hyper-partisan crowd starts screaming, “But, but, but Bush did the same thing when he made John Bolton a recess appointment!!”  Yep.  And it was unconstitutional when Bush did it too.  The fact that Bush violated the Constitution isn’t an appropriate reason for Obama to double down on the illegality.

If we accepted the logic of the folks who argue that these appointments are acceptable because there’s a precedent, that would mean that Obama would be justified in rounding up all the Japanese people in the country and putting them in internment camps… just because FDR did it once.  Obviously, that would be absurd.

As a nation we need to be asking ourselves if the Constitution actually means something or if we’d rather be governed entirely by precedents that are usually set by politicians who are trying to enlarge their own power.

The Constitution was carefully designed to protect your freedom – while relying solely on precedent provides no limit on the amount of power the government can have over your life.  We ought to be careful in choosing which one we want to govern us because once we go down the road to tyranny there’s no turning back.

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