The Constitution gives the President the “power to fill up vacancies that may happen during the recess of the Senate.” A plain reading of those words makes it clear that a recess appointment may be made only when a vacancy occurs during a recess. But like so many other parts of the Constitution, this restriction has been long ignored by both Democrats and Republicans. Presidents of both parties have used Congressional recesses to make appointments for which they couldn’t get (or didn’t want to ask for) Senate consent.
During the last couple of years of the Bush administration, Democrats, angered by the Bolton appointment, devised a strategy to prevent the President from making any more recess appointments: they kept Congress in session “pro forma” even when most members were out of town. It worked. Because it apparently never occurred to Bush (supposedly the architect of an “imperial presidency”) that he could simply decide by fiat that Congress was in recess.
Now we have a President who’s done exactly that:
Senate Republican Leader Mitch McConnell Wednesday condemned President Obama’s decision to make a recess appointment of Richard Cordray as the first director of the Consumer Financial Protection Bureau, even as the Senate is not in recess.
“This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” said Sen. McConnell, who in a speech on the Senate floor December 17 pleaded with the White House for cooperation on the stalled confirmation of presidential appointments.
“Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch,” he said.
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Republicans have successfully blocked the Senate from going into an actual recess since Christmas to prevent Cordray’s recess appointment by Obama.
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White House officials said Obama will argue these “pro forma” sessions are an artificial device with no legal standing—and that the Senate was, in fact, recessed.
In other words, “The Senate is in recess when I say it’s in recess.”
Obama’s mantra of late has been “We can’t wait for Congress to act.” Those are code words for “We don’t need no stinkin’ Congress.” This president and his staff are at heart autocrats, using executive decrees, unconfirmed czars, and sweeping regulatory actions to thumb their noses at the balance of powers and run roughshod over both the Constitution and the legislative branch. Imperial presidency, indeed.
