Tuesday, January 22, 2019

U.S. Presidents Buckle at Constraints: The Case of Obama's Recess Appointments

A constitutional system of checks and balances is premised on the assumption that government officials will seek to get as much power as they can. Constraint itself becomes a dirty word. Admittedly, the desire to resist or ignore constraints may be in human nature itself, though people differ in how much self-discipline they will bring to the task of restraining themselves from walking through constraints as if they were Chinese walls made out of paper. A constitutional system that checks ambition with ambition must not assume that some of the more beloved elected representatives can be relied on to resist the temptation to go too far. I have in mind the case of the U.S. president being able appoint officials without the confirmation by the U.S. Senate.
The President cannot decide that the Senate is on recess in order to be able to make recess appointments without  needing confirmation. This was the ruling of the federal court of appeals in Washington, D.C. The case involved the appointment of three members of the National Labor Relations Board. A three-judge panel of the court ruled that the appointments “were constitutionally invalid” because the U.S. Senate was not in recess on January 4, 2012 when President Obama made the recess appointments. If the president were free “to decide when the Senate is in recess,” it “would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases,” the court opinion reads.[1] Of course, the Senate could also abuse its privilege by declaring itself in session when it is de facto in recess in order to prevent recess appointments. The balance in “checks and balances” implies that neither side is able to render the other impotent to act. In other words, neither side should try to game the constitutional system.
For its part, the White House viewed the ruling as applying only to the three NLRB appointments in the suit, rather than extending to Obama’s appointment of Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB). That appointment too was made on January 4, 2012. Because the court ruled that the U.S. Senate was not in recess, it stands to reason that any recess appointment made by the president on January 4, 2012 was invalid. Even so, White House spokesman Jay Carney said that Obama’s appointment of Richard Cordray was not affected by the court’s decision. “The decision that was put forward today had to do with one case, one company, one court,” Carney said. “It has no bearing on Richard Cordray.” I contend that it did.
The ruling states that no recess appointment can be made by the president when the U.S. Senate is not in recess. Even if the Obama Administration disagreed with the ruling, to narrow it dogmatically to just three of the appointments made when the U.S. Senate was not on recess (as determined by the court) is nonsensical. Besides offending reason itself, the “reasoning” evinces a tendency then in the White House to evade the very notion of constraint. The same tendency could be discerned in the next president as well, suggesting that to protect the viability of the constitution it is necessary for Congress to keep a vigilant eye on the executive arm of the government. In other words, resisting constraint itself is likely in human nature itself and thus must be closely watched in cases in which a lot of power is involved. 

 1. Tom Curry, “White House Sees No Impact of Court Ruling on Finance Protection Agency,” NBC News, January 25, 2013.