Obama's constitutional foul
Sunday, January 8, 2012

Source: postandcourier.com


The permissive standard for officiating basketball is "No harm, no foul."

But President Barack Obama, a former high school basketball player and ongoing fan of the game, definitely committed harm when he made four "recess" appointments last week. The problem: Congress is not legally in recess, though it only goes through the motions of staying in session for a couple of minutes every three days. That means the president's appointments are unconstitutional.

The practice of staying in session to deny the president an opportunity to make recess appointments was used by Harry Reid and Nancy Pelosi to stymie then-President George W. Bush.

Now it is the Republican House that is preventing the Senate from adjourning in order to deny President Obama the power of recess appointments.

You might call the short pro-forma sessions of the House and Senate during this period a blatantly political act.

But a constitutional provision keeps it from being a foul play. The Constitution says both chambers must agree to adjourn for more than three days. It does not give the president the right to declare a congressional recess.

President Obama completely ignored the issue with his announcement on Wednesday of intent to appoint three members of the National Labor Relations Board and the director of a new consumer protection agency under his recess appointment power.

Noting that Senate Republicans had filibustered the nominations of his appointees, he asserted, "I refuse to take 'no' for an answer."

Some may applaud the appointments he made this week, but there is no getting around the fact that they are unconstitutional. If the appointees try to exercise their powers to make and enforce regulations they will be liable to challenge in court on grounds that their appointments do not pass the constitutional test. It is hard to see the Supreme Court allowing the executive branch to override the prerogatives and powers of the legislature.

So what was intended by President Obama as proof he can act without congressional approval may turn out to be an exercise in futility.

Meanwhile, however, he will campaign as the champion of labor and consumers. But he will have a hard time campaigning as a champion of the rule of law.

For an exercise in cynical irony, it is hard to beat the president's declaration that his unconstitutional actions will bring the nation closer to the point "where everybody plays by the same rules."