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A Constitutional Conflict in the Opening Days of the New Congressional Session

- April 2012

The prospects for cooperative legislative action this year were damaged before the new legislative session even began when President Obama, in a stunning abuse of power, made four “recess” appointments in January when the Senate was not in recess.  The most egregious of those appointments were two of his three recess appointments to the National Labor Relations Board (NLRB).

Article II, Section 2, Clause 2 of the U.S. Constitution gives the president the power to make appointments to key government positions subject to the advice and consent of the Senate.  The next clause gives the president the power to make appointments when the Senate is in recess – “recess appointments.”

The President’s power to make appointments to key positions is obviously essential for government to function.  And the power to make recess appointments ensures that government can function uninterrupted when Congress is not in session – arguably necessary in our early history when Congress recessed for several months at a time; perhaps less so now that we have a full-time Congress that remains in session throughout the year. 

But the Senate’s power of advice and consent is equally fundamental – it is the separation of powers that provides the checks and balances in our government.  Constitutional scholar John McGinnis of Northwestern University School of Law explained:  “The principal concern of the Framers regarding the Appointments Clause, as in many of the other separation of powers provisions of the Constitution, was to ensure accountability while avoiding tyranny”; that while the President was provided the power to nominate, the Senate was given “the check of advice and consent to forestall the possibility of abuse of this power”; and, “as the President has complete discretion in the use of his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination.”

Never have the powers of appointment and advice and consent collided as they have this year, 

In recent years, presidents – both Republican and Democrat – have occasionally used their power to make recess appointments to by-pass the Senate and recess-appoint a high-profile nominee whom the Senate declined or failed to confirm.  President Bush recess-appointed controversial U.N. Ambassador John Bolton; and President Obama gave radical labor lawyer Craig Becker a recess appointment to the NLRB.  But in January President Obama abused his Constitutional powers to make recess appointments exactly as the advice and consent clause was intended to prevent. 

For a president to make a recess appointment, the Senate must – logically – be in recess.  The Constitution provides that neither house of Congress can adjourn for more than three days without the consent of the other house; beyond that there is no absolute definition of what constitutes a Congressional recess.  Justice Departments since 1993 – including President Obama’s in 2010 – have adhered to the opinion that a recess appointment can only be made during a recess of more than three days.  And no president from Reagan forward has made a recess appointment in a recess of less than 10 days.  Until now.

The Senate reconvened every three days in “pro-forma” session in recent months for the express purpose of remaining in session to prevent recess appointments – a practice Senate Majority Leader Harry Reid (D-NV) started to preclude President Bush from making recess appointments.

On January 4th, despite the fact that the Senate was continuing its pro-forma sessions and hadn’t been in recess for even one day, President Obama recess appointed four highly controversial nominees:  Richard Cordray to run the Consumer Financial Protection Bureau and three members of the National Labor Relations Board (NLRB). 

The White House now claims that pro-forma sessions are not real “sessions” because no business is done; despite the fact that significant and substantive legislation -- the payroll tax cut extension -- was passed by the Senate last December in a pro-forma session.  The White House also now claims that the President has the right to determine when the Senate is in session—another outright assault on the separation of powers.

The Cordray nomination had been blocked in the Senate for months by Republicans who have concerns about the power of the agency he was to head and wanted that authority modified. 

The three appointments to fill vacancies on the NLRB were consequential appointments from a labor policy perspective (for more on the NLRB appointments, please see separate Labor staff report), but two of those appointments are consequential in a much more important way. 

By appointing Mr. Cordray the President made an end-run around the Senate’s advice and consent power, but at least the President had properly submitted the nomination and the Senate had had time to consider it.

That was not the case with two of the NLRB nominees.  President Obama nominated these two individuals in December just two days before the Senate went home (but did not recess or adjourn) for the holidays, and recess appointed them just one day after the Senate reconvened for the new session.  Not a single minute of Senate time had been spent on these two nominations, not a single word uttered in debate – in support or opposition – when the President gave them a 2-year term on the NLRB. No committee hearing had been conducted on either – in fact none could have been conducted because the committee had not yet received the paperwork from the nominees necessary to begin the confirmation process.

According to the relevant Senate committee staff, “That paperwork includes a background check, which addresses whether taxes are paid and if the nominee is facing any pending civil or criminal investigations.  This also ensures that there are no conflicts-of-interest before being confirmed for the position.”

These are basic and essential components of the advice and consent process, even before an evaluation of the qualifications or a review of a nominee’s policy positions can begin.

Thus, with these recess appointments, President Obama abrogated the Senate’s constitutional right of advice and consent -- the very abuse of power and exercise of tyranny that scholars say the Constitution was written to prevent. 

