DC Court Decides to End Recess Appointments

With the ruling by the D.C. appeals court that called President Obama's recess appointments unconstitutional, the judiciary joined the legislative branch in what seems a pincer movement in a war to bring to a halt parts of the government they find not to their liking.

The president had acted on the specific provision in the Constitution that empowers him "to fill up all Vacancies that may happen during the Recess of the Senate" when he filled three seats of the National Labor Relations Board (NLRB) that had been kept unoccupied for over a year. Hundreds of presidential appointments — too many, it is argued — require Senate approval which, in the past, has generally been forthcoming on the principle that the President should have the right to make his own choices. Not so in the current era of polarization. Senate Republicans had filibustered against these new members in the belief they would rule in favor of unions. An exasperated Obama had a government to run and took advantage of the Constitution’s provision.

But the D.C. court ruled that the Senate was not in recess when the President made those appointments which gave its blessing to the Republicans' subterfuge meant to sidestep the Constitution's intent. More on that later.

Worse still, the court's activist slant was on flagrant display with its further contorting of the Constitution's wording to suit its evident politics. Surprise! All three judges are appointees of the last three Republican presidents.

Here's what our Constitution says:

“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.”

Despite “session” referring only to when a recess appointment ends, the court said that such appointments are only valid in the annual interregnum at the turn of the year between formal Senate sessions; that none of the long disappearances from Washington by our hundred senators count as recesses.

The court didn't stop there. It then delivered rulings clearly aimed at destroying the President's recess appointment power altogether. It decreed that the President may only make appointments to fill positions that become vacant during that once a year recess. It is plainly obvious in the Constitution's wording that it is the “fill[ing] up of all Vacancies” that have accumulated owing to the failure of the Senate to do its job while in session that is to take place “during the recess” and that it is rank artifice to hold that “all Vacancies” pertain only to those occurring during the recess, as if the word "all" was thought necessary to embrace the multitude of vacancies that suddenly arise when the Senate leaves town.

No matter one's political leanings — left, right, center — sham Senate sessions and deliberate subversion of the Constitution's meaning should anger us all.

To block this president from making such appointments, during its long and frequent breaks, Republicans have adopted the practice of keeping the Senate open by volunteering a single senator to show up in the empty chamber every few days to gavel into being a “pro forma” session and adjourn it immediately, a ruse devised by Democrats before them during the George W. Bush years. These sessions, which last as little as a few seconds (on January 6, 2012, for example, the Senate “met” for 29 seconds), are a pretense to claim that the Senate was in continuous session, even though its chambers sit empty for a month or so.

The Senate was foreseen from the beginning as likely to be deceptive and unruly. The Constitution disallows it to adjourn for more than three days without the approval of the House of Representatives, which explains the lone senator making an appearance every three days.

For the Senate to pretend that it is in active session during its weeks of absence — from before Christmas until deep in January, for example, or during all of August and into September — is a sham, and the court has tossed aside the obvious intent of the Constitution.

In so doing, it seeks to reverse a prescribed "Power" that presidents have employed for almost the entire history of the country to keep the wheels of government turning after a balky Senate has not done its job. President Clinton made 139 such appointments; George W. Bush made 171. Far from abusing the power, Obama has made only 32.

Also threatened is the recess appointment made during last year’s August recess of Richard Cordray, formerly Ohio’s attorney general, to run the Consumer Financial Protection Bureau (CFPB). Obama resorted to the Constitution’s recess appointment provision because it had been the Republicans’ announced intention not to approve anyone to run the agency as a way to cripple it. The legislation that established the CFPB required it to have a chief before any rulings could take effect. A technical void at the top of the bureau could turn back the recently announced mortgage rulings, freeing banks and loan companies to resume the harebrained practices at the root of the 2008 financial collapse.

The decision could invalidate all decisions made by the NLRB since these appointments. The NLRB could be held not to have had enough members to constitute the quorum required for decisions. Some 300 decisions are threatened.

It is no accident that the Washington state company that filed the suit went cross-country to find a court likely to be sympathetic about the adverse ruling the soft-drink bottler had received at the hands of those Obama appointees on the NLRB.

The Justice Department will unquestionably take the ruling to the Supreme Court. The question is how long the disruption to the functions of government will be allowed to persist while the wheels of the top court ever so slowly turn to attend to this latest travesty. And will a right-leaning court even view it as such?

Mr. President, we suggest that you call upon all who serve in the government at your pleasure to resign, if they must, exactly during that official recess that the court has designated, and that you then immediately "fill up all Vacancies" with choices you have kept at the ready. What fitting revenge to thereby deprive the Senate of their approval privilege altogether.