President Barack Obama pushed the envelope too far this month when he named four appointees without Senate approval, claiming the Senate was in "recess" when in fact it was holding pro-forma sessions. Article II of the Constitution grants the president authority to unilaterally make appointments "when the Senate is in recess." It does not grant him the authority to make such appointments if he doesn't think the Senate is engaged in serious business.
Obama's Justice Department, in an opinion upholding the legality of the appointments, acknowledged the legal risks inherent in the president's move. The question, a memo from the department's Office of Legal Counsel noted, is new, and "the substantial arguments on each side create some litigation risks for such appointments."
The litigation has already begun. A coalition of three pro-business groups has filed suit to block three of the appointments, which were to the National Labor Relations Board, on the ground that they are unconstitutional. The fourth appointment was to the newly created Consumer Financial Protection Bureau.
The president's frustration is understandable. The pro-forma sessions often consist of a couple of Senate members going through motions just to keep the Senate open. Because of this, the president's legal defenders say, he had the right to make the "recess" appointments.
However, as several commentators have pointed out, the Senate can at any time change its pro-forma sessions and actually begin conducting business, as it did last month when it approved a two-month federal payroll tax holiday.
The pro-forma sessions are a legislative gambit and have been used by both Democratic and GOP senators to block presidential recess appointments. They are poor legislative policy. We have long argued that presidential appointees of either party deserve the courtesy of a straight vote, at least in committee. A president in particular deserves his choices in the executive branch, since he is held accountable for making the government work. Nevertheless, the Constitution's language is clear. Recess appointments can be made only if the Senate is in recess. The Senate, not the president, should have the authority to say when it is — or isn't — in session.
The real issue is that Obama could not get a hearing for his nominees. The way to handle that is to use the bully pulpit and take the issue to the public, if he feels the appointments are important enough.
Obeying the language of the Constitution can sometimes be inconvenient. But attempting to evade its requirements is worse.
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