Obama Makes "Recess" Appointments Even Though Congress Is Not in Recess
January 5, 2012 • 9:51AM

Carrying out his promise to ignore Congress and rule by decree, President Obama today trampled on the Constitution and made four "recess appointments" — even though Congress has not recessed. Obama's move is without precedent, say legal experts cited by Politico and by the New York Times.

Speaking at a political-style rally in Cleveland, Obama decreed that the new Consumer Finance Protection Bureau shall be headed by Richard Cordray, and he also named three others to fill vacant positions on the National Labor Relations Board. These are all positions that require Senate confirmation. "I refuse to take 'no' for an answer," Obama said, apparently referring to Constitutional limitations on his power.

Article II, Section 2 of the United States Constituion gives the President the power "to fill up all Vacancies that may happen during the Recess of the Senate...." However, the Senate has not gone into recess, and is meeting in pro forma session every couple of days. This practice of holding pro forma sessions to prevent a President from circumventing the Senate's confirmation power is not some Republican innovation: it was begun in late 2007 by Senate Democrats under Harry Reid, to prevent then-President George W. Bush from making recess appointments, and Senate Democrats continued the practice for the rest of Bush's term as President, and Bush never attempted to make any further recess appointments.

Thus, it is not without justification that Senate Minority Leader Mitch McConnell said today: "What the President did today sets a terrible precedent that could allow any future President to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress."

Moreover, the Senate cannot recess without the consent of the House, which was not given. Todd Gaziano of the Heritage Foundation, who worked in the Justice Department's Office of Legal Counsel under several Presidents, called Obama's move "a tyrannical abuse of power" in a blog entry on Wednesday. Gaziano pointed to the clause in Article I, Section 5 of the Constitution that says neither house of Congress shall adjourn for more than three days without the consent of the other house. "It does not matter a wit that most Members of Congress are not in town voting on legislation, because ending a session of Congress requires the passage of a formal resolution, which never occurred," Gaziano stated.

Both the White House and the Justice Department refused to answer inquiries from Politico and the Times as to whether the Office of Legal Counsel had been consulted on the matter, or if it had written an opinion. Score another one for "the most transparent Administration in history."