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.