President Obama's recess appointments to the National Labor Relations Board and the Consumer Financial Protection Board are legally questionable, but the real problem is that the appointments continue an already lousy practice that is outdated.
This week the President is claiming that he can make recess appointments because the Senate session is currently a "sham" procedural move by Republicans. The Senate, we all know, is really on vacation. But, only weeks earlier, the non-present Senate conducted serious business and he was more than willing to accept arcane Senate parliamentary tricks.
In December of 2011, the U.S. Senate and House approved a two month extension to current payroll deduction rates. Only a handful of legislators, not even a third, were in Washington at the time, but a "unanimous consent motion" approved the legislation and President Obama signed the extension.
So, the congress was "in session" when Obama wanted them to be, and not in session when he wanted to make recess appointments. Perfectly logical in the world of politics.
No President in our technology-laden society needs to make recess appointments. The Founders included recess appointments in the Constitution because it was difficult, nearly impossible, to quickly gather members of the U.S. Senate when they were out of session. The eighteenth century was a long time ago, though, and today we can gather instantly. All Senators should have to do in an "emergency" is turn on a computer and fire up a webcam. The original intent of the recess appointment simply doesn't apply in most instances.
The disagreement between the Republican House and Democratic Senate which led to President Obama making recess appointments can be traced to Article I of the Constitution. Congress makes its own rules, but the houses (House and Senate) must seek approval from each other for some actions. One of the actions requiring consensus is adjournment.
Article I, Section 5 states:
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.The House, controlled by the GOP, is refusing, technically, to allow the Senate to recess. Without that consent to adjourn, the Senate is in session — present or not. That's how the Constitution reads.
Now, if the House and Senate do adjourn, any President can do what President Obama did. The law is clear.
Article II, Section 2 reads:
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.But, what if the President decides he wants Congress to adjourn simply so he can make appointments? This is a conundrum caused by another section of Article II. It turns out, President Obama could have declared Congress adjourned. Just imagine the outcry had he followed this perfectly legal path.
Part of Article II, Section 3 states:
[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;So, to be "legal" the White House only has to say, "Hey, these guys can't agree. So, they are now adjourned!" Problem solved.
Yet, the problem isn't solved. I could envision a power-hungry leader making appointments on weekends. The President has the Vice-President on hand. The V.P. is the President of the Senate. Together, they could, quite legally, adjourn Congress and then the President could make appointments and basically govern via executive branch offices.
I hate to suggest this, but maybe it is time to change the Constitution. I propose the following:
An Amendment to Article II, Section 2: The President, within sixty days of approval of this Amendment, may not make recess appointments. The Senate shall vote to confirm or reject any Presidential nominee to Executive office or Judicial court within thirty days of receiving the formal nomination for appointment. The nomination vote shall require a simple majority for appointment and will not be subject to any other Senate rules.There. Problem solved. And it solves the backlog of court appointments, too.