Under the Constitution, appointment of senior government officials is a power shared between the president and the Senate. Under President Obama, that power is no longer shared. It's all his.
On Wednesday, Obama made one "recess" appointment to the Consumer Financial Protection Bureau, a new financial oversight entity created under the Dodd-Frank legislation, and three recess appointments to the National Labor Relations Board, a small independent agency that oversees labor-management issues for some 6 million workplaces.
If the Senate had been on recess, it would have been the president's prerogative to make the appointments. But the Senate was not on recess. Under the law, the Senate has to be in recess for three days in order for the president to make a recess appointment.
In a 2010 hearing, then-Deputy Solicitor General Neal Katyal told Supreme Court Chief Justice John Roberts that a recess had to be at least three days, "The recess appointment power can work in a recess. I think our office has opined the recess has to be longer than 3 days."
And a 1993 Justice Department brief states, "the Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. ... Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days."
The relevant section of the Constitution is Article I, Section 5, which states that neither the House nor the Senate can recess for more than three days without the consent of the other. The House did not consent to the Senate recessing, and so it is still in session.
Read more at the Washington Examiner: http://washingtonexaminer.com/opinion/columnists/2012/01/obama-moving-imperial-presidency-dangerous-new-level/2065266#ixzz1ioYORVtb
Link:Obama moving imperial presidency to dangerous new level | Diana Furchtgott-Roth | Columnists | Washington Examiner
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