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Commentary By Stephanie Hessler

Expressly Illegal 'Appointment' Violates Obama's Oath

Governance, Governance Civil Justice

President Obama violated the U.S. Constitution last week in a breathtaking and unprecedented fashion, by purporting to appoint officers whom he had no legal authority to appoint.

Obama named Richard Cordray to head a new consumer protection agency and appointed three new members of the National Labor Relations Board.

He claimed to be making “recess” appointments despite the fact that Congress had not gone into recess. This maneuver violates the Constitution and undermines our finely wrought system of separation of powers.

Article II of the Constitution provides that the president “shall nominate, and by and with the advice and consent of the Senate shall appoint ... officers of the United States.”

The framers delineated a carefully formed scheme of checks and balances by allowing the president to nominate federal officers but requiring Senate approval for their appointment.

Our nation’s founders were wary of granting the president complete control over appointments and determined that Senate consent would produce officers most acceptable to the citizenry.

The president may bypass the Senate under only one circumstance: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate.”

As legal scholars have pointed out, this power was originally understood only to allow presidents to fill vacancies that arose while the Senate was in recess.

In the early days of our nation’s founding, congressional breaks were often several months long because of limited travel ability, and recess appointments allowed the president to fill crucial vacancies that “may happen” while Congress was not available for consultation.

But the vacancies that Obama purported to fill last week don’t meet that standard. Indeed, last week the Senate was not in recess at all. The Constitution states that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.”

At the end of December, the House did not consent to the Senate taking a recess. So, in order to comply with the Constitution, the Senate has been having pro forma sessions a few times a week, in which a senator gavels the chamber into session for brief periods of time.

The president correctly notes that little work is being done right now, but that’s legally and constitutionally irrelevant. The Senate is not required to do any particular work on any particular day. (Indeed, some would say that the less it does, the better.)

By its own assessment, the Senate was not in recess -- nor could it have been under the Constitution without the House’s consent. And in any case, it is not for the president to judge the procedures of the Senate.

To the contrary, the Constitution provides that “Each House may determine the rules of its proceedings.” It is a bedrock principle of separation of powers that each branch controls its own internal functions.

The president cannot require Congress to act on his priorities. To the contrary, Congress acts independently of the president as a check and balance to his power.

Obama’s view that he may decide when the Senate has gone into recess virtually nullifies the Senate’s advice and consent role. Under this rationale, what would stop the president from declaring recesses every weekend so that he can make unilateral appointments?

The first 43 presidents, from George Washington to George W. Bush, understood this fundamental constraint on their power, which is why none ever attempted to make a recess appointment when the Senate -- by its own determination -- was not in recess.

Obama has offered practically no legal justification for his lawless actions. He has simply declared: “I refuse to take ’no’ for an answer.” Apparently Obama is not going to let the U.S. Constitution stand in his way.

This piece originally appeared in Washington Examiner

This piece originally appeared in Washington Examiner