By Dan Calabrese
Monday, January 13, 2014
It will come as a surprise to a certain former constitutional law professor, but apparently there does come a point when a president with no regard for constitutional limits on his authority gets held accountable. The Washington Post reports that the Supreme Court has agreed to consider an appeal by congressional Republicans that Obama exceeded his authority to make recess appointments by naming Richard Cordray and several members of the NLRB when the Senate was not in recess:
The court battle is an outgrowth of increasing partisanship and the political stalemate that’s been a hallmark of Washington for years, and especially since Obama took office in 2009.
Senate Republicans’ refusal to allow votes for nominees to the National Labor Relations Board and the new Consumer Financial Protection Bureau led Obama to make the temporary, or recess, appointments in January 2012.
Three federal appeals courts have said Obama overstepped his authority because the Senate was not in recess when he acted.
Obama’s argument is that the Senate wasn’t conducting real business during the period in question, with Senate Republicans making pro forma appearances to maintain the legal technicality that the Senate was in session. And there is precedent for that. Harry Reid did it with regularity when George W. Bush was president, and while Bush recognized it for the stunt it was, he nonetheless respected that the stunt kept the Senate in session and he refrained from making recess appointments as a result.
This is where the Democrats’ argument becomes very disingenuous. They were upset that Bush made recess appointments at all, particularly of John Bolton to serve as Ambassador to the United Nations in 2005. But Bush followed the Constitution. After Democrats refused to give Bolton a vote and the Senate went into recess, Bush appointed Bolton without the Senate’s consent knowing full well that Bolton would only be able to serve until the completion of that congressional session.