Checking and balancing the President

January 26, 2013 by 12 Comments

The Constitution’s separation of powers and checks and balances at work:  A federal appeals court has said President Obama’s practice of recess appointments to avoid congressional approval is unconstitutional.  Presidents have had the authority to appoint people to office temporarily between Congressional sessions, but Obama has construed that to include holiday breaks and other pauses in the ongoing sessions.

From the Washington Post:

President Obama exceeded his constitutional authority by making appointments when the Senate was on a break last year, a federal appeals court ruled Friday. The court’s broad ruling would sharply limit the power that presidents throughout history have used to make recess appointments in the face of Senate opposition and inaction.

A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit flatly rejected the Obama administration’s rationale for appointing three members of the National Labor Relations Board (NLRB) while the Senate was on a holiday break.

Chief Judge David B. Sentelle sharply criticized the administration’s interpretation of when recess appointments may be made, saying it would give the president “free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction.” He added, “This cannot be the law.”

via Court says Obama exceeded authority in making appointments – The Washington Post.

Filed Under: Government, Law Tagged With: , , , 12 Comments

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • helen

    Will someone next question “making law by executive order”?

    Or should we just stop paying Congress, since the White House does it all anyway?

  • HC Wap

    to quote Hillary, “What difference does it make?”

  • helen

    HCW @ 2
    Considering that (with retirements one way or another) we support the equivalent of at least two Congresses, if not three, plus the White House occupants and all their retirement perks (wasn’t it five presidents living, at one time?) perhaps we could look there for savings on “waste and fraud”. And “pork”!

  • David M

    I’ve been following this story and how its being reported is leaving me with a question. As I understand it (which could be wrong) the court didn’t rule that recess appointments were wrong; the court ruled that the Obama administration didn’t actually make a recess appointment in that the Senate wasn’t actually in recess (Which everyone knew was the case at the time–there was no official adjournment.) . So it seems like the court isn’t limiting the president’s power, because no president has ever had the power to call something a recess appointment when it wasn’t. Actually, isn’t the court affirming the role of the executive branch instead of restricting it? Has anyone else noticed this? Is this just another case of sloppy language (maybe mine)? Or is it spin to show a greater level of conflict than there actually may be? I’m curious as to what people think. Especially you, Dr. Veith, as the use of language is right up your alley.

  • http://www.facebook.com/mesamike Mike Westfall

    Obama and his “can’t wait for Congress” attitude. I won’t be surprised of he has the brilliant idea to augment the Supreme Court with an additional 3 hand-picked justices (or more) so that the SCOTUS will redefine meanings of words used in the Constitution and rule in his favor with his imperial power grabs.

  • rlewer

    FDR was going to try that.

  • http://www.redeemedrambling.blogspot.com John

    #4, Yes, that is how I see it as well.

  • DonS

    David M. @ 4: You are correct that the court did not rule that recess appointments are unconstitutional. Its holding was that President Obama’s recess appointments were unconstitutional, because the Senate was not in recess. Which is true, and everyone knew it at the time. Moreover, at least some of these appointments were done without the administration even trying first to make the appointments legally.

    However, the court went further than most people expected, by stating that recess appointments are only for the recess between Congressional sessions. I believe this is the right holding — the founders were providing an option to ensure the continued staffing of government when Congress was out of session for an extended period of time — between sessions. It wasn’t ever intended to provide a way for a president to avoid the constitutional process of advise and consent.

    Both liberals and conservatives have been leery of the expansion of executive power, so should together celebrate this ruling as a slapdown of yet another way in which presidents seek to expand their power at the expense of the legislature.

  • http://theoldadam.com/ theoldadam

    I’d like to have Dustin Brown of the Kings check the President…right into the boards.

    But seriously folks…I’d love to see that.

  • Steve Bauer

    So let me get this straight. It’s important for the administration to be properly staffed when Congress is not in session but it is not important for the administration to be properly staffed when Congress is in session?

  • tODD

    Sorry, but I don’t see this as any great moral victory, even if I agree with it. “Pro forma” sessions are hardly defensible entities themselves. They’re clearly an end run around the system. And somebody has to win the infantile game of one-upmanship that is our federal government, but that doesn’t mean the whole thing isn’t a petty game.

  • DonS

    Steve @ 10: When Congress is in session, the administration is supposed to be staffed by the President making appointments in the usual fashion, subject to the advice and consent of the Senate. When it is out of session, i.e. between sessions, the framers offered a way for the government to be temporarily staffed through recess appointments, which are of short duration, since it is intended that those appointees will ultimately go through the regular appointment process.

    tODD @ 11 — agreed, in principle. But the necessity for pro forma sessions arose when presidents (of both parties) began resorting to the recess appointment to avoid advice and consent. It is a response to the abuse of executive power.


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