It’s been a bad week for Barack Obama, and things just got worse. On top of the growing scandals over the I.R.S. targeting conservative groups and the Justice Department snooping on journalists, the president has just received a major constitutional reprimand from the federal courts over his dubious exercise of executive power.
According to the Constitution, the president must seek the “advice and consent” of the Senate when filling certain government positions. The president may only bypass this confirmation requirement in those rare cases where a temporary appointment is needed to “fill up all vacancies that may happen during the recess of the Senate.” This is known as the president’s recess appointment power.
In a decision handed down Thursday morning, the U.S. Court of Appeals for the 3rd Circuit ruled that Obama violated the Constitution by making a recess appointment to the National Labor Relations Board when the Senate was not actually in recess, but was instead holding pro forma sessions for the precise purpose of denying him the lawful ability to make a recess appointment. In an unprecedented move in January 2012, Obama simply ignored this legal impediment and made four purported recess appointments anyway, including the addition of three members to the NLRB.
In its decision, the 3rd Circuit strongly rejected Obama’s unilateral action. “Nothing in the text of the Clause or the historical record suggests that it is intended to be a type of pressure valve for when the president cannot obtain the Senate‘s consent, whether that be because it has become dysfunctional or because it rejects a president‘s nominations,” the court held. Indeed, the opinion continued, under the government’s interpretation, “If the Senate refused to confirm a president‘s nominees, then the president could circumvent the Senate‘s constitutional role simply by waiting until senators go home for the evening.” So much for the separation of powers.
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