There are some provisions in our Constitution that made sense in 1787, when it was first written, but do not in today's world; yet, it is unlikely that there will ever be an amendment to change them, because there are no people around who feel it in their interest to change them. In particular, there are two provisions that made sense when, back in the eighteenth century, it took many days for a Congressman from Georgia to get to the capital and back home, so when Congress adjourned, it would adjourn for months, and could not easily be reconvened. Today, when even Hawaii is only a few hours away by jet flight, and anyone can be summoned back to Washington by a telephone call, neither of these two provisions really makes sense. The first of these two is the “pocket veto” provision, where a President who does not sign a bill in 10 days (actually, a little more, because Sundays are not counted in the time) normally lets it become law, but, if Congress has adjourned, so that he could not send it back with a veto message, it is deemed to be vetoed. (Today, if he really wanted to veto the bill, he could send a message to the Speaker of the House and the Vice-President, as President of the Senate, asking them to reconvene their chambers, and they could do so in a day or two!) The other one of these anachronistic provisions is the “recess appointment” provision, whereby, if the Senate has recessed, the President can make a temporary appointment without getting Senate approval. The appointment expires after the Senate reconvenes and adjourns for the session without considering it, but this could last over a year.
This “recess appointment” provision rarely makes much difference, but President Obama has chosen to abuse this power in order to skirt the Senate confirmation powers and appoint a consumer affairs chief and fill some vacancies on the National Labor Relations Board, the latter, not surprisingly, with people who will solidify labor unions' control over the board. He has claimed that the Senate was in recess, giving him the right to utilize this provision; some Senators maintain that this was not the case, and I have seen, in the Washington Examiner, columns pointing out that up to now, it has been understood that the Senate had to adjourn for at least three days to trigger this provision. I am sure that other columnists besides the Examiner's are making this claim; I just have not seen other papers discussing it. (The “three days” comes from another provision of the Constitution, that says that neither house can adjourn for more than three days without the other's consent.)
The only problem is, who can challenge the President here? Columnists say the Courts will find these appointments unconstitutional, but in the federal court system, you can only bring a suit if you have “standing,” and who would have standing to sue? These appointments will undoubtedly stand, though it sets a bad precedent. We will see Presidents, in the future, wait to make other appointments that they know could never survive a Senate vote until something they can claim is a Senate recess has occurred.
The Constitution really does not define what constitutes a “recess” for this purpose. And nobody, as I said, will have standing to challenge these appointments. So I have to concede that a case can be made that the President is constitutionally permitted to make the appointments. But it is clear that he was extremely unwise to do so. And one day they will come back to haunt the Democrats, when a Republican president does likewise.
This “recess appointment” provision rarely makes much difference, but President Obama has chosen to abuse this power in order to skirt the Senate confirmation powers and appoint a consumer affairs chief and fill some vacancies on the National Labor Relations Board, the latter, not surprisingly, with people who will solidify labor unions' control over the board. He has claimed that the Senate was in recess, giving him the right to utilize this provision; some Senators maintain that this was not the case, and I have seen, in the Washington Examiner, columns pointing out that up to now, it has been understood that the Senate had to adjourn for at least three days to trigger this provision. I am sure that other columnists besides the Examiner's are making this claim; I just have not seen other papers discussing it. (The “three days” comes from another provision of the Constitution, that says that neither house can adjourn for more than three days without the other's consent.)
The only problem is, who can challenge the President here? Columnists say the Courts will find these appointments unconstitutional, but in the federal court system, you can only bring a suit if you have “standing,” and who would have standing to sue? These appointments will undoubtedly stand, though it sets a bad precedent. We will see Presidents, in the future, wait to make other appointments that they know could never survive a Senate vote until something they can claim is a Senate recess has occurred.
The Constitution really does not define what constitutes a “recess” for this purpose. And nobody, as I said, will have standing to challenge these appointments. So I have to concede that a case can be made that the President is constitutionally permitted to make the appointments. But it is clear that he was extremely unwise to do so. And one day they will come back to haunt the Democrats, when a Republican president does likewise.
No comments:
Post a Comment