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Policy: Law

Two cheers for High Court's recess-appointments verdict: Examiner Editorial

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Opinion,Editorial,Supreme Court,CMS,Law,Washington Examiner,Recess Appointments

Among the several significant rulings the Supreme Court handed down last week, the most important was its unanimous rebuke of President Obama's infamous appointments of January 2012. The court delivered a decisive verdict: President Obama abused his power when he made three recess-appointments to the National Labor Relations Board, even though the Senate said it was not in recess when he did so. The court's decision is much bigger than both the appointees themselves and the thousand NLRB rulings they made during their illegal tenure, which are all now invalid. The bigger issue is the underlying balance of constitutional power, which Obama was willing to risk for short-term political gain.

When the constitutional recess-appointment power was first conceived by the Founders, it took weeks to travel the country, and the U.S. Congress was expected to be out of session and away from the capitol for much of the calendar year. Thus, presidents were permitted, during the Senate's absence, to make unilateral but temporary appointments to key posts in order to ensure the government's ability to function year-round. When senators return from recess, they can either confirm the president's appointment or allow it to expire at the end of the current session of Congress.

Only four justices wanted to go further, limiting recess-appointments to breaks between sessions of Congress, as the lower court had done.

In the present era, travel is easy, and Congress is in Washington almost year-round. Thus, when it is invoked, the recess appointment is merely used by presidents to circumvent the Senate. Its abuse became standard practice long before Obama arrived on the scene. Obama is not the most frequent offender in abusing the recess power, but two of his crucial innovations have made the abuses worse.

The first innovation has been to recess-appoint controversial nominees simply to spare them scrutiny by the Senate hearings, and to spare senators of his own party the embarrassment of having to vote on them. In July 2010, for example, the Washington Examiner's Byron York reported that Obama recess-appointed Donald Berwick as head of Medicare and Medicaid. He did so not because Berwick had been obstructed -- in fact no confirmation hearings had even been scheduled yet -- but because Republicans had signaled their intention to ask Berwick about the source of $50 million in donations to the non-profit organization he had founded and which was then paying him about $600,000 per year.

The three NLRB appointments of January 2012 included another crucial and unprecedented Obama innovation. He made them when the Senate was actually still meeting, albeit only for short pro-forma sessions in which little or no official business was conducted. All nine justices recognized Obama's actions were unlawful and his rationalizations flimsy. Unfortunately, only four of them wanted to go further, limiting recess-appointments to breaks between sessions of Congress, as the lower court had done.

Still, perhaps this unanimous rebuke of Obama will remind his liberal supporters, who so often cheer this president's circumvention of Congress, that someday the country will elect a Republican president. Each time Obama bends the constitutional rules now, he paves the way for even more serious abuses after he is gone.

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