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Saturday, January 7, 2012

Obama’s Recess Appointments are Unconstitutional

By Edwin Meese III and Todd Gaziano

Edwin Meese, who served as U.S. attorney general under President Ronald Reagan, is chairman of the Center for Legal & Judicial Studies at the Heritage Foundation. Todd Gaziano worked in the Justice Department Office of Legal Counsel under three previous presidents and is director of Heritage’s Center for Legal & Judicial Studies.

President Obama’s attempt to unilaterally appoint three people to seats on the National Labor Relations Board and Richard Cordray to head the new Consumer Financial Protection Bureau (after the Senate blocked action on his nomination) is more than an unconstitutional attempt to circumvent the Senate’s advise-and-consent role. It is a breathtaking violation of the separation of powers and the duty of comity that the executive owes to Congress.

Yes, some prior recess appointments have been politically unpopular, and a few have even raised legal questions. But never before has a president purported to make a “recess” appointment when the Senate is demonstrably not in recess. That is a constitutional abuse of a high order.

As a former U.S. attorney general and a former Office of Legal Counsel lawyer who provided advice to presidents on recess appointment issues, we have defended and will continue to defend the lawful use of the recess appointment power. Although originally conceived by the Framers for a time when communicating with and summoning senators back to the Capitol might take weeks, it is still valid in a modern age — but only as long as the Senate is in recess. Not only was the Senate not in recess when these purported appointments were made, it constitutionally could not have been.

Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days.

The president and anyone else may object that the Senate is conducting “pro forma” sessions, but that does not render them constitutionally meaningless, as some have argued. In fact, the Senate did pass a bill during a supposedly “pro forma” session on Dec. 23, a matter the White House took notice of since the president signed the bill into law. The president cannot pick and choose when he deems a Senate session to be “real.”

It does not matter one whit that most members of Congress are out of town and allow business to be conducted by their agents under unanimous consent procedures, because ending a session of Congress requires the passage of a formal resolution, which never occurred and could not have occurred without the consent of the House.

Read the full op-ed.

GOP candidates' reactions to these appointments are below. Pay close attention to the remarks of each candidate. Which one does not recognize that Obama has acted unconstitutionally? The fact that one of these men is clueless is as troubling as the lawless actions of Obama. - Reggie

Newt Gingrich: “The answer to an imperial president is a Congress which stands on its own rights. And the correct response to what the president just did would be for the Congress to zero out and refuse to fund the National Labor Relations Board.

“The National Labor Relations Board now has a majority of members who were never confirmed by the U.S. Senate. This is a clear violation of the spirit of the law, and Congress has an obligation to defend our rights, and the correct way is the power of the purse.”

Ron Paul: “By making ‘recess’ appointments to the Consumer Financial Protection Board (CFPB) and the National Labor Relations Board (NLRB) when Congress is not actually in recess, President Obama has acted in clear disregard of the Constitution.

“And the President must be called to account for his actions.

“It is disappointing that a former constitutional law professor does not understand that the President is not a dictator or a king who can simply ignore the Constitution whenever he feels frustrated by the system of checks and balances wisely put in place by our Founders.

Mitt Romney: “Just back from vacation, President Obama has wasted no time in returning to one of the top items on his agenda: doling out favors to his big labor political allies and giving them a dangerous level of power over businesses and workers. His recess appointments to the National Labor Relations Board give this unaccountable and out-of-control agency the authority to continue acting in ways that create uncertainty for businesses, drive up their costs, and discourage hiring or investment. President Obama’s preference for partisan politics over economic growth will only hurt the millions of middle class families across the country who lose out every time the union bosses win. As president, my focus from day one will be on getting our economy turned around by pursuing policies that strengthen rather than stifle job creation.”

Rick Santorum: "What the president did was wrong — pretty scary stuff,"

"I hope that the United States Senate does what they're supposed to do, and they should go and even take the president to court. This is not something that the president should get away with."

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