On Jan. 4, Barack Obama made four recess appointments: Richard Cordray to the Consumer Financial Protection Bureau and Sharon Block, Terence Flynn, and Richard Griffin to the National Labor Relations Board (NLRB).
In itself, that’s not unusual. Recess appointments happen all the time in presidential administrations. What was out of the ordinary was that Congress was not actually in a recess. Instead, Obama has unconstitutionally pretended a recess into existence to make the appointments, something that has never been attempted before by any president — and now he borders on being a tyrant.
As a result, these appointments, and all the acts they may take while in their posts, are not worth the paper they are printed on. And whatever political party one supports, this is not a precedent that should be accepted lightly.
If unchallenged in court, this practice — making a recess appointment while Congress is indisputably in a pro forma session — will become commonplace for Republican presidents as well as Democrats.
First, it will be recess appointments during pro forma sessions, as now. But soon, the precedent will eventually get around the Constitution’s senatorial advice and consent clause all together, because what need is there for a confirmation process when the president can just declare Congress to be in recess whenever he wants?
This is a clear and consistent pattern by Obama of acting as if the Constitution does not apply to him. It is threatening to tear this country apart, and it’s his fault. Again, no matter what side of the political equation one finds him or herself, this is not a practice that can be sustained by constitutional, limited government and the rule of law.
Congress, per its constitutional prerogative, has deliberately kept itself in continuous session to block any recess appointments from being made by Obama. It’s a political question with which the legislative branch has discretion to say when it’s in recess and when it’s not.
If Congress wills it, and it has, then there is no recess. Any appointments made under this pretense, and all of their acts in office, will become constitutionally questionable as to whether a valid appointment was ever made. Obama wanted his appointments to be made, for sure, but was this the right way?
It must be noted that during the latter years of the Bush Administration, congressional Democrats played the same game to keep Congress in continuous session in a move that effectively blocked recess appointments from being made. It never resulted in Bush suddenly declaring a phantom recess so he could fill in executive branch positions.
If the Obama Administration does not like pro forma sessions or believes there should be a mandatory recess, say, annually, it can propose amending the Constitution or changing the law, but it cannot pretend Congress was in recess when it never was.
Making matters worse, the White House did not even try to change the law to eliminate pro forma sessions. It’s hard to justify extraordinary means when the basic tools in Obama’s political arsenal — i.e. proposing a change of the law to force Congress to take a periodic recess — were not even deployed.
He’s not even pretending to follow the law.
In total, Obama cares about neither the Constitution nor the long-term ramifications of his actions, making the worst kind of tin pot to hold power — because he’s no longer constrained by any pretense of law, convention, or historical judgment.
Bill Wilson is the President of Americans for Limited Government. You can follow BIll on Twitter at @BillWilsonALG.