The federal appeals court for the District of Columbia on Friday slapped down one of President Obama's most brazenly unconstitutional acts in office -- his decision last January to make four "recess-appointments" at a time when the Senate was not in recess.
Obama's White House Counsel argued, unconvincingly, that presidents get to decide when the Senate is in recess. Obama had decided the Senate was in recess because it was not conducting much official business. Chief Circuit Judge David Sentelle rejected this thinking out of hand. "This will not do," he wrote. "Allowing the President to define the scope of his own appointments power would eviscerate the Constitution's separation of powers."
The decision conflicts with rulings in other circuits and it would upend current practices, so it is sure to reach the Supreme Court. It would limit temporary recess-appointments, which let presidents bypass the Senate confirmation process, to positions that become vacant during a recess between sessions of Congress, and then only if they are made during the same recess.
It is worth noting that even a much narrower decision would have been sufficient to invalidate Obama's illegal appointments. The Constitution states that the Senate makes its own rules, so it would seem to be the arbiter of when it is in session. And at the time these appointments were made, the House had not given the Senate the constitutionally required permission to adjourn for more than three days. Thus, Obama's appointments would not have even met the test of the far less stringent standard handed down by another appeals court in 2005, which required a recess longer than three days before recess appointments could be made.
Obama's excuse for the appointments -- that Republicans were blocking his nominees -- did not even apply to three of the four appointments in question. The three labor board nominees who were the subject of Friday's decision had only been announced by the White House a few days before Obama rammed them through. They were not being obstructed.
The other appointee, Richard Cordray, was delayed because Republicans disputed the legality of the position he was appointed to as head of the Consumer Financial Protection Bureau. Even assuming that the Republicans were thoroughly pig-headed in their opposition, it was Obama who signed a law -- the Dodd-Frank financial reform bill -- that required Senate confirmation for the position. The correct procedure for Obama was to persuade senators, change the law, or lobby for a change in Senate rules -- not to violate the clear language of the Constitution by installing ministers unilaterally as if he were some sort of monarch.
Obama's abuse of the recess-appointment power was unprecedented and clearly unconstitutional, but the power itself is constantly abused in less egregious ways. Friday's decision highlights its utter obsolescence. The recess appointment power was intended to ensure the government could function when officials died or resigned during the six to nine months when Congress was typically absent each year in the early days of the republic. It makes no sense today, when every senator can catch the next flight to Washington to deal with any a truly urgent vacancy.
Congress should amend the Constitution to abolish recess appointments. Bipartisan support for this reform will materialize if it is crafted to take effect only after Obama leaves office. Congress should use this ruling as an opportunity to trim the sails of an increasingly powerful executive branch which, under presidents of both parties, is constantly seeking to expand its power in new ways.