Obomination: Obama’s Recess Appointment Timing Is Change We Should Not Believe In

Published Fri, Jan 6 2012 6:55 AM


This week’s Obomination is what Republican Leader Mitch McConnell decried as “particularly egregious” and Speaker John Boehner denounced as an “extraordinary and entirely unprecedented power grab.”  It was “a very grave decision by this heavy-handed, autocratic White House” according to Senator Orrin Hatch and seen as “an arrogant abuse of presidential power” by Senator John Cornyn.  Forty-seven Senators wrote a letter of disapproval to the president.

Barack Obama appointed Richard Cordray director of the Consumer Financial Protection Bureau through a recess appointment, while the Senate was in a “pro forma” session.  But that’s not all.  Hours later, Obama installed Terrence Flynn, Sharon Block, and Richard Griffin as National Labor Relations Board (NLRB) Members, appointments also made during the Senate’s pro forma session.

A previous Obomination delved into Obama’s disregard for separation of powers and checks and balances, but now Obama has launched an all out war with such constitutional principles.  He has taken action to “needlessly provoke a constitutional conflict between the Senate and the White House.”  As its name suggests, a President may use the recess appointment authority to appoint individuals to Senate confirmed positions during a recess of the Senate.  Majority Leader Harry Reid first used the pro forma session to prevent President George W. Bush from making recess appointments.  The question of the constitutionality of Obama’s appointments is one that will surely be brought to the judiciary.

Prior recess appointments by the Obama Administration have put radicals in power – and these radicals would never have been confirmed by the Senate if presented with the opportunity to advise and consent.  Exhibit A: Craig Becker, appointed to the NLRB.  The NLRB, responsible for a number of radical decisions during Becker’s tenure, has lost a great deal of credibility. 

To borrow a phrase from President Obama, “yes, he can” doesn’t mean “yes, he should” – for several reasons.  First, Senator Hatch explained how presidential appointments to the NLRB and similar agencies have been conducted previously: “Appointments to the NLRB have traditionally been made through prior agreement of both parties to ensure that any group of nominees placed on the board represents an appropriate political and philosophical balance.”  In addition, as many members and scholars have noted, prior administrations have not made an intrasession recess appointment while the Senate was actually in pro forma session.  In fact, the shortest length of an intrasession recess in which a President made a recess appointment was ten days.  As Rep. Jim Jordan of the Republican Study Committee noted the day of the Obama recess appointments, “The House and Senate both met yesterday.”

Obama, the former constitutional law professor, should reread (perhaps out loud like Congress did) the Constitution.  The relevant part is Article 2 Section 2: “he [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Officers of the United States.”  While the President clearly has the authority to make recess appointments, Obama’s use of the appointment stretches the limits of the Constitution.  Does “Advice and Consent” have any meaning anymore if the President can just bypass the Senate’s legitimate role in the confirmation process? 

Obama’s Constitution is very different from what was written in Philadelphia in 1787. This is change the Founders didn’t believe in.  And for good reason, neither should we.  


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# The Republican Lawyer Blog said on Friday, January 06, 2012 6:59 AM

The RNLA blog has a weekly "Obomination" feature covering the ways President Obama has defied

# The Republican Lawyer Blog said on Friday, January 13, 2012 5:28 AM

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# The Republican Lawyer Blog said on Friday, February 10, 2012 8:34 AM

Last week, 34 Senators wrote a letter to Senator Harry Reid (D-NV), pointing out the Democrat’s

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