President Obama’s vacation appointment of three members of the National Labor Relations Board and Richard Cordray to the Consumer Financial Protection Bureau continues to resonate. The most compelling legal analysis on the subject is offered by conservative legal figures, rightly today by Todd Gaziano of the Heritage Foundation and former Attorney General Ed Meese:
Article I, section 5, of the Constitution stipulates that neither chamber of Congress may adjourn for more than three days without the consent of the other chamber. The House of Representatives did not agree to a Senate suspension of more than three days at the end of last year, and therefore the Senate, as required by the Constitution, is to have some sort of session every few days. .
The president and anyone else can object to the Senate holding âpro formaâ sessions, but that does not make them constitutionally meaningless, as some have argued. In fact, the Senate passed a bill in a so-called “pro forma” session on December 23, a matter the White House has taken note of since the president signed the bill. The president cannot choose when he considers a Senate session to be “real”.
Senate Majority Leader Harry Reid has found this to be quite convincing, until this week. (Gaziano and Meese write: âWhen Senate Majority Leader Harry Reid (D-Nev.) Kept the House in pro forma sessions at the end of George W. Bush’s administration, he said that was enough to stop Bush from using the recess date. Reid was right whether his tactics were justified or not. â) At the time, neither the mainstream media nor liberal lawyers decried Reid’s decision. . Democrats (including presumably the young senator from Illinois at the time) have themselves understood that Congress controls its own calendar.
And if you prefer the Department of Justice analysis, the last word we know (Obama won’t say if he bothered to ask his Department of Justice or what the lawyers said) provided 20 years of advice to constitutionally respectful presidents. David Rivkin and Lee Casey remind us:
The traditional test, as set out in an opinion published in 1989 by the Department of Justice’s own constitutional experts in the Office of the Legal Advisor, is whether the adjournment of the Senate is of such length that the Senate could “not receive communications from the President or participate as a body for nominations.” “Today’s Senate, which is controlled by the president’s own party, is quite capable of performing both functions according to its rules. Indeed, the Senate is so in session that on December 23 – three days after the start of its pro forma session – it passed President Obama’s current top legislative priority: a two-month tax holiday, which the president promptly signed off on.
The argument that Obama is justified in taking this extra-constitutional step because the Senate was obstructionist is in fact false and not legally relevant. NRLB nominees have been sent in December and have not yet had a single hearing. But if they had been obstructed, the analysis would be the same. In our system of divided government, the Senate is empowered to block, by vote or obstruction, the presidential candidates. What is the next step ? Implement legislation that has been systematically obstructed?
The argument that pro forma sessions are not real is also belied by the facts. After all, as a former lawyer for the Department of Justice reminds us: âThe [Congressional Record] for the Dec. 23 shows that Senate Majority Leader Harry Reid specifically requested unanimous consent for HR 3765 so that “if the House passes and sends to the Senate a bill identical to the text of the extension of the ‘Reduced payroll tax, Unemployment Insurance, TANF, and Medicare payment fix, the bill will be considered three times read and passed. . . . . It is not a “gimmick”. It is to legislate.
The left – surprise – sees the Constitution as irrelevant when the president (as long as he acts for good and noble reasons) has important things to do. It is particularly unpleasant that he is prepared to provoke constitutional fury and cast the actions of both entities into limbo (all actions taken by incorrectly appointed persons are invalid) as a political coup, to strengthen his base. left and fight with an equal co-branch. It’s the policy of Chicago and Newt Gingrich, to challenge anyone to stop him.
But on the left there is a growing sense of unease. Do they really want to set the precedent for President Romney or Santorum? And really, with this ploy, why would the President ever go through the ordinary confirmation process? Bloomberg View’s left-wing editorial board writes:
We understand why the president, out of deep frustration, bypassed the Republican senators. . . . However, our desire for effective regulation does not outweigh our reservations about the President’s unusual methods. . . .
We believe that the president, who makes confrontation with Congressional Republicans a major theme of his re-election effort, is choosing politics over principle, and playing dangerously with the checks and balances of the Constitution, choosing to tell the Senate when it is and is not in session.
Tim Noah of the New Republic also seizes the lack of legal support for the president’s action: âI find it difficult to understand how Cordray’s vacation appointment can possibly stand up to legal challenge. And I really find it hard to understand why Obama did not take advantage of his constitutional window [January 3], while the Senate was unmistakably on vacation. Because he wants the fight, not the named ones.
Obama is playing with the left’s worst inclinations – contempt for precedent and constitutional restrictions, which act as a check on unnecessary confrontation, government excesses, and legal chaos. Obama has made some worse decisions in his presidency (putting the war in Afghanistan on an electoral calendar), but he has never made one so destructive of the fabric of the Constitution and the comity that is essential for productive governance.