The repercussions of President Obama‘s decision to make recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau continue to be analyzed. I wrote my R-J column about it today; and here’s an excellent Washington Post blog by Jennifer Rubin collecting a few more viewpoints.
Suffice to say, the consensus of opinion is not good for the president, who, as a one-time professor of constitutional law, should know than one cannot make a recess appointment unless the Congress is actually in recess. Instead, the Senate has been gaveling in and out quickly every three days in so-called pro forma sessions, precisely to avoid going into recess that would give Obama the chance to make recess appointments.
But in examining the question, another thought occurred to me, one that would have allowed Obama to do what he obviously wanted to do in the first place, but without doing violence to the Constitution by pretending the Senate was in recess when it’s not.
The solution is found in Article 2, Section 3 of the Constitution, just one section after the passage that gives the president the authority to make recess appointments in the first place. And it read thus:
“…he may, on extraordinary occasions, convene both houses [of Congress] or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper….”
Here, the pro forma sessions were made necessary because the House would not agree to recess, fearing that Obama would make recess appointments. So, what’s to stop the president from asking Senate Majority Leader Harry Reid to move that the Senate adjourn for a few weeks? The House, sensing what was afoot, might object, at which time the president under Article 2, Section 3 could adjourn the Congress to a date two weeks hence.
(If the House agreed, the point would be moot. And if Republican senators decided to filibuster the measure, Reid could simply keep them there — all of them — conducting whatever business suited his fancy, over the Christmas and New Year’s holiday, and Republicans could scarcely complain it was his fault.)
Then, after 10 days of recess (the traditional time lapse necessary to justify a recess appointment, although that limit is not specified in the Constitution itself), Obama could have made his appointments, which would have been beyond question as to their constitutionality.
At least that method would have avoided the brute-force approach that Obama took in making appointments that are sure to be challenged by organizations regulated by the NLRB and the consumer bureau. And he’d also have avoided being called a “constitutional anarchist” in the Washington Post, which is never a good thing for a president. Not only that, but Reid could have preserved his use of pro forma sessions for future use, just in case a Republican gets elected in 2012.
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