So you know those four “recess appointments” that President Barack Obama made a little more than a year ago when the U.S. Senate was not in recess?
So you know those four “recess appointments” that President Barack Obama made a little more than a year ago when the U.S. Senate was not in recess? Well guess what? It turns out that, according to a unanimous 46-page ruling by a three-judge panel of the Washington, D.C., Circuit Court of Appeals, it’s unconstitutional for a U.S. president to make recess appointments when the Senate is not in recess. No, really. I’m not joking: Presidents in fact must wait until the Senate is in recess before they can make recess appointments. They aren’t allowed to proclaim, as Obama essentially did, “The Senate says it is in session, but I want to appoint these guys who I know don’t stand of chance of Senate approval, so I hereby declare the Senate to be in recess, and will now appoint them without the advice and consent of the Senate.” I know, it’s absolutely amazing, isn’t it? Could anyone have possibly seen that coming? A U.S. president being required to abide by the U.S. Constitution? What a curious, archaic notion! As you might expect, Obama doesn’t like this judicial ruling very much. His press secretary Jay Carney said it was “novel and unprecedented,” which is kind of funny, because it just so happens that “novel and unprecedented” are precisely the words that one should use when describing the act of making recess appointments when the Senate is in session. In the written opinion of the three-judge panel, Chief Justice David Sentelle said Obama’s usurpation of Congressional power was contrary to “not only logic and language, but also constitutional history.” “An interpretation of ‘the Recess’ that permits the President to decide when the Senate is in recess,” Sentelle explained, “would demolish the checks and balances inherent in the advise-and-consent requirement, giving 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. This cannot be the law.” According to this ruling, Obama’s four non-recess recess appointments are null and void, which means none of the decisions and regulations made by them have any legal force. The prudent, lawful and, above all, moral thing for Obama to do would be to dismiss these four men and submit them or four others for Senate approval. But experience shows that Obama has something of a penchant for imprudent, unlawful and immoral acts — and so, uncontrite, Obama is keeping his four non-recess appointees in office, and they are continuing to write federal rulings and regulations as if the judges of the D.C. Circuit Court of Appeals aren’t standing right behind them erasing each of their sentences as soon as they write them. The White House will probably appeal this ruling to the Supreme Court — but until they do, the D.C. Circuit Court of Appeals is bound by this decision. That means any time someone within the jurisdiction of the D.C. court disagrees with a decision or regulation that originates from the offices of Obama’s non-recess appointees, all he has to do is file an appeal on the grounds that the non-recess appointees have no legal authority to act, and the judge will be bound to rule in favor of the plaintiff. When (not if) the Supreme Court hears this case, what will the court decide? My guess is the Supreme Court will agree that the four non-recess appointees were illegally appointed, but they probably won’t uphold the D.C. court’s ruling in its totality. That’s because Carney does have a point — in part, this ruling is novel and unprecedented, in that it pronounces a new definition of “recess” that would mean not only Obama but every president for the past century or so has acted improperly. The D.C. court’s definition of “recess” is much stricter than the previous accepted definition, and for that reason it’s unlikely to be upheld by the Supreme Court. But the three-judge panel acted perfectly in accordance with the previous accepted definition when it gave Obama’s illegal appointees the old heave-ho. Unfortunately, correctly interpreting and applying the Constitution is a comparatively simple and easy task. The really hard part is getting Obama not to commit high crimes and misdemeanors. Jared Olar may be reached at firstname.lastname@example.org. The views expressed in this column are not necessarily those of the newspaper.