Last week President Obama filled some vacancies in the
government by making several recess appointments. There was just
one problem: Congress technically wasn’t in recess. The president
bypassed a Senate that was in session, circumventing its
constitutional advice and consent powers.
Nonsense, the president’s defenders respond. The senators
weren’t really there doing anything. And the Senate Republican
minority is obstructionist! Traditionally, however, adjournments
lasting less than ten days have not been viewed as opportunities
for recess appointments. More importantly, the Senate gets to
decide when it is in recess, not the president.
Under Article I, Section 5 of the Constitution, the Senate has
the power to write its own rules. Those rules allow a minority of
senators to filibuster. Democrats did not take kindly to
suggestions that the rules be rewritten when George W. Bush was in
office. Democrats also kept the Senate in pro forma session to
prevent Bush from making recess appointments, a maneuver now
decried as a “gimmick.”
But if the current president really felt Senate Republicans were
unduly obstructing him, he could have made a lawful recess
appointment just a day before, when the Senate was indisputably in
recess. For whatever reason, he elected not to do so. (One possible
explanation is that Obama wanted the appointments to last through
2013, rather than expire at the end of this year.)
John Yoo, advocate of the all-powerful executive, has said the
president overreached. The New Republic’s Timothy Noah
wrote, “[B]ased on what I’ve seen so far, I’m having trouble
seeing how the recess appointment… can possibly withstand a legal
challenge.” Politico’s headline writers described Obama’s
constitutional authority to make the appointments as “murky.”
All of this is both important and, in certain ways, beside the
point. It is important for elected officials to heed their oath to
uphold the Constitution. I’ve often argued that the Constitution
has been reduced to Robert’s Rules of Order, a procedural
guide with no bearing on the substantive powers of the federal
government. If politicians start ignoring it even on process
questions, it will be another marked departure from the rule of
law.
Yet this debate is also somewhat beside the point, because the
most important part of the Constitution is the strictly limited
powers the document confers upon the federal government. Those
confines are routinely transgressed and ignored by all three
branches and both parties.
The office to which Richard Cordray has been dubiously
appointed, head of the Consumer Financial Protection Bureau (CFPB),
was created by a law that is itself manifestly unconstitutional.
Dodd-Frank eviscerates the separation of powers and enables the
federal government to seize financial firms with only the flimsiest
checks. Former White House counsel C. Boyden Gray has co-authored a
lengthy
document enumerating Dodd-Frank’s constitutional
violations.
Dodd-Frank vests so much power in unelected, unaccountable
people who are not subject to Senate confirmation that the manner
in which Cordray came by his job may as well be a trial run. But it
is hardly the only law that is difficult to square with the
enumerated powers the Constitution bestows upon the federal
government. The very idea the United States is a federal
constitutional republic rather than a unitary state has been
lost.
The federal government wants everyone to buy health insurance?
No problem, just pass a law. Want to pick winners and losers in
some industry? That’s fine. The federal government can get involved
in that too, either by legislation or executive order. No need to
worry about whether any interstate commerce is involved either.
Does the president want to intervene militarily in some foreign
country? No consulation with Congress — and no national interest
— is required.
By all means, let’s scrutinize the constitutional authority for
these recess appointments. But let’s not forget the
unconstitutional activity that goes on while Congress is in session
too.
