- The Washington Times - Monday, January 3, 2000

When the scenario of parents correcting rebellious kids is played out in the context of constitutional government, it is called checks and balances. President Clinton has deliberately created a constitutional confrontation with the Senate and it must do something about it. Americans will see whether the Constitution still works and whether Republicans deserve to retain their majority. Mr. Clinton just can't accept that a GOP-controlled Senate must approve many of his appointments.

The GOP Senate has confirmed more than 95 percent of his thousands of nominees, a higher percentage than Democrats achieved confirming President Reagan's nominees. The problem, though, is that Mr. Clinton not only wants results, but wants to achieve them in the most reckless way possible, thumbing his nose even at the very fundamentals of the Constitution.

The Constitution allows a president temporarily to fill vacancies that occur during Senate recesses without Senate approval. Despite his confirmation success, Mr. Clinton has vowed to use recess appointments to install nominees the Senate has so far declined to confirm. This is an obvious abuse of the Constitution and its separation of powers. Under pressure, he promised in June to follow the policy adopted in 1985 between then-Majority Leader Robert Byrd and Mr. Reagan. This arrangement required timely notice to the Senate when a president contemplated recess appointments.

Mr. Clinton, however, is a liar. He was, after all, both impeached and fined more than $90,000 by a federal judge for lying under oath. So a group of 17 senators, led by James Inhofe, crafted an enforcement mechanism. They signed a letter dated Nov. 10, 1999, stating that if Mr. Clinton makes recess appointments that violate the agreement, the Senate will respond by placing holds on all judicial nominees.

True to form, on Nov. 19, 1999, shortly before Senate adjournment, Mr. Clinton submitted a list of 13 contemplated recess appointments. He apparently thought that a few hours' notice to an almost-empty Senate was advance notice sufficient to allow the leadership on both sides perhaps to take action. Mr. Inhofe was absolutely clear in a Senate floor speech that day: "If anyone other than [named non-controversial individuals on the list] is recess appointed, we will put a hold on every single judicial nominee of this president for the remainder of his term in office." Even Mr. Clinton had to understand this statement. And four days later, Mr. Inhofe wrote Mr. Clinton again to state that any recess appointment other than these would constitute a violation of the spirit of the agreement and trigger multiple holds on all judicial nominees.

Mr. Clinton just can't resist doing what he is told not to do, or what he has agreed not to do, even when the Constitution itself it at stake. On Dec. 17, a month into the current recess, he appointed Sara Fox to the National Labor Relations Board. Miss Fox's name was not on the list.

It's not that the Senate had not refused to confirm Miss Fox; since she was already a member of the NLRB, her nomination was not even before the Senate. Mr. Clinton had at least two legitimate options for keeping her on the NLRB. Knowing that her term would expire on Dec. 16, Mr. Clinton could simply have included her name on the list of contemplated recess appointments. Or he could have waited a few weeks and re-nominated her after the Senate returned to work. He deliberately chose the one illegitimate option and, in doing so, told the Senate he cared nothing for their constitutional role in the appointment process and double-dog dared them to do something about it.

Mr. Clinton is guilty here of constitutional vandalism. His legendary spin machine is already in motion, claiming prior consultation with Sen. Trent Lott about the Fox appointment. But this makes no sense. Her name, along with more than 150 others, may have been on an earlier list, but Senate sources say Mr. Lott dismissed that out of hand and never shared it with other senators. If Mr. Clinton claims this earlier list was the real one, why did he submit a much smaller one on Nov. 19? If he wanted to recess appoint Miss Fox all along, why did he include her on the first list but omit her from the second? If he believed this earlier consultation was valid, why did the White House consult with Mr. Lott again about the Fox appointment in mid-December? Why was there no White House objection or response to Mr. Inhofe's repeated, unequivocal notices that only certain recess appointments, not including Miss Fox, would be acceptable?

Mr. Clinton, not the Senate, has caused the current crisis. Mr. Clinton agreed to give timely notice and failed to do so. Mr. Clinton knew the consequences of abusing his recess appointment power and did it anyway. Mr. Clinton could have avoided this conflict with the Senate but chose the path of maximum confrontation. Those who signed the Nov. 10 letter obviously have an obligation to back up Mr. Inhofe. Since Mr. Clinton has so directly undermined and disregarded the Senate, the Senate leadership has the obligation to do so as well. The Senate's constitutional role in the appointments process, the Constitution's fundamental system of checks and balances, and the integrity of our national leaders are all at stake.

Thomas L. Jipping is with the Free Congress Foundation.

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