Even the normally pro-Obama press noted the audacity of the Obama appointments.  The AP story said:  “Defying Republican lawmakers, President Barack Obama on Wednesday barreled by the Senate and installed a national consumer watchdog on his own . . . In political terms, Obama's move was unapologetically brazen, the equivalent of a haymaker at Republicans in the Senate who had blocked his nominee.”

Response from Congress:

Senate Republican Leader Mitch McConnell (R-KY) said that the President had “arrogantly circumvented the American people" and endangered the nation's systems of checks and balances.   "What the President did today sets a terrible precedent that could allow any future President to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress. This was surely not what the framers had in mind when they required the President to seek the advice and consent of the Senate in making appointments."

John Kline (R-MN), the Chairman of the House Committee on Education and the Workforce, said:  “President Obama’s stunning move to install not one but three new members to the National Labor Relations Board without a hearing or a vote in the United States Senate is an abuse of power and an affront to the will of the American people.” Kline referred to President Obama as “an imperial presidency on steroids.”

House Speaker John Boehner (R-OH) said:  “This is an extraordinary and entirely unprecedented power grab by President Obama . . . [that] would have a devastating effect on the checks and balances that are enshrined in our constitution.”

The Chairmen of the House Committee and Subcommittee with jurisdiction over the NLRB, John Kline (R-MN) and Phil Roe (R-TN), announced that they had asked the NLRB and the White House to provide information about the qualifications of the appointees – because the Senate’s right to review those qualifications had been abridged – and to explain by what legal authority the president made the appointments while the Senate was in pro forma session.

White House response and defense:

Perhaps even more stunning than the act of making the recess appointments was the White House justification for the action.

In a campaign speech in Ohio the day he made the appointments, the President said in response to Senate Republicans blocking the Cordray nomination:  “That’s inexcusable.  It’s wrong.  And I refuse to take no for an answer.”  But the Senate’s prerogative of advice and consent gives them the absolute right to say “no” and the President does not have the right or power to refuse to accept that answer.

And more broadly declaring his willingness to ignore separation of powers, he said, “When Congress refuses to act, and as a result hurts our economy and puts people at risk, I have an obligation as president to do what I can without them.”

Even more remarkable was the White House response to questions about what legal authority they had to decide that Congress was in recess, and particularly how they determined they could make the NRLB recess appointments before the Senate could begin the nomination confirmation process.

One press account called the White House “evasive and belligerent at the same time” when it was questioned about the legal justification for the appointments.  The White House would not say whether it had a legal opinion from the Justice Department Office of Legal Counsel that supports the President’s action.  The Justice Department also refused to respond. 

White House Press Secretary Jay Carney called the question of appointing nominees without providing the Senate an opportunity to review them “esoteric.”  And he said that the President “can’t wait” for the process to work:  “the President acted because Congress wouldn’t, and it was clear that Congress wouldn’t –and numerous senators have made clear they won’t.”  Got that?

On January 12th, more than a week after the recess appointments were made, the White House released a memorandum from the Justice Department justifying the appointments – a legal memo dated January 6th, two days after the recess appointments had been made.  The memorandum was broadly dismissed as a weak legal analysis and a political, after-the-fact attempt to justify the President’s unconstitutional move.  Senate Judiciary Committee Ranking Member Grassley released a statement that said:  “The Justice Department opinion . . . fundamentally alters the careful separation of powers between the executive and legislative branches that the framers crafted in the Constitution . . . and it flies in the face of more than 90 years of historical practice. . . [T]his is clearly an escalation in a pattern of contempt for the elected representatives of the American people . . .  The Senate will need to take action to check and balance President Obama’s blatant attempt to circumvent the Senate and the Constitution.”

The long-term response:

A discussion of whether the President’s actions conflict with the Constitution that he swore an oath to uphold is not “esoteric.”  And his impatience to get his agenda enacted does not give him the right to unilaterally write “advice and consent” and the separation of powers out of our constitutional system.

Immediately after the recess appointments were made, attorneys huddled in Washington – and probably around the country – to determine the appropriate legal response to those appointments.  And on January 13th, just 9 days after the NLRB recess appointments were made and only 5 days after they were sworn in, the Coalition for a Democratic Workplace (CDW – the business coalition which NAW helps manage) and other parties in the lawsuit challenging the NLRB’s Notice Posting Rule filed papers with the court challenging the authority of the Board to implement the Rule because three of the members were appointed without the advice and consent of the Senate.  (For more information on legal challenges to the NLRB recess appointments, please see separate staff report on Labor.)